RAJ KAUSHAL WIFE OF DR. RAJEEV KAUSHAL v. UNION OF INDIA, THROUGH ITS SECRETARY, MINISTRY OF HUMAN RESOURCE DEVELOPMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT OF INDIA, NEW DELHI
2021-12-06
SATYEN VAIDYA, TARLOK SINGH CHAUHAN
body2021
DigiLaw.ai
ORDER : Heard. 2. By way of instant petition, petitioner has prayed for the grant of following substantive reliefs: (I) That a writ in the nature of certiorari may very kindly be issued thereby quashing and setting aside the Annexure P-6, dated 1.4.2021. (II) That the respondents may be directed to appoint/ promote the petitioner as an Associate Professor as per credit score of 77 points the recommendation of the Selection Committee (Annexure P-1) dated 9.2.2019 in the recommended level of pay and from the said date, with all consequential benefits of pay fixation, seniority, arrears and further promotions etc. 3. Respondent No.2 vide Advertisement No. 11/2018, dated 23.08.2018 (for short “Advertisement”) invited applications from Indian Nationals for the teaching positions at the level of Assistant Professor (Grade-I) (Pay Level: 12) and Associate Professor (Pay Level:13A2) in the various Departments/Centres of the Institute. The relevant advertisement has been placed on record as Annexure R-1 alongwith reply filed by respondents No. 1 to 3. Its perusal reveals that though the applications, through the advertisement, were invited from all eligible Indian Nationals, but vide Notes (III) to (V) of Clause 3 of the advertisement, serving regular faculty members were also made eligible as under: “NOTE III: Serving regular faculty members shall be eligible to apply for the higher positions i.e. higher Pay Levels (Assistant Professor (Pay Level12) and/or Associate Professor (Pay Level-13A2) in their own Departments of NIT Hamirpur irrespective of their specializations, if they satisfy other advertised criteria. NOTE IV: The vacant posts shall be filled on the basis of merit without consideration of external or internal candidates. Apart from this, there shall not be any distinction between the external and internal candidates with regard to the requirement of qualification and experience. NOTE V: For the Departments/Centres which are not having any vacancy, movement in higher Pay Level will be carried out as per prescribed selection process but it will be restricted to only for serving faculty members of NIT Hamirpur in the respective Departments/Centres.” 4. Petitioner claims to have been working as Assistant Professor (Chemistry) in respondent No.2 Institute since 30.12.2009, on regular basis. She also claims to be a Ph.D. This factual position has not been denied by the respondents. 5. In response to the advertisement, petitioner submitted her application for the post of Associate Professor in the Department of Chemistry, in respondent No.2-Institute.
Petitioner claims to have been working as Assistant Professor (Chemistry) in respondent No.2 Institute since 30.12.2009, on regular basis. She also claims to be a Ph.D. This factual position has not been denied by the respondents. 5. In response to the advertisement, petitioner submitted her application for the post of Associate Professor in the Department of Chemistry, in respondent No.2-Institute. Though the advertisement did not reflect availability of any post of Associate Professor in the Department of Chemistry, yet the petitioner applied for the post of Associate Professor and her candidature was also considered for the said post by respondents No. 1 to 3, may be in pursuance to Note (V) of Clause 3 of the advertisement reproduced hereinabove. The Selection Committee did not find petitioner suitable for the post of Associate Professor and recommended her selection for the post of Assistant Professor, Grade-I (Level-12). The Board of Governors (for short “BOG”) of respondent No.2 initially in its 37th meeting, approved the recommendation of Selection Committee for selection of petitioner to the lower post of Assistant Professor, Grade-I (Level12) subject to her consent. The consent, in this behalf, of the petitioner was sought vide letter dated 6.5.2019. Petitioner submitted her unqualified consent to the aforesaid proposal on 6.5.2019. 6. The matter was again placed before the BOG, which sought the legal advice. Acting on such advice, the BOG in its 39th meeting dated 21.09.2019, did not approve the recommendation of Selection Committee in respect of petitioner and others similarly situated candidates on the ground that the petitioner had not applied for the post of Assistant Professor (Grade-I) despite the fact that the advertisement carried out clear stipulation to the effect that the candidates intending to apply for more than one post, were to apply separately for each post. Since the petitioner had applied only for the post of Associate Professor and not for the Assistant Professor (Grade-I), the BOG apprehended potential legal complications and thus, did not approve the recommendations of the Selection Committee. 7. Petitioner repeatedly represented to respondent No.2 to grant her the benefit of selection to the post of Assistant Professor (Grade-I) (Level-12), the BOG rejected the request of petitioner vide its decision taken in 44th meeting dated 09.03.2021. The said decision of the BOG was communicated to the petitioner vide letter dated 01.04.2021. 8.
7. Petitioner repeatedly represented to respondent No.2 to grant her the benefit of selection to the post of Assistant Professor (Grade-I) (Level-12), the BOG rejected the request of petitioner vide its decision taken in 44th meeting dated 09.03.2021. The said decision of the BOG was communicated to the petitioner vide letter dated 01.04.2021. 8. Aggrieved against the actions of respondents No. 1 to 3, as noticed above, petitioner has approached this Court by way of instant petition. 9. As is evident from the record, the recommendations of the Selection Committee in respect of petitioner and similarly situated candidates was refused by the BOG on 21.9.2019 in its 39th meeting. There is no challenge to the said decision of the BOG by the petitioner as is evident from the prayers made in the petition. This being so, the decision dated 21.09.2019 of the BOG remains unchallenged and has attained finality. The competence of the BOG to take decision dated 21.09.2019 has not been questioned by the petitioner. The relief sought by petitioner is to seek quashing of Annexure P-6 dated 01.04.2021, which is only a communication from the Registrar of respondent No.2 to the petitioner regarding rejection of her representations dated 04.12.2020 and 04.02.2021 by the BOG in its 44th meeting dated 09.03.2021. The subsequent representations made by petitioner, without challenging the decision dated 21.09.2019 of the BOG will not improve the case of petitioner. Noticeably, the petitioner has not even challenged the decision of the BOG dated 09.03.2021, rejecting her representations and mere challenge to communication dated 01.04.2021 cannot be construed to be a challenge to the aforesaid decision of the BOG, especially when no legal foundation has been made out in the petition in this regard. 10. Clause (c) of General Instructions and Information detailed in the advertisement read as under: “(c). Candidates who wish to apply for more than one post and/or more than one department, he/she should apply separately for each post and for each department and separate application must be submitted for each post and for each department.” 11. Admittedly, petitioner did not apply for the post of Assistant Professor (Grade-I) (Level-12).
Candidates who wish to apply for more than one post and/or more than one department, he/she should apply separately for each post and for each department and separate application must be submitted for each post and for each department.” 11. Admittedly, petitioner did not apply for the post of Assistant Professor (Grade-I) (Level-12). She had already given up her claim to the post of Associate Professor when she had consented to accept the post of Assistant Professor (Grade-I) (Level-12) vide her communication dated 06.05.2019 in response to the letter of the same date received by her from the Registrar of respondent No.2 seeking her consent on the basis of the decision of the BOG taken in its 37th meeting, as already noticed supra. It is not disputed by the petitioner that the selection to the posts advertised through advertisement dated 23.08.2018 were subject to the final approval of the BOG. It has also not been questioned that the BOG could not review its decision taken in 37th meeting subsequently. This assumes significance in light of the observations made by this Court hereinabove to the effect that there is no challenge in the petition to the final decision of the BOG dated 21.05.2019 whereby it did not approve the recommendation of the Selection Committee. 12. This Court in exercise of the powers of judicial review cannot go into the soundness of the decision of the administrative authority and what can be looked into is the soundness of decision making process. The interference in such process can only be warranted if the same is found to be arbitrary, patently illegal or perverse. In the given facts of the instant case, we do not find any illegality, arbitrariness or perversity in the decision making process of respondents No. 1 to 3. 13. In light of above discussion, we do not find any merit in the instant petition and the same is dismissed with no order as to costs. Pending miscellaneous applications if any, also stands disposed of.