Patna High Court
Achalesh Nandan vs National Institute Of Technology And ... on 19 April, 2007
Equivalent citations: 2007(2)BLJR1901
Author: V.N. Sinha
Bench: V.N. Sinha
JUDGMENT V.N. Sinha, J.
Page 1903
1. Heard learned Counsel for the parties.
2. Petitioner initially filed this writ petition questioning the failure of the Respondent National Institute of Technology, Patna (hereinafter referred to as the NIT) to call him for appearing in the interview pursuant to Advertisement No. NITT/Apt. 01/2005 dated 20.5.2005, Annexure-8 for the two post of Lecturer in Architecture on the ground that the said omission of NIT is arbitrary and violative of Articles 14, 16 of the Constitution as the NIT ignored the fact that the petitioner possessed minimum qualification for the post, namely, 1st Class Bachelor's degree in Architecture and yet was not called to appear in the interview pursuant to Advertisement, Annexure-8.
3. During the pendency of this application, Private Respondent Nos. 5 to 7 were appointed as Lecturer in response to the advertisement, Annexure-8 in Architecture, vide notification dated 6.12.2005, Annexure-12 issued by the NIT and by filing amendment petition, petitioner sought permission to implead Private Respondent Nos. 5 to 7 as also made prayer to quash the notification dated 6.12.2005, Annexure-12.
4. Petitioner assailed the omission of the Respondents not to call him for appearing in the interview in response to the Advertisement, Annexure-8 with reference to the qualification and experience clause of the advertisement, which provided that the qualification and experience etc. for the different posts advertised shall be as per the AICTE norms and advertisement, Annexure-8 itself indicated that the minimum qualification for the post of Lecturer in Architecture is 1st Class Bachelor's degree in Architecture and petitioner, who passed Bachelor's degree in Architecture from Bihar College of Engineering, Patna University in 1st Class with distinction in the year 1993 and applied pursuant to Advertisement, Annexure-8, should have been called for participating in the selection process/ appearing in the interview and for failure to call him to participate/ appear in the selection process/ interview, the selection and appointment of Private Respondent Nos. 5 to 7 on the post of Lecturer, vide notification dated 6.12.2005, Annexure-12 is vitiated as violative of Articles 14 and 16 of the Constitution. In this connection, it was further submitted that after issue of the advertisement on 20.5.2005, the minimum qualification for the post of Lecturer in Architecture and other streams was altered from 1st Class Bachelor's degree to Master's degree in the third meeting of the Board of Governors of the NIT held on 27.9.2005, Annexure-C, which is also arbitrary and violative of Articles 14 and 16 of the Constitution of India and be quashed as having issued the advertisement dated 20.5.2005 indicating minimum qualification for the post of Lecturer as 1st Class Bachelor's degree the same should not have been altered to Masters degree during the selection process. In this connection, it was also pointed out that in terms of the advertisement, the minimum qualification for the post advertised is as per the AICTE norms and minimum qualification for the post of Page 1904 Lecturer/ Architecture as has been provided by the AICTE is 1st Class Bachelor's degree in Architecture without any work experience and the action of the NIT to alter the minimum qualification from 1st Class Bachelor's degree to Master's degree is contrary to the terms of the advertisement, Annexure-8 and appreciating the same the selection of Private Respondent Nos. 5 to 7 be set aside with direction to the NIT to even consider the case of the petitioner along with other qualified candidates and then to conclude the selection process. In support of the submission that the selection criteria cannot be changed after issue of the advertisement i.e. during selection process, learned Counsel for the petitioner cited the following case law in the case of A.A. Calton v. Director of Education and Anr. , in the case of P. Mahendran and Ors. v. State of Karnataka and Ors. , in the case of Gopal Krushna Rath v. M.A.A. Baig (Dead) By Lrs. and Ors. , in the case of Secretary, A.P. Public Service Commission v. B. Swapna and Ors. reported in 2005(3) PLJR 194 (SC) and in the case of Nutan Kumari v. The State of Bihar and Ors. reported in 2005(3) PLJR 319.
5. Learned Counsel for the petitioner further submitted that NIT is an Autonomous Body and is under control, supervision and guidelines issued by its Board of Governors which consists of academicians, representatives from the Ministry of Human Resources, Government of India, IIT Kanpur, Financial Advisor, MHRD, Govt. of India, representative of AICTE and other luminaries and is bracketed with other NITs established in other parts of the country, as such, should have uniform criteria for appointment on different faculty positions as provided by the AICTE. In this connection, learned Counsel for the petitioner relied on the following case law in the case of State of T.N. and Anr. v. Adhiyaman Educational & Research Institute and Ors. and in the case of Chas Bokaro Vikas Samitee and Anr. v. The Union of India and Ors. reported in 1998(1) PLJR 138.
6. The appointment of Private Respondent Nos. 5 to 7 was further challenged on the ground that against two post of Lecturer in Architecture advertised vide advertisement, Annexure-8, five persons were given call letters to appear in the interview, out of whom four appeared and three were selected, which is violative of Articles 14 and 16 of the Constitution of India as the candidates fulfilling the minimum qualification like the petitioner was not even called to appear in the interview and under order dated 12.12.2005, passed by this Court, the appointment of Private Respondent Nos. 5 to 7 was made subject to the result of this case. In this connection, learned Counsel for the petitioner relied on the case law in the case of Secretary, A.P. Public Service Commission v. B. Swapna and Ors. (Supra).
7. Learned Counsel for the petitioner further assailed the stand taken by the NIT in its counter/ supplementary counter affidavit that the minimum qualification for the post of Lecturer in the Architecture Stream is Master's degree in Architecture is not only contrary to the advertisement as also the AICTE norms but also an attempt to mislead this Court. In this connection, learned Counsel particularly referred to the supplementary counter affidavit of Respondent Nos. 1 to 4 from Page 272 to 337 and with reference to the submissions aforementioned, submitted that the resolution of the Board of Governors dated 27.9.2005, Annexure-C altering the qualification for the post of Lecturer from 1st Class Bachelor's degree to Mater's Page 1905 degree as also the appointment of the Private Respondent Nos. 5 to 7 made on that basis under Annexure-12 be quashed.
8. Counsel for the Respondent Nos. 1 to 4 opposed the prayer made in the writ petition and submitted that the NIT is an Autonomous Institution working under its Board of Governors, which consists of several academicians, representatives from the Ministry of Human Resources Development, Government of India, IIT Kanpur, representative of AICTE. He further submitted that the NIT has adopted the AICTE norms as minimum qualification for different faculty positions, but considering the instruction of Ministry of Human Resources Development contained in letter dated 8.4.2005, Annexure-H/1, permitting NIT to provide on its own the qualification for the different faculty positions with the approval of the Board of Governors, stated in the advertisement itself that the NIT reserves the rights to call only short listed candidates for interview as also to relax the requirement in exceptionally deserving cases with further stipulation that any change subsequently made in the advertisement by the Board of Governors shall be effective on the different clauses of the advertisement and appreciating the said stipulation, 100 faculty positions advertised for 13 faculties including MBA, MCA were redistributed in 11 faculties as the Board of Governors of NIT, having come to learn that separate posts of faculty member of MBA, MCA shall be sanctioned, decided not to appoint Lecturer in MBA and MCA and thereby the number of posts as advertised for Lecturer in MBA and MCA were redistributed in other Engineering Streams vide resolution of the Board of Governors dated 1.6.2005, Annexure-J/1. Reference in this connection was further made to paragraph 17 of the supplementary counter affidavit and Annexure-J/1 appended thereto.
9. It was further submitted that in response to the advertisement for 11 disciplines, 608 applications for the post of Professors, Assistant Professors and Lecturers were received. Out of 608 applications, 465 were for the post of Lecturers. Considering the larger number of applicants, the NIT in its third meeting of the Board of Governors held on 27.9.2005 decided to short list the candidates without superseding the basic qualification, meaning thereby if the candidate apart from having minimum qualification, possessed superior qualification with specialization then they should be short listed and called for interview ignoring those who possessed bare minimum qualification, which decision was notified on 30.9.2005, vide Annexure-9, perusal whereof indicates that for the Architecture Stream candidates with M. Arch. were to be called for interview. As the petitioner did not possess M. Arch qualification, he was neither short listed nor served with call letter to appear in the interview and out of 25 applications received for the post of Lecturer in Architecture those five who possessed the M. Arch. qualification were short listed and issued call letters and four of them appeared and three were selected. The selected candidates, Respondent No. 5, Kamini Sinha had 1st Class 1st plus distinction at Graduate level and had also obtained 1st Class 1st at Post Graduate level and enrolled for Ph.D., Respondent No. 6, Bijay Kumar Das had also 1st Class at Graduate level with distinction and obtained Master's degree in city planning from IIT Kharagpur and was also enrolled for Ph.D., the third selected candidate, Respondent No. 7, Shailendra Kumar Mandal had 1st Class Bachelor's degree with distinction and obtained Master's degree in city planning from IIT Kharagpur with 1st Class. In the back ground of the aforesaid facts, it was submitted by the counsel for the NIT that failure to call Page 1906 the petitioner for interview is neither erroneous nor arbitrary and violative of Articles 14 and 16 of the Constitution of India and the writ petition is fit to be dismissed.
10. Counsel for the Private Respondent Nos. 5 to 7 has reiterated the submissions made on behalf of the NIT and its functionaries and further submitted that considering the number of applicants, the NIT resolved to short list the applicants and call only those for interview who had master's degree, which was in tune with the instructions of the Ministry of Human Resources Development contained in letter dated 8.4.2005, Annexure-H/1 as also the stipulations of the advertisement which permitted short listing without superseding the basic qualification. It was further submitted that at the time of issue of advertisement under letter dated 11.3.2005, 100 posts of faculty members remained sanctioned for the NIT, Patna, which was distributed amongst the 13 faculties, including MBA and MCA but later NIT was informed that separate posts for faculty members of MCA and MBA shall be sanctioned and taking into account such information the earlier sanctioned 100 posts were redistributed amongst the 11 faculties, including the Architecture, vide resolution of the Board of Governors dated 1.6.2005, Annexure-J/1 and the chart showing redistribution of posts is contained in Annexure-K/1 and Private Respondent No. 7 has been appointed against the third post which came to Architecture faculty after redistribution as per the decision of the Board of Governors dated 1.6.2005 and thus there is no illegality at all in the appointment of Private Respondent Nos. 5 to 7 and the writ petition be dismissed.
11. In support of the aforesaid submission, learned Counsel for the Private Respondent Nos. 5 to 7 relied on the following judgments of the Hon'ble Supreme Court in the case of Raj Kapoor and Ors. v. State (Delhi Administration) and Ors. , in the case of Government of Andhra Pradesh v. P. Dilip Kumar and Anr. & analogous matters, , in the case of The "Banking Service Recruitment Board v. Ramalingam and Ors. , in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. , in the case of Rajendra Prasad Mathur v. Karnataka University and Anr. and in the case of Miss Nilima Shangla v. State of Haryana and Ors. . Out of the six case law relied on by the learned Counsel for the Private Respondent Nos. 5 to 7 notice is required to be taken of the case of Government of Andhra Pradesh v. P. Dilip Kumar and Anr. and analogous matters, (Supra) giving a few facts of the said case. Pursuant to an advertisement for direct recruitment for the post of Deputy Executive Engineer, both Graduate and Post Graduate Engineering degree holders applied and were subjected to a written test and those who secured the qualifying marks, were called for interview. The Service Commission on an interpretation of Rule 4 of the Engineering Service Rules, first selected Post Graduate Engineers for the available vacancies and since sufficient number of Post Graduates were available, no Graduate was selected for the posts in question. In the reserved category, Post Graduates to the extent they were available were selected and in the case of non-availability of Post Graduate, Graduates were selected for appointment on the post in question. The minimum educational qualification prescribed under Rule 4 was Graduation. Note 1 to Rule 4 provided that Post Graduate qualification shall be treated as an additional qualification and preference shall be given to Post Page 1907 Graduates. Two interpretations of Note 1 to Rule 4 were canvassed. The view urged by the Post Graduates was that in the matter of direct recruitment from amongst those who have secured the minimum qualifying marks, the candidates with Post Graduate qualification should be first appointed and only against remaining vacancies, the Graduates should be selected. The other view argued on behalf of the Graduates was that the preference rule can come into play only where two candidates have secured equal marks in which case the candidate possessing Post Graduate qualification will be preferred if the other candidate does not possess that qualification but not otherwise i.e. not if a Graduate has secured higher number of marks than the Post Graduate. The Hon'ble Supreme Court having considered the provisions of Rule 4 read with Note 1 held that the view taken by the Single Judge of the High Court, that from amongst the candidates who have secured minimum qualifying marks, the candidates having Post Graduate qualification should be first exhausted and if they are not available in sufficient number then only Graduates should be selected on merits from amongst those who have secured minimum qualifying marks, appears to be plausible in the context of the historical background of the service as by treating Post Graduate as a class and giving them preference does not in any manner violate Articles 14 and 16 of the Constitution of India. The other case law relied on by the counsel for the Private Respondent Nos. 5 to 7, namely, the case of the Banking Service Recruitment Board, Madras (Supra), the Hon'ble Supreme Court approved the fixing of different cut off marks for each of the papers and held such practice of fixing different cut off marks for each of the papers as not arbitrary and violative of Articles 14 and 16 of the Constitution of India and set aside the direction of the High Court to call even such candidates who had not secured cut off marks in one of the papers. The case of Om Prakash Shukla and Rajendra Prasad Mathur (Supra) also does not have any bearing on the facts of the present case as in he case of Om Prakash Shukla, Hon'ble Supreme Court considered the question of repeal of 1947 Rules by the 1950 Rules as amended in 1969 and held that the petitioner having appeared in the competitive examination should not be allowed to challenge the validity of the competitive examination as having been held not in accordance with law. In the case of Rajendra Prasad Mathur, Hon'ble Supreme Court ruled that the question of equivalence of examination should be considered by the University and not by the Courts and according to this Court ratio decidendi of the two case law also has no bearing over the facts of the present case.
12. Counsel for the AICTE submitted that in terms of the provisions of the All India Council for Technical Education Act, 1987 (hereinafter referred to as the Act), the Council has been established for ensuring planned and coordinated development of Technical Education System through out the country and to achieve such purpose, it is necessary that the qualification and norms fixed and evolved by the Council is adopted by all the technical institutions undertaking technical education including the NIT, Patna and in terms of the powers contained in Chapter III of the Act, the Council has laid down norms for appointment on the posts of lectures in different engineering stream providing 1st Class Bachelor's degree in the subject concerned and as the advertisement itself provided that the qualification for the advertised post's is as per the AICTE norms, the petitioner should have been called for interview as he also possess 1st Class Bachelor's degree in Architecture. Failure to call the petitioner to participate in the selection process violates Articles 14 and 16 of the Constitution of India as he was not given opportunity to appear in the interview Page 1908 ignoring the clause of advertisement which even permitted relaxation of the minimum qualification in deserving cases and this Court should interfere in the matter so as to uphold the powers of the Council to provide for the minimum qualification for the advertised posts.
13. Having heard counsel for the parties and having perused the pleadings filed by them, including Advertisement, Annexure-8, I am of the view that two posts of lecturer in Architecture Stream was advertised vide Advertisement dated 20.5.2005, Annexure-8, which was further revised to three as per redistribution of posts, which were earlier advertised for the faculties of MBA and MCA stream in 11 faculties, vide resolution of the Board of Governors dated 1.6.2005, Annexure-J/1. In my opinion, when the posts initially advertised for 13 faculties were redistributed in 11 faculties vide resolution of the Board of Governors dated 1.6.2005, Annexure-J/1 then it was expected of the NIT to have issued a corrigendum to the original advertisement indicating withdrawal of posts from MBA and MCA faculties and redistribution thereof amongst the 11 faculties. Failure to publish the corrigendum by the NIT speaks volume about its conduct but this Court instead of making any comment will leave the matter as it is.
14. The Minimum qualification for the post of lecturer in the Architecture stream as per the AICTE norms is 1st Class Bachelor's degree in Architecture but the NIT having reserved its right to call only the short listed candidates for interview decided in the third meeting of the Board of Governors held on 1.6.2005 to short list the candidates for the post of lecturer and to call only those who had M. Arch qualification. Out of 25 applications received for the post of lecturer in Architecture, only 5 had M. Arch qualification, who were issued call letters to appear in the interview, in response whereto 4 appeared and 3 were selected. In the facts and circumstances of this case, when the NIT noticed that only 5 candidates having M. Arch qualification had applied for 3 posts of lecturer and 4 had appeared for interview, then decision to short list the applicants who have applied for 3 posts of lecturer in Architecture stream should have been reconsidered by the NIT so as to enable the Selection Committee to have a reasonable and meaningful selection process as where the selection is to be made only on the basis of the interview, the Commission or the Selection Board can always adopt any rationale procedure to fix the number of candidates, who should be called for interview so that the selection process may appear to be fair and reasonable. The sole purpose to hold interview is to search and select the best amongst the applicants. It is obvious that it would be impossible to carry out a satisfactory and meaningful selection process, if only 4 persons are considered for 3 vacancies. Short listing is generally resorted to where large number of candidates have applied as it is difficult to carry out satisfactory viva voce test if large number of candidates are interviewed each day, till all the applicants are interviewed.
15. The Hon'ble Supreme Court in the case of M.P. Public Service Commission v. Navnit Kumar Poddar, approved short listing of the 71 candidates out of 188 applicants against 4 advertised posts, who had two and half years of more practice than the minimum qualifying practice. The Hon'ble Supreme Court in the case of Union of India v. T. Sunderaman, also approved short listing of 22 candidates as against 37 applicants with reference to Note 21 of advertisement for 3 post on the basis of their Page 1909 experience of four years and more. In the case in hand for 3 posts, 5 out of 25 applicants were short listed and were issued call letters, in response whereto only 4 appeared and 3 were selected, which selection process according to this Court is arbitrary and violative of Articles 14 and 16 of the Constitution of India as the selection process in order to appear reasonable and fair should have reasonable number of candidates for consideration. No sooner 4 candidates appeared for selection against 3 post, the NIT ought to have reconsidered the decision to short list the candidates so that reasonable number of candidates are available for being considered for appointment on the posts in question. Having a larger choice does not mean that all the applicants should have been called for interview. It is always open for the NIT/ interview Board to fix a Bench mark amongst the qualified who should be called for interview so that it has reasonable number of candidates for making the selection process meaningful and inspiring confidence. The case law in the case of Government of Andhra Pradesh v. P. Dilip Kumar and Anr. (Supra) has also no application to the facts of the present case as in the said case after written examination list of successful candidates who secured minimum qualifying marks was prepared which included both Graduates and Post Graduates and while proceeding to issue appointment letters, candidates having Post Graduate qualification were given preference over the candidates having graduate qualification as Post Graduates were treated a separate class. In the case in hand, there was no written test, in the circumstances, there should have been adequate and reasonable number of candidates for making the interview/ selection process purposive and meaningful.
16. In view of the discussions above, the selection of the Private Respondents 5 to 7 as notified under notification dated 6.12.2005, Annexure-12 is quashed and this application is, accordingly, allowed.