Himachal Pradesh High Court
Shiv Dass vs H.P on 5 May, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 5th DAY OF MAY, 2022
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO. 2651 OF 2022
Between:
SHIV DASS,
SON OF SH. DEVI RAM, VILLAGE
DHATOLI, P.O. KHUDLA, TEHSIL
BALDWARA, DISTRICT MANDI-175033.
....PETITIONER
(BY DR. LALIT
r KUMAR SHARMA,
ADVOCATE)
AND
1. HIMACHAL PRADESH UNIVERSITY,
SUMMER HILL, SHIMLA 5,
THROUGH ITS REGISTRAR.
2. THE HON'BLE VICE CHANCELLOR,
HPU, SHIMLA-5.
......RESPONDENTS
(MR. SURENDER VERMA, ADVOCATE)
_____________________________________________________________
This petition coming on for order this day, Hon'ble Justice
Sandeep Sharma, passed the following:
ORDER
Vide Advertisement dated 30.1.2021 (Annexure P-1) respondent-Himachal Pradesh University (for short 'University') invited applications for recruitment to the post(s) of Assistant Professor in various disciplines in Himachal Pradesh University ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 2 including one post each reserved for the category of ex-
servicemen OBC and ex-servicemen un-reserved in disciplines of Public Administration and political science in ICDEOL and HPU .
Department of Evening Studies. Petitioner herein being fully eligible applied against the post of Assistant Professor kept reserved for the category of Ex-servicemen OBC and Ex-
servicemen un-reserved in the department of Public Administration and Political Science, but he was not called for the interview. On inquiry, it transpired that since petitioner was the only candidate, who had applied for one post each kept reserved for the category of Ex-servicemen OBC and Ex-servicemen un- reserved in the discipline of Public Administration and Political Science, respondent-University decided not to call him for interview in terms of the Policy and Programme notified vide Notification dated 12.12.2019, wherein it has been provided that interviews would be held if at least five eligible applications are received and three shortlisted candidates report for the interview. After having acquired aforesaid information, petitioner filed representation to the Vice Chancellor of the University, requesting therein to invoke his power in terms of sub-clause (v) of Clause 5 vide advertisement dated 30.1.2021(Annexure P-1) for varying criteria for calling for interview in case there is paucity of qualified candidates. Since petitioner did not receive any response to the representation from the respondent-
University, he applied for information under Right to Information ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 3 Act to know the details of category wise vacancies filled in by the university in the year 2019 till date. PIO-cum- Assistant Registrar (Recruitment) vide letter dated 21.4.2022 informed the petitioner .
that validity of the advertisement in question has expired on 29.1.2022 (Annexure P-5). Subsequently, petitioner made a request to Hon'ble Governor/ Chancellor of the respondent-
University as well as Hon'ble Education Minister to interfere in the matter and provide justice to him but since no desireable result was achieved by him, he approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following reliefs:-
"1. That respondent may kindly be directed to consider and appoint the petitioner to the post of Assistant Professor in the Public Admn. (OBC Ex-Servicemen) in ICDEOL or as Assistant Professor in Pol. Sc.(UR Ex.SM) in HP University Dept. of Evening Studies the Mall Shimla.
2. Prohibit the respondent from De-reserving the post of Assistant Professor in Public Admn.(OBC Ex- Servicemen) in ICDEOL or as Assistant Professor in Pol. Hon'ble Supreme Court(UR Ex.SM) in HP University Dept. of evening Studies the Mall Shimla so advertised in Annexure P-1.
3. The respondent No.2 may kindly be directed to invoke his power under sub Clause V of Clause V of Annexure P-1 so pointed out by the petitioner in his representation 9.3.2022 Annexure P-4 towards filling up of the post(s) applied by the petitioner meant for Ex. Servicemen OBC or Ex-Servicemen Un reserved forthwith.
4. That the respondent may be directed to extend the benefit of judgment dated 6.9.2021 rendered in CWP ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 4 4512 of 2021 Annexure P-7 for considering and making the appointment of the petitioner against the either of posts applied as claimed in relief No.1.
5. That the action conveyed the respondent in its letter .
dated 21.4.2022 Annexure P-5 may kindly be set-
aside."
2. Pursuant to the notices issued in terms of order dated 2.5.2022, respondent-University has filed short reply/instructions, which are taken on record.
3. Having heard learned counsel representing the parties and perused the material available on record, we do not find any dispute qua the factual matrix of the matter, as has been taken note hereinabove. It has been not denied by the respondent-University that pursuant to advertisement dated 30.01.2021 (Annexure P-1), petitioner applied against the post of Assistant Professor in two disciplines i.e. Public Administration and Political Science in ICDEOL and HPU Department of Evening Studies against one seat each reserved for Ex. Servicemen OBC and Ex. Servicemen un-reserved. It has been stated on behalf of the respondent-University that on account of paucity of eligible candidates and adequate number of applications, petitioner was rightly not called for the interview as per criteria of Policy and Programme notified vide notification dated 12.12.2019, wherein it has been specifically provided that interviews would be held if at least five eligible applications are received and three shortlisted candidates report for the interview. Before ascertaining the correctness of the aforesaid stand taken by the ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 5 respondent-University vis-a vis relief claimed in the instant petition, this Court deems it fit to take note of following paras of the reply filed by the University:
.
"1. That due to not having adequate No of applications as per criteria of policy and Programme notified vide notification dated 12.12.2019 the interview to the posts of Assistant Professor under Ex Servicemen Categories in various subjects could not be convened. The Respondent University notified Policy and Programme for appointment of Assistant Professor in the University/colleges annexed as per Annexure R-1/A. The criteria under point No.4 sub Clause
(ii) as under:-
Short listing for interview:
(ii) " Interviews be held if at least 5(five) eligible applications have been received and 3 (three) shortlisted candidates report for the interview."
2. That the application forms of the such categories of various subjects in which adequate number of applications were not received, as per criteria of policy and Programme notified vide notification dated 12.12.2019, were not scrutinize by the Respondent University. It is pertinent to mentioned here that as per conditions laid-down in the Policy and Programme notified vide notification dated 12.12.2019 which is already annexed as Annexure R-1/A under point No.4(ii) the requisite number of applications were not received against the advertisement No. Rectt-
17/2019 dated 30.12.2019. Therefore, the respondent University re-advertised the post(s), twice vide advertisement No. Rectt-20/2020 dated 17.08.2020 and 23/2021 dated 30.01.2021. In response to the above referred three advertisements for the post of Assistant Professor in the subject of Public Administration under OBC Ex-Serviceman category only single application was received and in the subject of Political Science under General (Ex-SM) category, only 2 applications have been ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 6 received. Therefore, the recruitment process for the said posts could not be initiated. In view of the decision taken by the competent authority of the University i.e. Executive Council decided vide item No.13 meeting held on 16.05.1981 & 19.05.1981 which reproduced as under:-
.
"The posts already advertised, on which some appointment have also been approved by the Council, be processed and filled immediately. For future, advertisements shall remain in operation for a period of six months.
"Six months "Substituted "By one year"
The copy of the decision is annexed herewith as Annexure R-1/B."
4. It is quite apparent from the aforesaid Policy and Programme notified by the respondent-University that in case adequate number of applications are not received and five candidates are not available for interview, no interviews would be held against the post(s) in question. Reply filed on behalf of the respondent- University further reveals that requisite number of applications were not received against the advertisement dated 30.12.2019 and as such, respondent-University re-advertised the post(s) in question twice vide advertisements dated 17.08.2020 and 30.01.2021, but yet only single application of the petitioner was received against the post of Assistant Professor in the subject of Public Administration reserved for OBC Ex.
Servicemen category and one post of Political Science under General Ex. servicemen category and as such, recruitment process for the aforesaid post could not be initiated.
::: Downloaded on - 09/05/2022 20:05:06 :::CIS 75. True, it is that as per Policy and Programme notified by the respondent-University vide notification dated 12.12.2019, as reproduced hereinabove, interviews against the post(s) in .
question could only be held if at least five eligible applications were received and three candidates had reported for the interview, but careful perusal of sub clause (v) of Clause 4, the Policy and Programme for appointment of Assistant Professor in the University/Colleges empowers Worthy Vice Chancellor to vary the aforesaid criteria. Clause (v) of the aforesaid policy and programme is as under:-
"(v) Only in the case of reserved categories or such r subjects where there is an all round paucity of qualified candidates (and adequate number of applications have therefore not been received) the Vice-Chancellor may vary the above criteria for calling for interview."
6. Clause (V) of Policy and Programme for appointment of Assistant Professor in the University/Colleges, which is reproduced hereinabove, clearly reveals that in the case of reserved categories or such subjects where there is in all round paucity of qualified candidates and adequate number of applications have been not received, Vice Chancellor may vary the above criteria for calling for the interview.
7. In the case at hand, though petitioner made representation to Vice Chancellor, specifically inviting therein his attention to aforesaid provisions contained in the Policy and Programme for appointment of Assistant Professor in the University/Colleges, but yet he failed to take any decision on the ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 8 representation of the petitioner, as a consequences of which, petitioner came to be deprived of opportunity of being employed as Assistant Professor in the department(s) concerned pursuant .
to advertisement (Annexure P-1).
8. Dr. Lalit K. Sharma, learned counsel representing the petitioner while inviting attention of this Court to judgment dated 6th September, 2021, passed by Division Bench of this Court in CWP No.4512 of 2021, titled as Shri Arun Vatsyayan vs. H.P. University and another, contended that in similar facts and circumstances, direction was issued to the Vice Chancellor to consider the case of the petitioner in that case in terms of sub-
clause (v) of clause 4 of the policy and the Vice Chancellor in compliance of aforesaid judgment passed by Division Bench of this Court, has already provided opportunity to the petitioner in that case to appear in the interview.
9. Though, Sh. Surender Verma, learned counsel representing the respondent-University, while making this Court to peruse the short reply filed on behalf of the respondent-
University made serious attempt to persuade this Court to agree with his contention that facts of the case at hand are entirely different from the case decided by Division Bench of this Court in case titled Shri Arun Vatsyayan vs. HP University and another, but after having carefully perused the aforesaid judgment, this Court finds that the case of the petitioner is squarely covered by the aforesaid judgment passed by the Division Bench of this ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 9 Court, which otherwise has attained finality and stands duly implemented.
10. It would be profitable to take note of following paras .
of the aforesaid judgment hereinbelow:-
"2. It is not in dispute that despite repeated advertisements, only one candidate, i.e. the petitioner has applied under unreserved (ex-serviceman) category for the post of Assistant Professor (Law) in terms of the policy and programme for appointment of Assistant Professor in the University/Colleges. Clause 4 thereof provides for shortlisting for interview, which reads as under:
Candidates shall be invited for an interview in order of merit according to marks obtained by them in the Academic Score Component (Tally sheet) according to the following criteria:
(i) for one vacancy maximum of 15 (fifteen) candidates shall be invited.
(ii) Interviews be held if at least 5(five) eligible applications have been received and 3 (three) shortlisted candidates report for the interview.
(iii) for every additional vacancy a maximum of 10 (ten) additional eligible candidates be invited.
(iv) in case of there being more than one
vacancy, interview beheld if at least 7 (seven)
eligible applications have been received and at least 5 (five) eligible shortlisted candidates report for interview.
(v) only in the case of reserved categories or such subjects where there is an all round paucity of qualified candidates (and adequate number of applications have therefore not been received) the Vice Chancellor may vary the above criteria for calling for interview.' ::: Downloaded on - 09/05/2022 20:05:06 :::CIS 10
3. The matter regarding exercise of power under sub-
clause (v) of clause 4 is stated to be pending before the Vice Chancellor of the respondent University.
4. If that be so, the Vice Chancellor of the respondent University is directed to take a decision within 24 .
hours."
11. Consequently, in view of the detailed discussion made herein above as well as judgment passed by the Division Bench of this Court in Arun Vatsyayan case (supra), this Court finds merit in the present petition and accordingly same is allowed with the direction to the respondent-University to consider and decide the case of the petitioner in terms of the directions contained Arun Vatsyayan case (supra), r in expeditiously, preferably within a period of two weeks. Needless to say, authority concerned while doing the needful in terms of aforesaid judgment, shall afford an opportunity of being heard to the petitioner and pass detailed speaking order. Liberty is reserved to the petitioner to file appropriate proceedings in appropriate court of law, if he still remains aggrieved.
Pending applications, if any, also stand disposed of.
(Mohammad Rafiq) Chief Justice (Sandeep Sharma) Judge 5th May, 2022 (shankar) ::: Downloaded on - 09/05/2022 20:05:06 :::CIS