Madhya Pradesh High Court

Smt. Archana Saxena vs Union Of India on 23 February, 2024

Author: Vivek Agarwal

Bench: Vivek Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 23 rd OF FEBRUARY, 2024
WRIT PETITION No. 8133 of 2015

BETWEEN:-
SMT. ARCHANA SAXENA W/O DR. JITENDRA SHRIVASTAVA,
AGED ABOUT 47 YEARS, OCCUPATION: ASSISTANT LIBRARIAN
MAULANA AZAD NATIONAL INSTITUTE OF TECHNOLOGY
BHOPAL (MADHYA PRADESH)

.....PETITIONER
(BY SHRI PRAVEEN DUBEY - ADVOCATE)

AND
1. UNION OF INDIA THR. SECRETARY MINISTRY OF HUMAN
RESOURCES DEVELOPMENT SHASTRI BHAWAN NEW
DELHI (DELHI)

2. DIRECTOR MAULANA AZAD NATIONAL INSTITUTE OF
TECHNOLOGY UNIVERSITY BHOPAL -462007 MP (MADHYA
PRADESH)

3. MEMBER SECRETTARY MAULANA AZAD NATIONAL
INSTITUTE OF TECHNOLOGY BHOPAL (MADHYA
PRADESH)

4. DR. GEETA BALI CHAIRMAN MAULANA AZAD NATIONAL
INSTITUTE OF TECHNOLOGY BHOPAL (MADHYA
PRADESH)

5. DR. APPU KUTTAN K.K DIRECTOR MAULANA AZAD
NATIONAL INSTITUTE OF TECHNOLOGY BHOPAL
(MADHYA PRADESH)

6. DR. GEETA AGNIHOTRI SENATE MEMBER MAULANA
AZAD NATIONAL INSTITUTE OF TECHNOLOGY BHOPAL
(MADHYA PRADESH)

7. SHRI P.T. DEO, MEMBER OF BOARD OG GOVERNOR
DIRECTOR INDIAN POWER MANAGEMENT ACADEMY,
30/E-7, ASHOKA HOUSING SOCIETY ARERRA COLONY
Signature Not Verified
BHOPAL (MADHYA PRADESH)
Signed by: MOHD TABISH
KHAN
Signing time: 2/27/2024
7:00:34 PM
2

.....RESPONDENTS
(BY SHRI YOGESH BHATNAGAR - ADVOCATE APPEARING THROUGH VIDEO
CONFERENCING ASSISTED BY SHRI VIVEK BADERIYA - ADVOCATE FOR THE
RESPONDENTS NO.2 TO 7)

This petition coming on for admission this day, the court passed the following:
ORDER

Petitioner is aggrieved of order dated 05.03.2015, Annexure P-2, passed by the Director of the Maulana Azad National Institute of Technology, Bhopal bearing No.F.A.11/10(1)210 whereby appointment of certain persons on the report of three Member Committee was taken into consideration and Board of Governors (BOG) accepted the recommendations of the three Member Committee in its 40th meeting held

on 22.02.2015 and took a decision to cancel the appointment of certain persons including the petitioner.

Petitioner was given appointment as Assistant Librarian.

This order of cancellation was initially withdrawn vide order dated 10.03.2015, Annexure P-3, in the light of some CBI report, which said that there was no criminality recorded in the process of recruitment, but later on vide order dated 29.05.2015, earlier order dated 05.03.2015 was directed to stand w.e.f. 29.05.2015.

Petitioner's contention is that an advertisement was issued for appointment to various posts in Maulana Azad National Institute of Technology, Bhopal and the qualifications prescribed in the advertisement, as contained in Annexure P-6 on 09.06.2005, in the advertisement itself, it is mentioned that essential qualifications for above posts will be as per AICTE norms.

It is submitted that petitioner was one of the candidates for the post of Assistant Librarian. Two posts of Assistant Librarian were advertised.

It is an admitted fact that the qualification for the Assistant Librarian as per the notification of AICTE dated 15.03.2003 was as under :-

"(i) qualifying in the national level test conducted for the purpose by the UGC or any other agency approved by the UGC.

(ii) Master's Degree in Library Science/Information Science/Documentation Science or an equivalent professional degree with at least 55% of the marks or its equivalent CGPA and consistently good academic record, computerization of library."

Petitioner's case is that since petitioner possess M.Phil Degree in Political Science and taking this Court through her brilliant academic record which shows that she did her M.A. Final in Political Science from Jiwaji University, Gwalior in the year 1991 and, then she did her M.Phil in Political Science 2nd Semester in August 1993, then she pursued her Bachelor of Library and Information Science, 2nd Semester in the year 1992 from the Jiwaji University, Gwalior and, thereafter did her Master's in May, 2000 from Barkatullah Vishwavidyalaya, Bhopal, she was qualified to apply for the post of Assistant Librarian. Besides, this she had experience of working as Assistant Librarian in the Bansal Institute of Science and Technology, Kokta Anandnagar, Bhopal for which certificate was issued by the Deen (P&D) on 26.06.2000 and thereafter another certificate was issued on 02.07.2004 by the Administrative Officer of Bansal Institute of Science and Technology. Thus, her appointment could not have been cancelled on misreading of the provisions.

It is also submitted that there was no provision for conduct of judicial enquiry and that is dehors the provisions contained in the Rules, therefore, a ground has been taken

as ground No.N on which lot of emphasis is supplied by Shri Praveen Dubey that Board of Governors (BOG) totally surrendered its discretion and in utter non-application of mind blindly relying upon the recommendations of last two enquiry committees which did not comprise of subject experts issued impugned cancellation orders.

It is also submitted that though there is mention of consideration of report of

Justice M.A. Siddiqui Committee but that was never supplied to the petitioner.

It is further submitted that prior to the report on which respondents acted and issued the impugned orders, a committee was constituted namely Dr. G.L. Jambhulkar, Deputy Educational Advisor (NIT) on allegations of appointment of faculty in the Maulana Azad National Institute of Technology, Bhopal and in that report which is part of Annexure P-10, it was found that though the time of fifteen days was granted to call for the application which was in violation of the norms but sufficient number of applications were called and, therefore, no prejudice was caused to the candidates.

Placing reliance on Annexure P-14, it is submitted that in fact petitioner was confirmed before issuance of the impugned order vide order dated 18.07.2007 and, therefore, she could not have been removed casually.

Reliance is also placed on the judgment of Coordinate Bench of this High Court in Kavita Dehalwar Vs. Union of India and others, 2022(3) MPLJ, 652 to point out that one of the person who was removed by the impugned order along with the petitioner, her removal has been set aside by the Coordinate Bench of the High Court.

Placing reliance on the said judgment, it is pointed out that since fair procedure was not adopted before removing the petitioner, therefore, the removal of the petitioner is fraught with civil consequences and she is entitled to reinstatement.

Shri Yoghesh Bhatnagar, learned counsel appearing through video conferencing assisted by Shri Vivek Baderiya, present in person places reliance on the judgment of Supreme Court in M.S. Patil (Dr.) Vs. Gulbarga University and Others, 2010(10) SCC 63, wherein it is held that continuation in post for over 17 years is not a ground to quash the orders of removal because there is no concept of adverse possession of lien on the post.

It is submitted that after following the due procedure, Board of Governors (BOG) applied their mind and took conscious decision to remove the petitioner and that order

cannot be interfered with.

After hearing learned counsel for the parties and going through the record. An advertisement was issued, as contained in Annexure P-6. This advertisement admittedly and undisputedly prescribes qualification for different posts as per AICTE norms.

There is no dispute to the fact that AICTE prescribes certain qualifications as mentioned above namely; "(i) qualifying in the national level test conducted for the purpose by the UGC or any other agency approved by the UGC; (ii) Master's Degree in Library Science/Information Science/Documentation Science or an equivalent professional degree with at least 55% of the marks or its equivalent CGPA and consistently good academic record, computerization of library," as given in the AICTE notification dated 15.03.2003.

Petitioner's contention is that since she was possessing M.Phil degree, therefore, she was entitled to relaxation from qualifying in the National Level Test conducted for the purpose by the UGC or any other agency approved by the UGC.

This aspect has been dealt with by the Supreme Court in University Grants Commission Vs. Sadhana Chaudhary and others, decided on 17.09.1996. There Hon'ble Supreme Court has quoted relevant portions of the circulars dated September 19, 1991, which provides that "good academic record with at least 55% marks or an equivalent grade at Master's level in the relevant subject from an India University or an equivalent degree from a foreign University. Candidates besides fulfilling the above qualifications should have cleared the eligibility test for lecturers conducted by UGC, CSIR or similar test accredited by the UGC."

By Circular dated February 10, 1993 the UGC granted exemption from appearing in the eligibility test to following categories:-

1. All candidates who have passed UGC/CSIR J. R. F. Examination .

2. All candidates who have already been awarded Ph.D degree.

3. All candidates who have already been awarded M. Phil degree upto 31st March, 1991.

4. All candidates who will submit their Ph.D thesis upto 31st December, 1993.

By Circular dated June 15, 1993 in respect of candidates falling in category (3) exemption from appearing in the eligibility test was extended to candidates who had been awarded M. Phil degree upto December 31, 1992. Thereafter vide notification dated June 21, 1995, the 1991 Regulations have been amended and the following proviso has been added below the requirement regarding clearing the eligibility test for appointment on the post of Lecturer :-

"Provided that candidates who have submitted Ph.D thesis or passed the M. Phil examination by 31st December, 1993 are exempted from the eligibility test for lecturers conducted by UGC."

In that case validity of the circulars of the UGC dated February 10, 1993 and June 15, 1993 as well as notification dated June 21, 1995 amending the 1991 regulations was questioned. Hon'ble Supreme Court leaving the question of validity of the said circulars open opined that the direction given by the High Court of Punjab and Haryana that it would not be necessary to appear in the eligibility test for candidates who have applied or/are applying for the Lecture's posts pursuant to the advertisement dated January 23, 1995, if they have obtained M.Phil degrees or submitted Ph.D thesis before December 31, 1994 i, e., prior to the date of the publication of advertisement, disposed of the SLPs.

However, the moot question which arises in this case is that whether the M.Phil which was admittedly obtained by the petitioner not in the subject of the Library Science but in the subject of Political Science as is evident from concerned mark-sheet filed

showing completion of M.Phil Political Science for which exam was conducted in the August, 1995. The rational for exemption to M.Phil and Ph.D candidates i.e. the relaxation in the prescribed qualification can be borne out from the fact that in its notification dated September 19, 1991 and the Schedule-I attached to the said notification as was issued by the University Grants Commission and was published in the Gazette of India on 05.10.1991, part 3, Section 4, it is provided in the notes as under :-

"(2) In order to encourage research, in continuation of post-graduate studies, candidates who, at the time of recruitment of lectures, possess, Ph.D. or M.Phil degree (called jointly as the 'research' degrees), will be sanctioned three and one advance increments respectively in the scale of Rs. 2200-4000 alongwith the benefit of the corresponding years of service for the purpose of promotion. The existing Lecturers without research degrees and those similarly situate recruited in future will be eligible for a similar benefit in service for the purpose of promotion as and when they acquire research degrees, but will not be eligible for advance increments. Existing Lecturers with research degrees will also be eligible for a similar benefit.

(3) Counting of previous service for the purpose of placement in Senior Scale/Selection grade will be in accordance with the UGC guidelines issued vide circular No.F.1-6/90(P.S) dated November 27, 1990."

Thus, this communication from the UGC when read with further communication 18th February, 1995 that for a Professor Schedule-I was replaced as under :-

"An eminent scholar with the published work of high quality actively engaged in research with 10 years of experience in post-graduate teaching and/or research at university/National level institutions, including experience or

guiding research as doctoral level."

Thus, there is no iota of doubt that research degrees are required in the concerned subjects and not in other subjects, therefore, this submission made by Shri Praveen Dubey that the petitioner was possessing M.Phil degree in Political Science and, therefore, she was exempted from appearing in the UGC qualifying examination for appointment as Assistant Librarian, has no force to stand and, therefore, that submission is hereby rejected.

Now, in view of the aforesaid discussion, it is crystal clear that on the date of the appointment petitioner was not possessing the necessary qualification as prescribed by the AICTE vide concerned notification which was holding the field at the time of such recruitment.

As far as judgment in case of Kavita Dehalwar (supra) is concerned, that is on a different footing, in that case Coordinate Bench has held that Schedule -II to the qualification stood amended and as per the schedule qualification applicable for appointment as Lecturer in Architecture was amended vide corrigendum dated 05.02.2002 providing for first class bachelors degree in Architecture; and (ii) First Class Master's Degree in Architecture/Planning.

In terms of the prescription of the qualification by the AICTE prescribing first class bachelors degree for appointment as a Lecturer, it has been held that since Kavita Dehalwar was holding the requisite qualification she could not have been thrown out on account of not possessing the necessary qualification. That being a distinguishing fact which could not be distinguished in the present case by bringing any such notification of AICTE, amending the qualifications for appointment to the post of a Assistant Librarian, facts of that case will not be applicable.

As far as petitioners third argument that petitioner after having worked for about 10

years has attained indefeasible right to continue specially in view of the fact that vide order Annexure P-14, she was subjected to confirmation, the law in this behalf is crystal clear as cited by Shri Yogesh Bhatnagar in M.S. Patil (Dr.) Vs. Gulbarga University and Others, 2010(10) SCC 63, wherein it is held that an illegal appointment cannot be cured and once it has been acquired by committing abuse of process, then that appointment is required to be canceled inasmuch as there is no such concept of adverse possession of lien on a post.

In view of this judgment third ground too is not made out.

At this stage, last ground which has been raised by Shri Praveen Dubey that is the report of Justice M.A. Siddiqui Committee was not supplied to him is of no avail because the decision was taken on the basis of Lodha Committee report and not on the basis of Justice M.A. Siddiqui Committee report. Admittedly, copy of Justice Lodha Committee report was supplied to the petitioner, as contained in Annexure -18, petitioner had given reply to the said show cause notice as contained in Annexure P-19 on 11.07.2011, therefore, after furnishing reply to the report of the committee and having failed to bring to the notice of the Committee or the Board of Governors (BOG) which had issued the show cause notice that petitioner fulfilled the requirements of the prescribed qualifications as per the AICTE guidelines on the date of recruitment, no indulgence can be shown because Justice M.A. Siddiqui Committee report was to further scrutinize the report of Justice Lodha Committee and was not an independent enquiry report.

Besides this, it will also be important to bring on record that vide order dated 28.11.2006 Government of India, Ministry of Human Resources Development Department of Higher Education had passed orders contained in Annexure P-12 appointing Shri M.N. Buch, IAS (Retired), as enquiry Officer to conduct an enquiry into the affairs of Maulana Azad National Institute of Technology, Bhopal. The terms of

reference of the enquiry were to examine the conduct of the Chairman, Director and other Officers of the Institute in the recent past and suggest steps to improve the working of the institute. The enquiry officer shall also meet the faculty and non-faculty staff of the institute, students and other stakeholders to elicit their opinion on the State of the Affairs of the Institute. The enquiry Officer was given freedom to device the mode of enquiry and all the secretarial assistance and expenditure involved in conduct of enquiry shall be provided by the institute.

In this enquiry report which has been filed as Annexure P-3, there are glaring findings against the then Director Dr. K.S. Pandey and the Chairman of the Board of Governors, Shri S.K. Jhalani, besides other faculties of the Maulana Azad National Institute of Technology. Detailed reference is not required as they are not parties before this Court but the contention of the petitioner that the petitioner along with another relative of Shri Sanjeev Saxena were traumatized can be seen from the report where Shri M.N. Buch referred to the case of Dr. Aruna Saxena (one of the relatives of Shri Sanjeev Saxena, besides the petitioner) and referred to the fact that She was granted promotion as Assistant Professor and within one year and three months before she would be considered for the post and within two months was selected as Professor because a Professor requires at least fifteen years teaching experience which would be completed in 2008 with at least five years as Assistant Professor which would be completed in 2010. Similarly, observations have been made in regard to other candidates but since petitioner has raised this issue in regard to traumatization because of their relationship with one Shri Sanjeev Saxena, the fact of the matter is that though this issue was raised by the petitioner in her reply to the show cause notice but she has never ever impleaded the members of the said Lodha Committee as a respondent and never sought quashing of that report or alleged any malafides against said committee or any other committee.

Therefore, in view of such facts merely giving a clean chit in a criminal case which is the work of the CBI is not sufficient to hold that the authorities were precluded from conducting departmental proceedings and take a view on the legality or otherwise of the appointment of the petitioner, therefore, when tested on these aspects then admittedly when petitioner was not having the prescribed qualification for appointment to the post of Assistant Librarian, as prescribed by AICTE, impugned order cannot be faulted with.

Petition fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE MTK