WPSB/111/2017
2022 Latest Caselaw 2409 UK

             IN THE HIGH COURT OF UTTARAKHAND

                                  AT NAINITAL
                 THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

                                          AND

                        THE HON'BLE SRI JUSTICE R.C. KHULBE


                WRIT PETITION (S/B) NO. 111 OF 2017

                             02ND AUGUST, 2022

BETWEEN:

Rashmi Mishra                                                   .....Petitioner.
And

Uttarakhand Sanskrit Vishwa Vidyalaya & others

                                                                 ....Respondents.

Counsel for the Petitioner : Mr. Shobhit Saharia, learned counsel.

Counsel for the Respondent Nos.1 & 2 : Mr. Ashish Joshi, learned counsel.

Counsel for the Respondent No.3 : Mr. Alok Kumar Mishra, learned counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

The petitioner has preferred the present writ

petition to declare the denial of benefit of reservation

available to Uttarakhand General (Women) for appointment to

the post of Assistant Professor, Hindi- to which category the

petitioner belongs, in respect of the selection process held in

the year 2016 by the respondent no.1-Uttarakhand Sanskrit

Vishwa Vidyalyala to be arbitrary and illegal. The petitioner

further seeks a writ of certiorari calling for the records to

quash the appointment of respondent no.3-Umesh Kumar

Shukla, who has been appointed as Assistant Professor (Hindi)

in the aforesaid selection process undertaken in the year

2016. She also seeks a direction that respondent no.2 should

appoint the petitioner to the post of Assistant Professor

(Hindi) from the due date when other persons were selected

in the selection process held in the year 2016 by giving her

the benefit of reservation available to Uttarakhand Women

(General).

2. The relevant facts may be stated. The respondent-

University issued the advertisement on 22.04.2015, inviting

applications to fill up several posts, including one post of

Assistant Professor in Hindi.

3. The said post was stated to be an un-reserved post.

The advertisement also stated at Note No.15 that reservation

would be granted as per the prevailing government policy.

The petitioner made her application in response to the said

advertisement for the post of Assistant Professor (Hindi), and

she claimed reservation as Uttarakhand Women.

4. The respondents called the qualified candidates for

interview. In the interview process, the petitioner was

awarded 73.99 marks, which was the highest marks awarded

to any woman candidate. Pertinently, in the Marking Scheme,

12 marks were awarded to the candidates, who were holding

Ph.D. and the petitioner was also awarded 12 marks by the

respondent-University. The case of the petitioner is that in the

cadre of Assistant Professor, there are 31 posts. As per the

Reservation Policy of the Government, which was then

prevalent, vide G.O. dated 24.07.2006, 30% horizontal

reservation was granted to women of Uttarakhand. The

petitioner states that, by virtue of Note-15 of the

advertisement, the said Government Order dated 24.07.2006

was attracted, and therefore, 30% of the 31 seats in the

cadre of Assistant Professor ought to be reserved for women

of Uttarakhand.

5. The case of the petitioner is that prior to the

initiation of the recruitment process by the aforesaid

advertisement dated 22.04.2015, there was only one woman

of Uttarakhand, who was serving in the cadre of Assistant

Professor at the respondent-University. 30% (thirty per cent)

of the 31 posts in the cadre of Assistant Professor would

translate to nine posts, which ought to have been reserved for

the women of Uttarakhand.

6. The case of the petitioner is that the respondent-

University, however, did not apply the horizontal reservation,

and despite the fact that the petitioner had secured the

highest marks amongst all women candidates for the post of

Assistant Professor in Hindi, she was not granted the

appointment to the advertised post. Instead, respondent no.3

was selected and granted appointment, on the ground that he

had secured the highest marks i.e. 81.33. On the aforesaid

premise, the petitioner preferred the present writ petition

soon after the appointment of respondent no.3 to the post of

Assistant Professor (Hindi).

7. The submission of learned counsel for the petitioner

is that the respondent authorities were bound to grant

reservation for women of Uttarakhand in terms of the

aforesaid Governmental Policy dated 24.07.2006.

8. Learned counsel for the petitioner submits that a

reading of the counter affidavit, filed by the respondent-

University, also shows that the respondent-University does

not deny the fact that horizontal reservation for Women of

Uttarakhand is mandatorily required to be granted. In para 17

of the counter affidavit- in response to para nos. 14 and 15 of

the writ petitions, respondent nos. 1 and 2 states "that the

remaining vacant posts will be filled up and in that

recruitment process, the relevant reservation will be given

which will comply the female reservation also." Therefore,

there is no denial of the fact that the respondent-University

was bound to grant horizontal reservation for women

candidates of Uttarakhand.

9. The submission of learned counsel for respondent

nos.1 and 2 is that respondent no.3 being the most

meritorious candidate, was granted appointment, and

consequently, there is no illegality in the same. He further

submits that no specific reservation was granted in respect of

one post of Assistant Professor in Hindi, which was a General

Category post. At the same time, learned counsel for the

respondent does not deny the fact that vide Note-15 of the

advertisement, the respondent-University was bound to grant

reservation in terms of the governmental policy. It is also not

disputed that the current governmental policy, when the

advertisement was issued in the year 2015, was the one

contained in the G.O. dated 24.07.2006, which provided for

30% horizontal reservation for women of Uttarakhand.

10. Respondent no.3 has also filed his counter affidavit

and is represented. The submission of learned counsel for

respondent no.3, firstly, is that respondent no.3 cannot be put

to prejudice at the stage since, it was not his fault, and that

he was selected by the respondent-University in the selection

process on the basis of his merit. He further submits that

respondent no.3 has served in the respondent-university for

the past six years. Though, it is not disclosed in the counter

affidavit, learned counsel for respondent no.3 has argued that

prior to being appointed by the respondent-University,

respondent no.3 was serving at Boy's Anglo Bengali Inter

College in Lucknow on regular basis, and he held a lien on the

said post when he joined as Assistant Professor (Hindi) in

respondent-University, which lien stood extinguished with the

passage of time. He submits that respondent no.3 would be

left in lurch at this stage of his life, if he is removed from the

post of Assistant Professor (Hindi), over which the petitioner is

taking claim.

11. Further submission of respondent no.3 is that the

petitioner had sought exemption from NET/SLET in terms of

the "UGC Regulations on Minimum Qualifications for

Appointment of Teachers and other Academic Staff in

Universities and Colleges and Measures for the Maintenance of

Standards in Higher Education, 2009" framed on 23.09.2009.

Clause 3.3.0 and 3.3.1 of the said regulations dated

23.09.2009 reads as follows:-

"3.3.0 The minimum requirements of a good academic record, 55% of the marks at the master's level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test - SLET/SET), shall remain for the appointment of Assistant Professors.

3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities / Colleges / Institutions. Provided, however, that candidates, who are or have been awarded Ph. D. degree in compliance of the "University Grants Commission (minimum standards and procedure for award of Ph.D. Degree), Regulations 2009, shall be exempt from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities / Colleges / Institutions".

12. The submission is that the petitioner was wrongly

awarded the Ph.D. degree, since the said Ph.D. degree was

awarded in the year 2012, when there was a requirement of

passing an admission test before admission to Ph.D. could be

granted in terms of the "UGC (Minimum Standards and

Procedure for Awards of M.Phil/ Ph.D. Degree) Regulation

2009", dated 01.06.2009, which came into force on

11.07.2009.

13. In response to the said submission, the learned

counsel for the petitioner, firstly, submits that the petitioner

was enrolled in the Ph.D. Course on 24.11.2008, i.e. before

the Regulations dated 01.06.2009 came into force. The

petitioner completed her Ph.D. in the year 2012 and was

issued a certificate by the Gurukul Kangri University, Haridwar

(Deemed to be University) dated 26.11.2012, to certify that

the petitioner was enrolled for the degree of Doctor of

Philosophy (Ph.D.) of Gurukul Kangri Vishwavidhyala,

Haridwar, in the subject/field HINDI. She was awarded

Degree in the year 2012. It further goes on to state that "the

Ph.D. Degree has been awarded by the Vishwavidyalaya in

accordance with the provisions of the UGC (Minimum

Standards and Procedure for Awards of M.Phil/ Ph.D. Degree)

Regulation 2009".

14. Learned counsel further submits that respondent

no.3, in fact, has no locus to raise the said issue with regard

to the petitioner's Ph.D. Degree, as also the exemption

granted to her from NET/SLET in terms of "UGC Regulations

on Minimum Qualifications for Appointment of Teachers and

other Academic Staff in Universities and Colleges and

Measures for the Maintenance of Standards in Higher

Education, 2009" framed on 23.09.2009, since the

respondent-University has accepted the petitioner's Ph.D.

qualification, and on that basis, has entertained the

petitioner's application while exempting her from NET/SLET.

15. Learned counsel further points out that the

petitioner was, in fact, awarded 12 marks- since she holds the

Ph.D. degree, while evaluating the candidates.

16. Having heard the learned counsels for the parties,

we are inclined to allow the present writ petition.

17. It is abundantly clear from the factual narration

aforesaid that the respondent-University was bound to grant

30% horizontal reservation for women candidates of

Uttarakhand while filling up the advertised vacancies. The

cadre of Assistant Professors, in all subjects put together,

consists of thirty-one posts. The extent of horizontal

reservation which was in force on the relevant date when the

advertisement was issued was 30%. Consequently, nine posts

ought to have been reserved to be horizontally filled up by

women candidates of Uttarakhand. The petitioner has pointed

out that only one post in the cadre of Assistant Professor was

earlier filled up by a woman candidate, i.e. before the start of

selection process, in question. Thus, there were eight posts in

the cadre of Assistant Professors, which ought to have been

filled up through horizontal reservation by women candidates

of Uttarakhand.

18. Admittedly, the respondent-University did not

honour the said horizontal reservation, granted in favour of

women of Uttarakhand, while undertaking the selection

process in the year 2016, even though, the petitioner had

offered her candidature for the post of Assistant Professor

(Hindi) in the said category of women of Uttarakhand. It is not

the case of the respondent-University that the petitioner was

not qualified to be appointed to the said post of Assistant

Professor (Hindi), which was general category post. However,

the respondent-University went only by merit and appointed

respondent no.3 on the ground that he had secured the

highest marks, thereby overlooking the mandate of 30%

reservation for women of Uttarakhand. Denial of the said post

to the petitioner, even though she was fully qualified, and had

secured the highest marks in the interview process amongst

all the women candidates, was unjustified and illegal.

19. The respondent-University admits to the fact that it

was bound to provide horizontal reservation to women

candidates of Uttarakhand, as is evident from its stand in

Paragraph No.17 of the counter-affidavit, which we have

extracted hereinabove.

20. The submission of the learned counsel for

respondent no.3 that the petitioner was wrongly exempted

from NET/ SLET, in terms of the "UGC Regulations on

Minimum Qualifications for Appointment of Teachers and other

Academic Staff in Universities and Colleges and Measures for

the Maintenance of Standards in Higher Education, 2009",

framed on 23.09.2009, has no merit. This is for the reasons

that the respondent no.3 has no locus standi to challenge the

Ph.D. degree granted to the petitioner by the Gurukul Kangri

University, Haridwar (deemed to be University). The

respondent-University has accepted the Ph.D. degree of the

petitioner, which was duly certified by the Gurukul Kangri

University, Haridwar (deemed to be University) on

26.11.2012. The respondent-University even awarded 12

marks to the petitioner for holding the Ph.D. qualification in

Hindi. Even otherwise, reliance placed by respondent no.3 on

the "UGC (Minimum Standards and Procedure for Awards of

M.Phil/ Ph.D Degree) Regulation 2009", dated 01.06.2009, is

misplaced inasmuch, as, those Regulations came into force on

11.07.2009 by when the petitioner had already enrolled for

the Ph.D. programme on 24.11.2008. The respondent no.3

has not been able to show that the said Regulations dated

01.06.2009 had retrospective effect, and applied even to

those candidates who had enrolled for the Ph.D. degree

course prior to coming into force of the said Regulations dated

01.06.2009. We are, therefore, of the view that the petitioner

was entitled to be appointed to the post of Assistant Professor

(Hindi), against which post, respondent no.3 was appointed.

Respondent no.3 having been illegally appointed, has no

vested right to continue in the said post of Assistant Professor

(Hindi).

21. Keeping in view the overall circumstances of the

case, and the fact that the respondent no.3 has been serving

in the capacity of Assistant Professor (Hindi) in the

respondent- University for the last about six years, we dispose

of this writ petition with the following directions:-

(i) We direct the respondent-University to appoint the

petitioner to the post of Assistant Professor (Hindi) by

implementing the horizontal reservation for women of

Uttarakhand forthwith. Her appointment shall be with

retrospective effect from the date when the respondent

no.3 was appointed, though notionally. The petitioner

shall not be entitled to any arrears of pay, and

allowances, since she has actually not served in the post.

However, for the purposes of seniority, pay fixation,

pension (if payable) etc, her services shall be deemed to

have commenced from the date when the respondent

no.3 was appointed.

(ii) Respondent no.3 has been caught in this situation for

no fault of his. He, having served the respondent-

University for six years, has been left in the lurch at this

stage of his life, and it would be most unfair that he

should suffer now due to the mistake committed by the

respondent-University. Had the respondent-University

acted legally and appointed the petitioner to the post of

Assistant Professor (Hindi) in place of respondent no.3,

he would not have lost his job with Boy's Anglo Bengali

Inter College, Lucknow. We, therefore, direct the

respondent-University, and the State of Uttarakhand to

forthwith take up the case of respondent no.3 for

consideration for his appointment by creation of a

supernumerary post of Assistant Professor (Hindi) in the

respondent-University, only till so long as respondent

no.3 continues to serve in that capacity at the

respondent-University.

(iii) The respondent-University and the State of

Uttarakhand shall take a decision on creation of

supernumerary post within the next two months. In

case, the supernumerary post is created, the services of

respondent no.3 shall be continued, and he shall be

deemed to have continued without a break in service.

22. The parties are left to bear their respective costs.

(VIPIN SANGHI, C.J.)

(R.C. KHULBE, J.) Dated: 02ND August, 2022 NISHANT