Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 949 (GAU)

Upendra Kumar v. Union of India, Represented by the Secretary, MHRD

2014-10-30

B.K.SHARMA

body2014
ORDER 1. This writ petition has been filed by the two petitioners with the following prayer:- “1. A writ of or in the nature of Certiorari and/or any other appropriate writ, order or direction of like nature shall not issue setting aside the Advertisement being 03/09 dated 27/04/2009 and Corrigendum thereof dated 10/03/2010 so far as it relates to the recruitment of the Associate Professor is concerned. 2. A writ of or in the nature of Certiorari and/or any other appropriate writ, order or direction of like nature shall not issue setting aside the appointment of Respondent No. 4, 5, 6, and 7 as Associate Professor based on the impugned Advertisement being 03/09 dated 27/04/2009 and Corrigendum thereof dated 10/03/2010. 3. A writ, order or direction of like nature shall not issue directing the respondents to consider the cases of the petitioners for re-designating/moving up as Associate Professor in respect of vacancies and place them into PB4 with an AGP of Rs. 9000/- pm from the date of 6th CPC came into effect.” 2. As stated in the writ petition, the petitioners were initially appointed as Lecturer in NIT Silchar in the year 1997. Thereafter they were regularly appointed as Assistant Professor on 26/09/2007 and 01/12/2008 respectively. According to them, pursuant to the 6th CPC report and the acceptance thereof, they ought to have been upgraded as Associate Professor with effect from the date of coming into effect the 6th CPC recommendation. In this connection, the petitioners have challenged the Anneuxre-4 advertisement No. 3/2009 and the corrigendum thereof dated 10/03/2010 (Annexure-6). The advertisement was issued amongst others for the post of Assistant Professor. According to the petitioners since they were already holding the post of Assistant Professor in the particular branch, there was no requirement to respond to the said advertisement. However, by the impugned Annexure-6 corrigendum dated 10/03/2010 issued in reference to the said advertisement, revised criteria along with revised designation in terms of the 6th CPC report were indicated. According to the petitioners, the corrigendum having been issued in reference to the impugned advertisement referred to above, making the same applicable only in respect of the candidates who had already responded to the advertisement, there was no occasion for the petitioners to offer their candidatures even in response to the impugned corrigendum dated 10/03/2010. 3. According to the petitioners, the corrigendum having been issued in reference to the impugned advertisement referred to above, making the same applicable only in respect of the candidates who had already responded to the advertisement, there was no occasion for the petitioners to offer their candidatures even in response to the impugned corrigendum dated 10/03/2010. 3. By the time the writ petition was filed, selection pursuant to the impugned advertisement and corrigendum had already been held and pursuant to the selection, the respondents No. 4, 5 and 6 had already joined as Associate Professor. They have been working as such for the last more than 3 (three) years. 4. It is in the aforesaid fact-situation the petitioners have challenged the advertisement and the corrigendum on the ground that they had been deprived of offering their candidatures, although were eligible to apply for the post of Associate Professor. While it is true that in the impugned advertisement, there was no mention of the post of Associate Professor but by virtue of the impugned corrigendum with the revised criteria in reference to the 6th CPC report, private respondents became eligible to offer their candidatures for the post of Associate Professor. However, admittedly, the petitioners although had claimed that they were eligible to offer their candidatures in terms of the corrigendum but they did not raise any grievance against the same and sat over the matter. 5. By Annexure-8 series representations made much after the selection and to be precise on 27/12/2010, the petitioners claimed for their upgradation/re-designation as Associate Professor and seniority over the private respondents. According to them, they are entitled to the same as per the report of the 6th CPC. However, nothing could be shown in reference to any pleadings in the writ petition that by virtue of the report of the 6th CPC, the petitioners are entitled to get themselves re-designated as Associate Professor with effect from the date of coming into force the 6th CPC report. Thus, here is a case in which although the petitioners did not participate in the selection and also did not raise any grievance in respect of the corrigendum dated 10/03/2010, but has challenged the selection and appointment of the private respondents, primarily on the ground of their deprivation of participation in the selection. Thus, here is a case in which although the petitioners did not participate in the selection and also did not raise any grievance in respect of the corrigendum dated 10/03/2010, but has challenged the selection and appointment of the private respondents, primarily on the ground of their deprivation of participation in the selection. There is no allegation against the private respondents, as such, regarding their eligibility and suitability for selection and appointment as Associate Professor. 6. In the counter affidavit filed by both official and private respondents, the aforesaid plea of the petitioners has been denied and it has been stated that the petitioners having not made any grievance against the impugned corrigendum, they are precluded and estopped from raising any grievance at this stage and that too after the selection and appointment of the private respondents pursuant to the said corrigendum and the selection thereof. The private respondents have also raised technical plea, such as maintainability of the writ petition in view of the pleadings in the amended writ petition without any formal amendment allowed by the Court. In this connection, the said respondents have taken the specific plea in paragraph 4 of the counter affidavit filed on 02/04/2014. 7. So far as the counter affidavit filed by the official respondents is concerned, it has been stated that the petitioners were never precluded and / or expressly debarred from the participation in the impugned selection. It has been stated that although the impugned corrigendum was issued in reference to the earlier advertisement, in view of the 6th CPC report, in absence of any express bar, the petitioners could have offered their candidature and alternatively could have got the matter clarified by approaching at the appropriate time instead of challenging the selection conducted pursuant thereto. The private respondents have also raised the plea of ineligibility of the petitioners to offer their candidatures as they lacked the requisite experience of 5 (five) years. 8. In the reply affidavit filed by the petitioners, they have referred to some documents obtained through RTI application to show that in some other institutes, the Assistant Professors have been re-designated as Associate Professor from the date of their initial appointments. According to the petitioners, as per the 6th CPC report, they are also entitled to get the same benefit by re-designating them as Associate Professor in place of Assistant Professor from their initial date of appointment. According to the petitioners, as per the 6th CPC report, they are also entitled to get the same benefit by re-designating them as Associate Professor in place of Assistant Professor from their initial date of appointment. However, on being asked about the existence of any such provision in the 6th CPC report, the learned counsel for the petitioners failed to point out any such provision. It is only on the basis of the documents annexed to the affidavit-in-reply showing re-designation of some Assistant Professors as Associate Professors in some other institutes, the petitioners have sought to bring parity to their case. However, it is not known to the Court as to on what circumstances, the incumbents belonging to some other institute had been re-designated as Associated Professor from that of Assistant Professor. 9. Mr. D.N. Bhattacharjee, learned counsel led by Mr. B.C. Das, learned senior counsel for the petitioners has strenuously argued that even if the selection and appointment of the private respondents are not set aside than also there should be direction to re-designate them as Associate Professor from their due dates. Mr. S.P. Choudhury, learned counsel representing the NIT Silchar referring to the counter affidavit submits that the writ petition is misconceived, inasmuch as the petitioners having not participated in the selection process, cannot now turn around the said position, so as to contend that the impugned advertisement and corrigendum are bad in law. Mr. N. Pathak, learned counsel led by Mr. D.K. Sarmah, learned counsel representing respondents No. 4, 5 and 6 submits that there being misrepresentation in the writ petition, on that score, the writ petition is liable to be dismissed. In this connection, he has specifically referred to the aforementioned paragraph 4 of the counter affidavit filed on 03/04/2014. Referring to the guidelines of the Ministry of Human Resource Development in the Department of Higher Education, he submits that the petitioners cannot claim automatic promotion of re-designation as Associate Professor. 10. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties and also considered the entire materials on record. As noted above, the petitioners did not make any grievance and allowed the things to happen pursuant to the impugned advertisement and corrigendum. 10. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties and also considered the entire materials on record. As noted above, the petitioners did not make any grievance and allowed the things to happen pursuant to the impugned advertisement and corrigendum. When they had agitated their grievance, they never questioned the participation of the private respondents in the selection and for that matter the participation of all other candidates. What they have contended is that they should be upgraded as Associate Professor in terms of the 6th CPC report. If there was any doubt in their mind regarding the impugned corrigendum and as to whether they could also participate in the selection, they could have got the matter clarified by taking up the matter at the appropriate level and at the appropriate time. They did nothing of this sort and in the mean time the selection was conducted and the private respondents were selected and appointed. It is only after the said development, they filed the instant writ petition with the aforesaid prayer. 11. Above being the position, there is no question of setting aside and quashing the impugned advertisement, the corrigendum, the selection and appointment of the private respondents. As regards the prayer for upgradation to the post of associate Professor and / or re-designation as such, it is not known to this Court as to under what circumstances, the incumbents named in the reply affidavit belonging to other institutes had been re-designated as Associate Professor. As contended by the respondents in their counter affidavit, the norms applicable to different institutes are different and cannot be applied universally for all the institutions. Moreover, in terms of the circular letter dated 31/12/2008 of the Government of India, in the Ministry of Human Resource Development, Department of Higher Education, an Assistant Professor is eligible to move to the Pay Band of Rs. 37,400-67,000 with a GP of Rs. 9000/- and to be re-designated as Associate Professor. As disclosed in the counter affidavit of the official respondents, the petitioners on completion of 3 (three) years of service have already been upgraded as Associate Professor in the appropriate Pay Band. 12. Above being the position, the relief prayed for in the writ petition cannot be granted and accordingly the writ petition is dismissed, without however, any order as to costs.