Allahabad High Court
Dr. Saroj V. Prasad vs Deen Dayal Upadhyaya Gorakhpur ... on 28 August, 2017
Bench: Amreshwar Pratap Sahi, Rajiv Lochan Mehrotra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 37
Case :- WRIT - A No. - 4337 of 2006
Petitioner :- Dr. Saroj V. Prasad
Respondent :- Deen Dayal Upadhyaya Gorakhpur Uni. Thru' Registrar & Ors.
Counsel for Petitioner :- Rajeev Misra
Counsel for Respondent :- Sunita Agrawal,B.D.Pandey,I.A.Khan,Intekhab Alam Khan,S.C.,V.K. Misra
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajiv Lochan Mehrotra,J.
Heard Sri Rajeev Misra, learned counsel for the petitioner, Sri B.D. Pandey, learned counsel for the respondent nos. 1 to 3 and Sri V.K. Misra, learned counsel for the respondent no. 4.
Affidavits have been exchanged between the parties. The matter had been taken up by us on 24th August, 2017 and we had passed the following order :-
"Heard Sri Rajeev Misra, learned counsel for the petitioner and Sri B.D. Pandey, learned counsel for the respondent nos. 1 to 3. The respondent no. 4, whose appointment is under challenge, is represented by Sri V.K. Misra, who has filed the counter affidavit and whose name is shown in the cause list. The matter has been taken up in the revised call but the learned counsel for the respondent no. 4 is not present.
We have heard the arguments and what we find is that the issue involved is as to whether for the post of Medical Officer in the respondent-University, the respondent no. 4 was eligible and was holding the qualification of three years of experience or not.
The University has filed a counter affidavit and in paragraph no. 24, it is categorically admitted that the working experience of the respondent no. 4 is short by six months and seven days. It is also admitted in paragraph no. 27 but at the same time, it has been asserted that the Selection Committee in its wisdom after perusal of the documents had relaxed the said shortage of experience of the respondent no. 4 and had recommended her for being appointed.
We may also put on record that according to the said counter affidavit, the Selection Committee which interviewed the candidates on 24th February, 2005, prepared a panel of three candidates namely, the petitioner, the respondent no. 4 and one more candidate, Dr. Brahaspati Narayan. This fact has been stated in paragraph no. 6 of the counter affidavit. The said recommendations of the Selection Committee was approved by the Vice Chancellor as the respondent no.4 had been placed at serial no. 1 of the recommendation.
Sri Rajeev Misra, learned counsel for the petitioner has urged that the advertisement nowhere indicates any power conferred on the Selection Committee to relax the qualification of three years experience which has to be construed as a minimum requirement of three years experience. It is also submitted that in the absence of any such power conferred or recital contained in the advertisement, no such relaxation could have been granted by the Selection Committee for which reliance has been placed by the learned counsel for the petitioner on the decision of Hon'ble the Apex Court in the case of Miss Shainda Hasan Vs. State of Uttar Pradesh and others (1990) Volume 1 UPLBEC page-750 para-5.
It is, therefore, the issue of possession of three years experience and relaxation which has to be answered by both the respondents namely the University and the respondent no. 4 on the aforesaid submissions advanced.
As prayed by Sri B.D Pandey, learned counsel for the respondent nos. 1 to 3, put up on 28th August, 2017."
Today, all the learned counsel for respective parties have been heard by us and the arguments that have been advanced leave no room for doubt that the selection and appointment of the respondent no. 4 as a Medical Officer in the Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur was made by purportedly relaxing the experience of three years. We had noticed these facts in the order extracted hereinabove.
Learned counsel for the petitioner has invited the attention of the Court to the words used "three years experience" in the advertisement dated 6th September, 2005 and it is urged that the said advertisement nowhere indicates the exercise of any powers either by the University or the Selection Committee for granting relaxation.
Learned counsel for the University and respondent no. 4 have urged that the Selection Committee after going through the curriculum vitae of respondent no. 4 came to the conclusion that the said experience deserves to be relaxed of which action has been described to be the wisdom of the Selection Committee.
Thus, it is evident from the pleadings that the advertisement did not indicate any mode of relaxation but it was the Selection Committee's decision which led to the consequential selection of the respondent no. 4.
The counter affidavit also states that three years experience is an additional qualification and in such circumstances, the power of relaxation so exercised by the Selection Committee is justified as the respondent no. 4 was otherwise eligible and qualified for being appointed.
The same stand has been taken by the respondent no. 4 in her counter affidavit.
From a perusal of the records, it is undisputed that the case set up by the respondents is the purported exercise of powers of relaxation for relaxing the period of experience of the respondent no. 4 which was admittedly short almost by six months. The question, therefore, is as to what was the prescribed qualification and as to whether the respondent-University or the Selection Committee did possess any such power of relaxation or not.
Other issues have also been raised in the counter affidavit but what we find is that this prescription of three years experience is not prefixed by the word "minimum" or "maximum". However, at the same time it does not also indicate any grant of relaxation. The words as used in the advertisement, therefore, do not contemplate less than three years experience. The power of relaxation is not possessed nor prescribed in the advertisement or by the University under the exercise of its powers under the Statutes or Ordinances. Sri B.D. Pandey, learned counsel for the University has been unable to point out any such power of relaxation being available for being exercised. Consequently, the only inescapable conclusion is that this purported exercise of power by the Selection Committee to grant relaxation to the respondent no.4 is illegal and clearly without authority. The respondent no. 4 could not have been selected or appointed as Medical Officer since she did not possess the minimum eligibility condition of three years experience which is compulsory and not a mere additional qualification.
As a matter of fact, the name of the respondent no. 4 could not have been recommended for appointment by the Selection Committee in the circumstances indicated hereinabove.
Another issue with regard to the status of the post was also pointed out during the course of the arguments that since there is only one post of Medical Officer, it could not have been reserved.
It is no longer necessary to adjudicate the said issue as the same now stands covered by the decisions of Hon'ble the Apex Court in the case of State of U.P. and others Vs. M.C. Chattopadhyaya and others (2004) 12 SCC 333 and Post Graduate Institute of Medical Education and Research Vs. Faculty Association (1998) SCC (L&S) 503.
The writ petition, therefore, deserves to be allowed and is, accordingly, allowed. The order of appointment of the respondent no. 4 and her selection to the post of Medical Officer in the respondent-University is hereby quashed.
It shall be open to the University to advertise the post afresh to hold the selection for the post of Medical Officer.
Order Date :- 28.8.2017
Sumit S
