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Judgment
In both the writ petitions, the appointments of the unofficial respondents as Assistant Professors in the Departments of Veterinary Anatomy and Histology and Animal Reproduction, Gynaecology and Obstretrics respectively are assailed. Since common question of law is involved in these writ petitions, they are disposed of by a common judgment.
For the purpose of reference to facts, the details in WP No.32064/1997 are adverted to in this judgment.
The 1st respondent-University issued notification on 12.3.1996 and again readvertised with variation in number of vacancies on 6.1.1997 calling for applications for appointments to various posts. But, however, we are concerned in the present writ petitions with the posts of Assistant Professors in the Departments referred to above. It is the case of the petitioners that number of persons including the petitioners applied for the said posts and interviews were conducted. Ultimately, the unofficial respondents were appointed as Assistant Professors. The grievance made in both the Writ petitions is that the selected candidates did not possess the requisite qualifications prescribed in the advertisement and therefore they ought not to have been called for the interview and, consequently, their selection is liable to be set aside.
In the counter filed on behalf of the University it is stated that the following qualifications were prescribed in the advertisement for the posts of Assistant Professors:
"1. A Bachelor''s Degree in Veterinary Science.
A Master''s Degree in the subject (discipline) concerned with at least 55 % marks or its equivalent grade.
A pass in S.S.C. with Telugu as one of the subjects; with the following conditions:
Persons eligible for appointment to the post of Assistant Professor or its equivalent should also have qualified themselves in National Eligibility Test to be specially conducted for the purpose. However, it shall be open to the University to make appointments to the posts without reference to Comprehensive Test (National Eligibility Test) during the transition period."
Therefore, on the basis of this wording, the University submits that National Eligibility Test (N.E.T.) is not an essential qualification and it is only a desirable qualification. It is also submitted that most of the candidates were not aware of the importance of N.E.T. or the requirement of passing National Eligibility Test (for short hereinafter called as "N.E.T.") and consequently there was likelihood of some posts being kept vacant for want of candidates who have cleared NET and, therefore, a clause relating to non-N.E.T. candidates was also introduced in order to avoid contingency of the posts being kept vacant and in the interest of the institution. It is also stated in the counter that the non-N.E.T. candidates with considerable experience having merit and ability would be left behind, therefore, for this purpose also such a clause has been introduced. It is also stated ''that number of Assistant Professors in various other disciplines were also appointed who did not possess N.E.T. qualification and therefore if any decision is rendered holding that N.E.T. is mandatory to the appointment of these persons who were selected without N.E.T. qualifications, they will have to loose their jobs.
In the counter filed by the selected candidates it is confirmed that the other persons who were selected also did not possess the N.E.T. clearance and, therefore, the selections made by the University cannot be interfered with.
A very short point arises for consideration in this writ petition is the interpretation of the N.E.T. requirement clause for appointment to the posts of Assistant Professors.
As already noticed, for the appointment to the posts of Assistant Professors apart from the other academic qualifications another requirement is also stipulated by the University to the effect that the persons eligible for appointment to the posts of Assistant Professors should have also qualified in the National Eligibility Test, to be specially conducted for the purpose. Therefore, a reading of the said clause clearly indicates that the N.E.T. is a necessary and essential qualification for consideration for appointment to the posts of Assistant Professors. It cannot be said by any stretch of imagination that it is only a desirable qualification and that non-N.E.T. candidates also can apply for the same as of right. But, discretion was vested with the University to make appointment to the posts without reference to Comprehensive Test during the transition period. Thus, by virtue of this clause, the University is enpowered to appoint the candidates not holding the N.E.T during the transition period. The expression ''transition period'' has not been clarified nor defined in any of the statutes framed under the A.P. Agricultural Universities Act.
Learned Counsel for the petitioners vehemently argues that the candidates who were selected without N.E.T. qualification are totally to be excluded form the consideration and that the expression ''transition period'' has to be construed with reference to the judgment of the Supreme Court in University Grants Commission Vs. Sadhana Chaudhary and Others, . In the said case, the regulations framed by the U.G.C. in 1991 came up for consideration wherein possession of N.E.T. qualification was mentioned as an essential qualification for consideration for appointment to the posts of Lecturers, but, however, exempted from the said requirement those candidates who have submitted Ph.D. thesis orpassed M.Phil, examination by 31.12.1993. The validity of the cut-off date was challenged. Rejecting the contention of the petitioners that there was no rational basis for the provision in the U.G.C. (qualifications required of a person to be appointed to the teaching staff of a University and Institutions affiliated to it) Regulations, 1991 granting exemption from the Eligibility Test to the candidates who have submitted Ph.D. thesis or passed M.Phil examination by 31.12.1993, the Supreme Court held:
"Prior to the making of the 1991 Regulations there was no statutory requirement for clearing the eligibility test for the purpose of appointment on the post of Lecturer. Such a requirement was introduced for the first time by the 1991 Regulations. At the time when the 1991 Regulations were made the provisions contained in the 1982 Regulations had given rise to a legitimate expectation that a person having a Ph.D. or M.Phil Degree and having good academic record as prescribed under the 1982 Regulations would be eligible for appointment to the post of Lecturer without anything more. While introducing the requirement of clearing the eligibility test in the 1991 Regulations, the U.G.C. did not intend to deprive the persons who had obtained M.Phil, degree or Ph.D. degree prior to the making of the 1991 Regulations of their legitimate expectation in the matter of appointment on the post of Lecturer in Universities or colleges. It was also felt that the said requirement in the 1991 Regulations should not operate to the prejudice of persons who, having regard to the qualifications prescribed in the 1982 Regulations, had registered for the Ph.D. Degree or had joined study for M.Phil. Degree course prior to making of the 1991 Regulations and, therefore, provision was made for granting exemption to such candidates with the condition that they should have passed M.Phil, examination or should have submitted Ph.D. thesis by a particular date. Such candidates constitute a distinct class who could be treated separately insofar as the requirement of clearing the eligibility test was concerned. Such a classification of the candidates for the purpose of applicability of the requirement of clearing the eligibility lest has a rational basis which has a reasonable nexus with the object sought to be achieved by the 1991 Regulations. It cannot, therefore, be held that the exemption that has been granted by the amendment introduced in the 1991 Regulations by notification dated 21.6.1995 is violative of the right to equality guaranteed under Article 14 of the Constitution."
Therefore, he submits that the said regulation is binding on the University, and hence, the transition period only be construed to mean that the persons who submitted Ph.D. thesis or passed M.Phil examination by 31.12.1993 are only eligible to appear without clearing the N.E.T.
On the other hand, learned Counsel for the University submits that the Regulations of the U.G.C. are not binding and relied on a judgment of the learned single Judge of this Court in W.P. No. 9331 and 15663/90, dated 23.12.1992
The question in these writ petitions was about the binding nature of the regulation framed by the University Grants Commission, but we are concerned in the instant case the meaning to be assigned to the expression ''transition period''. Learned Counsel for the University has not been able to clarify the meaning which should be assigned to such expression so as to be understood by the prospective candidates. He, however, submits that whether the N.E.T. conducted by the Indian Council of Agricultural Research was compulsory or not for appointments in the Agricultural University is still undecided and there was no finality on this aspect. Therefore, the University addressed a letter to the Indian Council of Agricultural Research on 23.4.1994 seeking a specific direction as to whether the recruitment to the posts of Assistant Professors can be made without reference to N.E.T. In response to the said letter, the Council stated that the matter was considered in the Vice-Chancellors meeting on 29.4.1994 and the same will be sent to all the concerned. But, however, on 29.8.1996 another letter was issued by the Council to the 1st respondent-University wherein it was stated that a decision was taken in the Vice-Chancellors meeting on 1st and 2nd March, 1996, and it was decided that all the appointments at the level of Assistant Professors after 1st July, 1996, would be made out of the candidates qualified in N.R.T. He also submits that communications were also sent to other Universities for ascertaining correct information with regard to the insistence of N.E.T. clearance. Haryana Agricultural University has intimated on 30-1-1997 that National Eligibility Test was essential qualification for the selection to the posts of Assistant Professors, while the Agricultural University, Poosa, Dihar, stated that it was not an essential qualification.
There is no dispute that the Indian Council of Agricultural Research has been conducting the National Eligibility Test on lines with that of U.G.C. so as to make the candidates eligible for appointments to the various teaching posts in the Universities under the Indian Council of Agricultural Research. The letter of the 1st respondent-University dated 23.4.1994 addressed to I.C.A.R. also reveals that N.E.T. is a pre-requisite to the posts of Assistant Professors. The letter is extracted below:
"I am to invite your kind attention to the ICAR''s letter cited. It was informed therein that a combined examination, for National eligibility, A.R.S of ICAR, senior Fellowship, will be conducted by the Agricultural Scientists Recruitment Boards (ASRB) from 1993 onwards and that till then the University can fill up the vacancies by their existing selection procedure. Accordingly, the University has filled up the vacancies of Assistant Professors without insisting NET. The University has no further information on the subject. As the NET is pre-requisite for recruitment to the posts of Assistant Professors, I request you to inform whether ASRB has taken up the conduct of NET. I also request you to inform whether the University can, in the meanwhile, make recruitment to the existing vacancies of Assistant Professors without insisting NET if there is any likelihood of delay in ASRB taking up the conduct of examinations. With regards."
The letter of the Council dated 29.8.1996 is also extracted hereunder for proper appreciation of this matter:
"Kindly recall the discussions held during the Vice-Chancellor''s meeting held on 1st and 2nd March, 1996 wherein it was decided that all appointment at the level of Assistant Professor after 1st July, 1996 would be made out of the candidate qualified in NET examination.
Regarding selection of the Head of the Divisions, Deans and Directors, it was decided that all future appointment would be made by open selection.
I, therefore, request you to kindly implement the decisions taken. In addition, 1 request you to please send me your suggestions on NET examination for consideration of the Committee appointed.
With regards"
Therefore, it emerges from the above correspondence that the University has decided to make N.E.T. As a pre-condition for recruitment to the posts of Assistant Professors and requested the Council to inform whether any action was taken to conduct the N.E.T. examination. It is not in dispute that the Council did conduct the National Eligibility Test and the writ petitioners passed the said examination. Therefore, from the correspondence which took place between the University and the Indian Council of Agricultural Research, it appears that the N.E.T was made pre-requisite, but, however, this requirement was not to be insisted upon during the transition period. The University has not clarified the word ''transition period'' even though number of opportunities were given. Only it tried to make an effort to say that most of the candidates were not aware of the importance of N.E.T. and, therefore, there will not be sufficient response to the posts advertised and if sufficient candidates who have completed N.E.T. are not available the posts are necessarily to be kept vacant, with the result the academic programme of the institution will suffer. This contention though appears to be appealing, but when it is tested on the anvil of Article 16 of the Constitution of India, this Court will be reluctant to accept such a stand. Every citizen has a fundamental right to claim equality of opportunity in matters relating to employment or appointment to any office of the State under Article 16(1) of the Constitution of India. Therefore, it would not be open for the 1st respondent to violate the said fundamental right. The advertisement clearly mandates possession of qualification in National Eligibility Test, but, since the University is granted discretion to allow the non-N.E.T. candidates also for consideration for appointment to the posts of Assistant Professors during the transition period, it is necessary that the transition period should have been made known to the public. It is well settled that this Court will be reluctant to interfere with the actions or decisions of the institutions of higher learnings, but at the same time, when the actions are mala fide, arbitrary or discriminatory offending Article 14 of the Constitution of India, this Court is bound to interfere and grant appropriate relief. A Division Bench of this Court in S.B. Dwarkanath and The Registrar, Osmania University Vs. R. Dilip Kumar and Others, has made apt observations in this regard, which are extracted below:
"Exclusion of academic matters from judicial review is the product of restraint which the Courts exercise as a matter of prudence, and shall not operate as a protective shield for arbitrariness masquerading under academic freedom. If unfairness and impropriety evidencing unconstitutional discrimination is exposed in the actions of the University and other like academic bodies, the Court will not be justified, if it declines jurisdiction in deserving cases. It is essential that the Court considers the complaint of the petitioners that there was abuse of power by the University in the alleged exercise of its academic discretion; and if it finds positively that the complaint was sustainable, the Court has a positive duty to set at naught the impugned action. The Court is not expected to strain its nerves even beyond the breaking point on the assumption that it has a duty always to protect freedom of the University or other such academic bodies. Nor is the Court expected to substitute its notions of propriety in an all out-effort to salvage the decision of the academic bodies at any cost. Unless there are compelling circumstances, the Court has no alternative except to exercise its power of judicial review even when the decisions of academic bodies are called in question. The rule of prudence is that the Court shall exercise greater restraint in such matters than in the case of purely judicial or administrative functions. Such restraint shall not amount to a licence for academicians to trample upon the constitutional rights of people."
The Division Bench while setting aside the selection of candidates who were found to be ineligible and unqualified for the post of Lecturer in Law further observed that compassion cannot be allowed to overtake justice and law and that as for compassion it shall not operate at the expense of justice and equity. The ineligible and unqualified candidates who managed to obtain selection through questionable methods could not be the recipients, in equity of undeserved benefits. Allowing them to benefits, which they did not deserve was a travesty of justice.
In the instant case, some of the persons who acquired the National Eligibility Test though appeared have not been selected and on the other hand some of the persons who did not possess N.E.T. were selected, but, however, the process of selection has not been challenged in these writ petitions. The main thrust of argument is that the ineligible candidates have been called for interview and that itself is sufficient to vitiate the entire process of selection. Though I find force in the contention of the learned Counsel for the petitioners, but, yet, in the facts and circumstances of the case, the matter has to be viewed in a different perspective. The right to public employment is inalienable fundamental right of the citizens. When an offer is made to public for appointment, the responsibility is cast on the University to be meticulous in issuing the notifications. When it is specifically stated that one should possess N.E.T qualification for appointment to the post of Assistant Professor, at the same time power is given to the University to consider the cases of those candidates who did not possess N.E.T. qualification during the transition period, the said expression ''transition period'' ought to have been made clear to the public rather than understanding it for itself. There is any amount of ambiguity. The requirement in the notification should be capable of being understood by the prospective candidates and not the University administration. Such advertisements are likely to create any amount of confusion in the minds of public. The contention that the N.E.T. candidates had also applied goes to establish that it was properly understood cannot be accepted on the face of the advertisement, the selected candidates are in service personnel in the University. Nothing could have prevented the University by clearly specifying in the advertisement that non-N.E.T. candidates can also apply, but, by putting "transition period" it had placed prospective candidate in a quandary. But, in the instant case, the minutes of Vice-Chancellors made clear that all the appointments after 1st July, 1996, to the posts of Assistant Professors should be made out of the candidates who qualified in National Eligibility Test and the University issued notification prior to July, 1996. Added to this, certain other Universities in the country have not yet made N.E.T. qualification compulsory for appointment to the post of Assistant Professor. Thus the University was not in a position to decide one way or other.
Under these peculiar circumstances, I am of the view that the action of the University in entertaining the candidates of non-N.E.T. cannot be said to be illegal or arbitrary. Accordingly, I find no merit in the writ petitions.
However, before parting with the case, this Court is impelled to make certain observations. The advertisements involving public employment are always required to be specific and unambiguous, otherwise they would be offending the citizen of his fundamental right under Article 16 of the Constitution of India. The offer to public should be specific and incapable of admitting any scope of misunderstanding. The N.E.T. qualification having now been made compulsory in pursuance of the minutes of the meeting of the Vice-Chancellors, it is hoped that in future the University shall make the appointments making National Eligibility Test compulsory and specifically stating it in the advertisements.
Both the writ petitions are dismissed with the above observations. No costs.