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Allahabad High Court · body

2018 DIGILAW 667 (ALL)

SHALINI VYAS v. STATE OF U. P.

2018-03-20

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT By the Court.—The petitioner applied for the post of Assistant Librarian at the Bundelkhand University, Jhansi pursuant to the advertisement dated 11.7.2011. She was issued interview letter on 3.12.2011 and her interview was held on 7.12.2011. The Selection Committee recommended for her appointment on 7.12.2011 itself which was approved on 22.3.2012 by the Executive Council. 2. On account of ban on appointments which was ultimately relaxed the petitioner was not issued the appointment letter. In the meantime on a complaint made against the selection, an enquiry was directed to be conducted in the matter under the orders of the Chancellor which ended in favour of the petitioner. Even then she was not appointed therefore she preferred writ petition No. 27988 of 2013 seeking appointment which was disposed of on 22.5.2013 with the direction to the authority concerned to complete the enquiry within time bound period and then to take follow up action as in the meantime the Vice Chancellor had appointed a fresh three member enquiry Committee. 3. The three member enquiry Committee submitted its report on 7.5.2013 holding that the selection of the petitioner was not proper. Accordingly, the Executive Council on 6.3.2014 resolved not to approve the recommendation of the Selection Committee whereupon an office order was issued on 22.4.2014 by the Registrar of the University cancelling her selection. The representation of the petitioner against the aforesaid orders under Section 68 of the U.P. State Universities Act, 1973(herein after referred to as the ‘Act’) has been dismissed vide order dated 24.2.2016 by the Chancellor. 4. In this way, aggrieved by the order of the Chancellor dated 24.2. 2016, the office order of the Registrar of the University dated 22.3.2014 and the resolution of the Executive Council dated 6.3.2014 the petitioner has preferred this petition for quashing of all the above orders and the fresh advertisement dated 15.11.2014 inviting applications for the post of Assistant Librarian and for issuance of appointment letter to her on the basis of her selection as approved by the Executive Council earlier. 5. The Chancellor by the impugned order has rejected the representation of the petitioner against the cancellation of her selection to the post of Assistant Librarian on two counts; first, the advertisement dated 11.7.2011 itself was defective and illegal. Secondly, the petitioner was not eligible for appointment according to the minimum essential qualifications prescribed for the post at the relevant time. The Chancellor by the impugned order has rejected the representation of the petitioner against the cancellation of her selection to the post of Assistant Librarian on two counts; first, the advertisement dated 11.7.2011 itself was defective and illegal. Secondly, the petitioner was not eligible for appointment according to the minimum essential qualifications prescribed for the post at the relevant time. 6. We have heard Sri Shailendra, learned counsel for the petitioner, learned Standing counsel for respondent No. 1, Sri Neeraj Tripathi, learned counsel for respondent No. 2, Sri B.D. Pandey, learned counsel for respondents No. 3 and 4 and Smt. Anjana Singh, learned counsel for respondent No. 5. 7. Sri Shailendra had submitted that the advertisement dated 11.7.2011 clearly provided that the candidate should possess essential qualifications as per the UGC Regulations, 2010. The petitioner possessed the requisite qualifications. Therefore, the Chancellor was not justified in holding that the petitioner was not possessed of the requisite qualifications. He further submitted that the selection of the petitioner was duly approved by the Executive Council in its meeting held on 22.3.2012 and therefore the Executive Council could not have revisited the said decision subsequently in the absence of statutory power to review its decision. Lastly, he submitted that on the direction of the Chancellor the matter of petitioner’s selection was enquired into and vide enquiry report dated 8.6.2012 the selection of the petitioner was held to be valid. Thus, there was no justification for the Vice Chancellor to have appointed a three member Enquiry Committee and to cancel the selection of the petitioner on the basis of its report. 8. The advertisement No. 12/11 dated 11.7.2011 provides that for the post of Assistant Librarian the minimum educational qualification shall be as prescribed by the UGC Regulations, 2010. 9. The said Regulations on the date of advertisement were not part of the first Statutes of the University. They were incorporated in the Statutes for the first time w.e.f. 3.12.2013 pursuant to the assent of the Chancellor dated 3.12.2013 granted under Section 50 (6) of the Act for amending the Statutes in the light of the aforesaid Regulations. 10. On the amendment of the Statues the aforesaid Regulations stood incorporated therein. Under the amended Statues the minimum qualification for the post of Assistant Librarian remained to be NET/SLET/SET but the candidate possessing Ph.D. in accordance with the UGC (Minimum Standard for award of M.Phil/Ph. 10. On the amendment of the Statues the aforesaid Regulations stood incorporated therein. Under the amended Statues the minimum qualification for the post of Assistant Librarian remained to be NET/SLET/SET but the candidate possessing Ph.D. in accordance with the UGC (Minimum Standard for award of M.Phil/Ph. D. decree) Regulations, 2009 stood exempted from it. In other words, the minimum qualification for the post of Assistant Librarian according to amended Statutes incorporating the UGC Regulations, 2010 happened to be NET/SLET/SET but not for the candidate having Ph.D., according to UGC Regulations, 2009. In that event qualification of NET/SLET/SET stood exempted. 11. It is settled law that the minimum qualifications for any post has to be seen and possessed as on the date of advertisement unless provided otherwise. Thus, in the present case, the minimum qualification for the post of Assistant Librarian in the absence of any stipulation to the contrary was to be determined as on the date of advertisement dated 11.7.2011. On the said date the University had not adopted the UGC Regulations, 2010 and had not amended its Statutes. Therefore, the relaxation from NET/SLET/SET was not admissible to any candidate even with Ph.D. Decree according to UGC Regulations, 2009. 12. It is admitted position that the petitioner is not NET qualified. The decree of Ph.D if any possessed by her was of no value. Therefore, on the relevant date she was not qualified for the post of Assistant Librarian. 13. The contention that the petitioner had obtained the decree of Ph.D., in 2006 is of no relevance. On the relevant date no relaxation on account of Ph.D. Decree was admissible, in as much as, the Regulations 2009 were adopted and enforced in the University w.e.f. 3.12.2013. The petitioner even otherwise had not mentioned about her Ph.D., and has not brought any material on record in that regard. 14. It is in the above facts and circumstances that the Chancellor held that the advertisement itself was incorrect, as it prescribed the minimum qualification for the post of Assistant Librarian according to UGC Regulations, 2010 even though the same were not adopted and made applicable to the University by that time. Secondly, on the relevant date the petitioner had not qualified NET which was one of the essential eligibility condition for the post of Assistant Librarian according to Statutes of the University which were prevalent on the relevant date. 15. Secondly, on the relevant date the petitioner had not qualified NET which was one of the essential eligibility condition for the post of Assistant Librarian according to Statutes of the University which were prevalent on the relevant date. 15. In view of the aforesaid facts and circumstances irrespective of the fact that the advertisement contains an stipulation of possessing requisite qualification according to UGC Regulations, 2010, the fact remains that the petitioner was not eligible for the post according to Statutes then in operation. The wrong stipulation contained in the advertisement would not make the petitioner eligible or change the minimum qualification for the post as provided in the Statutes. In the above situation, the selection/appointment of the petitioner without possessing the requisite qualification would have been de-hors the Statues which is not permissible in law. 16. In the wake of the aforesaid conclusion we need not dwell on the other aspects of the matter regarding the power of review of the Executive Council or regarding institution of another enquiry in the matter of selection of the petitioner as all these issues pale into oblivion once the petitioner is found to be ineligible for the post as per the minimum qualification prescribed at the relevant time and the advertisement itself happens to be contrary to law. 17. It is well-settled that mere empanelment of a candidate or his selection does not give him/her any indefeasible right to the post and that the competent authority is empowered to recall the advertisement/selection any time for justifiable reasons before it is completed. The authority concern is not obliged to fill up all or any of the vacancies but in doing so can act arbitrarily. There are no pleadings and material to establish that action of the University in not filling up the post to be unfair or arbitrary. 18. The University has admittedly issued a fresh advertisement on 15.11.2014 instead of continuing with the selection on the basis of the old advertisement dated 11.7.2001. The time gap and the change in Statutes necessitates fresh selection de nova which rules out any arbitrary action. The fresh advertisement gave full opportunity to the petitioner to apply and participate in the selection process. Thus, causing no injustice to her warranting exercise of extra-ordinary jurisdiction by us. 19. The time gap and the change in Statutes necessitates fresh selection de nova which rules out any arbitrary action. The fresh advertisement gave full opportunity to the petitioner to apply and participate in the selection process. Thus, causing no injustice to her warranting exercise of extra-ordinary jurisdiction by us. 19. In this view of the matter, we find no illegality either in the order of the Chancellor and on part of the University in issuing a fresh advertisement inviting applications for the post of Assistant Librarian. 20. The writ petition accordingly lacks merit and it does not create a situation which may warrant exercise of extra-ordinary jurisdiction. It is accordingly dismissed.