Dr. Bhagavandas Lahoti vs Government of Andhra pradesh and Others

This writ petition is filed challenging the selection of Respondents 4 and 5 as the Professors of Philosophy in Osmania University on several grounds: viz.,

(1) the selection is vitiated by mala fides on the part of the Selection Committee;

(2) only one post was advertised and selecting the candidates for two posts is illegal and arbitrary and contrary to the ruling of the Supreme Court in Surinder Singh v. State of Punjab (AIR1998SC18)

(3) that inspite of the direction from the Election Commissioner that there should not be any selections during the election process the selection of Respondents 4 and 5 had taken place during that period only. Hence the same is illegal.

A detailed counter is filed by the second respondent-University and Respondent No. 5, Respondent No.4 has not filed any counter.

Regarding the first point, the petitioner contended that the members of the Selection Committee were influenced by Respondents 4 and 5. It is stated in the affidavit that one of the members of the Selection Committee namely, Dr. Sunderaramayya, Department of Philosophy, Andhra University, Waltair, who was an external expert, was close to the 4th respondent and that the said Dr. Sunderaramayya and the 4th respondent together translated certain text books for the Tetugu Academy. Therefore, the presence of Prof. Sundararamayya was an added advantage to the 4th respondent and in these circumstances the selection of the 4th respondent is vitiated by bias. Regarding 5th respondent, it is stated that he had good relations with the Head of the Department viz. Sitaratna Reddy and the said Sitarama Reddy was a family friend of the fifth respondent and the husband of the fifth respondent by name Nooruddin Khan got M.Phil. and Ph.D. under the supervision and guidance of Sitarama Reddy. It is further alleged that the husband of the 5th respondent got Ph.D. at the hands of Prof. Sitarama Reddy after his retirement and Prof. Sitarama Reddy conducted Viva Voce after his retirement, that too in the absence of the petitioner. On this basis it is alleged that Prof. Sitarama Reddy was an added advantage to Respondent No.5 in her selection as one of the Professors of Philosophy.

Though a counter is filed by Respondent No.5 denying these allegations, in the absence of either Sitarama Reddy or Dr. Sundararamayya as parties to this writ petition, it is difficult to appreciate this aspect of the case. It is an established principle of law that when a bias is alleged against any person, such a person should be made a party to the proceedings, because any observation that would be made against such a person would be without giving him any opportunity. Moreover, I find that not only these two persons are not made parties to the writ petition, even the Selection Commission is not made a party. The question whether there was really bias on the part of the Selection Committee cannot be considered in this writ petition unless the Selection Committee is made a parly to the writ petition. In this view of the matter, so far as the first point is concerned, the same merits only for rejection summarily.

Highlighting the second point, the learned Counsel for the petitioner submitted that as per the Notification calling for applications for appointment to the post of Philosophy, the University has advertised only one post and accordingly the petitioner has competed for that post. But to the surprise of the petitioner, it was found that two professors were selected instead of one. Therefore, such a selection is contrary to Articles 14 and 16 of the Constitution. The learned Counsel for the petitioner relying upon several judgments submitted that if the second post was to be advertised, not only the petitioner but several other similarly situated persons would have had an opportunity to compete for the said post. Without advertising the second post, if the appointment is made, that would deprive the fundamental right vested in the citizens. Therefore, the entire selection has got to be set aside.

As against this point, the learned Standing Counsel for the University relying upon the University counter submitted that no illegality, much less any irregularity, is committed by the University in appointing Respondents, 4 and 5 on two posts even though only one post was advertised. He brought to my notice Clauses under ''General Notes'' of the Notification dated 28th January, 1994, by which applications in the prescribed form were invited for the appointment of the Professors in Philosophy and other subjects and further contended that under this clause the University reserved its power to increase or decrease the number of posts. Therefore, by exercising this power only the University appointed two persons in two posts even though only one post was advertised, and in this view of the matter it cannot be said that the University had no power to make appointments on two posts. He further contended that as stated in the counter Prof. Sitarama Reddy was due to retire and such a vacancy would arise in view of his retirement that was also identified for the purpose of appointment and the Selection Committee was apprised of the said fact and accordingly, the Selection Committee had selected two persons even though one post was a advertised and as such there was no illegality.

So far as the principles of law is concerned, there are a number of authorities of the Hon''ble Supreme Court declaring law on the subject. In Ashok Kumar and Others Vs. Chairman, Banking Service Recruitment Board and Others, the Supreme Court ruled as under :

"Article 14 read with Article 16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution."

In another case of Prem Singh and Others Vs. Haryana State Electricity Board and Others, , the Hon''ble Supreme Court reiterated the same principle as under:

"in the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2-11-1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on posts in excess of 62. However, the appointments which were made against future vacancies - in this case on posts which were newly created - must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid. Though the High Court was right in the view it has taken, we modify its order to the aforesaid extent. These appeals are allowed accordingly. No order as to costs.''''

Relying on Prem Singh''s case (supra), in the latest judgment reported in Surinder Singh v. State of Punjab AIR 1998 SC 18, the Supreme Court further clarified the principle of law, stating that it would an improper exercise of power on the part of the appointing authority to make appointments over and above those advertised and only in rare and exceptional circumstances and in emergent situation, this rule can be deviated from, but not otherwise. I think it appropriate to extract the relevant paragraphs of the decision (AIR 1998 SC 18) cited supra as under:-

"15. It is in no uncertain words that this Court has held that it would be improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances, and in emergent situation that this rule can be deviated from. It should be clear spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised.

Keeping the above principles in view, if we analyse the facts and circumstances of the present case, we find that no exceptional circumstances existed or there was any emergent situation for the State to deviate from the principle of limiting the number of appointments so advertised. In our view, the High Court was right in setting aside the appointments of teachers over and above those advertised. The State accepted the judgment of the High Court and did not come up in appeal in this Court. However, to get over the situation created because of the fact that more vacancies of teachers were noticed during the period of interview, it appointed candidates more than the number of posts advertised on ad hoc basis and continued them as such till fresh process of selection was gone into. Admittedly, the process is on and in various writ petitions the High Court has been issuing directions from time to time extending the ad hoc appointments and in the meanwhile to complete the process of fresh selection. As noticed above, selection of 10,000 more candidates for appointment to various categories of teachers has already been completed and selection process of about 22,000 more such teachers has either been completed by now or under completion. We do not think at this stage that we should interfere in the matter and set the clock back particularly when we find no ground to invalidate the impugned judgment of Ihe High Court. In the present appeal, there is no appellant who can claim to fall within the first 2461 posts for which advertisement was issued."

Keeping in view the above law declared by the Supreme Court, now I proceed to consider the case on hand. It is not in dispute that only one post was advertised. But the appointment is made on two posts. The justification offered by the University in this behalf is that they have reserved the power in their Notification dated 28-1-1994 stating that University reserves the right to itself to increase or decrease the number of posts, depending on the exigencies of the teaching work. The learned Counsel for the 2nd respondent -University, as I have already stated above, invited my attention to clause (5) and Note No.2 under the heading ''General Notes'', appended to the Advertisement No. 1 /94, dated" 28-1-1994, by which applications were called for. Those clauses, I am extracting as under :

"(5)Filling up of any of the vacancies depends on the exigencies of teaching work. The University reserves the right to itself to increase or decrease the number of posts.

Note

(2) The University reserves the right to itself to increase or decrease the number of posts and filling up of any of the vacancies depends on exigencies of teaching work."

The power referred to by the University under the above clauses is not the one conferred by any Act or Rule. But such power shall be exercised so as to see that the fundamental rights of the citizens are not affected thereby. The Hon''ble Supreme Court has pointed out in more than one judgment that it would be improper exercise of power to make appointments over and above those advertised, unless there are exceptional circumstances and only in emergent situation, this rule can be deviated from. Hence the two clauses in the notification extracted above cannot be taken to have given an unlimited power t6 the University to deviate from the principle of law declared by the Supreme Court, which has all the binding force under Article 141 of the Constitution. However, the learned Counsel for the University, in order to justify, that there were circumstances, which necessitated the University to make appointment on two posts, though one post was advertised, brought to my notice their statement made in the counter, which reads as under:

"It is submitted that notification clearly specifies that Osmania University can increase or decrease the number of posts inter alia. In view of the fact that vacancies may arise during the pendency of notification and appointments were made only out of the applicants, every one including the applicants and petitioner know the fact that Osmania University can increase or decrease the posts as the same is specified in the notification. Therefore, as on the date of advertisement, there was one vacancy of Professor, subsequently one more vacancy arose due to retirement of Professor P. Sitaram Reddy and little before retirement itself students/department started suffering of thus, 2 posts were identified and the same fact was apprised to the Selection Committee and thus, the Selection Committee recommendations followed. It is needless to mention that students cannot made to wait when there is provision for appointment of more than one person as per notification in academic and public interest. Hence there-is no illegality at all."

From the counter, as extracted above, it is clear that as on the date of the notification, there was only vacancy of Professor and it is further stated that subsequently one more vacancy was arising due to retirement of Professor P. Sitaram Reddy and in those circumstances, two posts were identified for appointment and the same was apprised to the Selection Committee. It is not disputed in this case that Professor P. Sitaram Reddy was one of the members of the Selection Committee. The advertisement calling for applications is dated 28-1-1994 and the interview for the selection was held on 8-9-1994. Whereas, Professor P. Sitaram Reddy retired by the end of September, 1994 and accordingly the appointment orders were issued on 5-12-1994 to Respondent No.4 and to Respondent No.5 on 12-12-1994. From these facts it is clear that as on the date of selection, Professor P. Sitaram Reddy being one of the members of the Selection Committee, his post has not fallen vacant and after the selection process on 8-9-1994 only Professor P. Sitaram Reddy retired. In other words, that is a vacancy which arose only after the selection process was over and before the formal appointment orders were issued and in these circumstances, it is clear that the post held by Professor P. Sitaram Reddy was not available to be filled up as on the date of selection on 8-9-1994 and it is only a future vacancy. As pointed out by the Hon''ble Supreme Court, the appointing authority can advertise not only the posts which have fallen vacant, but also those vacancies, which are anticipated. If the University anticipated the vacancy of Professor P. Sitaram Reddy, they could have advertised that post also and as I have noted above, in fact the post of Professor P. Sitaram Reddy falls vacant only after the selection process was over and it is a future vacancy for all the purposes and that post should have been advertised calling for the applications and in that event, not only the petitioner, but other persons similarly situated would have competed for the same, since seeking public employment is a Fundamental Right guaranteed under Article 16 of the Constitution. In view of these facts and also in view of law declared by the Hon''ble Supreme Court, I have to hold that the appointment to second post is illegal, since it is a post which had fallen vacant after the selection process was completed, and that post would be available for all other citizens to compete. Hence in filling up that second post, the University has violated the Fundamental Rights guaranteed to the citizens under Articles 14 and 16 of the Constitution of India. Even otherwise, from the counter of the University it is clear that no exceptional circumstances existed or there was any emergent situation for the University to deviate from the principle of limiting the number of appointments so advertised. Hence, the appointment made in excess of the post advertised is illegal. Now it is stated that the Professors are appointed on the basis of ranking given to them in the proceedings of the Selection Committee. Respondent No.4 is at serial No. 1 and Respondent No. 5 is at serial No.2, and the petitioner was at serial No.3. From this it follows that so far as the appointment of Respondent No.4 is concerned, it is on the existing post available as per the notification and as such it is a valid appointment. Since, there was no other post available for appointment as per the notification, Respondent No.5 could have been appointed on the second post. In this view of the matter, I have to set aside the appointment of Respondent No.5 as Professor in Philosophy in Respondent No.2 - University.

The last contention urged on behalf of the petitioner is that the entire selection process of Respondents 4 and 5 is illegal, since it was made contrary to the notification issued by the Election Commission. I find that the said notification issued by the Election Commission is dated 26-11-1994 and from the reading of the said notification it is clear that it was only to ensure a free and impartial elections and if any benefits are announced to the Government servants, who were employed in election process, it would come in the way of such impartial and fair elections. Assuming for the sake of argument that notification is violated in appointing Respondents 4 and 5 by the University, that may have consequences on the results of the elected candidates, and the results of his election would be materially affected. But the said notification shall not be taken as invalidating the appoinlments as such made during that period. Even otherwise, that notification simply directs as under:

"no Government, either at the Central or in any State or Union Territory, shall announce any benefits for the employees of the Central or State Governments or the Public Sector Undertakings under the Central and the State Governments from the date of announcement of the elections until the completion of the elections. As such announcements of concessions, etc shall be deferred until after the completion of the election process.

This direction willy apply not only to the Government employees but also to employees of Public Sector Undertakings, Life Insurance Corporation, Nationalised Banks and local bodies, autonomous bodies both at the Centre and State levels whose salaries are drawn wholly or partly but of the public exchequer."

The above notification thus provides that no announcement of any benefits to the employees of Ihe Central or State Government or the Public Sector Undertakings, including the autonomous bodies shall be made from the date of announcement of the elections until the completion of the elections. But it does not say that there shall not be any appointment on the basis of selection process by the Public Service Commission or an autonomous body like the University etc. In this view of the matter, the selection of Respondents 4 and 5 cannot be said to be illegal on this count and accordingly this contention urged on behalf of petition is hereby rejected.

The learned Counsel for the respondents submitted that Ihe writ petition is liable to be dismissed on the ground of delay and laches. It is no doubt true that the petitioner has approached after about eleven months after the impugned selection made by the University, since there is clear violation of fundamental rights guaranteed under Ihe Constitution of India not only to the petitioner but also to other similarly situated persons entitled to be considered for the public employment, in my considered opinion, the delay by itself should not come in the way of granting appropriate relief. In making an appointment on the post not advertised, not only the petitioner would be aggrieved, even the other persons similarly situated would be aggrieved.

In view of my conclusions on point No.2, that the appointment of Respondent No.5 was illegal, I pass the order as under.

The Writ Petition is partly allowed. Appointment of Respondent No.5 as the Professor of Philosophy in the Respondent No.2 - University is hereby set aside. No costs.