Central Administrative Tribunal - Chandigarh
Abhay vs Education Deptt., Ut Chandigarh on 21 August, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.60/204/2020
DATED THIS THE 21ST DAY OF AUGUST, 2023
(Reserved on: 24.07.2023)
CORAM:
HON'BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Abhay aged 33 years s/o Bharat Bhushan r/o House Number
358, Sector 15-A, Chandigarh.
....Applicant
(By Advocate: Sh. Atul Arya )
Versus
1. Chandigarh Administration through Secretary, Department
of Higher Education, U.T. Chandigarh, Sector 9, Chandigarh.
2. Director Higher Education, Department of Higher Education,
U.T. Chandigarh, Sector 9, Chandigarh.
3. University Grants Commissions through its Chairman,
Bahadur Shah Zafar Marg, New Delhi-110002.
4. Aarti Bhatt d/o Sh. Sampurna Nand Bhatt r/o SCF 115,
Phase 3B2, S.A.S. Nagar, Moihali.
....Respondents
(By Advocate: Sh. Rohit Sharma for R. No.1 and 2, Sh. Rohit
Seth for R. No.4, None for R. No.3).
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ORDER
PER: RASHMI SAXENA SAHNI, MEMBER (A)
1. Present original application has been filed by the applicant seeking following relief(s):-
"i. That the appointment of Respondent No. 4 to the post of Assistant Professor in Music (Vocal) at the Government College of Education, sector 20, Chandigarh, be quashed. ii. That the Respondent No. 1 and 2 may be directed to appoint the Applicant on the post of Assistant Professor in Music (Vocal) at the Government College of Education, sector 20, Chandigarh.
iii. That the Applicant be given all the consequential benefits such as pay and allowances and other service benefits as are applicable upon the said post of Assistant Professor in Music (Vocal)."
2. According to the applicant, he completed Masters of Arts degree in Music (Vocal) in the year 2011. Thereafter he did B.Ed. in April 2012 and M.Ed. in 2015. He also qualified National Eligibility Test by UGC for Assistant Professor in December 2018.
3. In August 2019, respondent No.2 invited applications for the post of Assistant Professors (on contract basis) through advertisement in newspaper from eligible candidates in Govt. College and Institutions of U.T. Chandigarh. Candidates were required to possess educational qualification as per UGC regulations along with copies of copies of certificates in various subjects. The 3 advertisement calling for applications from eligible candidates was published by respondent No.2 on 08.08.2019 (Annexure A-5). In the said advertisement, a post of Assistant Professor Music at Government College of Education, Sector-20, Chandigarh, was also advertised. The applicant submitted his application along with relevant documents with regard to his qualification and experience. On 31.10.2019, the applicant also appeared in the interview. Out of three candidates, only two candidates i.e. applicant and respondent No.4 appeared in the interview for the post of Assistant Professor Music. In January 2020, list of selected candidates was uploaded on the official website of respondent No.2 wherein respondent No.4 was selected for the above mentioned post and the applicant was kept in waiting list. A copy of the marks given for academic as well as for interview received under RTI (Annexure A-7) shows that the applicant had received 49.2 total marks whereas respondent No.4 had got 54.6 marks. These marks were calculated by adding marks obtained on the basis of academic qualification as well as that of interview.
4. According to applicant, adding marks obtained from academic qualification as well as interview is in violation of 4 UGC Regulations 2018. Note given under Regulation 4.1 of 2018 Regulations states as following:-
"Note: The Academic score as specified in Appendix II (Table 3A) for Universities, and Appendix II (Table 3B) for Colleges, shall be considered for short-listing of the candidates for interview only, and the selections shall be based only on the performance in the interview."
According to him had respondent No.2 followed UGC regulations 2018 then, in view of the note above, the applicant would have been selected as he obtained more marks in the interview i.e. 18 as compared to respondent No.4 who obtained 14 marks in the interview. The applicant contends that since he secured more marks in the interview as compared to respondent No.4, he should have been appointed to the said post as per UGC Regulation 2018. The applicant has also filed affidavit dated 09.03.2020 regarding status report with regard to dasti notices which were issued by the Tribunal vide order dated 02.03.2020 in the present O.A. While the notices were served on respondent No.1 and 2 but respondent No.4 refused service and did not receive notice.
5. The applicant had also filed M.A. No.1407/2020 for preponing the date of hearing on 07.12.2020. In the said M.A. also he mentioned that post of Assistant Professors which were filled against advertisement, their period was 5 fixed till 31.03.2020, which was further increased to 31.05.2020 by the respondent department. Thereafter, the Respondent department took a decision to relive all the 42 Assistant Professors appointed by them on contract basis, on account of completion of their contract period on 31.05.2020. This decision of the Respondent Department was challenged and O.A. No.293 of 2020, titled as Dr. Mohammad Sohail & Others Vs. Education Department & Ors., was filed before this Tribunal by the selected candidates (in which the Respondent No. 4 was one of the Applicant) with a prayer that they may not be relieved from their posts on 31.05.2020 even after the completion of their contractual period. The aforesaid matter was disposed of by Tribunal vide order dated 26.05.2020, which was passed directing the Respondents not to dispense with the services of the Applicants/appointed candidates (including Respondent No.
4) unless they have some disqualification qua their continuation.
6. According to the applicant in reply dated 30.11.2020, in the present case he has challenged the appointment of respondent No.4 to the said post as illegal, on the grounds that respondent No.4 does not possess requisite 6 qualification, i.e. Masters of Arts degree in Music (Vocal) which is a prescribed qualification as per the UGC regulations. Second ground is that her performance in the interview is much less as compared to the Applicant and still she was selected and appointed to the said post, which is a clear cut violation of the prescribed UGC regulations, 2018 and has placed reliance on note under regulation 4.1 in 2018 regulations. Further in his replication has stated API regulations were with regard to self and not other candidates. In Annexure A-7, the interview was conducted for Music Vocal. Applicant has relied upon Supreme Court decision in the case of Bedanga Talukar vs. Saifudaullah Khan & Ors. in Civil Appeal No.8343-8344 of 2011. The applicant has also on 18.01.2020 sought and obtained information under RTI (Annexure A-6) of the application form of respondent No.4. As per information required in application, it is clear that 2018 guidelines not 2010 UGC have been followed and that respondent No.1 and 2 adopt UGC guidelines 10 or 18 as suits them (Annexure A-8).
7. Respondents No.1 and 2 have filed their reply on 26.10.2020 stating that all 3 eligible candidates were called for interview however, one candidate Ruchika did not 7 attend hence two candidates applicant and respondent No.4 were interviewed. According to respondents, as per existing Recruitment Rules of 2011, there is only mention of the posts of Assistant Professor in Music and there is no further bifurcation of posts into Instrumental or Vocal. Therefore, it is not relevant whether the post was meant for Vocal or instrumental and only Master Degree or further academic qualification experience in the discipline of Music was required. Respondent No.4 possessed the requisite qualification for the post of Assistant Professor in Music as per the existing Recruitment Rules, 2011. Therefore, the Selection Committee after assessing the educational qualification / competence of Respondent No.4 selected her for the post of Assistant Professor in Music (Annexure R-2).
8. Respondents have further mentioned, "that the UGC Regulation, 2018 has yet not been adopted by the Administration, therefore, there was no mention in the said advertisement that selection would be done as per UGC Regulations, 2018. The merit of the candidates was ascertained by taking into account the provisional API score of the candidates and their overall performance during the course of the interview. Further, the final result in all the subjects was declared in a procedural and 8 transparent manner as per the provisions of the UGC Regulations, 2010. The selection procedure was adopted as per the provisions stipulated in UGC Regulations, 2010. The tentative API Score was uploaded first time on 14.9.2019 in public domain and discrepancies, if any, all the candidates were supposed to register their objections at that time. Many objections were received from the aspiring candidates, but no such representation/objection was received from the applicant. The candidates were also given chance on the date of interview for further verification/objection under signature, but no such representation was received from the applicant at that time also. Respondents No.1 and 2 have also relied upon the case of Union of India vs. A.K. Narula (2007) 11 SCC 10 and Bhushan Uttam Khare vs. The Dean, B.J. Medical College and others (1992 (2) SCC) 220.
9. Answering Respondent No.4 has filed reply dated 24.01.2021 stating therein that in August 2019, respondent No.2 invited applications from eligible candidates on contract basis in all Govt. Colleges and Institutions of U.T. Chandigarh. Candidates were required to possess educational qualification as per UGC norms along with copies of certificates. The advertisement calling 9 for applications from eligible candidates was published on August 2019 and out of which one post of Assistant Professor in Music at Government College of Education, Sector 20, Chandigarh, was also advertised. Seven candidates including, Applicant, Respondent No.4 and others applied for the said post. Respondent No.2 uploaded the list of candidates who applied for the said post along with the status of all the seven candidates on the website on 14.09.2019 according to which only three candidates i.e. applicant who was conditionally eligible as the he did not submit his M.Ed. degree, Respondent No.4 and candidate named Ruchika fulfilled the qualifications and eligibility criteria laid down by Respondent No.2. On September 28, 2019 Respondent No. 2 uploaded the provisional merit list of the subject listing three candidates as eligible for the said post (Annexure A-8).
10. Further, respondent has also relied upon provision of the National Council for Teacher Education a statutory body of Indian Government set up under the National Council for Teacher Education Act. The relevant extract of notification of National Council for Teacher Education, New Delhi, 28th November 2014, Appendix IV (Annexure as R-4/1) read as follows:-
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NCTE Norms and Standards for the B.Ed programme leading to the Bachelor of Education (B.Ed.) Degree, the Academic faculty under the NCTE regulation 2014 (regulation 5.1) for the said course comprises of 16 full- time faculty members.
The distribution of Faculty across different curricular areas shall be as under:
Principal / HOD One Perspectives in Education Four Pedagogy Subjects Eight
(Maths, Science, Social Science, Language) Health and Physical Education One Fine Arts One Performing Arts (Music/Dance/Theatre) One From the perusal of this norm in the light of NCTE regulation 2014, the concerned subject is Music and Respondent No.4 possesses the Master's Degree in Music with 81.5% marks. Keeping that in mind Respondent No.4 applied for the post in question, she was treated eligible as per laid down norms and got selected as per her merit in the selection. The conduct of applicant can be seen from firstly silently participating the selection process without any protest, not representing to the respondents to raise grievance, if any, and then obtaining information under RTI pertaining to the answering respondent without her 11 consent and finally in challenging the selection of answering respondent without challenging her appointment order and as such under such circumstances applicant cannot claim himself to be appointed.
11. Answering Respondent No.4 submitted that the applicant has filed the present Original Application only with a view to harass the answering respondent by concealing material facts from this Court hence the present Original Application is not entitled to be heard on the merits of his claim. She has submitted the applicant has not exhausted statutory remedy before departmental authorities. According to respondent No.4 for appointment as Assistant Professor, respondent No.2 adopted the criteria of 65:35 (65 marks for academic score and 35 for interview) was known to the applicant as the Provisional Merit list was uploaded from time to time so if applicant had any issue with the selection criteria of respondent No.2, he should have immediately raised the issue which he did not. Final marks of respondent No.4 were 54.63 whereas applicant‟s marks were 49.2 which clearly shows that appointment of respondent No.4 was as per her merit position. The O.A. itself is barred in terms of Section 20 of Administrative Tribunal Act, 1985. It has further been submitted that 12 applicant has failed to challenge the appointment order of answering respondent and as such under such circumstances applicant cannot claim himself to be appointed. Reliance is placed to draw ratio from Shri Noreshwar Raghunathrao Shende v. Shri Sudhakar Baburao Nangnure, (Bombay) (DB) being W.P. Nos. 8859, 8860 and 9291 of 2016 decided on 16.11.2017. Rajeshwari v. State of U.P. (Allahabad). 2014(8) SCT 451 (Para 15) and Royapettah Benefit Fund Investors grievance Consortium v. Reserve Bank of India (Madras) being W.P. No. 7318 of 2000 and W.M.P. Nos. 10852 and 10853 of 2000 decided on 28.06.2000 wherein it was held that "Without challenging the appointment of the sixth respondent, the petitioner seeks a writ of mandamus to appoint a fit person as custodian for taking over the management of the sixth respondents, which in my considered view is not permissible in law. Hence, the writ petition is dismissed."
12. Respondent No.3 UGC has also filed reply dated 12.04.2021 stating that UGC Regulations are mandatory in and all the Universities/Institutions/Colleges are required to strictly comply with them. As per clause 1.2 all the aforesaid Regulations, every University, Institution or deemed to be University shall, as soon possible but not 13 later than six months of coming into force of these Regulations, take effective steps for the amendment of the statutes. We have perused the above reply and we find that these Regulations are applicable to Universities/Institutions/Colleges which function independently. However, here entire process was conducted by the Director, High Education, Chandigarh Administration, under which these Govt. Colleges and Institutes function. They have adopted UGC norms and respondent No.1 and 2 have clarified that entire process of selection/appointment has been conducted as per UGC Regulations 2010, therefore, we find no infirmity with the process of selection.
13. We have considered all the arguments and facts on record. We find as per Annexure A-5 applications from eligible candidates were called for various subjects in different institutions fulfilling educational qualifications as per UGC norms. At S. No.26 of the advertisement was post of Music in Govt. College of Education in Sector-20. We find further from Annexure A-17 dated 05.02.2020 that in the marks awarded there was no such bifurcation of Vocal or Instrumental. Column 8 of RRs provides educational qualification is as under:-
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"Essential:
(i) Good Academic record with at least 55% of the marks or an equivalent grade of B in the 7 point scale with letter grades O,A,B,C,D,E and F at the master's degree level in the relevant subject from an Indian University or an equivalent degree from a Foreign University.
(ii) M.Ed. degree from a recognized University or equivalent."
14. From the perusal of list of selected candidates Annexure A-10, it is seen that at serial No.5 against Music (Vocal) Aarti Bhatt respondent No.4 has been selected having scored more marks. The applicant has not been rejected but placed in waiting list at No.2, which implies in our view that in case of selected candidate not joining, he would have been offered the post. Further, respondents No.1 and 2 in their reply have mentioned that the UGC Regulation, 2018 has yet not been adopted by the Administration, therefore, there was no mention in the said advertisement that selection would be done as per UGC Regulations, 2018 on which the applicant is relying. The merit of the candidates was ascertained by taking into account the provisional API score of the candidates and their overall performance during the course of the interview. All the selection procedure was adopted as per the 2010 provisions stipulated in UGC Regulation, 2010. The final result in each subject was declared strictly as per 15 the provisions of the UGC Regulations, 2010. So we find all the candidates for various subjects have been selected in the same manner under same regulations. In fact it is surprising that applicant sought information under RTI about the form filled by respondent No.4 to claim that data sought in form is as per UGC regulation 2018. The applicant would have also filled similar form and so what was the need for seeking this information under RTI is unexplained. Both applicant and respondent was called for interview after considering eligibility as per the form filled in accordance with UGC norms mentioned in the advertisement. Therefore, in our opinion there is no arbitrariness in selection process and applicant cannot claim that in his case UGC Regulations 2018 should have been applied.
15. We have also perused M.A. No.973/2023 filed by respondent No.4 on 30.04.2023 mentioning therein that the Principal Government College of Education, Sector-20, Chandigarh vide communication dated 26.06.2019 (Annexure MA-2), addressed to Director Higher Education, Chandigarh Administration well before issue of advertisement, has clarified that for the post of Assistant Professor in Music, the respective equivalent means „Master 16 of Arts Music (Vocal) or „Master of Arts Music (Instrumental). Thus candidates with qualification of Music (Vocal) and Music (Instrumental) both were eligible to apply and we find it so as both were called for interview. We have also considered Column 8 of RRs which provides for M.Ed. Degree in relevant subject and also pedagogy subjects as per NCTE Regulations 2014, wherein performing Arts (Music) is not bifurcated into vocal and instrumental. We agree subject is „Music‟ and Vocal and Instrumental are mere sub-sets of Music.
16. Having considered the arguments advanced by the parties and case law relied upon by them, we find that respondent No.4 has certainly secured more marks than the applicant. As per Annexure A-17, applicant has NIL score in Publications as per UGC Guidelines, academic achievement and teaching experience, while both have equal marks in domain knowledge and marginal difference in teaching skills and main difference is in interview. But in the light of clarification issued by Principal Government College of Education, Sector- 20, Chandigarh, candidates with qualification of Music (Vocal) and Music (Instrumental) both were eligible and reply of respondents No.1 and 2 that UGC Regulations 2018 have not been adopted and that we find advertisement only referred to guidelines as per UGC norms, we are therefore not in agreement with applicant‟s contention that note in UGC 17 Regulations 2018 should have been applied for his selection. We agree that advertisement cannot over ride the rules and create a right in favour of candidate where none exists.
17. We find authorities have taken all factors into consideration and made selection as per UGC Guidelines of 2010 and not 2018. The API scores were also put in public domain and were never challenged by the applicant. So we find this entire exercise of agitating against the appointment of respondent No.4 is without any basis.
18. We thus find no reason to interfere with this contractual appointment. The Tribunal‟s order also is with reference to disqualification qua continuation and not appointment. Its trite law that Contractual employees cannot be replaced by another set of contractual employees. Since in our view respondent No.4 is eligible for appointment, there is no violation of Tribunal‟s order dated 26.05.2020.
19. Accordingly, the O.A. being devoid of any merit is dismissed.
All the pending MA(s), if any, also stand disposed of. No costs.
(RASHMI SAXENA SAHNI) (RAMESH SINGH THAKUR) MEMBER (A) MEMBER (J) /kr/