Madhu Kumari vs Indian Institute Of Technology ...
2023 Latest Caselaw 2358 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  W.P. (S) No. 3082 of 2022
        1.      Madhu Kumari
        2.      Anant Kumar                                       ...     Petitioners
                                                Vs.
       1.       Indian Institute of Technology (Indian School of Mines), Dhanbad,
                Jharkhand through its Registrar officiating from Indian School of
                Mines Campus, Dhanbad
       2.       The Registrar officiating from Indian School of Mines Campus,
                Dhanbad                                           ...Respondents
                                               With
                                   W.P.(S) No. 4503 of 2022
                Viru Mandal                                       ...     Petitioner
                                                Vs.
        1.      Indian Institute of Technology (Indian School of Mines), Dhanbad,
                Jharkhand through its Registrar officiating from Indian School of
                Mines Campus, Dhanbad
        2.      The Registrar (Actg.) officiating from Indian School of Mines Campus,
                Dhanbad                                           ... Respondents
                                   ---------

CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Petitioners : Mrs. Ritu Kumar, Advocate Ms. Shatakshi, Advocate Mr. Sadab Bin Haque, Advocate For the Respondents : Mr. A.K. Mehta, Advocate Mr. Ratnesh Kumar, Advocate

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08/19.07.2023 The issues involved in all these writ petitions are same, similar and identical and as such these have been tagged and heard together on various dates and are being disposed of by this common order.

2. The petitioners in W.P.(S) No.3082/2023 have approached this Court with a prayer for a direction upon the respondents to include the name of the petitioners in the final results of Recruitment against Group B and C held on 25.09.2021 for the post of Junior Assistant (Hospitality) and to publish the results of the petitioners for the said post and issue appointment letters in their favour. Further, prayer has been made for quashing the part of

the Advertisement No.411002/9/2023-NFR dated 27.04.2023 so far as it relates to filling up the Backlog vacancies of Junior Assistant (Hospitality).

3. The petitioner in W.P.(S) No.4503 of 2022, has approached this Court for quashing the Letter No.411002/3/2019-ESTT.(2) dated 26.08.2022, whereby and whereunder, it has been informed that candidature of the petitioner for the post of Junior Assistant (Hospitality ) has not been considered and as such, the name of the petitioner has not been recommended by the Selection Committee. Further, prayer has been made for a direction upon the respondents to consider the candidature of the petitioner for the post of Junior Assistant (Hospitality) and issue appointment letter in favour of the petitioner. Further, prayer has been made for quashing the part of the Advertisement No.411002/9/2023-NFR dated 27.04.2023 as far as it relates to the petitioner.

4. The case of the petitioners lies in a narrow compass. An advertisement being Advertisement No.4110002/3/2019-Estt. dated 04.10.2019 was floated by the Indian Institute of Technology (Indian School of Mines), Dhanbad, inviting applications for various posts including 51 posts of Junior Assistants (Hospitality) and for which essential qualification was three year Diploma in Hotel Management & Catering Technology from a recognized institution with at least five years relevant experience in a reputed organization. Pursuant to the same, the petitioners having Degree of Bachelor in Hotel Management & Catering Technology from recognized Institution, which is higher degree as per terms and conditions of advertisement, applied for the post of Junior Assistants (Hospitality). Thereafter, the petitioners were shortlisted for the said post vide notice dated 24.08.2021 and accordingly, vide different emails, they were requested to report on 25.10.2021 for document verification along with all the original documents. In compliance of the same, they appeared for document verification before the respondents on the given date and time, but surprisingly, in the final result dated 03.11.2021 only one candidate was selected for the said post. Aggrieved by the same, they represented before the respondents, by which they came to know that the required eligibility qualification for the post of Junior Assistant (Hospitality) was 3 year Diploma in Hotel Management & Catering Technology, but as they were having the degree of Bachelor in Hotel

Management & Catering Technology from the recognized Institution, their names were not recommended for appointment. However, the petitioners received a letter dated 14.01.2022 issued by the respondent-Authorities, requesting them to furnish a certificate from their respective Council/Board to the effect that Degree possessed by them may be considered as equivalent to the Diploma in Hotel Management & Catering Technology in the cases where Diploma in HM & CT is an essential qualification. In compliance of the same, the petitioners submitted a certificate from their respective institutions regarding equivalence and informing that Bachelor in Hotel Management & Catering Technology is a superior degree higher than the diploma and more than equivalent to the diploma for all purposes, but the same was not considered by the respondents. Hence, the petitioners have been constrained to knock the door of this Court.

5. During the pendency of the writ petition, 23 rd Meeting of the Board of Governors was held on 28.09.2022 in which at Agenda 23/6 amendment in essential qualification for the post of Junior Assistant (Hospitality) was dealt with and it was decided that essential qualification for Junior Assistant (Hospitality) is Bachelor's Degree in Hotel Management/Hospitality or equivalent degree from a recognized institution with at least 55 % marks or equivalent grade with relevant experience of two years after the degree in reputed Organizations, but the case of the petitioners were not considered for appointment. However, an advertisement being Advertisement No.411002/9/2023-NFR dated 27.04.2023 has been issued by the respondents, inviting applications for several posts of Backlog vacancies including Junior Assistant (Hospitality), which is also under challenge.

6. Mrs. Ritu Kumar, learned counsel for the petitioners in W.P.(S) No.3082/2023 draws the attention of the Court towards Annexure-6 to the writ petition and submits that it was the Management/respondents, who had asked for furnishing a certificate from the respective Council/Board to the effect that Degree possessed by them may be considered as equivalent to the Diploma in Hotel Management & Catering Technology, in the cases where Diploma in HM & CT is an essential qualification and in view thereof, the petitioners furnished equivalence certificate duly issued by Maulana Abul Kalam Azad University of Technology, West Bengal. She further states that

even the National Council for Hotel Management and Catering Technology vide his Letter dated 28.06.2018, which is at Annexure-9 has written to the Commissioner, Navodaya Vidyalaya Samiti, requesting therein to include the qualification awarded by NCHMCT i.e., 3 years B.Sc. HHA in place of 3 year DHMCT in the recruitment rule for the post of Catering Assistant in NVS, which was done and candidates possessing Degree BHMCT were appointed though the required qualification was Diploma in HM & CT as an essential qualification. She further submits that the respondents themselves realize their mistakes in the previous advertisement in which the petitioners appeared, came out with a new advertisement with amendment in essential qualification for the same post i.e. Junior Assistant (Hospitality), which is at Annexure-11. She further submits that since the petitioners were duly qualified in the recruitment process for the said post and they are having higher degree in terms of the advertisement and as such, their cases ought to have been considered for appointment to the said post, taking into consideration that their degree in Hotel Management & Catering Technology in equivalent to diploma in Hotel Management & Catering Technology.

7. Mr. Sadab Bin Haque, learned counsel for the petitioner in W.P.(S) No.4503/2022 submits that petitioner's degree in Hotel Management & Catering Technology is in equivalent to diploma in Hotel Management & Catering Technology, which is also mentioned in the new advertisement published by the respondents itself. He further submits that since the petitioner has duly qualified and possessing the requisite qualification, his case may be considered for appointment to the said post. He further submits that it is the respondents themselves, who after considering the case of the petitioner, have declared him successful and asked to submit equivalence certificate from the respective council/board and in compliance thereof, petitioner has furnished the same. The National Council For Hotel Management and Catering Technology also issued an Equivalence Certificate on 04.02.2022 certifying that the petitioner has successfully completed the Bachelor of Science in Hospitality and Hotel Administration (B.Sc. in H & HA) course during 2009-2012 from IHM Pusa, which is affiliated to National Council for Hotel Management & Catering Technology, Noida. The erstwhile Diploma in Hotel Management Course (3 years duration) issued by the

Council had been converted into degree program (B.Sc. in Hospitality & Hotel Management). He further submits that a Letter was also issued by the Director (A & F) to Registrar, IIT (ISM), Dhanbad stating therein that 'all the recruiting authorities in government as well private sector have replaced Diploma qualification with Degree as education qualification in their recruitment. In case the educational qualification is prescribed as Diploma in HMCT, Graduates in the relevant field can be made eligible as Graduation is higher qualification than Diploma and higher qualification should not be subjected for debarment. It is pertinent to mention here that the B.Sc. HHA is equipped with the skills in all four core areas as required by you and some management components'.

8. Assailing the impugned order and Advertisement dated 27.04.2023, Mr. Sadab Bin Haq, learned counsel further submits that the respondents have illegally and arbitrary rejected the claim of the petitioner on the ground that petitioner did not possess the requisite qualification. The respondents realizing their mistakes have rectified the same in the fresh advertisement and prescribed the qualification which the petitioner is having. Against the 51 post of Junior Assistant (Hospitality), only one candidate was selected and as such, vacancies were there, but illegally and arbitrary the respondents have not considered the case of the petitioner.

9. Per contra, counter-affidavit have been filed in both the cases. Mr. A.K. Mehta, learned counsel appears on behalf of the respondents in W.P.(S) No.3082/2022 and Mr. Ratnesh Kumar, learned counsel appears on behalf of respondents in W.P.(S) No.4503/2022. They jointly submit that appointment have to be done as per the Rules and as per the terms and conditions of the Advertisement and as per the terms and conditions of the advertisement, the candidates were required to possess 3 years diploma in Hotel Management & Catering Technology from the recognized Institution with at least five years relevant experience in a reputed organization and since all the petitioners did not possess the said essential qualification, righty they were not appointed to the said post. They further submits that after completion of written test, computer proficiency test and practical test, the respondents called the six shortlisted candidates for verification of documents and in the document verification, it was found that only one candidate

possessed the required essential qualification and was accordingly selected, whereas, all the petitioners did not possess the requisite qualification i.e., 3 years diploma in Hotel Management & Catering Technology as per the terms and conditions of the advertisement. The three years diploma programme in Hotel Management & Catering Technology has not been stopped across India, which is evident from the fact that one of the candidate, who has been selected for the above post, fulfills the required/essential qualification awarded by the Maharashtra State Institute of Hotel Management & Catering Technology. The petitioners have come out with the equivalence certificate issued by Maulana Abul Kalam Azad University of Technology, West Bengal, which is also not accepted by the respondents as Diploma and Degree are two different things and cannot be equated. They further submits that it was also not mentioned in the advertisement that even equivalent certificate/degree shall be considered for appointment to the said post, whatever mentioned in the advertisement is mandatory for all the candidates. If the respondents considers the case of the petitioners, who are Degree Holders in Hotel Management & Catering Technology, the same would amounts to arbitrary and discriminatory action on the part of the respondents being in violation of Article 14 to the Constitution of India as other Degree Holders have been deprived from applying for the said post pursuant to advertisement as the essential qualification for the said post was Diploma of 3 years and not Degree.

10. Mr. A.K. Mehta, learned counsel draws the attention of the Court towards para 17 to the counter-affidavit, wherein it was stated that 'to fill up vacant post is a regular exercise/process of any organization. As per needs and requirement, the respondent institute invited application for several post including Junior Assistant (Hospitality) after amendment of Recruitment Rules and as per the provision of IIT (ISM) Dhanbad. There is no bar for the petitioners to apply against the current Advertisement No.411002/9/2023- NFR dated 27.04.2023 and if they do so their cases will be considered'.

11. To buttress their argument, learned counsel for the respondents, places heavy reliance on the reported judgment of Hon'ble Apex Court in case of Maharashtra Public Service Commission through its Secretary

Vs. Sandeep Shriram Warade & Ors.1 and in case of Sanjay K. Dixit & Ors. Vs. State of Uttar Pradesh & Ors.2.

12. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, this Court is of the considered opinion that there is no quarrel to the settled principles of law that the terms and conditions mentioned in the advertisement cannot be altered or amended to the suitability of the candidates. What has been mentioned in the advertisement has to be followed in true letter and spirit. Any changes in the terms and conditions or any relaxation shall be violative of Article 14 & 16 of the Constitution of India. However, if any changes or alteration is made, it is not for a particular candidate it has to be done for each and every candidate, appearing in the recruitment process. The issue fell for consideration before the Hon'ble Apex Court in case of Sanjay K. Dixit & Ors.(supra), wherein it is observed at para 11, which reads as under:-

11. Admittedly, the Rules governing the selection to the posts of Technician Grade 2 (Apprenticeship Electrical) require every candidate to submit a DOEACC certificate signifying completion of 80 hours' CCC at the time of interview. Such condition was made compulsory. The advertisement also contained the condition regarding submission of the certificate at the time of interview. There is no doubt that there exists a power of relaxation of any of the Rules which could be exercised by the Chairman of the Corporation. It is nobody's case that the Chairman/Managing Director was not competent to relax the Rules. But, the submission made by the learned counsel for the writ petitioners is that the relaxation could not have been done as the advertisement did not mention about a possible relaxation of the Rules. We find force in the said submission made on behalf of the writ petitioners as this Court in Bedanga Talukdar [Bedanga Talukdar v. Saifudaullah Khan, (2011) 12 SCC 85 : (2011) 2 SCC (L&S) 635] held as follows : (SCC pp. 92-93, para 29) "29. ... In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be

(2019) 6 SCC 362

(2019) 17 SCC 373

scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India."

(emphasis supplied)

13. Further, in case of Maharashtra Public Service Commission through its Secretary (supra) it is clearly observed at para 9, which reads as under:-

9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.

14. Admittedly, the petitioners are 3 years Degree Holder in Hotel Management & Catering Technology and in the advertisement, essential qualification was three years diploma in Hotel Management & Catering Technology. Qualification for a post is a recruitment policy and the IIT (ISM), Dhanbad being employer, is only competent authority to prescribe a particular qualification as a condition of eligibility. It is settled principles of law that the Court cannot lay down the conditions of eligibility nor can it

delve into issue with regard to desirable qualifications being on a par with essential eligibility by an interpretive re-writing of advertisement. Further, issuance of equivalence of a degree also falls outside the domain of judicial review and if language of advertisement and rules are clear, Court cannot sit in judgment over the same. The issue fell for consideration before this Court in case of Santosh Kumar Yadav & Ors. Vs. State of Jharkhand & Ors.3 and in para 28, it has been held thus:-

28. It is well settled law that the question of equivalence of educational qualification is not within the domain and jurisdiction of the Court under Article 226 or 227 of the Constitution of India, it has to be done by a body of academicians or an expert body qualified for that job, as such, this Court cannot consider and hold one educational qualification to be equivalent to other qualifications. In this respect, in umpteen number of cases the Supreme Court has observed that it is not within the scope of judicial review to draw equivalence of qualification. Drawing of equivalence of qualification is essentially the job of experts of the field and it is not for the Court to enter into the arena of comparing two qualifications on certain parameters and then to declare equivalence.

15. Further, the Hon'ble Apex Court in case of Union of India Vs. S. Vinod Kumar4 has held as follows:-

18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil [(1991) 3 SCC 368 : 1991 SCC (L&S) 1052 : (1991) 16 ATC 928 : AIR 1991 SC 1607] .) (See also Rashmi Mishra v. M.P. Public Service Commission [(2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345 : (2006) 11 Scale 5] .)

16. Further, the Hon'ble Apex Court in case of Bedanga Talukdar Vs. Saifudaullah Khan,5 held as follows:-

29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection

(2019) 4 JBCJ 231 4 (2007) 8 SCC 100 5 (2011) 12 SCC 85

procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.

17. As a fallout and consequence of aforesaid discussion, I do not find any illegality or arbitrariness in action of the respondents in holding the petitioners ineligible for the concerned posts.

18. This Court vide order dated 15.05.2023 passed in W.P.(S) No.4503/2022 had clearly observed that "petitioner is at liberty to make application pursuant to the fresh Advertisement No.411002/09/2023-NFR dated 27.04.2023, issued by respondent No.2 and the same shall be considered as per final outcome of the writ petition". Since the petitioner in this writ petition has already applied, his candidature shall be considered, in accordance with law.

19. Since both the cases have been tagged together and the petitioners in both the cases were declared successful in earlier recruitment process and only because of 3 years Degree in Hotel Management & Catering Technology, their cases were not considered for appointment to the said post and now, the same was inserted in the fresh Advertisement and also the respondents themselves have taken a sympathetic view in para 17 of the counter-affidavit, filed in 3082/2022 that .....There is no bar for the petitioners to apply against the current Advertisement No.411002/9/2023- NFR dated 27.04.2023 and if they do so their cases will be considered', and also during the pendency of the writ petitions, fresh advertisement was published and as such, the petitioners in W.P.(S) No.3082/2022 are also entitled for the same benefits. Accordingly, petitioners in W.P.(S)

No.3082/2022 as well as 4503/2022 are at liberty to make application for the post of Junior Assistant (Hospitality) only pursuant to Advertisement No.411002/9/2023-NFR dated 27.04.2023 and the same shall be accepted, by giving age relaxation, if any, and no technicalities will come in the way of the petitioners for making their applications. The respondents are directed to consider the cases of the petitioners in both the cases, on its own merit, giving relaxation of age only.

20. Let it be made clear that relaxation of age given to petitioners in W.P.(S) No.3082/2022 and W.P.(S) No.4503/2022 will not be treated as a precedence and is only limited to the case of the present petitioners in W.P.(S) No.3082/2022 and W.P.(S) No.4503/2022.

21. With the aforesaid observations and directions, these writ petitions stand disposed of.

(Dr. S.N. Pathak, J.)

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