M/S.Pradipta Kumar Das vs State Of Odisha And Others
2023 Latest Caselaw 12926 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK


                W.P.(C) No.15977 OF 2016

(An application under Article 226 of the Constitution of India)



  M/s.Pradipta Kumar Das                          ...      Petitioner


                                -versus-


  State of Odisha and others                     ...      Opposite Parties



  Advocates appeared in the case through hybrid mode:


    For Petitioner                           : Mr.S.K.Dash,
                                               Advocate
                               -versus-


    For Opposite Party
    No.1                                      : Mr.S. Patnaik,
                                                A.G.A.

    For Opposite Party
     Nos.2 & 3                                : Mr.S. Udgata,
                                                Advocate.


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                                                               Page 1 of 18
                 CORAM:

                         JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

18.10.2023.

Sashikanta Mishra,J. The Petitioner has filed this Writ Petition

seeking the following relief;

"It is therefore, prayed that Your Lordship may graciously be pleased to consider the facts stated in the petition, admit the same, issue Rule Nisi, calling upon the Opposite Parties to show cause as to why a writ of Mandamus/certiorari shall not be issued against the Opp. Parties or fail to show cause or if insufficiently show cause and direct the Opp. Parties to issue call letter and to allow the petitioner to appear in the interview for the post of Associate Professor in the Dept. of Computer Science and Engineering or Information Technology along with the other applicants for the aforesaid Departments."

2. The brief facts of the case are that the Petitioner is

working as an Asst. Professor in Veer Surendra Sai

University of Technology (VSSUT), Burla, Sambalpur,

since 2nd June, 2014. He was selected as such in the

discipline of Information and Technology through a

competitive selection process. His appointment was

confirmed in June, 2015. On 1st December, 2015,

VSSUT issued an advertisement for recruitment to

several posts of faculty and officers including the post

of Associate Professor in the Department of Computer

Science and Engineering. Three posts were advertised.

The Petitioner applied for the said post on 12th

January, 2016. Since all other candidates except the

Petitioner received call letters to attend interview to be

held on 22nd September, 2016, he personally met the

Registrar, VSSUT, Burla (Opposite Party No.3), but was

informed that he is not eligible to be called for the

interview as he does not possess Ph.D. degree. It is the

case of the Petitioner that as per the advertisement,

the requirement was for having a Ph.D. or equivalent

in appropriate discipline. Further, the Regulation of

the All India Council of Technical Education (AICTE)

provides that equivalence for Ph.D. is publication of

papers in international journals, each having a

cumulative impact index of not less than 2.0. The

Petitioner claims to have met the aforementioned

criteria and therefore, is eligible for recruitment to the

post.

3. A counter affidavit has been filed on behalf of the

University (Opposite Party Nos.2 and 3). It is basically

stated therein that the Petitioner's application was

scrutinized by a committee of three members of

different disciplines not below the rank of Professor,

who short listed candidates to be called for the

interview with approval of the Vice Chancellor. The

scrutiny committee found that the Petitioner possessed

B.Tech degree in Computer Science and Engineering

and M.Tech in Economic and Telecommunication

Engineering, which is not an appropriate qualification

as per the advertisement. Further, the Petitioner does

not have a Ph.D. degree. As regards the claim of the

Petitioner regarding publication of papers in

international journals, it is stated that only two papers

were published in Elsevier publication with a

cumulative impact index factor of more than 2.0 and

therefore, the same does not satisfy the AICTE

Regulation for equivalence of Ph.D. It is further stated

that the University is not a Technical Institution as

defined under Section 2(h) of the AICTE Act and

therefore, the provisions of AICTE Regulation, 2010

cannot override the said Act and be applicable to the

University. The AICTE is not an authority empowered

to issue and enforce any condition on the University. It

is also submitted that interview was conducted on 22nd

September, 2016 and only one candidate was selected

for the post of Associate Professor in the Department of

Computer Science and Engineering and 4 candidates

for the post of Associate Professor in the Department of

Information and Technology with the condition

stipulated in their appointment orders that the same

shall be subject to the final outcome of the present

Writ Petition in view of interim order passed by this

Court.

The Petitioner has filed a rejoinder. It is stated

that identical qualification for the post of Asst.

Professor along with Ph.D. or equivalent in the

aforesaid discipline is also the essential qualification

for the post of Associate Professor. The Petitioner

having such qualification (except Ph.D) was found

suitable and appointed as Asst. Professor. Therefore,

the decision of the Scrutiny Committee in holding the

Petitioner as lacking in the essential qualification is

completely wrong. As regards the Ph.D. qualification, it

is stated that the Petitioner had published 6 (six)

papers in international journals. Further, 4 (four)

papers were published in Elsevier publication and one

in Springer. Thus, the Petitioner satisfied the criteria of

having publications in five International Journals all of

which had impact factor of more than 2. The

contention of the Opp. Parties that the University is

not a technical institution is sought to be refuted with

reference to the AICTE Act, 1987 particularly, to

Sections 10 and 11 thereof.

4. Heard Mr. S.K.Dash, learned counsel for the

Petitioner, Mr.S. Patnaik, learned Addl. Government

Advocate and Mr. S. Udgata, learned counsel

appearing for the University.

5. Mr. S.K.Dash would argue that as per the

advertisement, the required educational qualification

must be in the relevant Branch. The Petitioner

possesses B. Tech degree in Computer Science and

Engineering and M. Tech in Electronic and

Telecommunication Engineering. The Advertisement

was for the post of Associate Professor in the

Department of Computer Science and Engineering or

Information Technology. According to Mr. Dash

therefore, by no stretch of imagination, the Petitioner

can be said to be lacking in educational qualification.

Further, on the same criteria, he was considered

eligible for the post of Asst. Professor and appointed as

such. Mr. Dash further argues that in total, 16 papers

of the Petitioner were published in different Journals, 9

of them being published during the period from 2010

to 2014 and 7 during the period against which the

Petitioner was pursuing his Ph.D. being enrolled on 2 nd

April, 2014. Mr. Dash further submits that the

contention of the University that only two papers were

published in Elsevier is factually wrong as actually,

four papers were published. Since there was one

publication in Springer, the Petitioner met the

requirement as per the AICTE Regulation and

therefore, could not have been treated otherwise. Of

the 5 publications, the cumulative impact factor is

3.12. Mr. Dash sums up his arguments by submitting

that the Petitioner was therefore, wrongly deprived

from attending the interview.

6. Per contra, Mr. S. Udgata would contend that

the Writ Petition involving multiple causes of action is

not maintainable in the eye or law. Since the Petitioner

claims appointment in two different disciplines, he

cannot combine his grievance relating to the same in

one Writ Petition. Mr. Udgata would further argue that

the Petitioner does not possess the required

qualification inasmuch as he did not possess a Ph.D.

at the relevant time and his claim for equivalence on

the basis of publications is not acceptable. On facts,

Mr. Udgata would argue that out of five articles of the

Petitioner only one had been accepted but not

published and in three of the articles, the impact index

is less than 2. Thus, it cannot be said that the

Petitioner had five publications in international

journals having impact index of 2 each.

7. From the rival pleadings and contentions of the

parties, it is evident that the following points fall for

consideration in the present Writ Petition, i.e.,

(i) Whether the Writ Petition is maintainable for joinder of multiple causes of action?

(ii) Whether the Petitioner possessed the requisite qualification for being called to attend interview?

8. It has been argued that the Writ Petition

involves multiple causes of action inasmuch as the

Petitioner had applied simultaneously for two different

posts and approached this Court when call letter was

not issued to him. According to learned counsel

appearing for the University, one Writ Petition is not

maintainable. In response, it has been argued by

learned counsel for the Petitioner that even assuming

that the Petitioner had applied for two different posts

but as per the interim order passed by this Court one

post has been kept vacant in the Department of

Computer Science and Engineering. To such extent

therefore, the Writ Petition may be confined to the said

post only.

9. In view of the submission as above, this Court is

of the considered view that the Writ Petition needs to

be confined only to the Petitioner's grievance relating to

non-issue of call letter for interview for the post of

Associate Professor in the Department of Computer

Science and Engineering and is hence, maintainable to

such extent.

10. Having answered the preliminary question as

above, the next question that falls for consideration is

the educational qualification. It has been argued that

the Petitioner does not possess the required

qualification inasmuch as he possessed B. Tech degree

in Computer Science and Engineering and M. Tech in

Electronic and Telecommunication Engineering but

according to the advertisement, both the degrees

should have been in the relevant discipline, but the

Petitioner has B. Tech and M. Tech qualifications in

different disciplines. As against this, it has been

argued on behalf of the Petitioner that the basic

qualification required for an Asst. Professor is the same

as that of Associate Professor as well as Professor.

Since the Petitioner was selected as Asst. Professor

pursuant to similar advertisement dated 10th

December, 2013 with the same qualification and

continued as such without any objection by the

University in all these years it is therefore, not open to

the University at this stage to raise question on his

qualification. It is further submitted that in any case,

the Petitioner after completing his B. Tech in Computer

Science and Engineering did his M. Tech in Electronics

and Telecommunication Engineering with

Specialization in Computer Engineering. It cannot

therefore, be said that he lacks the required

qualification in the relevant subject. Reference to the

advertisement in question, copy of which is enclosed as

Annexure-6 to the Writ Petition, reveals that under the

heading minimum qualification/eligibility criteria for

the cadre of Associate Professor in

Engineering/Technology, the qualification required is;

B.E./B. Tech, M.E./M.Tech in relevant branch with

first class or equivalent either in B.E./B.Tech/M.E./M.

Tech and Ph.D. or equivalent in appropriate discipline.

It is not disputed that the Petitioner did his B. Tech in

Computer Science and Engineering and M. Tech in

Electronics and Telecommunication Engineering with

specialization in Computer Science. He was enrolled in

the Ph.D. course in the Department of Computer

Science and Engineering on 2nd April, 2014. It has not

been mentioned specifically in the counter as to how

the qualification of the Petitioner does not conform to

the requirement mentioned in the advertisement. It

has also not been clarified as to what is the exact

meaning of the expression 'in relevant branch' and/or

that the qualification of the Petitioner does not come

within the ambit of said expression. So, in the absence

this vital information, it is not possible to straight away

hold that the Petitioner did not possess the required

qualification in the relevant branch. It has been stated

in the reply filed by the Opp. Parties to the rejoinder

filed by the Petitioner that his initial appointment as

Asst. Professor was a mistake in view of his lack of

necessary qualification. This Court is not impressed by

such contention since as long as 10 years have passed

since then and no action whatsoever appears to have

been taken by the authorities at any point of time since

then to rectify the so-called mistake. It is therefore, too

late in the day for the University to take such plea. Be

it noted that the Petitioner is vying for the post of

Associate Professor in the Department of Computer

Science and Engineering of which he has B. Tech

qualification and specialization in M. Tech as stated

hereinbefore.

11. It is not disputed that the other requirement is

of having a Ph.D or equivalent in appropriate

discipline. It has been contended that the Petitioner

did not have 5 publications in international journals

with cumulative index of 2 and more. Per contra, it has

been contended that the Petitioner fully satisfies the

said requirement. Incidentally, it has been argued that

the AICTE Regulations cannot override the AICTE Act.

In this regard, this Court finds that under Paragraph-6

of the counter filed by the University, it stated as

under;

"6. That the deponent respectfully submits that contrary to the claim of the petitioner, the petitioner published six papers in International Journals (two papers in Elsevier, two in Inderscience and two in Springer Publication). Only two papers which are published in Elsevier Publication has a cumulative impact index factor more than 2.0, thus not satisfying the AICTE Regulation for equivalence of Ph.D relied upon by the petitioner".

(Emphasis added)

Surprisingly however, in the very same counter

the following has been stated under paragraph-10;

"10. That the deponent respectfully submits that the University is not a technical institution as defined in Section 2(h) of the AICTE Act and thus the provisions of AICTE Regulation 2010 cannot override the said Act and be made applicable to the University. Further the AICTE is not an authority empowered to issue and enforce any condition on the University and the requisites qualification of the Ph.D. degree to apply for the post of Associate Professor is at any rate a better qualification than merely having publication in International Journals".

(Emphasis added)

Thus, this is a clear case where the University,

on one hand refers to the AICTE Regulations as being

applicable and on the other hand ,takes a completely

contrary view that the said Regulations do not apply.

This approach is unconscionable in law.

12. Be that as it may, as per the AICTE Regulations,

2010 the following is stated as regards equivalence for

Ph.D.;

"Equivalence for Ph.D. is based on publication of five International Journal papers, each Journal having a cumulative impact index of not less than 2.0, with incumbent as the main author and all five publications being in the authors' area of specialization."

13. According to the Petitioner as specified in the

rejoinder, the Petitioner published four articles in

Elsevier publication and one in Springer publication

(both international journals) with the impact factor of

each more than 2.0. Learned counsel appearing for the

University has seriously disputed the claim. The

Petitioner has enclosed copies of several articles to the

Writ Petition, all of which have been published in

international journals. Nothing has been shown as

regards the impact factor of each of the said articles.

This being a pure question of fact, the Writ Court

would be slow to enter into the controversy. However,

fact remains that there is at least, prima facie, proof of

the Petitioner having submitted more than five articles

for publication in the international journals. Whether

such articles were actually published or not is a matter

that can always be verified by the University. Further,

what is the impact factor of each of the Articles, if

published, and consequently, what is the cumulative

Index factor is also something that can be easily

verified by the University. It is therefore, not proper to

throw away/ignore the candidature of the Petitioner at

the threshold without making even a semblance of an

enquiry. To such extent therefore, the decision of the

Scrutiny Committee to not call the Petitioner to attend

the interview is not proper or justified.

14. For all the foregoing reasons therefore, this

Court is of the view that candidature of the Petitioner

for the post of Associate Professor in the Department of

Computer Science and Engineering needs to be

revisited by the University Authorities. To specify, the

bone of contention being lack of Ph.D. equivalent

qualification, the same can be reconsidered in the light

of the materials relied upon by the Petitioner. This is

therefore, a case where this Court feels inclined to

interfere.

15. In the result, the Writ Petition is disposed of

directing the Opposite Party-authorities to place the

candidature of the Petitioner along with all relevant

documents relating to his qualification/equivalence

before the Scrutiny Committee, which shall reconsider

its earlier decision in the light of such materials and

after making necessary enquiry, if need be. Further

action shall depend upon such reconsideration by the

Scrutiny Committee. Till such time, one post of

Associate Professor in Computer Science and

Engineering shall be kept vacant. The whole exercise

should be completed within a period of two months

from the date of production of certified copy of this

order.

.................................. Sashikanta Mishra, Judge

Ashok Kumar Behera

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 10:50:03