ANAND PREKASH MISRA Vs. CHANCELLOR UNIVERSITY OF ALLAHABAD

JUDGEMENT

(1.) There two petitioners filed the writ petition with a prayer that this Court may issue writ order of direction including writ in nature of mandamus directing Vice-Chancellor, Allahabad University and other authorities to allow them to join on the remaining two posts of Reader in the Department of Chemistry as per approved recommendation of the selection committee. Further prayer is to issue a writ of mandamus directing the respondents to implement the order of Chancellor, University of Allaha bad dated 6-6-93 and further directed to issue letter of appointment in favour of the petitioners and permit the petitioners to join immediately the post and treat the petitioners in service from the date the post was available on account of non-availability of Dr. R. D. Pardashaai and Dr. N. S. Sunderson and further prayed for fixation of seniority and payment of consequential benefits to be given to them. 2, Counter affidavit has been filed on behalf of the University and rejoinder affidavit has alto been filed by the petitioners. 3. After hearing the learned counsel for the parties we consider it appropriate to finally decide the case instead of passing formal order of admission in the writ petition. Learned counsel for the parties consented to final disposal. The petitioner No. 1 Dr. Anand Prakash Mishra is a Post Graduate in Chemistry with D. Phill from Allahabad University with the teaching experience of 9 years on the post of Lecturer. It is said that he was Pool Officer for Doctoral Research, Junior Research Fellow, and Senior Research Fallow. Besides, he possesses administrative and research guide experience to two Ph. D. holders and others are in process. The petitioner No. 1 has published 25 Research Papers ID various journals. 4. The petitioner No, 2 Dr. Alok Srivastava is Post Graduate and Ph. D. holder from Bombay University. He was awarded "government of India Open Merit Scholarship, Institute of Science Merit Scholarship, Department of Atomic Energy Fellowship of Government of India in 1980-85, Alexander Von Humboltdt fellowship from Government of Germany 1986-1988". He was consulting scientist Central Bureau for Nuclear Measurement (Euracom) in Beljium 1989-90. Ho was visiting faculty at Oragan State University Corvallia, U. S. A. in 1991-93. The petitioner was awarded best paper award in International Conference of 50 years of discovery of Artificial Radio Activity in Pane (1984) by Indian Association of Nuclear Chemist and Allied Scientist. Professionally he was affiliated with several renouned institutions. Ho also possess 14 years research experience. 7 years teaching experience in the field of Radio Analytical Chemistry, Nuclear Chemistry, Radiology, Radio Ecology, Radio Metrology, Nuclear Waste Management, Nuclear Track Stury. 5. Advertisement was published by the Allahabad University for various posts in Department of Chemistry, 1991. Applicants were invited by the Selection Committee for the post of Lecturer, Reader and Professor. Subsequently an advertisement No. 2 of 1993 was notified making few addi tion and finally a corrigendum of Advertisement No. 2 of 1993, notified by the University and same was numbered as Advertisement No. 5 of 1993. 6. In the present writ petition the relevant dispute is in respect to the post of Reader in the Department of Chemistry. In the said advertise ment number of post advertised on the post of Reader were four. 7. The petitioners being qualified applied against the aforesaid advertisement for consideration on the post of Reader, The Selection Com mittee of the University fixed 12-12-93 for selection committee for considera tion of the post of Reader and later on formal interview letter was issued in November, 1993. 8. The Selection Committee recommended the four panel of names for appointment on four different post in subject chemistry. The panels prepared are quoted as under : Panel No. 1. . (a) Dr. R. T. Pardashani (b) Dr. Sekhar Srivastava (c) Dr. A. K. Jain Panel No. 2. . (a) Dr. Sekhar Srivastava (b) Dr. A, K. Jain (c) Dr. N. S. Sunderson Panel No. 3. . (a) Dr. A. K. M. Jain (b) Dr. N. S, Sunderson (c) Dr. Alok Srivastava Panel No. 4. . (a) Dr. N. S. Sunderson (b) Dr. Alok Srivastava (c) Dr. A. P. Mishra 9. In view of the aforesaid panel recommended against each 4 posts reader, as a matter of facts six persons were recommended. Their names in priority are as follows ; (1) Dr, R. T. Pardashani (2) Dr. Sakhar Srivastava (3) Dr. A. K. Jain (4) Dr. N. S. Sanderson (5) Dr. Alok Srivastava (6) Dr. A. P. Mishra 10. The name of petitioner No. 2 is on serial No. (c) of panel No. 3 and the petitioner No. 1 on serial No. (c) of panel No. 4. It is to be noted that Shri R. T. Pardashani and Shri N. S. Sunderson at Serial Nos. 1 and 4 had declined to join. Serial No. 2 and 8 had joined. The petitioners were at Serial Nos. 5 and 6 in the panel and they were to be given appointment letters. Since they became entitled to appointment according to priority after refusal of serial No. 1 and 4, Shri R. T. Pardashani and Shri N. S. Sunderson. The said panel against 4 posts was unanimously approved by the Executive Councils resolution dated 3- 3-1994. 11. As stated earlier Dr, Sekhar Srivastava and Dr. A. K. Jain had joined Dr. R. T. Pardashaui and Dr. N. S. Sunderson were given extension for joining the post upto 31-8-94. The said term expired and after that remaining recommendees Dr. Alok Sriyastava and Dr. A. P. Mishra were entitled for appointment on the remaining two posts of Reader in Chemistry Department. 12. The learned counsel for the petitioner placed the Statute No. 11. 06 (a) of the Uttar Pradesh University Act as follows ; "if the Selection Committee recommends more than one candidate for appointment it may in its discretion arrange their names in order of preference. Where the Committee decides to arrange the names in order of preference, it shall be deemed to have signified that in the event of the first being not available the second may be appointed, and in the event of second also being not available, the third may be appointed, and so on. " 13. The Head of Department of Chemistry by his letter dated 28-4-1994 addressed to the Registrar of the Allahabad University asked for providing appointment letters to the next recommendees, namely, the petitioners. Thus me item was introduced in the Executive Council meeting supplementary agenda dated 26-11-1994, Several meetings took place but this item was not taken up for consideration, 14. The learned counsel for the petitioners submitted that there was no necessity of action for sending the matter before the Executive Council for further direction in respect of issuing appointment letters to the petitioners who according to Statute 11,06 (a) were legally entitled to be appointed and given appointment letter. 15. The petitioner No. 1 represented before Registrar, Allahabad University by registered letter dated 14-1-1993. The petitioner No. 1 also met personally the Vice-Chancellor. Shri S. C. Srivastava for redressing his grievances and was assured by the then Vice-Chancellor. It has been said that instead of issuing the appointment letter to the petitioners the University took a decision to re-advertise the said post for fresh selection. The advertise ment No. 1 of 1995 published on 1-2-1995 in detail in the newspaper, "amar Ujala" has been annexed as Annexure 3 to the writ petition. From advertisement concerning petitioners post on which they had already been selected fresh advertisement was published. The petitioners submitted representations to the Registrar and Vice Chancellor, copies of which have been annexed. The representations were submitted by the petitioners to the Chancellor, Allahabad University by registered post dated 14-3-1995 and 8-2-1995, copies of which are annexed as annexure 7 and 8 to the writ petition. 16. The Chancellor after reminders given by the petitioners provided opportunity to the University and finally disposed both the representations of the petitioners by common judgment and order dated 6-6- 1995, copy of the said decision of the Chancellor is annexed as annexure 9 to the writ petition. Perusal of the order of the Chancellor shows that the University had to admit before the Chancellor that Selection Committee dated 12-12-1993 for four posts of Reader in Chemistry Department, a panel of six names was prepared ; out of which four were to be appointed. Admittedly, two selected persons already noted above did not come to join the duties. Hence it was held that in View of the statute 11,00 (a) when the persons above the peti tioners were not available for appointment, present selected candidates were entitled to be given appointment letters. It was thus directed by the Chancel lor that the Vice-Chancellor will issue the appointment letters to the persons namely, Or. Anand Prakash Mishra, petitioner No. 1 and Dr. Alok Srivastava, Petitioner No. 2 according to the selection made by the selection committee. 17. The whole controversy arose after the decision of the Chancellor. In spite of the orders of the Chancellor, dated 6th June, 1995, the respondent University had not issued the appointment letters. 18. A stand taken by the University is stated in paragraph No. 23 of the counter affidavit. It is stated that abnormal situation after enforcement of the U. P. Act No. 4 of 1994, namely, the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act; 1994 has arisen. The learned Counsel for the respondent, Shri Asbok Bhushan subpitted that the said Act was made effective with retrospec tive affect from 12-12-1993. Shri Ashofi Bhushan submitted that the present Vice Chancellor has considered the provisions of U. P. Act No. 4 of 1994 and was of the opinion that he was under obligation to seek proper implementa tion of the provisions of the State Act. Shri Ashok Bhushan submitted that perusal of provisions of Sections 1 and 2 of the Act quoted as under shows that the provisions of the Act was enforced with the retrospective effect from 11-12-1993. The learned counsel further drew attention of the Court to the provisions of Section 15 which is a Savings clause quoted as under: "15. Savings:- (1) The provisions of this Act shall not apply to cases in which selection process has been initiated before the commencement of this Act and such cases shall be dealt with in accordance with law and Government orders as they stood before such commencement. Explanation.-For the purposes of this sub-section the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the :of- (i) written test or interview only, the written test or the interview, as the case may be, has started, or (ii) both written test and interview, the written test hag started. (2) The provisions of this Act shall not apply to the appointment, to be made under the Uttar Pradesh Recruitment of Dependent of Government Servant Dying in Harness Rules, 1974. " 19. He submitted that interview was taken on 12-12-1993. Shri Ashok Bhushan drew attention of the court to the letter dated 28th May, 1995 sent by Special Secretary, Higher Education, Government of India to the Vice-Chancellor by which he pointed out that the Special Secretary had informed to provide reservation to Scheduled Caste/scheduled Tribe and other Back ward Castes of the society under Public Services of State of U. P. which includes service under University Reservation Act, 1994 which is enforced with effect from December 11, 1993. He also pointed out that it was said in the said letter that according to the Section 4 of the Act it has been provided that State Government can enforce principles of the provisions of the Act by giving responsibility to any appointing authority or any officer or any employee and the responsibility has been enforced by Vice-Chancellor under Notification No. 1513/15- 1095-15 (18) (1) 94, dated 5-5-1995. So far this internal question between the Vice-Chancellor and the Department of State is concerned, the court do not consider that this is a relevant document which observed that the Vice Chancellor is not implementing the order of the Chancellor, by which he had made it clear that selection made by the selection committee and the petitioners who are selected in the panel prepared are only available persons after the earlier two parsons in the panel, The second point is that the peti tioners were only the persons entitled to appointment of the post of Readers in the department. The question of fresh advertisement never arose. There was no necessity for fresh advertisement as is evident from the Statute 11. 06 (b) of the State Universities Act. ' It is not a case that there was non-avail-ability of suitable candidates. The provision of Statute No. 11. 06 (b) clearly shows that this fresh advertisement published by the respondent was wholly unwarranted: The only question that survives for consideration by the court is whether the process of selection has* started prior to the date according to provisions of Saving Clause and the Explanation and its effect on the peti tioners whether they would bo deprived of the benefit of selection on the post of Reader according to the said Statute. The learned counsel for the peti tioners submitted that process of selection had started before the data of enforcement of the Act and the provisions of the Saving Clause under Section 15 does not effect the selection of the petitioners. Learned counsel pointed out that the process of selection had stated much earlier, the process of short listing the candidates if takes place, it goes to starting of process of selection. It is submitted that candidates were called for interview after short-listing. The learned counsel for the petitioner relied on AIR 1995 SG 77--U. P. Public Service Commission v. Navnit Kumar Poddar and others (sic) respondents, and pointed out on paragraph 6 of the said Judgment. (6) The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever appli cations are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed foe selecting the best candidates amongst the applicants. In most of the services screening tests or written tests have been introduced to limit the numbers of the candidates who have 10 be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of Interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basil of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate. " 20. He further submitted that the Supreme Court was pleased to observe that: "in substance and reality, this process of short Hating is part of process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short-listed, the process of selection commences. " Learned counsel for the petitioners further submitted that the explanation in Section 15 of the Act is as under : "explanation,-'for the purposes of this sub-section the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the basis of- (i) written test or interview only, the written test or the inter view as the case may be, has started, or (ii) both written test and interview, the written test has started. " 21. Learned counsel for the petitioners submitted that this explanation is pot negative of the fact that the process of selection has done in the University by calling persons by seeking applications. It shows that University had applied its mind in the matter of selection prior to fixing of the date for interview. He submitted that there was no justification of reason which may be called justifying the illegal action of the respondent University. Counsel for petitioners has also brought to the notice of the court the fact that the persons who were interviewed on 12-12-1993 and 14-12-1993 alongwith the petitioners, after enforcement of the Act have been discriminated. The petitioners submitted that Dr. Dinesh Mani Tripathi, Department of Chemistry was given appointment on the post of Lecturer immediately after decision of the Chancellor dated 27-6-1994. The fact that the said appointment was issued to Dr. Dines!) Mani Tripathi has not been denied in the counter affidavit filed by the University. The explanation as offered by the Vice-Chancellor on issuing appointment letters as contained in Para 44 of the counter- affidavit is that the Vice-Chancellor had joined University on 23-6-1994 and thereafter the order dated 27-6-1994 came and the Vice-Chancellor issued the appointment letter immediately. He joined three days back. This ! no valid explanation which may be accepted. The other aspect of the matter which also comes to serious note is that the Chancellor had passed an order dated 6-6-1995 on representation of the petitioners for giving appointment to the petitioners, a copy of the order of the Chancellor was duly served to the respondent University. 22. We do not find any justification for the respondent in not complying with the order of the Chancellor which order is passed under Section 68 of the State Universities Act and is final. The University Authorities have not said that the order of the Chancellor dated 6-6-1995 has ever been challenged by them. The respondent Vice-Chancellor and Registrar are under legal obligation and not complying with the order of Chancellor. They are committing contempt of the authority of the Chancellor. In spite of the order of the Chancellor, the respondent consider it better to send letter and seek clarification from the authorities subordinate to the Chancellor. We do not understand any just or cogent reason which may justify such an action, Persons selected in the same selection interview were given appointment after the enforcement of the Act. There is no reason to discriminate the petitioners and deprive them of the due legal selection made for their appointment. 23. After hearing the learned counsel for the parties, we consider it a fit case in which a writ of mandamus is directed to be issued to the opposite parties No. 2 and 3 to comply with the order of the Chancellor dated 6-6-1995 and issue necessary orders for appointment to the petitioners for the post of Readers in Chemistry in the Department of Allahabad University within one week from the date of production of certified copy of this order. They shall be paid salary according to law from the date they join and seniority be determined according to the relevant rules from the date of joining on post of Reader in the department. The writ petition is allowed with cost. We consider it appropriate keeping in view of the facts and circumstances of the case which is clear case of abuse of authority by the respondents in not issuing the letter of appointment. We, thus assess Rs. 5,000 as cost payable to the petitioners, and allow the writ petition accordingly. Petition allowed. .