Dr. Kamal Ullah vs Union Of India And 7 Others
2018 Latest Caselaw 1392 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.                                                      Reserved on 23.5.2018
 
Delivered on 06.07.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 39454 of 2014
 

 
Petitioner :- Dr. Kamal Ullah
 
Respondent :- Union Of India And 7 Others
 
Counsel for Petitioner :- Shailendra,Vibhu Sinha
 
Counsel for Respondent :- A.S.G.I.,Arvind Kumar Goswami,Ikram Ahmed,Ishan Shishu,S.C.,S.S. Singh,Salamuddin Khan
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ifaqat Ali Khan,J.

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Sri Shailendra, counsel for petitioner, Sri Arvind Kumar Goswami, counsel for respondent 1, Sri Tirath Raj Shukla, Advocate holding brief of Sri S.S. Singh for University, Sri Salamuddin Khan, counsel for respondents 5 to 8.

2. This writ petition has been filed by sole petitioner, Dr. Kamal Ullah challenging appointments of respondents- 5 to 8 on the posts of Assistant Professor in the Department of Statistics and Operation Research (hereinafter referred to as 'DSOR').

3. Facts in brief, giving rise to present writ petition are that petitioner was appointed as a part time Lecturer in DSOR in Aligarh Muslim University, Aligarh (hereinafter referred to as 'AMU'), on 11.9.1998 and his engagement continued for various periods till May, 2014. For certain period, he worked as Guest Faculty and also as Assistant Professor.

4. An advertisement no.5/2013 dated 8.11.2013 was published by AMU for vacancies on various posts of Professor, Principal/Director, Associate Professor and Assistant Professor. In the present case, we are concerned with advertisement relating to posts of Assistant Professor in DSOR.

5. Advertisement notified three vacancies of Assistant Professor and two vacancies of Assistant Professor (Operation Research) (hereinafter referred to as 'Assistant Professor (OR)') in DSOR. Essential qualifications published by AMU for the posts of Assistant Professor, read as under :-

"(i) Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in the relevant subject from an Indian University, or an equivalent degree from an accredited foreign university;

(ii) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET;

(iii) Notwithstanding anything contained in sub-clause (i) and (ii) above, candidates, who are or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulation, 2009 shall be exempted from the requirement for the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/ Institutions;

OR

The candidates having been awarded Ph.D. Degree prior to 11.07.2009, the date of notification of UGC (Minimum Standard Procedure for the award of M.Phil/ Ph.D. Degree) Regulation, 2009 or admitted prior to the aforesaid date and awarded Ph.D., after the above notification shall be exempted from requirement of the minimum eligibility conditions of NET / SLET/ SET and will be eligible to apply for the post of Assistant Professor provided they fulfill minimum 6 out 11 conditions as recommended by the Thyagrajan Committee and have obtained certificate in this regard from the Competent Authority of the concerned University.

(iv) NET/ SLET/ SET shall also not be required for such Masters Programmes in disciplines for which NET/ SLET/ SET is not conducted.

Note: (1) Candidate for the Post of Assistant Professor in Education (Home Science) should possess M.Ed. With post graduate degree in Home Science.

Note: (2) For the post of Assistant Professor in Islamic Studies candidate should possess M.A. & Ph.D. Degree in Islamic Studies with the following desirable qualifications.

DESIRABLE : For the post of Assistant Professor Islamic Studies Knowledge of Arabic/ Persian/ Turkish."

(Emphasis Added)

6. Petitioner also applied for one of the post of Assistant Professor in DSOR. He was called for interview.

7. Against three posts of Assistant Professor (Statistics) in DSOR, twenty two persons were called for interview which included respondent-5. Against two posts of Assistant Professor (OR), though eight persons applied, but only two were called for interview including respondent-6.

8. Respondents-7 and 8 had applied for the posts of Assistant Professor but strangely they were recommended and selected for the posts of Associate Professor (Statistics) and have been appointed as such.

9. The above selections and appointments have been challenged on the grounds mentioned in para 6 of the writ petition which read as under :-

"(a) The Constitution of the Selection Committee for the post of Assistant Professor and Associate Professor requires visitor nominee, and the senior professor of the department concerned were absent when the selection took place on 21.1.2014. Then petitioner himself appeared and then only Lt. Gen. Zamir Uddin Shah, Vice Chancellor and Pro Vice Chancellor Syed Ahmad Ali, Dean Faculty of Science, Prof. Mahshar Raza, Chairman Department of Statistics, Prof. M.M. Khalid and Prof. S.K. Pandey, Lucknow University and Prof. Umesh Singh, B.H.U.

(b) So far as the post of Statistics and Operations Research is concerned, three posts were advertised in this subject while two posts were advertised for Operations Research. In category of Operations Research, there were 8 applicants and out of which, only 2 were called for interview, who as a matter of fact, applied for Statistics but his application was transferred before few days of interview as he was student of Prof. M.M. Khalid and it was the reason his candidature was changed, from Statistics and Operations Research and finally he got selected. This is also one of the reason for challenging his appointment.

(c) Apart from the above, petitioner has challenged the appointment of Irfan Ali against the post of Assistant Professor Statistics on the ground that he was not qualified. He failed to pass Ph.D. In regular manner and was not qualified as per Regulation-9 of the U.G.C. Regulation, 2009, which requires to qualify entrance of Ph.D. But so far as respondent no. 5 is concerned, he got admission without Entrance Test and his Ph.D., was not regular. To the extent, he was not qualified and was found eligible by the selection committee. A true copy of the relevant part of the Regularization Rule, 2009 is being enclosed herewith and is marked as Annexure No. 1 to this writ petition.

(d) Another apparent error and fault was that the selection committee selected two persons namely, Mohd Faizan and Zaki Anwar respondent nos. 7 and 8 against the post of Associate Professor despite the fact that they only applied against the post of Assistant Professor. So they were not even the applicant.

(e) There was entire affair and manipulation, which resulted ignoring the candidature of the petitioner, who is working in the department from the last 16 years and devoted entire life in the institution but his name was completely ignored by the authorities and even the students having no experience have been selected and the candidature of the petitioner was rejected by the selection committee.

(F) The aforesaid appointment of a person applied for lower post, against the higher post, is prohibited as per the University circular dated 18.6.2005. A true copy of the circular dated 18.6.2005 is being enclosed herewith and is marked as Annexure No. 2 to this writ petition."

10. It is not in dispute that respondents- 5 to 8 were appointed vide orders dated 05.03.2014, 10.02.2014 and 22.4.2014.

11. The aforesaid letters of appointment show that respondents-5 and 6 have been appointed on the post of Assistant Professor in existing vacancies of said post in the pay-scale of 15600-39100 with AGP Rs. 6000/- plus allowances.

12. Respondents-7 and 8 have been appointed as Assistant Professor (Temporary) against the posts of Associate Professor vacated by Prof. Mohd. Jameel Ahsan and Dr. Naseem Alam, respectively. In fact, respondents-7 and 8 had applied for appointment on the post of Associate Professor but they were appointed as Assistant Professor (Temporary), allegedly against vacancies of Associate Professors, vacated by Prof. Mohd. Jameel Ahsan and Dr. Naseem Alam, respectively.

13. With respect to appointment of Dr. Shakeel Javaid- respondent-6, he had applied for the post of Assistant Professor (Statistics) but his candidature was considered for Assistant Professor (OR) and called for interview for the post of Assistant Professor (OR). He is also appointed as such.

14. With respect to appointment of Dr. Irfan Ali-(respondent-5) as Assistant Professor in DSOR, it is stated that he was not qualified for that post since he did not possess Ph.D qualification and also not eligible to claim exemption.

15. On behalf of respondents- 2, 3 and 4, a counter affidavit has been filed, sworn by Zulfikar Ali, Lower Division Clerk in AMU. It is stated that vide advertisement no. 5/2013 dated 8.11.2013, vacancies in the cadre of Assistant Professor, Associate Professor and Professor were advertised, which are as under :-

S.No.

Cadre

Department

No. of Vacancies

Professor

DSOR

Associate Professor

DSOR

Assistant Professor

DSOR

Assistant Professor (Operation Research)

DSOR

16. Twenty five candidates in all applied, which included eleven candidates for three posts of Assistant Professor (OR). After scrutiny of application forms and determining eligibility and short listing, Chairman, DSOR called fifteen candidates including petitioner for interview for the three posts of Assistant Professors and four candidates were called for interview for Assistant Professors (Operation Research).

17. Petitioner did not possess two first-classes at B.Sc. and M.Sc. level. However a sympathetic view was taken and he was called for interview on the basis of working as Guest Faculty in AMU but could not be selected.

18. Constitution of Selection Committee for the posts of Assistant Professors is provided in the Statute 27 of AMU which reads as under :-

A Vice-Chancellor,

B Pro Vice-Chancellor,

C Visitor's Nominee,

D Dean of the Faculty,

E Chairman of the Department,

F One professor of the Department or if there is no professor; reader of the Department, to be nominated by the Vice-Chancellor.

G Two persons not in the service of the University nominated by the Executive Council, out of a penal or names recommended by the academic council for their subject in which of or interest in the subject with which the reader/lecturer will be concerned.

19. Selection Committee held its meeting on 21.01.2014 and after taking interview recommended candidates as under :-

S.No.

Post/Designation

Name of Candidates

Assistant Professor

1. Dr. Irfan Ali (respondent-5)

2. Mohd. Jahangeer Sabbir Khan

3. Dr. Mohd. Arshad

Assistant Professor (Operation Research)

1. Dr. Ahmad Yusuf Adhami

2. Dr. Shakeel Javed(respondent-6)

Assistant Professor (Temporary)

1. Dr. Zaki Anwar (respondent-8)

2. Dr. Mohd. Faizan (respondent-7)

20. The members actually participated in the Selection Committee are as under :-

a) Lt. General Zameeruddin Shah (Retd.) as Vice-Chancellor,

b) Syed Ahmad Ali SM as Pro Vice-Chancellor,

c) Visitor's Nominee was not present.

d) Professor Mahshar Raza as Deen F/O Science,

e) Prof. Khalid Masood as Chairman of the Department,

f) Dr. S.K. Pandey, E.C's Nominee and

g) Dr. Umesh Singh.

21. Dr. Hasan Matinul Islam was nominated by Vice-Chancellor as nominee but at the time of interview, it was noticed that his daughter-in-law was also appearing for the post of Associate Professor, so he was not permitted to participate as Vice-Chancellor's nominee. Further Visitor's nominee was also not present in the meeting. However, quorum as per statute 27(3)(b) of AMU was complete, hence selection proceeded.

22. On behalf of respondents-5 to 8, a common counter affidavit has been filed which is sworn by Dr. Shakeel Javaid. He has challenged locus standi of petitioner. It is contended that petitioner was neither qualified for the post of Assistant Professor (OR) nor had applied for the same, therefore, he has no locus standi to challenge appointment made on the post of Assistant Professor (OR) in DSOR. Visitor's expert did not participate in selection for the reason that he was expert in Physics and participated in the selection held for Physics Department but refrained from participating in selection for other departments.

23. As per advertisement no. 5/2013 one post of Associate Professor, three posts of Assistant Professor and three posts of Assistant Professor (OR) in DSOR were advertised. Against advertised two posts of Assistant Professors (OR), respondent-6, Dr. Shakeel Javaid was recommended and appointed but petitioner has challenged his appointment without challenging appointment of Dr. Ahmad Yusuf Adhami who was another recommended and appointed person as Assistant Professor (OR). Any defect in constitution of Selection Committee is denied and it is stated that mere non-participation of Visitor's nominee will not make selection, bad.

24. It is further stated that Dr. Shakeel Javaid (respondent-6) applied for the post of Assistant Professor in DSOR but since he was also qualified for the post of Assistant Professor (OR), he filed an application before Vice-Chancellor to consider him for the post of Assistant Professor (OR) and it was accepted. Therefore, he was included in the list of candidates to be considered for the post of Assistant Professor (OR). He was not considered for the post of Assistant Professor (Statistics) but considered only for the post of Assistant Professor (OR). Averments with regard to ineligibility and lack of qualification of respondent-5, made in the writ petition, are denied. It is said that as per University Grants Commission (Minimum Standards and Procedure for Awards of M.Phil/Ph.D. Degree), Regulation, 2009, those who already possessed M.Phil Degree, prior to 31.12.2010, were exempted from appearing in written test for being enrolled as a Research Scholar for Ph.D. Degree. Respondent-5 was awarded M.Phil Degree on 8.10.2010. He was further awarded Doctrate Degree vide notification dated 3.12.2013. It is also stated that only one post of Associate Professor was advertised but when Selection Committee found one more post vacant, selection was made for both. Since suitable candidates for the posts of Associate Professors were not found by Selection Committee, it recommended respondents-7 and 8 to be appointed as Assistant Professors against the vacancies of Associate Professor.

25. Thus, basic facts are not in dispute. In this backdrop, we have to examine validity of appointments of respondents- 5 to 8 in AMU.

26. The number of vacancies stated in the counter affidavit, filed by University, have not been properly stated inasmuch as in para 4 of counter affidavit, against Associate Professor's cadre, number of vacancies have not been mentioned though in the advertisement it is so mentioned. This omission, we have no reason but to treat deliberate, for the reason that in respect of other posts, number of vacancies is mentioned in para 4 of counter affidavit but number of vacancies of Associates Professor are not mentioned.

27. The reason is also quite obvious which we shall demonstrate later on.

28. Advertisement is on record. Last date for inviting applications on a prescribed form is 9.12.2013. It is not in dispute that advertisement was published on 8.11.2013. Essential qualifications included good academic record with at least 55% marks at Master's Degree level in the relevant subject and clearance of National Eligibility Test (hereinafter referred to as 'NET') conducted by UGC CSIR or similar test accredited by University Grants Commission. The requirement of clearance of NET or similar test was dispensed with only in respect of the candidates who are or have been awarded Ph.D. Degree.

29. As is evident from the counter affidavit filed on behalf of respondents 5 to 8 that respondent-5 had not passed NET or any similar test when he applied for the post in question. He also did not possess Ph.D. Degree on the date of advertisement or when he submitted application form. It is true that Ph.D. Degree was notified to be awarded to respondent-5 on 3.12.2013 but the language of advertisement issuing qualification shows that the candidate who has applied for the post of Assistant Professor must possess requisite qualification on the date of advertisement and to submit application form giving all details of such qualification which is not a case in respect of respondent-5.

30. Learned counsel for respondent-University was unable to show as to how respondent-5 can be said to be eligible for appointment on the post of Assistant Professor strictly in conformity with the essential qualifications published in the advertisement but he also could not show any provision under which requirement published in the advertisement could have been relaxed. Hence, we have no manner of doubt in holding that respondent-5 was not qualified for applying to the post of Assistant Professor in DSOR and his appointment made by Selection Committee is patently illegal.

31. Now coming to the appointment of respondent-6, it is not in dispute and is admitted by respondent-6 himself that he applied for the post of Assistant Professor and not for the post of Assistant Professor (OR). Till the date of submission of application form, no application was submitted by respondent-6 offering his candidature for the post of Assistant Professor (OR). However, his explanation is that he requested the Vice-Chancellor to consider his candidature for the post of Assistant Professor (OR) which was accepted and his candidature was considered accordingly. We required learned counsel appearing for AMU to point out whether any such procedure is prescribed or permitted under the Statutes of University relating to relaxation, against advertisement, but none could be pointed out or placed before us.

32. It is really strange that a person who had applied for a particular post, without submitting application form on a prescribed format for such post which is a condition stated in the advertisement, could have been considered, recommended, selected and appointed on another post. This procedure is clearly in the teeth of the Statute.

33. Similarly, advertisement published only one vacancy of Associate Professor. As per own admission of respondents, none was found suitable for the said vacancy. We do not find any provision in the Statute which empowers Selection Committee to downgrade the post. Advertising vacancies in higher post but thereafter to recommend for appointment on a lower post, though no such vacancy for lower post was ever advertised, cannot be said to be legal or in accordance with law. Time and again, it has been held that selection and appointment have to be made strictly in accordance with law and only with respect to vacancies, advertised, and not in violation of advertisement. When only one post of Associate Professor was advertised, Selection Committee could not have proceeded to make selection for two posts/vacancies of Associate Professor, and hence the University has no business at all to make recommendation for appointment on lower post of Assistant Professor, when it failed to find any suitable candidates to the post/vacancies of Associate Professor. Thus, selection and appointment of respondents-7 and 8 is patently illegal.

34. Petitioner has further sought a writ of mandamus directing AMU to allow him to continue as Guest Faculty in the University since he has been working in such capacity for a long time but appointments of Guest Lecturer or Guest Faculty having been on tenure basis and tenure having expired, therefore we do not find that a mandamus can be issued to continue appointment after expiry of tenure, in absence of any legal right vested in the petitioner. No such right has been shown to us. Hence, in our view to this extent, no relief can be granted to petitioner.

35. In the result, writ petition is partly allowed. Appointments of respondents-5 to 8 on the post of Assistant Professors in DSOR are hereby quashed.

36. However, Respondent-University shall be at liberty to proceed to make fresh appointments in accordance with law.

(Ifaqat Ali Khan,J.)                     (Sudhir Agarwal,J.)
 
Order Date :- 06.07.2018
 
Siddhant Sahu