SUNIL RAGUNATH KARMALKAR Vs. STATE OF GOA

JUDGEMENT

(1.) THE petitioner challenges in this writ petition, under Articles 226 and 227 of the Constitution of India, the appointments of respondents 4 to 6 as lecturers made by the respondent No. 1 to the Goa College of Engineering in violation of the Recruitment Rules and Article 16 of the Constitution of India. The petitioner is, therefore, seeking not only a declaration that these appointments are illegal but also a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction to set aside and quash the said appointments. A further relief is prayed in the nature of writ of mandamus commanding the respondent No. 1 to send a requisition to the Goa Public Service Commission (hereinafter referred to as the Commission), respondent No. 3, to advertise the posts to be filled on regular basis. By way of interim relief pending the disposal of the writ petition a further prayer was advanced to restrain the respondents 1 and 2 in giving the benefits of regular appointments to the respondents 4 to 6.

(2.) IT is the petitioners case that he is a holder Post-Graduate Degree in Civil Engineering with distinction. In or around September 1993 there were existing vacancies of ad-hoc lecturers in Civil Engineering in the Goa College of Engineering and according to the Recruitment Rules applicable at the material time the minimum essential qualification for the post was Post-Graduate Degree in Engineering. However, the advertisement indicated graduate qualification in Engineering only. The petitioner applied for the post, attended the interview and was informed that the vacancy was to be filled on ad-hoc basis. However, pursuant to a Notification published in the Government Gazette on 22nd September, 1994 the petitioner came to know that the appointments were made on regular basis, that too, in contravention of 1987 Recruitment Rules and without consultation with the commission, that is, respondent No. 3. It was further the case of the petitioner that on account of such arbitrary selection the petitioners right to contest, in the open market or with open market candidates was defeated inasmuch as the respondents in order to favour the ad-hoc selectees avoided re-advertisement of regular posts through the commission. Besides the appointments of respondents 4 to 6 were done with effect from 15th December, 1993. The petitioner states that respondents are ineligible under the 1987 Recruitment Rules and their appointments are also irregular as the same were done without consultation with respondent No. 3 as also by an incompetent Selection Committee. It was also stated that respondent No. 2 is the Principal of the Goa College of Engineering and he has participated as member of the Selection Committee particularly when his son, respondent No. 4, was one of the candidates competing for the post of Lecturer in Civil Engineering. Sometime in September, 1993 there appeared a public advertisement for various posts in teaching faculty in Goa College of Engineering wherein 5 posts of lecturers, being 3 in general category and 2 reserved for scheduled caste were advertised. However, this advertisement was silent as to whether the posts were regular, temporary or ad-hoc. When the petitioner applied for the post he was keen to know the nature of the post and during the interview he was informed by the respondent No. 2 that the vacancies were to be filled purely on ad-hoc basis. It was further stated that among others who attended the interview on 3-11-1993 the petitioner was a post-graduate in Civil Engineering with distinction, thus better qualified than respondent Nos. 4 to 6 who were arbitrarily selected as lecturers on regular basis. It was further stated that under the Recruitment Rules 1987 the Departmental Selection Committee was constituted by (1) Chief Secretary or his Nominee as a Chairman, (2) one Nominee of Vice Chancellor, (3) one expert to be nominated by University, (4) the Secretary of Education, (5) Principal of the college and (6) The Head of the Department of the College- all as members. Accordingly such Committee was constituted vide the Notification dated 21st June, 1991 published on 10th October, 1991. However, surprisingly the Departmental Selection Committee was reconstituted subsequent to the advertisement of September, 1993 vide Notification published in the Official Gazette dated 21st October, 1993 and while reconstituting the Secretary of Education was placed in lieu of the Chief Secretary as Chairman while the expert nominated by the University was deleted and its place was given to the Director of Education/technical Education. It was also pleaded that subsequent to the advertisement to fill up the vacancies of lecturer in Civil Engineering a series of circumstances indicated that the respondents 1 and 2 have indulged in some sort of manipulation so as to ensure the filling up of the posts by the respondents 4 to 6. These circumstances are (1) The advertisement was published on 2nd September, 1993 without specifying the nature of appointment, (2) the last date to submit applications was 30th September, 1993, (3) the Cabinet decision regarding the delinking the selection to the Commission was taken by the Government on 17th October, 1993, (4) The reconstitution of the DSC/dpc was done on 18th October, 1993 wherein the expert member of the Committee was omitted, (5) New Recruitment Rules were published on 26th October, 1993 to become effective from 27th January, 1994, (6) Interview of the candidates for filling of the posts was held on 3rd, 4th and 5th November, 1993, (7) The offer of appointment was given to respondents on 15th December, 1993, (8) the last date for joining was fixed on 12th January, 1994, (9) The Notification relinking the selection to the Commission was published on 13th January, 1994 and (10) an order for dissolution of the Departmental Selection Committee reconstituted on 18th October, 1993 was published on 2nd February, 1994 with effect from 17th January, 1994. It was stated that as far as the appointments of respondents 4 to 6, it ought to have been done strictly through the Commission, in as much as the Recruitment Rules of 1987 framed under Article 309 of the Constitution of India and amendment to the Rules of the Commission under Article 320 could not have been said to have direct nexus as a decision of the Government relinking the particular posts to the Commission and bringing them within the purview of its consultation though taken on 17th October, 1993 was held up for publication till the respondents 4 to 6 selection was finalised and appointment order was given. According to the petitioner this prima facie exhibits the respondents 1 and 2s mala fide in giving preferential treatment to respondent No. 4 in particular, specially bearing in mind the fact of the participation of the respondent No. 2 Shri A. K. Shrivastava, the Principal of the College of Engineering, as a member of the Selection Committee in position No. 2 of the same Committee when the respondent No. 4, who is his son, was one of the candidates. It was further stated that for the purpose of selection the representative of the University, who was also one of the members of the Selection Committee, did not participate in the proceedings which by itself would invalidate the selection. It was further stated that prior to the interview conducted pursuant to the advertisement issued in September, 1993, the respondent No. 2 had invited, vide his letter dated 26th May, 1993, applications for the post of lecturer in Civil Engineering and the petitioner attended the same on 17th June, 1993 alongwith respondent No. 4. However, no appointment was made though an interview was conducted to fill up the post on ad-hoc basis. It was stated that on that occasion the petitioner was eligible in accordance with the Recruitment Rules of 1987 for the post but inspite no appointments were made at that time, probably due to the fact that respondent No. 4, Shri Amit Shrivastava, could not be selected by the Selection Committee, which was having the Chief Secretary as the Chairman. However in a subsequent reconstitution of the Selection Committee with the Secretary of Education as its Chairman and the respondent No. 2, the father of respondent No. 4, as a Director of Technical Education as one of its members, the respondent No. 4 came to be selected. It was then contended that in view of the circumstances put together the selection process appears to be preplanned so as to delete the petitioner who, at the relevant time, was eligible.

(3.) ON behalf of the respondent No. 2 Shri G. J. Prabhu Dessai the Under Secretary (Education) has filed an affidavit wherein after adverting that the affidavit was neither for the purpose of opposing the petition of the petitioner nor grant of any interim relief but only to comply with the directions of this Court stated that as far as the first contention of the petitioner that the advertisement did not disclose whether the appointment would be on regular or ad-hoc basis, since the advertisement did not state that the appointment would be on ad-hoc basis, the petitioner could make no grievance on that. So far the other objection that the regular appointment could only be made through the Commission, it was stated that in exercise of powers conferred by proviso to Clause (3) of Article 320 of the Constitution of India all teaching posts in Government Colleges where approval of the University is required for the appointment to such posts were exempted from consultation with the Commission vide the Notification dated 13th August, 1990, the petitioner has nowhere challenged the said Notification and as such there was no scope for him to make any grievance on this ground also. With regard to the contention that respondents 4 to 6 did not have the requisite educational qualifications of post graduate degree as required under the 1987 Recruitment Rules, which were in force at the relevant time, it was stated that in the advertisement inviting applications for appointment to the posts of Lecturers in Civil Engineering the qualifications prescribed were First Class Bachelors Degree in appropriate branch of Engineering Technology. That requirement of First Class Bachelors Degree was prescribed in view of the decision of the Government of India accepting the recommendations contained in the Experts Committees report and those made by All India Council for Technical Education (AICTE) to implement the same with retrospective effect from 1st January, 1986. Accordingly a Notification dated 31st December, 1992 was issued by the Government of Goa deciding to implement the package scheme contained in the Government of India decision also with effect from 1st January, 1986. The aforesaid package scheme, inter alia, provided for revision of pay scales as also the educational qualifications and experience for the teaching posts. Regarding the educational qualifications for the post of lecturer in College of Engineering what was prescribed is only First Class Bachelors Degree in appropriate branch of Engineering/technology. This change in the educational qualifications was subsequently incorporated in the Recruitment Rules published in the Government Gazette dated 27th January, 1994. It was thus contended that the educational qualification of the First Class Bachelors Degree in appropriate branch of Engineering for the post of the Lecturer as advertised was on the aforesaid premises which, otherwise, was in strict consonance with the report of the Expert Committee and the recommendations of AICTE accepted by the Government of India and implemented by the Government of Goa with effect from 1st January, 1986. On the question of the selection being vitiated because the father of the respondent No. 4 was a member of the Selection Committee it was stated that the Selection Committee which finalised the selection after assessing the comparative merits of the candidates was comprised of the Secretary of Education, Government of Goa as its Chairman with Dr. A. M. Deshmukh, Professor in Civil Engineering in the Goa College of Engineering, Joint Secretary (Personnel), Government of Goa and Shri A. K. Shrivastava (father of the respondent No. 4) in his capacity as Principal of Goa College of Engineering and Director of Technical Education. Shri Shrivastava had, however, withdrawn from the Selection Committee when his son was interviewed by the other members of the Selection Committee. In a subsequent affidavit filed by the respondent No. 1 at the time of the hearing Shri G. J. Prabhu Dessai has reiterated the contents of his earlier affidavit and also denied that the petitioner was informed at the interview that the vacancies were to be filed on ad-hoc basis. Therefore, the appointments of respondents 4 to 6 pursuant to the selection made in November 1993 have been done on regular basis. It was contended that the Government has a right to constitute and/or reconstitute the Selection Committee. The petitioner could not have any grievance about the reconstitution of the Selection Committee in terms of the Notification dated 21st October, 1993 inasmuch as the respondent No. 2 was also a member of the earlier Selection Committee, being the Principal of College of Engineering. It was also denied that the Notification delinking the teaching posts from the purview of consultation with the Commission though taken on 7th October, 1993 was held up for publication till the selection was finalised or appointment orders were given. It was also denied that the selection of respondents 4, 5 and 6 was vitiated by non-participation of the nominee of the Vice Chancellor as member of the Selection Committee, who did not remain present at the time of the interview. The petitioner is also not entitled to challenge the selection of respondents 4 to 6 on the ground that the Commission has not been consulted inasmuch as no right accrues to him on the ground of non-consultation. Moreover on the petitioners own showing the selection of the respondents was done at the time when the Notification dated 13th August, 1990 was in force and according to which all the teaching posts in Government Colleges where approval of the University is required for the appointment were exempted from consultation with the Commission.