Raghunath Prasad Saket vs Satyawati College & Others
2009 Latest Caselaw 4010 Del

*                  HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on : September 16, 2009
               Judgment delivered on : October 06, 2009

+                       W.P. (C) No.9200/2009

%      Raghunath Prasad Saket              ...  Petitioner
                 Through: Mr. K.S. Chauhan, Mr. Kartar Singh,
                           Mr.Chand Kiran and Mr. K.C. Lamba,
                           Advocates

                                 versus

       Satyawati College & Others              ... Respondents
                  Through: Ms. Priya Kumar and Mr. Neeraj
                             Chaudhary, Advocate for Satyawati
                             College.
                             Mr. Mohinder Rupal, Advocate for
                             University of Delhi.
                             Mr. Amitesh Kumar, Advocate for
                             University Grants Commission.
                             Mr. Manmohan Singh Sethi, Advocate
                             for Respondent No. 5.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local
       papers may be allowed to see
       the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be
       reported in the Digest?

SUNIL GAUR, J.

1. In pursuance to advertisement of June, 2008 (Annexure P-3)

floated by the Respondent - College, Petitioner had applied for the

post of Lecturer in Economics and vide letter (Annexure P-4) he was

called for interview but was not selected. Instead, Respondent No. 5

W.P. (C) No.9200/2009 Page 1 was selected as Lecturer in Economics. Petitioner claims that despite

being eligible, he has not been selected for the post of Lecturer in

Economics, whereas Respondent No. 5 had not cleared the Net

Examination, which was an essential requirement and thus, was

ineligible but she has been selected.

2. The challenge in this petition is to the selection of Respondent

No. 5 as Lecturer in Economics being illegal and contrary to

University Grants Commission Regulations (Annexure P-2). Petitioner

claims to be at Serial No.2 and seeks a direction to Respondent to

appoint him on the post of Lecturer in Economics in the Respondent -

College.

3. Respondent - College, in its counter affidavit, has taken a

stand that eligibility criteria as laid down by University Grants

Commission has not been ignored and there is no violation of any

regulation as the performance of Respondent No. 5 was found to be

excellent by the Selection Committee, which consisted of senior

persons and to select best available talent for the teaching job, had

recommended Respondent No. 5 for appointment to the post of

Lecturer in Economics but this was subject to the condition that her

appointment would be confirmed on completion of M.Phil or upon

qualifying NET. Respondent No. 5 has gone a step further in

asserting that she had informed the Selection Committee that she

had already appeared in the NET examination in December, 2008

and even if her result was delayed, and was declared in May, 2009, W.P. (C) No.9200/2009 Page 2 she will be deemed to have been qualified in NET in December,

2008.

4. Respondent - University, in its counter affidavit, has

acknowledged that the name of the Petitioner was placed at second

place in the panel for appointment to the post of Lecturer in

Economics (SC category) and the advertisement for the selection to

the post in question was made on 17th June, 2008 and the University

had informed the Respondent - College vide communication of 22nd

May, 2009, (Annexure R-1/1) that Respondent No. 5 did not fulfill the

eligibility criteria. The precise stand taken by the Respondent -

University is as under:-

"That as stated above in para no.6 Respondent No. 5 Ms. Madhavi Moni K. does not fulfill the minimum eligibility criteria for appointment to the post of Lecturer (Assistant Professor) at the time of her selection in the respondent college and her appointment is irregular and violative of University Ordinances and UGC Regulations, 1998."

5. Respondent - University Grants Commission, in its counter

affidavit, has endorsed the stand of Respondent - University in

asserting that 'NET' shall remain the compulsory requirement for

appointment as Lecturer in Economics even for the candidates

having Ph.D degree.

6. After having heard counsel for the parties and upon perusal of

material on record and the decisions cited, this Court finds that even

in the minutes of meeting of the Selection Committee, held on 11th W.P. (C) No.9200/2009 Page 3 February, 2009, it stands acknowledged that Respondent No. 5 did

not have the required eligibility. What is recorded in the aforesaid

minutes of the meeting, deserves notice and it reads as under:-

"Therefore, the Selection Committee recommended her name for the permanent post although she does not have the required eligibility. She may be appointed for the post but her appointment will be confirmed when she completes her M.Phil or qualifies NET (whichever is earlier), till then she will be under probation."

7. The legal position on the point in issue needs to be looked into.

The general rule is that while applying for any course of study or a

post, a person must possess the eligibility qualification on the last

date fixed for such purpose either in the admission brochure or in

application form, as the case may be, unless there is an express

provision to the contrary. There can be no relaxation in this regard i.e.

in the matter of holding the requisite eligibility qualification by the date

fixed. It has been so endorsed by the Apex Court in "Dolly Chhanda

vs. Chairman, JEE and others" (2005) 9 SCC 779.

8. In "Ashok Kumar Sharma & Anr. vs. Chander Shekhar and

Anr.", 1993 Suppl. (2) SCC 611, the question for consideration was

whether or not candidates who were fully qualified to be appointed as

Junior Engineers on the dates of interview, but whose results had not

been declared on the dates of submission of their applications, were

entitled to be considered for appointment to the post of junior

engineer. The aforesaid question would not arise in the instant case

W.P. (C) No.9200/2009 Page 4 for the reason that the candidates in the aforesaid decision were fully

qualified on the day of the interview. In the instant case, Respondent

No. 5 had not qualified the NET examination, when she was

interviewed as is evident from the minutes of the meeting of Selection

Committee on 11th February, 2009. Reliance placed upon decision

reported in (1995) 3 SCC 120, is misplaced as the schedule tribe

candidate, though available, was lacking requisite experience and the

reserved post was filled up by the general candidate and in that

context, it was said that the appointment of schedule tribe candidate

lacking requisite experience was not per se illegal. Another decision

reported in AIR 1978 SC 1536, holding appointment to be irregular

but not void on account of lack of experience, is of no help to the

case of the Respondent No. 5.

9. The pertinent observations made by the Apex Court in the case

of "Municipal Corporation of Greater Bombay and others vs. Dr.

Sushil V. Patkar and others" AIR 1991 SC 1733, which applies to the

case in hand, are as under:-

"The candidate who did not possess the necessary eligibility qualification on the date of application and who was given an opportunity even at the belated stage of interviews to show that he possessed the necessary qualification for selection, having failed to furnish the certificate showing acquisition of qualification cannot be allowed to upset the selection and thereby interfere with the rights of third parties for his default. The selection board in such cases had no option but to ignore his W.P. (C) No.9200/2009 Page 5 candidature on his failure to satisfy it on the question of eligibility by producing the certificate of his having acquired the necessary qualifications. He could not, therefore, be heard to say that his default should be condoned and the selection be upset notwithstanding its adverse impact on the rights of third parties."

10. In the decision reported in JT 2008 (11) SC 73, appointment

order had permitted the Research Assistants to acquire NET/M.Phil

qualification within a period of three years, failing which they would

not be entitled to future increments. This decision does not come to

the aid of the Respondent No. 5, for the reason that as per the

counter affidavit of University Grants Commission, Circular of 10th

February, 1993 had granted some exemption from appearing in the

Eligibility Test, i.e., NET examination. However, this is not a position

now as stands already acknowledged by the Respondent in the

minutes of the meeting of the Selection Committee, referred to above.

11. Decision reported in 1993 II LLJ 1159, pertained to a Principal

of a private college and the challenge to his appointment on the

ground lacking requisite educational qualification was repelled as he

had acquired the experience of teaching senior classes since the

year 1981 and the challenge to his appointment was made in the year

1990. Aforesaid decision was on its own facts and is of no help to the

case of Respondent No. 5.

12. This Court is conscious of the fact that normally, the

recommendations of the Selection Committee cannot be challenged

W.P. (C) No.9200/2009 Page 6 except on the ground of mala fides or serious violation of the statutory

rules. The courts cannot sit as an Appellate Authority to examine

recommendations of the Selection Committee like Court of appeal.

This discretion has been given to the Selection Committee only and

courts rarely sit as a Court of appeal to examine selection of

candidates nor is it the business of Court to examine each candidate

and record its opinion.

13. It is true that selections cannot be faulted with, while sitting in

writ jurisdiction but the eligibility of the selected candidate certainly

can be gone into. The Selection Committee in its minutes of meeting

held on 11th February, 2009 has itself acknowledged that Respondent

No. 5 does not have the required eligibility of qualifying NET

examination. Strangely, Respondent No. 5 has been recommended

for appointment on the permanent post of Lecturer in Economics

subject to her qualifying the NET examination or of her completing

M.Phil, whichever is earlier, and till then, she has been put on

probation.

14. It is abundantly clear that Respondent No. 5 had not passed the

NET examination even on the date of interview, i.e., on 11th February,

2009 and since passing of this examination was an essential

qualification, which could not have been waived, therefore, her

appointment was an utter violation of the University Grants

Commission Regulations of 1998. Respondent - University has fairly

acknowledged the above said factual position. For this very reason, W.P. (C) No.9200/2009 Page 7 Respondent No. 5 was not called for interview for the post of Lecturer

in Economics in Laxmi Bai College affiliated to University of Delhi as

is evident from communication of 14th July, 2009 (Annexure CM-2).

15. Since Respondent No. 5 did not possess the minimum eligibility

of passing NET examination on the date of the advertisement, and

even on the date of interview, therefore, her appointment as Lecturer

in Economics is not merely irregular but is void ab initio and it cannot

be sustained and is accordingly set aside. Since the Petitioner was

placed second in the panel drawn by the Selection Committee in its

meeting on 11th February, 2009, for the appointment to the post of

Lecturer in Economics (SC category), as per the counter affidavit of

Respondent - University, therefore, Respondent - College is directed

to finalize the selection to the post of Lecturer in Economics (SC

category) in reference to advertisement of 17th June, 2008 within

eight weeks.

16. This petition stands allowed in the aforesaid terms.

17. No costs.

Sunil Gaur, J.

October 06, 2009
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