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2004 DIGILAW 123 (GAU)

Guru Prashad Chakraborty v. Tripura University

2004-02-19

I.A.ANSARI, TINLIANTHANG VAIPHEI

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JUDGMENT I.A. Ansari, J. 1. The judgment and order dated 30.5.1997, passed in Civil Rule Nos. 2/1989 and 26/1989, dismissing the two writ petitions is under challenge in the present appeal. 2. In a narrow compass, the facts, which are material for the purpose of disposal of this writ appeal may be stated as follows:- The respondent No. 1, namely, Tripura University, published an advertisement on 30.8.1988, inviting, inter alia, application for appointment to the post of Deputy Librarian in the said University. Amongst others, the appellant, the respondent No. 4 and one Arabinda Chakravorty applied for appointment to the said post of Deputy Librarian. The Selection Board, eventually, selected the respondent No. 4 for appointment to the said post. Aggrieved by this appointment, the appellant and the said Arabinda Chakravorty instituted two writ petitions aforementioned. By the impugned judgment and order dated 30.5.1997, both the writ petitions were, as indicated hereinbefore, dismissed the petitioner in Civil Rule No. 2/89 namely, Sri Guru Prasad Chakraborty, has, now approached this Court with the present appeal. No appeal has, however, been preferred by the said Arabinda Chakravorty. 3. We have perused the materials on record including the advertisement, in question. We have heard Mr. P. Roy Barman, learned counsel for the appellant and Mr. D.K. Biswas, learned counsel for the respondent No. 4. We have also heard Mr. P.K. Paul, learned counsel appearing on behalf of respondent Nos. 1 and 2 and Mr. P. Deb Roy, learned counsel for the respondent No. 3. 4. A number of grounds were taken in one writ petitions challenging the appointment of the respondent No. 4. These grounds included the plea of the appellant that the respondent No. 4 did not possess essential qualifications prescribed under the said advertisement inasmuch as the said advertisement prescribed Master's Degree in Library Science as an essential qualifications for appointment to the said post, whereas, while the appellant had requisite qualification and also experience, the respondent No. 4 neither had requisite academic qualification nor did he have the requisite experience and he could not have, therefore, been allowed to participate in the selection process, which ensued the said advertisement, nor could he have been selected and/or appointed as Deputy Librarian. The respondents controverted this plea by asserting that though the respondent No. 4 did not have Master's Degree in Library Science, he did possess equivalent academic qualification inasmuch as he holds the certificate of Associateship of the Documentation Research and Training Centre, Bangalore, of the Indian Statistical Institute, which is recognised by the Government of India as equivalent to Master's Degree in Library Science of an Indian University for the purpose of recruitment and employment to the post in which the minimum qualification for recruitment is Master's Degree in Library Science and that the respondent No. 4 also had requisite experience for such selection and appointment. 5. The learned Single Judge agreed with the contention of the respondents that the respondent No. 4 possessed a degree, which was equivalent to Master's Degree in Library Science, and was, therefore, eligible under the said advertisement for selection and appointment to the said post. The learned Single Judge also opined to the effect that the respondent No. 4 had requisite experience in terms of the said advertisement. 6. At the time of hearing of the present appeal, Mr. Roy Barman has assailed the conclusions reached by the learned Single Judge that the respondent No. 4 possessed, in the facts and circumstances of the present case, the essential qualifications, both academic as well as experience, as had been prescribed under the said advertisement. As no other ground for assailing the impugned judgment has been raised before us, at the time of hearing of the present appeal, we keep ourselves confined only to the question as to whether the respondent No. 4 possessed the academic qualification and experience as were required under the advertisement, in question. 7. For the sake of brevity, the relevant portions of the advertisement aforementioned are reproduced below : "For post Nos. (I), (II) and (III) Essential : (I) Uniformly good academic record with at least B+(50%) Master's Degree or its equivalent. For post Nos. (IV) and (V) Essential : (i) Uniformly good academic record with at least B+(50%) Master's Degree or its equivalent. For post No. (VI) (a) Essential: (I) Bachelor's Degree with good academic record. (ii) 10 years' working experience in management of finance in a Govt./University/Commercial Establishment of repute. For post Nos. (IV) and (V) Essential : (i) Uniformly good academic record with at least B+(50%) Master's Degree or its equivalent. For post No. (VI) (a) Essential: (I) Bachelor's Degree with good academic record. (ii) 10 years' working experience in management of finance in a Govt./University/Commercial Establishment of repute. (b) Desirable : Membership of the Institute of Cost Accountants or Chartered Accountants or possessing a Degree or Diploma from a recognised Institute of Management or passed SAS or equivalent examination. For post No. (VII) (a) Essential: (I) Bachelor's Degree with good academic record. (ii) Experience in Auditing of Govt. University/Commercial Accounts for at least 5 years in a position involving supervision under management of Audit and Accounts. (b) Desirable : Membership of the Institute of Cost Accountants or Chartered Accountants or possessing a Degree or Diploma from a recognised Institute of Management or passed SAS or equivalent examination. For Post No. (VIII) Essential : (I) Uniformly good academic record with at least B+(50%) Master's Degree in Library Science or a B+(50%) Masters degree followed by a Bachelors degree, in Library Science. (ii) At least 10 years experience of working in a senior position in a Library of repute preferably in a University or major Institution of higher learning." 8. A careful perusal of Annexure-A to the writ petition, which is a copy of the advertisement, in question, shows that altogether 8 different categories of posts were advertised. These posts were as follows : (i) Secretary, Faculty Council for Post-Graduate studies. (ii) Deputy Registrar. (iii) Deputy Controller of Examinations (iv) Assistant Registrar (v) Asstt. Controller of Examinations (vi) Dy. Finance Officer (vii) Audit Officer (viii) Deputy Librarian 9. The post of Deputy Librarian finds place at serial No. (viii) of the said advertisement. For the posts mentioned at serial Nos. (i) to (vi), while prescribing the essential qualifications in the advertisement, it was mentioned, in no uncertain words, that the equivalent qualifications were permissible for making necessary applications for appointment. But in the case of the post of Deputy Librarian, no such equivalent qualification was prescribed. For the posts mentioned at serial Nos. (i) to (vi), while prescribing the essential qualifications in the advertisement, it was mentioned, in no uncertain words, that the equivalent qualifications were permissible for making necessary applications for appointment. But in the case of the post of Deputy Librarian, no such equivalent qualification was prescribed. Thus, a careful and dispassionate scrutiny of the said advertisement leaves no room for doubt that so far as the post of Deputy Librarian was concerned, the candidate ought to have satisfied the essential academic qualification mentioned in the advertisement, namely, Master's Degree in Library Science making it thereby abundantly clear that no equivalent academic qualification was permissible for making application for the said post of Deputy Librarian. 10. In the present case, it is not in dispute that the writ appellant did have requisite qualifications as mentioned in the advertisement aforementioned. What is in dispute and what has remained under challenge is the question as to whether the respondent No. 4 possessed the essential qualifications, academic as well as experience, as had been mentioned in the said advertisement. The fact that the respondent No. 4 did not have Master's Degree in Library Science is not in dispute before us. The learned counsel for the respondent No. 4, Mr. Biswas, has placed reliance on the Office Memoranda dated 23.9.1967 and dated 23.9.1980 (Annexures - E1 and E2 to the writ petition issued by the Government of India, Ministry of Education), for the purpose of making us sustain the plea of the respondents that the respondent No. 4 did possess essential academic qualification for selection, which followed the advertisement. According to the two Office Memoranda, the Government of India recognises the Associateship of the Documentation Research and Training Centre, Bangalore, of the Indian Statistical Institute as equivalent to Masters Degree in Library Science of an Indian University for the purpose of recruitment and employment in the posts for which the minimum qualification for recruitment is Masters Degree in Library Science and, more particularly, for specialists for Libraries dealing with documentation. 11. The respondents, thus, contend before us, as they had already contended in the writ petition, that since the respondent No. 4 possessed the certificate of Associateship of Documentation Research and Training Centre, Bangalore, he had equivalent academic qualification for selection and appointment to the post Deputy Librarian in terms of the advertisement, in question. 11. The respondents, thus, contend before us, as they had already contended in the writ petition, that since the respondent No. 4 possessed the certificate of Associateship of Documentation Research and Training Centre, Bangalore, he had equivalent academic qualification for selection and appointment to the post Deputy Librarian in terms of the advertisement, in question. The learned Single Judge, as it transpires from the impugned judgment and as has already been observed by us, agreed with the plea taken by the respondents and treated the respondent No. 4 as a person, who possessed the requisite academic qualification for participating in the selection process in terms of the said advertisement. 12. What follows from the above discussion is that a close and dispassionate scrutiny of the advertisement, as indicated herein above, reveals that so far as the post of Deputy Librarian was concerned, no equivalent academic qualification was prescribed by the said advertisement and, hence, a person, who did not have a Master's Degree in Library Science, was, in terms of the said advertisement, not eligible for consideration for selection in the selection process, which ensued the publication of the said advertisement. In other words, a person, who did not possess Master's Degree in Library Science, was not eligible at all to participate in the selection process, which took place following the advertisement aforementioned. 13. The fact that the Government of India recognises the Associateship of the Documentation Research and Training Centre, Bangalore, of the Indian Statistical Institute as equivalent to Master's degree in Library Science for the purpose of appointment to the posts for which the minimum qualification is Master's Degree in Library Science is not in dispute. What is, however, of utmost importance to note, while considering the two office memoranda aforementioned, is that the respondents have not produced any material to show that the Government of Tripura or the Tripura University recognise the Associateship of the Documentation Research and Training Centre, Bangalore, of the Indian Statistical Institute, as equivalent to Master's Degree in Library Science. 14. What is, however, of utmost importance to note, while considering the two office memoranda aforementioned, is that the respondents have not produced any material to show that the Government of Tripura or the Tripura University recognise the Associateship of the Documentation Research and Training Centre, Bangalore, of the Indian Statistical Institute, as equivalent to Master's Degree in Library Science. 14. Thus, apart from the fact that the respondent No. 4 did not possess the essential qualification of Master's Degree in Library Science as was required under the said advertisement, it is well-nigh impossible to hold that in the State of Tripura, the Associateship of the Documentation Research and Training Centre, Bangalore, of the Indian Statistical Institute is recognised as equivalent to a Master's Degree in Library Science of an Indian University. 15. What crystallises from the above discussion is that since the respondent No. 4 did not possess the essential academic qualification of Masters Degree in Library Science, he was not even eligible for consideration for selection to the post of Deputy Librarian under the said advertisement. The selection and appointment of a person, who was not even eligible for consideration as per the advertisement under which the appointment is sought to be made, cannot be said to be legal and/or valid. Reference made by Mr. Roy Barman, learned counsel for the appellant, to the case of Jogesh Kumar v. Government of NCT, Delhi, reported in is not completely misplaced inasmuch as in Jogesh Kumar (supra), the candidates, having B.Ed qualification, were not considered eligible for appointment as per advertisement, which had prescribed one year Teachers Training Certificate from a recognised University as an essential qualification for appointment as teachers in Primary Schools. 16. We, now, advert to the second pre-requisite under the said advertisement. It is not in dispute before us that for making applications under the said advertisement, one ought to have had 10 years' experience of working in a senior position in any library of repute preferably in a university or in an institute of higher learning. This shows that the minimum experience required was 10 years of working "in a senior position in a library of repute". This shows that the minimum experience required was 10 years of working "in a senior position in a library of repute". Apart from the fact that the library, in question, has to be a library of repute, the expression "in a senior position" indicates that it is to be a library, wherein more than one person work in different capacities and the applicant has to be a person who occupies a senior position in such a library. In the absence of any junior person in the cadre, the question of a person working in a senior position does not arise. In the case at hand, the respondent No. 4 had, according to what the respondents had pleaded, worked as an assistant librarian in a library under the North Eastern Hill University, which is the Central University, for about 3 years and independently held the charge of Nagaland campus of the said University at Kohima. It is clear that in the said University, the respondent No. 4 had worked only as an assistant librarian, which could not have been regarded as a senior position in the said library. This apart, the respondent No. 4 is also claimed to have worked in the library of the Advocate General, Tripura, for a period of more than 10 years. No material was produced by the respondents to show that in the library of the Advocate General, Tripura, more than one persons worked in various capacities. It is of paramount importance to note that there is a distinction between the pleadings under a writ petition or affidavit, on the one hand, and a plaint or written statement in a civil suit. While in a plaint or a written statement, facts and not evidence are required to be pleaded. In a writ petition or a counter affidavit, not only that facts have to be pleaded, but also evidence in proof of such facts are to be annexed thereto. It is no more res integra that in the writ petition and/or counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the pleadings, the Court will not entertain the point. Reference, in this regard, may be made to the case of Bharat Singh v. State of Harayana reported in (1988) 4 SCC 534 . 17. If the facts are not pleaded or the evidence in support of such facts is not annexed to the pleadings, the Court will not entertain the point. Reference, in this regard, may be made to the case of Bharat Singh v. State of Harayana reported in (1988) 4 SCC 534 . 17. In the case at hand, no evidence or material was produced by the respondents in support of their case that the library of the Advocate General, Tripura, can be regarded as a library of repute within the meaning of "library of repute" as reflected from the advertisement aforementioned and/or that the respondent No. 4 had worked "in a senior position" in a library of repute. Situated thus, one can have no escape from the conclusion that the respondents had miserably failed to show that the respondent No. 4 possessed the requisite experience in terms of the said advertisement. 18. Though it has been submitted, on behalf of the respondents, that the respondent No. 4 had been receiving the highest pay scale as librarian in the library of the Advocate General, Tripura and the respondent No. 4, therefore, be regarded to have been functioning in a senior position in the library of the Advocate General, the fact remains that even if one were to treat the respondent No. 4 as a person, who had worked in a senior position in the library of the Advocate General, Tripura, there is nothing in the materials on record to show that the library of the Advocate General, Tripura, can be regarded as a library of repute, which is entirely a question of fact and in this regard, if we may reiterate, no material could be submitted by the respondents, nor is there any thing discernible in this regard, from the materials on record. 19. Coupled with the above, it is of paramount importance to note that since we are firmly of the view that the respondent No. 4 did not possess requisite academic qualification, as had been prescribed under the said advertisement, he was not eligible for consideration for selection and/or appointment even if it is assumed, for a moment, that the respondent No. 4 had requisite experience of working in a senior position in a library of repute for a period of 10 years. 20. It is also submitted by Mr. 20. It is also submitted by Mr. Biswas that the University Grants Commission (hereinafter referred to as "the UGC") has recognised the Associateship in Documentation and Information Research Centre, Bangalore, under the Indian Statistical Institution as Master's Degree in Library Science and the difference, if any, between the Master's Degree in Library Science and the Associateship in Documentation and Information Research Centre, Bangalore, under the Indian Statistical Institution, is a difference in nomenclature only, While considering this aspect of the matter, it needs to be emphasised that the Associateship in Documentation and Information Research Centre, Bangalore, under the Indian Statistical Institution, is not the Master's Degree in Library Science, though it is regarded as equivalent to Master's Degree in Library Science by the Government of India. This has been the consistent stand of the respondents in the writ petition and since the advertisement, under consideration, specified only Master's Degree in Library Science, any person with equivalent qualification of Master's Degree in Library Science was not permissible for selection in the face of the contents of the said advertisement as noted herein above. The fact that the UGC recognises Associateship in Documentation and Information Research Centre, Bangalore, under the Indian Statistical Institution as a Master's Degree is of no consequence at all, for, it is not contended before us that Associateship in Documentation and Information Research Centre, Bangalore, under the Indian Statistical Institution, is not equivalent to Master's Degree in Library Science. It is rightly submitted and stressed upon, on behalf of the writ appellant, that while the said advertisement specifies equivalent qualification in respect of other posts under the said advertisement, no equivalent qualification was prescribed for the post of the Deputy Librarian under the said administration. 21. It may also be mentioned that the mere fact that the UGC has recognised a particular certificate of Associateship as an equivalent degree is of no material consequence inasmuch as such recognition by the UGC will be subject to the adoption of such a certificate as an equivalent qualification by the State Government and the University concerned inasmuch as if an-advertisement or a set of recruitment rules prescribes a particular degree as an academic qualification for appointment, an equivalent qualification cannot be used by the State Government or the University concerned, for, the UGC's recommendations are not mandatory and cannot supersede the advertisement or the recruitment rules. Reference may be made to University of Delhi v. Raj Singh reported in Dr. Ms Kuntala Patra v. Guwahati University and Ors., reported in 1995 (1) GLT 308 and Agintaboh and Ors. v. State of Arunachal Pradesh reported in 2003 (3) GLT 621. 22. In the case at hand, there was, admittedly, no Recruitment Rules at the time, when the said advertisement was published. It is not in dispute before us that Tripura was under the Calcutta University. It has also been brought to the notice of this Court and is not disputed before us that even in Calcutta University, the essential qualification prescribed for appointment to the post of Deputy Librarian was Master's Degree in Library Science, when the Tripura University was formed, Section 9(2) of the Tripura University's First Ordinances, 1989, lays down that the qualifications necessary for appointment to the posts of officers shall be such as may be determined by the University from time to time in consultation with the State Government. This shows that the University was free to decide, in consultation with the State Government, the qualifications necessary for appointment to the post of Deputy Librarian, which finds place in the list of officers given under Section 3(19). It is also not in dispute that Tripura University Council had approved that the qualifications prescribed by Calcutta University for appointment to the posts of officers in Tripura University would be followed mutatis mutandi. We have also come across the UGC notification, dated 24.12.1998, which prescribes, inter alia, the minimum qualifications for direct recruitment to the post of Deputy Librarian. The minimum qualifications so prescribed, are as under: "(i) Master's Degree in Library Science/Information Science/Documentation with at least 55% of the marks or its equivalent grade of B in the UGC seven point scale and consistently good academic record; (ii) Five years' experience as an Assistant University Librarian/College Librarian; (iii) Evidence of innovative library services, published work and professional commitment, computerisation of library." 23. When the above qualifications prescribed by the UGC for the post of Deputy Librarian is compared with the qualifications prescribed under the said advertisement, it clearly emerges that the said advertisement has not followed the qualifications prescribed by the UGC inasmuch as the advertisement prescribed only Master's Degree in Library Science as a qualification for appointment to the post Deputy Librarian, whereas the UGC notification makes eligible not only the persons with Master's Degree in Library Science, but also persons with Master's Degree in Information Science/Documentation eligible for selection. This apart the advertisement, under consideration, prescribes 10 years of experience in a library of repute as a minimum qualification, where as the UGC notification requires 5 years, experience as an Assistant Librarian/College Librarian and excludes from the purview of consideration for appointment to the post of Deputy Librarian those persons, who have not worked as Assistant Librarian in a University or College. 24. Thus, it is clear that the advertisement, in question, has been published by the State/Official respondents not exactly in tune with the UGC notification and they had, indeed, the freedom to do so under the law inasmuch as the guidelines of the UGC are not mandatory until the State Government and/or the University concerned chooses to adopt the same. There is nothing in the materials on record to show that the UGC recognises the Associateship in Documentation and Information Research Centre, Bangalore, under the Indian Statistical Institution as equivalent Master's Degree in Library Science but even if it were so, the fact remains that the State/Official respondents could not have gone beyond the said advertisement. The advertisement having made it clear that only Master's Degree in Library Science was the requisite academic qualification for appointment to the post of Deputy Librarian, no equivalent degree or associateship could have been utilised, to our mind, for treating a person qualified to participate in the selection process, which followed the publication of the said advertisement. 25. When an advertisement inviting applications for filling up of a set of posts is published prescribing therein essential qualification for making applications, it puts to notice everyone as to what qualifications a candidate must possess for making application. At the same time, such an advertisement forbids and debar the employer to select and appoint a person, who is not eligible for selection as per the advertisement. At the same time, such an advertisement forbids and debar the employer to select and appoint a person, who is not eligible for selection as per the advertisement. If a flagrant disregard by a University of its own advertisement inviting applications for appointment to some posts specified therein is permitted, it will shake the confidence of the public, in general, in the rule of law and in the fairness of administration. If such brazen-faced violation by a University of its own advertisement is allowed to go unchecked and unrestrained, it would disenchant the growing population of students, in India, who look to the activities of the universities, as the centres of learning, for guidance and aspiration. The selection of the respondent No. 4 despite the fact that he did not have the essential qualifications as per the advertisement on the basis of which the appointment was made would cause, if allowed to stand good on record, serious miscarriage of justice and shake the confidence of the public in the ability of the Courts to keep in check the Government and other autonomous bodies within the confines of law so as to ensure that they function subject to, and within the bounds of, the law. Viewed from this angle, it is in the public interest that a Writ Court interferes with such appointments instead of, inadvertently, approving the same. The reference made by Mr. Roy Barman to the case of Jayanta Choudhury v. Prabir Kumar Das, reported in (1995) 1 GLR 175, is also, therefore, not entirely misplaced. 26. Unable to defend the impugned judgment and order, Mr. D.K. Biswas, learned counsel for the' respondent No. 4, has referred us to the case of Sunil Kumar Goyal v. Rajasthan Public Service Commission, reported in 2003 (3) SLR 608 , to show that an appointment, which is de hors the recruitment rules, may be allowed to stand good on record in a befitting case. We notice that the case of Sunil Kumar Goyal (supra) was a case of special nature, whereas the present one is not such a case. In the present case, a person, who was not even eligible for consideration for selection, was appointed ignoring those, who stood qualified for selection and appointment. We notice that the case of Sunil Kumar Goyal (supra) was a case of special nature, whereas the present one is not such a case. In the present case, a person, who was not even eligible for consideration for selection, was appointed ignoring those, who stood qualified for selection and appointment. Such an act of the state/official respondents was nothing, but arbitrary making the whole selection process a farce and setting at naught thereby the very meaning and object of the advertisement aforementioned. 27. In the case of Sunil Kumar Goyal (supra), the writ petitioners were denied appointments on the ground that they lacked experience. It was not a case in which the essential academic qualification was not possessed by the writ petitioners; whereas in the present case, the respondent No. 4 lacked requisite academic qualification too. This apart, the writ petitioners in Sunil Kumar Goyal (supra) approached the Court for having not been given appointment; whereas in the present case, the respondent No. 4 is a beneficiary of arbitrary appointment denying thereby the right of fair consideration to the writ appellant. The facts in the case of Sunil Kumar Goyal (supra) are not at all akin to the facts of the case at hand and, hence, the respondent No. 4 cannot derive any benefit from the case of Sunil Kumar Goyal (supra). 28. Coupled with the above, it is also of utmost importance to note that while admitting the writ petition, the Court, on 06.01.1989, observed and directed as follows :- "Mr. Das prays for an interim direction on the respondents not to fill up the post of Deputy Librarian, Tripura University. We are unable to accept the prayer but we direct that any appointment made shall be subject to the decision of this case." [emphasis is added] 29. It, thus, clearly transpires from the above interim direction that the State/Official respondents appointed the respondent No. 4 and the respondent No. 4 accepted the appointment as Deputy Librarian knowing fully well that the appointment, so made, would be subject to the decision of the writ petition. It, thus, clearly transpires from the above interim direction that the State/Official respondents appointed the respondent No. 4 and the respondent No. 4 accepted the appointment as Deputy Librarian knowing fully well that the appointment, so made, would be subject to the decision of the writ petition. Thus, the respondents, having known all along about the limitations subject to which the appointment had been made, cannot, now, be heard to submit to the Court that the appointment of the respondent No. 4, even if found to be contrary to the advertisement and law, be still upheld, for, the respondent No. 4 has enjoyed the benefit of the appointment, though contrary to law, for some years. Acceding to such a submission will also be contrary to the Court's own directions, which cannot be justified in the face of facts and law as discussed herein above. 30. Considering, therefore, the matter in its entirety, we are firmly of the view that the selection and appointment of the respondent No. 4 as Deputy Librarian in the Tripura University was arbitrary, wholly illegal and void. 31. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order shall accordingly stand set aside and the appointment of the respondent No. 4 shall stand struck down. The State-respondents, particularly, respondent Nos. 2 and 3 are hereby directed to consider the cases of all eligible candidates, who had applied in pursuance of the advertisement, in question, including the case of the writ appellant, for appointment as a Deputy Librarian in the said University in terms of the said advertisement. The whole exercise, so directed, shall be completed by the respondents/authorities concerned within a period of three months from today. 32. Considering the entire facts and circumstances of the case, we leave the parties to bear their own respective costs.