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Allahabad High Court · body

2014 DIGILAW 81 (ALL)

FAZAL-UR-REHMAN v. VICE CHANCELLOR, A. M. U.

2014-01-09

ARUN TANDON, SURYA PRAKASH KESARWANI

body2014
JUDGMENT By the Court.—We have heard Sri Irshad Ali, learned counsel for the petitioner, Sri Shashank Shekhar Singh, learned counsel on behalf of respondent Nos. 1 to 5 and Sri M.F. Ansari, learned counsel on behalf of respondent No. 6. 2. Aligarh Muslim University published advertisement No. 1 of 2013, dated 6.2.3013 for the post of Associate Professor in subject of Anatomy. The petitioner as well as the respondent No. 6 applied in pursuance to the advertisement. It was specifically mentioned in the advertisement that Assistant Professor/Lecturer having teaching experience of five years, would be eligible to apply. The last date for the submission of the application was 5.3.2013. The cut off date for determination of the eligibility condition was provided as the last date of submission of the application form. The applications received were scrutinized and only three candidates namely, the petitioner, Dr. Farhan Kirmani and Dr. Nema Usman were found eligible for being called for interview and they alone fulfilled the minimum teaching experience of five years in terms of the advertisement. 3. From the record it appears that the respondent No. 6, who was not short listed for want of requisite five years teaching experience submitted an application before the Vice Chancellor. In the application it was stated that the petitioner may be provided relaxation from five years teaching experience. He also filed another application wherein it was stated that under the amended M.C.I. guidelines only four years teaching experience is required. The Vice Chancellor asked for the legal opinion and is exercising the emergency powers under Section 19 (3) of Aligarh Muslim University Act, 1920 vide order dated 25.3.2012 adapted the amendment notification issued by Medical Council of India, whereby the minimum teaching experience for the post of Associate Professor stood reduced from five years to four years. With the adaptation of the amendment in the teaching experience the selection committee proceeded to include the name of respondent No. 6 and one Tanvir Ahmad for the purposes of interview. After interview the respondent No. 6 alongwith Tanvir Ahmad, who was also had teaching experience of four years has been selected for appointment on the post of Assistant Professor. The selection has been notified on 27.6. 2013 (Annexure-11 to the writ petition). It is against this selection that the present writ petition has been filed. 4. After interview the respondent No. 6 alongwith Tanvir Ahmad, who was also had teaching experience of four years has been selected for appointment on the post of Assistant Professor. The selection has been notified on 27.6. 2013 (Annexure-11 to the writ petition). It is against this selection that the present writ petition has been filed. 4. On behalf of the petitioner it is contended that from the records it is admitted that on the date of advertisement published i.e., 6.2.2013 as well as on the last date of the submission of the application i.e., 5.3.2013, admittedly, the relevant Ordinances of the Aligarh Muslim University provided that the minimum teaching experience required for the post of Associate Professor, would five years as Lecturer/Associate Professor. It is with reference to these statutory provision that on the selection for the said post had to be completed. Even if the Vice Chancellor exercised his emergency power under section 19(3) of the Aligarh Muslim University Act, 1920 for the purposes of adapting the amended notification of Medical Council of India to be precise on 25.2.2013 the same would be perspective in nature and shall not effect the proceedings of selection under the advertisement in question. It is further stated that if by adaptaion of the amended provisions of the Medical Council of India the requirement of teaching experience stood reduced to 4 years and the University decided to consider the candidates with four years teaching experience as qualified for the post of Lecturer/Associate Professor than the minimum required was to publish a corrigendum disclosing the minimum teaching experience as four years, so that inasmuch as all such candidates, who could apply may have an opportunity to participate in the selection from Back door of respondent No. 6 and Tanvir Ahmad by adaptation of the amended Medical Science of India Regulation under notification dated 25.3.2013. 5. Learned counsel for the University could not refer to any statutory provisions contrary to the minimum experience, which was notified in the advertisement applicable on the relevant date. 5. Learned counsel for the University could not refer to any statutory provisions contrary to the minimum experience, which was notified in the advertisement applicable on the relevant date. He could not dispute the fact that if persons with four years teaching experience were to be treated as eligible then besides respondent No. 6 and Tanvir Ahmad, there may be other similarly situate persons duly qualified for being considered for the post of Associate Professor who did not apply because of minimum five years teaching experience being required as essential conditions in the advertisement. 6. So far as Dr. Farha Ghaus, respondent No. 6 is concerned, she submits that once the petitioner has been considered in the process of selection and has not been selected in preference to the respondent No. 6, his writ petition may not be entertained. 7. We have heard the learned counsel for the parites and examined the records. 8. It is not in dispute that in the advertisement for the post of Associate Professor, the Aligarh Muslim University has specifically provided that the candidate must have five years teaching experience as a Lecturer/Associate Professor. It is also not in dispute that the petitioner satisfies the said requirement. It is also not in dispute that the petitioner was sort listed for interview being possessed the prescribed qualifications as per advertisement alongwith two others, while the respondent No. 6 was not sort listed as he was not possessed of the prescribed minimum qualification. 9. It is only after the Vice Chancellor of the Aligarh Muslim University decided to exercise with emergency process under section 19(3) of the Aligarh Muslim University Act, 1920 for adapting the amended notification of the Medical Council of India on 25.3.2013 for the essential teaching experience required for the post of Associate Professor, being reduced from five to four years that respondent No. 6 has been short listed. Such emergency power by the Vice Chancellor and adaptation of the amended notification by the Aligarh Muslim University for the purposes of reducing the teaching experience from five years to four years would be perspective in nature and will not adversely affect the selection proceedings which had been initiated under advertisement No. 1 of 2013. 10. The last date for making of the application was 5.3.2013. 10. The last date for making of the application was 5.3.2013. The eligibility of the candidates has to be seen with reference to the provisions as applicable and with reference to the condition mentioned in the advertisement, on the last date of making of the application as has been laid down by the Apex Court in the case of U.P. Public Service Commission, U.P., Allahabad and another v. Alpana, (1994) 2 SCC 723 . 11. We further find that if a candidate like respondent No. 6, who had less then five years teaching experience and did not satisfy the requirements mentioned in the advertisement had to consider than last expected from Aligarh Muslim University to have published a corrigendum or a fresh advertisement so that all other candidates with four years teaching experience like respondent No. 6 may submit their application. It is not open to the Aligarh Muslim University to have reduce the requirements of five years teaching experience contrary to the terms of the advertisement only in respect of respondent No. 6 and Tanvir Ahmad. 12. Such experience undertaken by the Aligarh Muslim University runs contrary to Article 14 and 16 of the Constitution of India, inasmuch as similarly situate persons like respondent No. 6 have been denied the opportunity to participate in the process of selection because of the condition mentioned in the advertisement published qua five years teaching experience as Lecturer/Associate Professor being mandatory for making of the application for the post of Associate Professor. 13. We may clarify that the qualifications provided under the guidelines of the Medical Council of India only lay down minimum standards for the post of Lecturer/Associate Professor and it is always open to a University to prescribe higher qualification and if any advertisement in this regard is published, it cannot be said to be in violation of the guidelines of the Medical Council of India. 14. So far as the objection raised on behalf of the respondent No. 6 qua petitioner being not entitled to challenge the selection process having participated in the same does not appeal to us in the facts of this case. The consideration of the case of respondent No. 6 after reduction of the required experience is found to be in violation of Article 14 and 16 of the Constitution. 15. We quash the selection proceedings including the select panel dated 27.6.2013. The consideration of the case of respondent No. 6 after reduction of the required experience is found to be in violation of Article 14 and 16 of the Constitution. 15. We quash the selection proceedings including the select panel dated 27.6.2013. The Aligarh Muslim University may proceed with selections in accordance with law. The writ petition is allowed.