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Madhya Pradesh High Court · body

2010 DIGILAW 146 (MP)

Padam Singh v. M. P. Public Service Commission

2010-02-03

S.C.SHARMA

body2010
ORDER 1. The petitioner before this Court has filed this present writ petition being aggrieved by his non-selection to the post of Assistant Professor (Geography). The contention of the petitioner is that he has obtained M.A. in 1st Division in the subject of Geography in the year 1990, and thereafter, in the year 1997 he was awarded Ph.D. degree in the subject of Geography. The petitioner has further stated that an advertisement was issued by the Madhya Pradesh Public Service Commission for filling-up the back log vacancies in respect of the Scheduled Caste and the Scheduled Tribe category and in all 28 posts of Assistant Professor (Geography)were advertised. The petitioner has enclosed advertisement dated 10.7.2003 as Annexure P-3. The petitioner has further stated that as per the advertisement, a candidate was required to have the qualification for the post as fixed by the University Grants Commission and in case a candidate was holding a Ph.D. degree, he was exempted from passing National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) Examination. The petitioner has further stated that a corrigendum was issued by the respondents on 27.9.2003 wherein the educational qualification were relaxed and it was provided that the candidates who have not cleared National Eligibility Test (NET), Madhya Pradesh State Level Eligibility Test (SLET) or Ph.D. degree shall be entitled to submit their applications, however, they were required to obtain National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) or Ph.D. degree within a period of two years from the date of selection. The petitioner has further stated that the qualification for the post of Assistant Professor are prescribed under the Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 and the Schedule III appended to the aforesaid rules provides for passing of National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) or Ph. D. degree. The petitioner has further stated that the educational qualification prescribed under the Rules of 1990 are the essential qualifications and the same has been fixed as per the guidelines framed by the University Grants Commission from time to time. The petitioner has further stated that the respondents No.4 to 8 were not holding to their credit, the National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) or the Ph.D. degree, and therefore, they were not entitled to participate in the selection process. The petitioner has further stated that the respondents No.4 to 8 were not holding to their credit, the National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) or the Ph.D. degree, and therefore, they were not entitled to participate in the selection process. The petitioner has also relied upon a letter issued by the University Grants Commission dated 9.12.2004, wherein it was clarified by the University Grants Commission that the exemption from passing National Eligibility Test (NET) shall be granted only when no National Eligibility Test (NET)/ Madhya Pradesh State Level Eligibility Test (SLET) examination was conducted in the subject concerned and shall be granted only when National Eligibility Test (NET)/Madhya Pradesh State Level Eligibility Test (SLET) qualified/exempted candidates are not available when interviews are held following due procedure. The petitioner's contention is that even though he is holding a Ph.D. degree, he was not called for the selection and, therefore the respondents/authorities have violated the norms framed by the University Grants Commission in not calling the petitioner for the interview and it was obligatory on the part of the respondents to call the petitioner in the first place for the interview as per the guidelines of the University Grants Commission. The petitioner has further stated that it was obligatory on the part of the respondents to first call the petitioner for interview and only thereafter, the candidates who are not holding National Eligibility Test (NET)/Madhya Pradesh State Level Eligibility Test (SLET) could have been called for the interview. The petitioner has prayed for issuance of appropriate writ or order or direction for quashing the selection process initiated by the Madhya Pradesh Public Service Commission. 2. A reply has been filed on behalf of respondent No.1/Madhya Pradesh Public Service Commission. The respondent No.2/State has adopted the reply filed by the respondent No.1/Madhya Pradesh Public Service Commission in the matter. 3. 2. A reply has been filed on behalf of respondent No.1/Madhya Pradesh Public Service Commission. The respondent No.2/State has adopted the reply filed by the respondent No.1/Madhya Pradesh Public Service Commission in the matter. 3. Learned Government Advocate appearing on behalf of the respondent No.2/State and learned senior counsel for the respondent No. 11 Madhya Pradesh Public Service Commission have stated and argued before this Court, that in order to fill-up the backlog vacancies of the Scheduled Caste and the Scheduled Tribe categories, an advertisement was issued on 10.7.2003, and thereafter a corrigendum was issued on 27.9.2003, wherein it was mentioned that the candidates who have not cleared National Eligibility Test (NET), Madhya Pradesh State Level Eligibility Test (SLET) or Ph.D. degree can also participate in the selection process subject to a condition that they will have to acquire the aforesaid qualification within a period of two years from the date of their selection. The learned senior counsel has also argued before this Court that the Univrsity Grants Commission has issued a notification dated 31st July, 2007 and the University Grants Commission itself has provided exemption/relaxation in respect of qualification as per the aforesaid notification, and also keeping in view the relaxation as provided under rule 24 of the M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990 no illegality has been committed in the matter of filling-up the backlog vacancies of the schedule caste and the schedule tribe candidates. He has also argued that the petitioner with open eyes has participated in the selection process and now is challenging the selection of the respondents No.4 to 8 after he was declared as an unsuccessful candidate in the process of selection. The contention of the learned senior counsel appearing on behalf of the M.P. P.S.C., before this Court is that the petitioner cannot be permitted to challenge the rule of the game as has been done in the present case after the game is over. He has relied upon judgments delivered by the Hon 'ble apex Court in Dhananjay Malik and others v. State of Uttaranchal and others, reported in AIR 2008 SC 1913 , and Trivedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corporation and others, reported in AIR 2008 SC 148 , and prayed for dismissal of the writ petition. 4. He has relied upon judgments delivered by the Hon 'ble apex Court in Dhananjay Malik and others v. State of Uttaranchal and others, reported in AIR 2008 SC 1913 , and Trivedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corporation and others, reported in AIR 2008 SC 148 , and prayed for dismissal of the writ petition. 4. Learned counsel appearing for the respondent No.4 has argued before this Court that he was fulfilling all the requisite qualifications as per the advertisement dated 27.9.2003 and he has rightly been selected by virtue of the selection process and the petitioner who was found less meritorious in the selection process for the post of Assistant Professor cannot claim the appointment as a matter of right. The respondent No.4 has also prayed for dismissal of the writ petition. 5. Heard learned counsel for the parties at length and perused the record. 6. In the present case, the petitioner is holding a Ph.D. degree and has submitted an application in response to an advertisement issued by the M.P.P.S.C. on 10.7.2003 inviting applications for the post of Assistant Professor (Geography). A corrigendum was issued by the M.P.P.S.C. on 27.9.2003 (Annexure P-4) and as per the corrigendum, the essential qualifications required for the post of Assistant Professor were relaxed. It is pertinent to note that exemption/relaxation from National Eligibility Test (NET)/Madhya Pradesh State Level Eligibility Test (SLET)/Ph.D. degree was granted and a condition was imposed that a candidate selected will have to acquire National Eligibility Test (NET)/Madhya Pradesh State Level Eligibility Test (SLET)/Ph.D. degree within a period of 2 years from the date of selection. The petitioner, did not challenge the advertisement at the relevant point of time and participated in the process of selection which was exclusively held for the reserved category candidates. The petitioner has received 42 marks in the process of selection and as per the me list prepared by the M.P.P.S.C., the last male category candidate has received 53 marks. In the waiting list candidates, the last candidate selected has received 46 marks and as the petitioner's name did not find place in the main list nor in the waiting list, as he has obtained less marks in the selection process, and therefore, he has filed the present writ petition. 7. In the waiting list candidates, the last candidate selected has received 46 marks and as the petitioner's name did not find place in the main list nor in the waiting list, as he has obtained less marks in the selection process, and therefore, he has filed the present writ petition. 7. In exercise of the powers conferred by proviso to Article 309 of the Constitution, the Governor, State of Madhya Pradesh has framed the recruitment rules relating to appointment on the post of Assistant Professor, known as the Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990. Schedule III of Rules, 1990 provides for qualification in respect of the post of Assistant Professor and the same provides that the candidates are required to fulfill the criteria as framed by the University Grants Commission from time to time and it also provides that the candidates who have not passed National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) or have submitted Ph.D. thesis to the University in the concerned subject on or before 31st December, 2002 are exempted from appearing in the National Eligibility Test (NET) examination. 8. The University Grants Commission in exercise of the powers conferred by clause (e) and (g) of sub-section (1) of section 26 read with section 14 of University Grants Commission Act, 1956 has issued a notification in the year 2002 and the aforesaid notification dated 31st July, 2002 provides for exemption in respect of Ph.D. degree. Notification issued by the University Grants Commission reads as under: "NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidates who have completed M. Phil degree by 31st December, 1993 or have submitted Ph.D. thesis to the University in the concerned subject on or before 31st December 2002 are exempted from appearing in the NET examination. In case such candidates fail to obtain Ph.D. degree they shall have to pass the NET examination." 9. The aforesaid notification provides that candidates will' are not holding the qualification of National Eligibility Test (NET) examination can participate in the process of selection for the post of Assistant Professor subject to certain terms and conditions, not only this, rule 24 of the Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990, empowers the Governor to relax the rules. The aforesaid notification provides that candidates will' are not holding the qualification of National Eligibility Test (NET) examination can participate in the process of selection for the post of Assistant Professor subject to certain terms and conditions, not only this, rule 24 of the Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990, empowers the Governor to relax the rules. In the present case, there were as many as 863 backlog vacancies of the post in question in respect of the Scheduled Caste and the Scheduled Tribe candidates in the State of Madhya Pradesh and under such circumstances, a policy decision was taken by the State Government to grant relaxation as one time measure for the Scheduled Castes and Scheduled Tribes candidates to participate in the process of selection, with a clear stipulation that they shall obtain National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) or Ph.D. degree within a period of two years from the date of their selection. 10. Learned counsel appearing for the petitioner has relied upon a letter issued by University Grants Commission dated 9.12.2004 to the State Government and the same has been issued after the advertisement was issued by the State Government and therefore, it is a subsequent development and the same provides that persons having National Eligibility Test (NET) or Madhya Pradesh State Level Eligibility Test (SLET) or Ph.D. degree holder shall be permitted to participate in the process of interview at the first instance, however, the subsequent letter issued by the UGC cannot affect the process of selection initiated in respect to the earlier advertisement issued by M.P.P.S.C., as a policy decision was taken by the State Government in the larger interest of the Scheduled Caste and the Scheduled Tribe category candidates to relax the rules and therefore, no case is made out for any interference in the matter. It is an admitted fact that the petitioner is all raising hue and cry after he has been declared as unsuccessful in the process of selection, and therefore, this Court is of the view that the petitioner as has never protested against any conditions imposed in the advertisement earlier and with open eyes, he has participated in the process of selection cannot challenge the same after he has been declared as unsuccessful. ' 11. ' 11. The Hon'ble apex Court in the case of Trivedi Himanshu Ghanshyambhai (supra), in para 8, 9, 10 and 11 has held as under: "As noted herein-earlier, respondents 2 and 3 who had filed the writ petition before the High Court, challenging the appointment of the appellant were themselves unsuccessful in the examination, even though they claimed that they had passed the written examination but failed in the interview. Since the names of respondents 2 and 3, who were the writ petitioners before the High Court, did not figure in the merit list, in our view, it was not open to them to challenge the said selection list and the appointment of the appellant before the High Court. It is not in dispute that the respondents 2 and 3 as well as the appellant were all found eligible, in the light of the marks obtained in the written test, to be called for the oral interview. Upto this stage, there was no doubt. The respondents 2 and 3 and the appellant appeared before the committee constituted by the Corporation for conducting the oral interview. The respondents 2 and 3 could not clear the oral interview and were not selected whereas the appellant was found successful and accordingly, selected. Therefore, there cannot be any dispute that only because the respondents 2 and 3 could not get selected and named in the final merit list, as a result of their combined performance, both in the written test as well as in the oral interview, they challenged the appointment of the appellant and other selected candidates by moving the writ petition. Such being the position, we are 'of the view that the High Court was not justified in exercising its power under Article 226 of the Constitution by granting relief to the writ petitioners, who are now respondents 2 and 3 in this appeal. As we are of the opinion that the appellant did possess the administrative experience of ten years required for selection to the post of Assistant Manager in view of the varied nature of work performance by him while working as an X -ray Technician, we do not find any reason to take a view, different from the one taken by the Corporation and the selection committee. Therefore, we are of the view that it was not open to' the respondents 2 and 3 to challenge the appointment of theappellant and other selected candidates, as they were themselves successful in the test. In this connection, reliance can be placed on a decision of this Court in the case of Madan Lal and others v. State of J & K and others [ (1995)3 SCC 486 ]. Accordingly, we are of the view that the High Court was neither justified in interfering with the appointment of he appellant by holding that he did not possess the requisite administrative experience of ten years while working as an X-ray Technician nor was it open to the High Court to entertain the writ petition challenging the appointment of the appellant and other selected candidates at the instance of the unsuccessful candidates. Before parting with this judgment, we may deal with a short submission of the learned counsel appearing on behalf of the respondents 2 and 3. It is an admitted position that although, the respondents 2 and 3 had passed the written examination conducted under the supervision of the Indian Institute of Management, Ahmedabad, they were unsuccessful in the oral interview. Therefore, according to the learned counsel for the respondents 2 and 3, they did have the locus standi to move the writ application for challenging the appointment of the appellant because they were successful in the written examination. In this connection, a decision of this Court in this case of Alocious Fernandez v. Union of India, reported in JT 1990 SC 169 was strongly relied on. In that decision, this Court had laid down that an appointment in disregard to the rules is a matter not between the appointing authority and the appointee himself, but, all those who had similar qualification and could not apply as they did not possess the qualifications mentioned in the advertisement, are also affected. Neither do we accept this submission of the learned counsel for the respondents 2 and 3, nor can we rely on the decision of this Court in the case of Alocious Fernandez (supra), for the simple reason that in this case, admittedly, respondents 2 and 3 were not selected on the combined performance of the candidates in the written test and the oral interview. Although, the selection process itself was challenged before this High Court, it is to be noted that the learned Single Judge, while allowing the writ application, had turned down the argument of the respondents 2 and 3 holding that the entire selection process could not be said to be illegal or tainted with mala fides. So far as the Division Bench is concerned, we do not find any argument advanced by the respondents 2 and 3 challenging the selection process before it. That being the position, we are unable to hold that even though, the respondents 2 and 3 were unsuccessful in the test and could not figure in the merit list, they would be entitled to challenge the appointment of the appellant. Another decision of this Court in the case of Atul Khuller and others v. State of J & K and others, reported in 1986 (Suppl.) SCC 225, was also relied on by the learned counsel for the respondents 2 and 3 in support of the contention that it was open for an unsuccessful candidate to challenge an appointment by way of a writ petition. Learned counsel for the respondent 2 and 3 relied on paragraph 20 of the said decision in which it has been observed by this Court that the selection committee conducting the viva test should maintain the entire record, including the original worksheets on which marks were recorded by each member separately, for a minimum period of one year after the examination and failure to do so can strengthen an allegation of mala fide against the selection committee. Since the Corporation could not produce the record before the High Court, the learned counsel for the respondents 2 and 3 submitted that a case of mala fide on the part of the Corporation for not producing the records before the High Court ought to have been found and therefore the appointment of the appellant ought to be cancelled as done by the High Court. In our view, this submission of the learned counsel for the respondents 2 and 3 cannot be accepted. It is true that the records relating to the marks obtained by the candidates in the written test as well as the oral interview could not be produced before the High Court because they were lost and thus not available. In our view, this submission of the learned counsel for the respondents 2 and 3 cannot be accepted. It is true that the records relating to the marks obtained by the candidates in the written test as well as the oral interview could not be produced before the High Court because they were lost and thus not available. In our view, in the absence of any material on record, we are unable to accept the contention of the learned counsel appearing for the respondents 2 and 3 that the records were not produced by the Corporation due to mala fide intention. In this connection, the finding of the learned Single Judge on the question whether an adverse inference could be drawn against the Corporation for non-production of the records before the High Court and whether for such non-production, a case of mala fide could be found, may be seen. The learned Single Judge, while allowing the writ petition, on consideration of the entire materials on record, came to a finding that in the absence of any specific averment of mala fides against the Members of the Committee holding the interview test, it was neither possible to strike down the result of the interview nor would it be proper to conclude that the Corporation had conducted the interview in an illegal or unlawful manner. We also endorse the same view and hold that only because the records could not be produced in view of the fact that they were lost and not available, the appointment of the appellant could not be cancelled, particularly when no mala fide had been attributed by the writ petitioner-respondents 2 and 3 in the writ petition. 12. From a perusal of the aforesaid judgment delivered by the Hon 'ble apex Court in the case of Trivedi Himanshu Ghanshyambhai (supra), it is evident that the Hon' ble apex Court has declined to interfere in the selection process at the behest of the candidate who participated in the process of selection and after he was declared as fail in the process of interview. 13. 13. The Hon'ble Supreme Court in the case of Dhananjay Malik (supra), in para 7 and 8 held as under: "It is not disputed that the writ petitioners-respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the rules. In Madan Lai v. State of J & K [ (1995)3 SCC 486 ], this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the selection committee was not properly constituted. In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done." 14. The Hon'ble apex Court in the case of Dhananjay Malik (supra), has held that if a candidate was of the opinion that the advertisement and selection process were not in accordance with the rules, he was required to challenge the advertisement and selection process without participating in the selection process. This has not been done." 14. The Hon'ble apex Court in the case of Dhananjay Malik (supra), has held that if a candidate was of the opinion that the advertisement and selection process were not in accordance with the rules, he was required to challenge the advertisement and selection process without participating in the selection process. In the present case, the petitioner has participated in the process of selection with open eyes, and therefore, he is estopped from challenging the same in respect of the alleged irregularity in respect of the qualifications as stated by him and therefore keeping in view the judgments delivered by the Hon'ble apex Court in the case of Trivedi Himanshu Ghanshyambhai (supra), and Dhananjay Malik (supra), and also keeping in view the relaxation granted by the State Government for the Scheduled Caste and the Scheduled Tribe candidates in the present matter, no case is made out for any interference in the matter. 15. Resultantly, writ petition fails and is hereby dismissed. No order as to cost. 16. Certified copy as per Rules.