Telangana High Court
Dr. Sampathi Sunitha vs The National Institute Of ... on 3 June, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 998 of 2020
ORDER:
In this writ petition, the petitioner is seeking a writ of mandamus declaring the selection and appointment of 3rd respondent for the post of Assistant Professor in Pharmaceutics in SC category pursuant to the Employment Notification No.NIPER-H/01/2019-20, dated 25.08.2019 as illegal and arbitrary and to declare that the 3rd respondent is ineligible for appointment to the said post and consequently to direct the respondents to appoint the petitioner pursuant to the interview conducted on 07.12.2019 under SC category with all consequential benefits and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the petitioner belongs to SC category and passed Bachelor Degree in Pharmacy (B.Pharm) with distinction from University College of Pharmaceutical Sciences, Kakatiya University. The petitioner has also passed Master in Pharmaceutical Sciences from Kakatiya University 2 TMD,J W.P.No. 998 of 2020 in the academic year 1999-2001 and secured 7th rank in the University with 72.82% of marks. The petitioner also possessed teaching and research experience of 17 years and was eligible for promotion/appointment to the posts of Associate Professor and Assistant Professor. It is submitted that pursuant to the advertisement on website for walk-in- interview to the post of lecturer in Pharmaceutics, the petitioner appeared for interview on 13.09.2010. Vide letter dated 21.09.2010, the petitioner was issued an appointment letter as lecturer in Pharmaceutics and the remuneration was fixed at Rs.32,000/- per month with transport allowance of Rs.3,000/- with effect from 03.11.2010. Subsequently, in the month of May, 2012, remuneration was enhanced from Rs.35,200/- to Rs.45,200/- with effect from 01.04.2012. Thereafter, the respondent No.1 has conducted interview for the post of Assistant Professor in the respondent institute and the interview was conducted by the Selection Committee on 24.11.2012 and the petitioner was selected to the said post at NIPER Hyderabad, vide letter dated 30.04.2012 on a consolidated pay of Rs.50,000/- per month. It is submitted that the petitioner reported to duty as Assistant Professor 3 TMD,J W.P.No. 998 of 2020 Pharmaceutics on 05.12.2012 and on 26.05.2016, the performance review was carried by the Committee and basing on the recommendations of the Committee, her pay has been enhanced from Rs.65,000/- to Rs.74,750/- vide letter dated 27.05.2016 and subsequently, her pay has been enhanced from Rs.74,750/- to Rs.83,720/- vide letter dated 14.08.2017 with effect from 01.01.2017 and subsequently, again enhanced from Rs.83,720/- to Rs.90,420/- per month w.e.f. 01.04.2018. Thus, according to the learned counsel for the petitioner, the petitioner has been discharging her duties eversince as Assistant Professor Pharmaceutics without any complaint from any quarter.
3. In the meantime, the respondent No.1 institution, a Director was appointed in the month of June, 2018 and thereafter, the petitioner was issued office memorandum dated 11.10.2018 informing her that her services at NIPER, Hyderabad, as Assistant Professor are terminated with effect from 24.10.2018 and on the very next day, another letter dated 12.10.2018 has been issued stating that 'based on the performance in the Contract Renewal 4 TMD,J W.P.No. 998 of 2020 Committee meeting held on 09.10.2018, the Director, NIPER, Hyderabad, has been pleased to renew the contractual tenure as Assistant Professor for a further period of one year w.e.f. 29.10.2018 to 28.10.2019 on the existing terms and conditions of the contract with a consolidated pay of Rs.90,420/- per month. It is submitted that the notification/advertisement No.NIPHER-H/01/2019-20, dated 25.08.2019 for regular recruitment of teaching and non- teaching staff in the cadre of Professor, Associate Professor and Assistant Professors notifying 18 posts in different disciplines were issued vide Employment Notification. The date of commencement for online application was 30.08.2019 and the last date was 14.10.2019. As per the Clause (2) of the notification, for the post of Associate Professor, one must possess Ph.D with first class or equivalent grade at the preceding degree in the appropriate branch with a very good academic record throughout and atleast 8 years of teaching/research/industrial experience with published work of high quality and an established reputation of having made seminal contribution of knowledge in pharmaceutical and allied areas. Further, for the post of Assistant Professor, one 5 TMD,J W.P.No. 998 of 2020 should possesses Ph.D with first class or equivalent grade at the preceding degree in the appropriate branch with a very good academic record throughout and atleast 5 years of teaching/research/industrial experience with published work of high quality. It is submitted that the petitioner was eligible for both the posts i.e., Associate Professor as well as Assistant Professor in Pharmaceutics discipline and accordingly, she applied for the said posts. It is submitted that Scrutiny Committee scrutinized the applications and the petitioner's name was short-listed under eligible candidates in both the categories at Serial No.10 and Serial No.3 respectively. Whereas the respondent No.3's name was listed under the ineligible candidates in the category of Assistant Professor at Serial No.5. It is submitted that against the name of the respondent No.3 it was stated as 'inadequate experience'. It is submitted that on the very same day, the respondent No.1 has called for objections if any, along with the relevant supporting documents to be submitted on or before 13.11.2019. It is stated that the respondent No.1 has received 25 members queries for inclusion of their candidature and upon detailed verification of the same, a 6 TMD,J W.P.No. 998 of 2020 final list of eligible and ineligible candidates was uploaded on the website. It is submitted that in the said list also, the petitioner's name was at Serial No.11 in the category of Associate Professor (UR) and at Serial No.3 in the category of Assistant Professor (SC), whereas, the name of the respondent No.3 was found at Serial No.5 in the list of ineligible candidates in the category of Assistant Professor (SC) with the comment of 'inadequate experience' and on the very same day, general instructions and essential information and clarifications were also notified by the respondent specifically informing that all the applicants are advised to ensure before applying that they possess essential qualification and experience for the post. It is submitted that pursuant to the said list, all the eligible candidates were called for interview and the petitioner was issued with two call letters dated 09.11.2019 directing her to attend for interview on 07.12.2019 to the post of Associate Professor and on 08.12.2019 for the post of Assistant Professor (SC) and the petitioner attended the interview and the interviews were completed for both teaching and non-teaching positions and the petitioner was expecting to be selected and appointed 7 TMD,J W.P.No. 998 of 2020 to either of the posts. The petitioner came to know that Board of Governors approved the selections made by the selection committee on 23.12.2019 and the appointment orders were communicated through email to the selected candidates on the very same day or on the next day and that six internal candidates have received appointment letters through email. Since the petitioner did not receive any appointment order, she made a representation through email on 26.12.2019 to consider her case for appointment to either of the posts. The respondents, inspite of considering her case for appointment, issued a list dated 23.12.2019 which was displayed on 28.12.2019 through which the petitioner observed that only 14 posts out of 18 notified vacancies were filled up and instead of displaying the names of the selected candidates, the application form numbers were notified. Observing that the respondent No.3, who was arrayed in the list of ineligible candidates, has been considered for appointment to the post of Assistant Professor under SC category vide application form No.1044, the petitioner immediately made oral representation to the respondents stating that the petitioner was the only eligible candidate working in the institute in 8 TMD,J W.P.No. 998 of 2020 Pharmaceutics and she possessed necessary and adequate experience in the respondent No.1 organization and that her name was also short-listed in the list of eligible candidates on two occasions. Since there was no response from them, the present writ petition has been filed and the learned counsel for the petitioner has reiterated the above submissions in her submissions made in the writ affidavit.
4. Learned counsel for the petitioner submitted that the general instructions and clause (5) of the special instructions are issued along with the notification to the effect that the application once submitted cannot be altered/resubmitted, under any circumstances and further that no request with respect to making changes in any data/particulars entered by the candidate in the online application will be entertained, once the application is submitted successfully. Similarly, another note was also issued along with final list of eligible candidates stating that 'no updating of qualification and experience will be entertained after the last date'. Thus, according to the learned counsel for the petitioner, the respondent No.3 was 9 TMD,J W.P.No. 998 of 2020 declared as ineligible during the scrutiny of the application itself, could not be called for interview and appointed to the said post, which was wholly unsustainable. It is further submitted that one of the candidates selected i.e., Dr.Saurabh Srivastava was working in the team of Dr.Rajeev Raghuvanshi, who was the Member of the interview committee and therefore, interview committee was biased in his favour. It is submitted that the respondent No.3 should possess atleast five years of experience in the category of Assistant Professor as per the notification, but he could not possess the adequate experience in terms of the notification and therefore, he was declared as ineligible at threshold itself, but however, not only was he called for interview but was selected and appointed under SC category, which shows the bias in favour of respondent No.3 and discrimination against the petitioner herein. Therefore, the appointment of respondent No.3 is sought to be set aside and sought a direction to the petitioner to be considered for appointment.
5. Learned counsel appearing for the respondents, have filed their respective counter affidavits and the unofficial 10 TMD,J W.P.No. 998 of 2020 respondent also has filed his counter affidavit. The respondents No.1 and 2 denied the allegations made by the petitioner. It is submitted that respondent No.3 was considered ineligible for Ph.D on 16.03.2015 as per approval of vice chancellor vide notification No.Res/Ph.D/Pharm Science/3415, dated 19.03.2015. It is submitted that the respondent No.3 served from 07.07.2014 to 28.11.2016 in ISF College of Pharmacy, but remained on study leave without pay from 20.03.2015 for working as post doctoral research associate at IRMA LERMA Rangel College of Pharmacy, Texas A&M Health Science Centre, Kingsville, Texes, USA and as per rejoinder of respondent No.3, he resigned from ISF College of pharmacy on 28.11.2016. It is submitted that the allegations made by the petitioner about the respondent No.3 are without any basis. A copy of the notification is also filed along with the counter affidavit.
6. Learned counsel appearing for the respondent No.3, also filed counter affidavit and stated that he had submitted his application duly enclosing required certificates for consideration of his case for the post of Assistant 11 TMD,J W.P.No. 998 of 2020 Professor and that he was found successful in the interview and was also issued appointment order and has also joined the service on 10.01.2020 and was continuously working as such. It is submitted that the Scrutiny Committee, while scrutinizing the applications of all the candidates had committed an human error in respect of respondent No.3 herein and mentioned that he did not have adequate experience and immediately, he submitted his objection and thereafter, the respondent No.1 has considered his request and looked into the application and found that he had adequate experience and therefore, he was considered for the post and has been appointed accordingly. Therefore, he prayed for dismissal of the writ petition.
7. Having regard to the rival contentions and the material on record, this Court finds that the respondents in the notification have clearly mentioned that once the application is submitted, it cannot be altered/resubmitted, under any circumstances and further that no request with respect to making changes in any data/particulars entered by the candidate in the online application will be entertained, 12 TMD,J W.P.No. 998 of 2020 once the application is submitted successfully. Further, it is also instructed that in the case of any inadvertent mistake in the process of selection which may be detected at any stage, even after issuance of appointment letter, the institute reserves the right to modify/withdraw/cancel any communication made to the applicants. The respondent Nos.1 and 2 are taking the umbrage under general instructions No.10, to submit that when the mistake in counting the experience of the respondent No.3 was detected, the respondents have revised the list and have called the eligible candidates for interview. However, this Court, from the counter affidavit filed by the respondent No.3 finds that the experience certificates filed by him at Page Nos.26 & 27 mentions that he worked in an institution of ISF college of pharmacy as Assistant Professor from 07.07.2014 to 28.11.2016 and that he was relieved from the post of Assistant Professor w.e.f. 28.11.2016 due to his resignation. Further from the certificate allegedly given by IRMA, LERMA Rangel College of Pharmacy, the respondent No.3 has worked as a post doctoral research associate at IRMA, LERMA Rangel College of Pharmacy, Texas, A&M Health Science Center, 13 TMD,J W.P.No. 998 of 2020 Kingsville, TX, USA, since July, 2015 to December, 2016. The said certificate was allegedly signed on 12.07.2016. Thus, it can be seen that both the certificates are over lapping over the period of July, 2015 and December, 2016. Therefore, either of the certificates is not correct. The respondents No.1 and 2 obviously have not looked into these discrepancies, but have considered the representation of the respondent No.3 about his experience and have allowed him not only to attend the interview, but have also appointed him as Assistant Professor. Therefore, it is clear that the action of the respondents No.1 and 2 in not only entertaining the representation of the petitioner about his experience, but also in evaluating the certificates of the respondent No.3 is without any jurisdiction and basis. The action of the respondent Nos.1 and 2 in not considering the case of the petitioner, having placed her name in the list of eligible candidates, and in not calling her for interview and instead considering the case of the respondent No.3, who was in the list of ineligible candidates and not intimating the reasons for change in the eligible candidates, is clearly in violation of principles of natural justice.
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8. The Hon'ble Supreme Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan and Others 1, has clearly held that the selection process has to be conducted strictly in accordance with the stipulated selection procedure which needs to the scrupulously maintained and there cannot be any relaxation in terms and conditions of the advertisement unless such a power is specifically reserved in relevant rules or in advertisement. The said judgment would clearly be applicable to the case on hand and it is obvious that the representation of the respondent No.3, after submission of the application, has been entertained by the respondents much against their own instructions in the notification. Further it has also been demonstrated that the respondent No.3 could not have had experience as claimed by him both at Punjab and also in USA simultaneously, during July, 2015 to December, 2016. Therefore, the respondents are directed to reconsider the issue and take appropriate remedial action immediately. The petitioner shall be eligible for consideration of her case for appointment to the post of Assistant Professor with all consequential benefits. 1 (2011) 12 SCC 85 15 TMD,J W.P.No. 998 of 2020
9. Accordingly, this writ petition is allowed. There shall be no order as to costs.
10. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 03.06.2024 bak