HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 10 Case :- WRIT - A No. - 11967 of 2014 Petitioner :- Dr. R.P. Singh And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Manoj Kumar Singh,Keshari Nath Tripathi Counsel for Respondent :- C.S.C.,Anurag Khanna,Seemant Singh,Siddharth Khare Hon'ble Arun Tandon,J.
Hon'ble Shashi Kant,J.
Heard Sri Manoj Kumar Singh, learned counsel for petitioners, Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, Advocate for respondent no. 6, Sri R.K. Ojha, Senior Advocate assisted by Sri Seemant Singh, Advocate for respondent no. 5, Sri Anurag Khanna, Senior Advocate assisted by Sri Yash Tandon, Advocate for respondent no. 4, learned Standing Counsel for respondent nos. 1, 2 and 3 and perused the record.
Petitioners who are two in number, were already working as lecturer in Lajpat Rai Post Graduate college, Sahibabad, Ghaziabad, when respondent no. 6 was appointed in the institution under the letter of appointment dated 3rd January, 1983, enclosed at page 76 of the counter affidavit filed by the respondent no. 4, Chaudhary Charan Singh University, Meerut (hereinafter referred to as 'the University').
Petitioners seek writ of quowarranto requiring respondent no. 6 to demonstrate before this Court as to under what legal right he is holding the post. Writ of quowarranto is prayed for on the following facts:
Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad (hereinafter referred to as 'the Degree College') is a Degree College affiliated to the University. An advertisement was published by the Degree College on 16th September, 1982, calling for applications for appointment on the post of Lecturer in Chemistry. The advertisement contemplated that vacancy was up to 30th June, 1983, likely to be made permanent, minimum qualification for the post were the same as provided for under the First Statute of the University.
Respondent no. 6 is stated to have submitted application in response thereto. On the last date of making of the application, highest qualification possessed by respondent no. 6 was post graduation in the subject of Chemistry. He did not have degree of M.Phil or a recognized degree beyond masters' level or published work indicating his capacity for independent research work.
According to petitioners, 21 candidates participated in the process of interview. Selection Committee recommended respondent no. 6 to the post of Lecturer in Chemistry, ignoring the fact that he did not have a degree of M.Phil or a recognized degree beyond masters' level or published work indicating his capacity for independent research work. Recommendation of Selection Committee were put up before the Vice Chancellor of the University, who vide his order dated 3rd January, 1983, approved the appointment for the period up to 30th June, 1983 only. Subsequent to the approval of the Vice Chancellor, Committee of Management issued appointment letter to respondent no. 6 and it was for the first time recorded therein that if the respondent no. 6 did not obtained degree of PHD within the prescribed period, he shall not be entitled to annual increment.
The petitioners before this Court, submit that it is admitted on record that respondent no. 6 did not satisfied the essential requirement for the post of Lecturer in the subject of Chemistry as per First Statute 11.13 Clause (b) of the First Statute framed under Section 49 of the State Universities Act. They further submit that respondent no. 6 has no right to hold the ost for want of essential qualification. It is stated that if a person is appointed on a post in absence of his being possessed of prescribed minimum qualifications, then such appointment would be nonest. Accordingly the Court may issue a writ of quowarranto, calling upon respondent no. 6 to vacate the post. For the purpose they have placed reliance on the judgment of Apex Court in the case of Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others [(2008) 7 SCC 153], wherein it has been held that appointment made in contravention of Statute/Statutory Provisions should be void and illegal and cannot be legalised.
Sri Ashok Khare, Senior Advocate, Sri R.K. Ojha, Senior Advocate and Sri Anurag Khanna, Senior Advocate on behalf of the respondents submitted before us that respondent no. 6 was in possession of prescribed minimum qualification as per statutes applicable. The Committee of Management of the Degree College had the power to appoint a candidate with good academic record, on satisfaction of qualification mentioned under clause 11.13(1)(a), even if he did not have a degree beyond Masters degree, on the condition that he will have to obtain such qualification referred to in sub clause (b) within a period of five years from the date of his appointment and in case such qualifications are not obtained, he shall not be entitled to yearly increments, after the expiry of period provided.
It is contended that respondent no. 6 has been working for more than 34 years as on date and that petitioners who are two in number, had been contesting for the office of officiating Principal of the Degree College as against respondent no. 6. Having been unsuccessful in that regard, they have chosen to file the instant writ petition for writ of quowarranto. The petition deserves to be dismissed on the ground that petitioners are biased. For the proposition, reliance is placed on the judgment of Apex Court in the case of B. Srinivas Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees Association and Others [(2006) 11 SCC 731 (II)]. With reference to paragraph no. 5 of the counter affidavit, it is stated that both the petitioners have since retired from the service of the same Degree College.
It is lastly submitted that petitioners have no right to challenge the process of selection or the recommendation of Selection Committee more so when they were not applicants for the vacancy which was subject matter of selection. Other applicants have not challenged the selection in question.
In the rejoinder affidavit, it has been submitted before us that that petitions for a writ of quowarranto are not liable to be dismissed on the ground of latches as well as on the ground that petitioners themselves have no right to the post.
We have heard learned counsel for parties and examined the record of the writ petition.
Advertisement for the vacancy on the post of Lecturer Chemistry made in 1992, specifically mentions that the vacancy was for fixed term i.e. for a period from 16.09.1982 till 30th June, 1983, with the rider that the post may become permanent. Recommendation of the Selection Committee in favour of respondent no. 6, has been implemented under orders of the Vice Chancellor approving the selection for the period up to 30th June, 1983. In the appointment letter issued by the Committee of Management it is recorded that respondent no. 6 must obtain degree of PhD, within the time permitted under the statutes. Therefore, it is admitted that respondent no. 6 did not have prescribed minimum qualification of degree of M.Phil or a recognized degree beyond masters' level or published work indicating his capacity for independent research work.
The Management had the right under the statute 11.13, as applicable on the relevant date to make appointment of a candidate not possessed of qualifications prescribed under statute 11.13(1)(b), if no candidate with the qualifications of M.Phil/Masters Degree/Research Work was available or was not found suitable, on the recommendation of the Selection Committee with the condition that the candidate may obtain the qualification referred to in that sub-clause within a period of five years.
Proceedings of the Selection Committee and the approval order of the Vice Chancellor do not reflect that all other candidates who had submitted their applications in response to the advertisement and had participated in the interview were not M.Phil or were not having degree beyond Masters degree or that they were unsuitable for the post in any manner.
Therefore, we have serious doubt as to whether in the facts of the case it can be said that there was concious exercise of powers under clause 11.13(2).
In our opinion proceedings of the Selection Committee must reflect that Selection Committee has not found any body suitable or that no person with requisite qualification had applied or that persons who had applied with such qualification were not found suitable before recommending a candidate without prescribed qualification. In absence of such recital, the proceedings of Selection Committee, we are afraid cannot be said to be valid. Reasons must be recorded for preference of a person not in possession of prescribed qualifications over persons having degree of M.Phil/Degree beyond Masters Degree.
We, further find in the facts of the case that the vacancy as advertised was initially for the period up to 30th June, 1983. Appointment was also offered with the approval of the Vice Chancellor for a period up to 30th June, 1983 only i.e. for a period of less than 6 months. We fail to understand as to how clause 2 of Statute 11.13 would be attracted in the matter of such time bound appointments, inasmuch as the appointment itself is of much short duration vis a vis the period off five years provided to the candidate to obtain the prescribed qualification mentioned in clause (b) under the said Statute. We, therefore, record that sofar as short term appointments are concerned which are for a duration of less than five years, clause (2) of Clause 11.13 will have no application. This is in addition to the requirement of reasons being recorded by the Selection Committee for selecting a candidate who does not satisfy the minimum requirement of Clause 11.13(b) of the First Statute, in preference to qualified candidates.
After arriving at such a conclusion, the issue that needs consideration in the facts of the case is that should respondent no. 6 be thrown out of employment by issuing writ of quowarranto.
We may record that in our opinion it is not a case of complete lack of qualification. The Statute itself contemplates appointment of persons who are only M.A. subject to satisfaction of conditions mentioned.
It is true that Selection Committee as not applied its mind as expected and it is also true that the Vice Chancellor had also not applied his mind or had not recorded material facts to reflect the reasons for selection of respondent no. 6 in preference to persons who had qualifications prescribed by Clause (b).
But this, in our opinion, may not be a reason for this Court, under Article 226 of the Constitution of India to issue a writ of quowarranto after 34 years of the appointment. The fault, in our opinion, in the facts of the case, lay more upon the Selection Committee and the Vice Chancellor of the University in not appreciating the scope of statute 11.12(2).
We are also of the opinion that respondent no. 6 has been in service for last 34 years and that petitioners had been working in the same institution with respondent no. 6 for these 34 years. Petitioner no. 1 had contested the claim of respondent no. 6 for the post of officiating Principal up to this Court (reference Writ Petition No. 8118 of 2008) but had lost.
We, therefore, in the facts of the case, while agreeing with the legal proposition as pleaded by the petitioners, refrain ourselves from issuing any writ of quowarranto for ousting the respondent no. 6 from the office after such a long duration.
No relief can be granted.
Writ petition is dismissed.
(Shashi Kant, J.) (Arun Tandon, J.) Order Date :- 9.9.2015 A. Verma