R.V. Shiva Kumar and Others vs JNTU and Others

C.V.N. Sastri, J.—These six writ petitions relate to the selections/appointments made to certain posts of Assistant Professor and Professor in the Jawaharlal Nehru Technological University, A.P. Hyderabad pursuant to the advertisement dated 18-6-1990. As common questions are involved, all these writ petitions are heard together and they are being disposed of by this common judgment.

Four out of these six writ petitions i.e., W.P.Nos. 8454 of 1991,2206 of 1991, 2207 of 1991 and 3063 of 1991 relate to the post of Assistant Professor in Mechanical Engineering and as such these four writ petitions go together. W.P.No. 3057 of 1991 relates to the post of Professor in Mechanical Engineering and W.P.No. 3062 of 1991 relates to the post of Professor in Electrical Engineering.

I shall first deal with the four writ petitions relating to the post of Assistant Professor in Mechanical Engineering.

The respondent-University issued an advertisement dated 18-6-1990 calling for applications to fill up three posts of Assistant Professor in Mechanical Engineering earmarking one post of Assistant Professor with specialisation in Thermal Engineering. These three posts were clubbed together with one post of Assistant Professor in Computer Science for the purpose of communal reservation as per roster. Out of these four posts, two posts were kept for open competition and reserving one post each for B.C-A and B.C .-B candidates. In the selections for Assistant Professors as advertised, no one was selected from Computer Science and two persons were selected as Assistant Professors in Mechanical Engineering, namely, Sri R.V. Shiva Kumar (petitioner in W.P.No. 8454 of 1991) and Smt. B. Vijayalakshmi who were shown against O.C. and B.C.-B vacancies respectively. B.C-A vacancy was not filled up though it appears there were five candidates under B.C-B category kept in the panel. In these four writ petitions, we are concerned with the question of validity of the selection and appointment of Sri R.V. Shiva Kumar (petitioner in W.P.No. 8454 of 1991) as Assistant Professor in Mechanical Engineering. The other three writ petitions are filed by the unsuccessful candidates, who were not selected to this post, questioning the selection and appointment of Sri Shiva Kumar and claiming that they should have been appointed to the said post.

The interviews for this post were held on 21-11-1990 and the selection committee selected Sri Shiva Kumar for this post and an order of appointment was accordingly issued to him on 10-12-1990 and he joined duty on 13-12-1990. It appears that soon after the appointment of Sri Shiva Kumar and various other candidates in other subjects were made, several complaints were made to the Chancellor and the other authorities alleging that several irregularities were committed in the selections and appointments to the various posts including the selection and appointment of Sri Shiva Kumar who happened to be the son of the Registrar of the University. In view of the said complaints and representations, a two member fact-finding committee was appointed to go into the same and submit a report. The said committee submitted a report dated 21-1-1991 pointing out, among other things, that Sri Shiva Kumar (petitioner in W.P.No. 8454 of 1991) did not have the minimum experience of five years as prescribed and that his selection and appointment ignoring several other candidates, who possessed much higher qualifications and merit, was highly irregular. After considering the said report by the Executive Council of the University, a show-cause-notice dated 14-3-1991 was issued to Sri Shiva Kumar calling upon him to show cause why his appointment should not be annulled and cancelled to which Sri Shiva Kumar submitted his explanation. After considering his explanation, the Executive Council of the University resolved on 13-5-1991 that the appointment of Sri R.V. Shiva Kumar is irregular and the same should be annulled. Pursuant to the said resolution of the Executive Council, an order dated 30-6-1991 was issued by the Registrar terminating the services of Sri Shiva Kumar and relieving him of his duties with immediate effect. Questioning the said order, Sri Shiva Kumar has filed W.P.No. 8454 of 1991 and sought for interim suspension of the impugned order pending disposal of the writ petition. A learned Single Judge of this Court refused to suspend the order, but on appeal a Division Bench of this Court passed an order directing to permit the petitioner to work but without giving him the designation. Sri Shiva Kumar, however, felt that it was humiliating to work in such circumstances and he did not, therefore, choose to avail the benefit of the said order passed by the Division Bench. Thus Sri Shiva Kumar has not been in service ever since 13-6-1991 (sic. 30-6-1991).

In its report dated 25-1-1991, the two-member fact-finding committee has stated as follows regarding the appointment of Sri Shiva Kumar as Assistant Professor in Mechanical Engineering:

"Shri R. Siva Kumar. Asst. Professor in Mechanical Engineering: Sri R. Siva Kumar, s/o Dr. R. Krishna Rao, Registrar, JNTU was appointed as Asst. Professor in Mechanical Engineering. For the Post of Asst. Professor, a person should be M.Tech. and should have minimum 5 years experience while the applicant was having only 4 years and 8 months experience as on the date of application.

The desirable qualification for the post of Asst. Professor is Ph.D. Number of persons with Ph.D. qualification are available but they are not selected. Dr. A. Chandra Sekhara Kumar who was also an applicant for the post of Asst. Professor in Mechanical Engineering is Ph.D. and is having 13 years of experience. But he was not selected although his name is fifth in the panel. It is further pointed out that Dr. A. Chandrasekhara Kumar and Sri K. Rajagopal were placed 1st and 2nd in the waiting list of O.C. Candidates in the panel prepared on 19-0-3-1990. This panel was still alive on the date of advertisement. They could have been straightaway appointed as Assistant Processors without arty fresh advertisement. When Ph.D. persons with 13 to 14 years of experience and found suitable by the selection committee, were available there was no need to appointing a person who is not even having minimum experience and necessary qualification on the date of application. The appointment of Shri R. Siva Kumar, was found totally irregular."

In Para 6 of its report, the fact-finding committee further observed that no uniform procedure was adopted in appointing the teachers, that according to the resolution of the Executive Council, a panel is kept alive for one year and future vacancies arising within a year have to filled up from the panel, that this has been done in three or four cases while the same procedure is not followed in other cases and that this was done to show favour to the son of the Registrar of the University. In the impugned order dated 30-6-1991 also, it was found that the petitioner Mr. Shivakumar was having only the minimum qualification of M.Tech. and he did not have the minimum experience of 5 years in teaching or industry, but had only a total experience of 4 years and 8 months which is less than the minimum experience prescribed for the post. It was also found that number of persons were there who were Ph.Ds., for example Dr. A.C.S. Kumar (petitioner in W.P.No. 2206 of 1991) who is M.Tech. I class and Ph.D. with more than 14 years of experience and who was also in the earlier panel prepared in 1989 and as such Sri Shiva Kumar should not have been even invited for interview and even if invited he could not have been selected when he does not have the minimum qualification and desirable qualification when suitable persons having Ph.Ds. are available.

Sri V. Venkatramanaiah, the learned senior counsel appearing for the petitioner in W.P.No. 8454 of 1991 has contended that the petitioner has worked for two years from 1-7-1984 to 3-6-1986 as Maintenance Engineer in Messrs. Hiranya Chemicals, that he worked for two years, one month and 6 days from 1-7-1986 to 6-8-1988 as Developmental Engineer in Hiranya Chemicals Equipment Limited, that subsequently he was sponsored by his employer i.e., Hiranya Chemicals for doing M. Tech in the Regional Engineering College, Tiruchinapalli from 7-8-1988 to 1-1-1990 treating the said period as on duty without any break in service, that from 2-1-1990 to 27-5-1990, he worked as Safety Engineer in Hyderabad Allwyns, that from 28-5-1990 to 12-12-1990, he worked as Lecturer of Mechanical Engineering in Deccan College of Engineering and as such the petitioner clearly has more than five years of experience. He has also contended that the exclusion of period of study of M.Tech. course by the petitioner is arbitrary and discriminatory as the University in several other instances treated the study period as on duty and cited the case of one Dr. K.S. Sarma, Assistant Professor in Electrical Engineering (MPS) who was sponsored by the University for undergoing M. Tech. in computer Science and his period of study was treated as on duty. He has further submitted that the selection was validly made by the duly constituted selection committee and the same was also approved by the Executive Council on 7-12-1990, that there are no allegations of mala fides against the members of the selection committee or Executive Council, that there is no allegation that the petitioner has made any misrepresentation or secured the appointment by fraudulent means, that as such the respondent-University is estopped from annulling the appointment, that there is no express provision either in the JNTU Act or the statutes framed thereunder conferring any such power of annulment on the Executive Council, that the impugned order is passed in violation of the principles of natural justice as no opportunity was given to the petitioner to appear before the two-member fact-finding committee and the show-cause notice subsequently issued to him is only an empty formality. He has finally submitted that the petitioner has resigned his previous job as Lecturer in Deccan Engineering College and accepted the present appointment and as such it will be highly unjust and inequitable to terminate his services.

Sri R. Subash Reddy, the learned Standing Counsel for the respondent-University, has contended that the petitioner does not have minimum experience of five years as prescribed and that the period of study in the Regional Engineering College cannot be treated as experience, that the instance of Dr. K.G. Sarma cited by the petitioner stands on a different footing as the said candidate was an in-service candidate of the University and hence his period of study was treated as on duty whereas the petitioner herein was not in the service of the University when he did M.Tech., that the appointment of the petitioner ignoring the claims of several other candidates, who had superior qualifications and experience, was highly irregular and the Executive Council was perfectly justified in annulling the appointment of the petitioner. The learned Standing Counsel further contended that even though there is no specific provision in the Act or the statutes conferring such power of annulment, it is implied or implicit because the power to appoint includes the power to terminate the appointment.

Sri V. Jogayya Sarma, the learned counsel appearing for the petitioners in W.P.Nos. 2206 of 1991, 2207 of 1991 and 3063 of 1991, while reiterating the contentions advanced by the Standing Counsel for the University, has further submitted that the petitioners in W.P.Nos. 2206 of 1991 and 3063 of 1991 were placed at Serial Nos. 1 and 2 in the panel prepared on 19-3-1990 which was valid for one year and as such the action of the University in issuing the advertisement dated 18-6-1990 without exhausting the said panel is illegal and if the appointment of Sri Shiva Kumar is declared invalid, his clients i.e., the petitioners in W.P.Nos. 2206, 2207 and 3063 of 1991 are entitled to be appointed to the said post as per their ranking in the panel dated 19-3-1990.

In Minor A. Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, , the Supreme Court has observed that the object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. The ideal in recruitment is to do away with unfairness. In District Collector and Chairman v. M. T. Sunderi Devi 1990 (4) SLR 237 the apex Court held that it would amount to fraud on public to appoint a person with inferior qualifications and further opined that appointment in disregard of the qualification criterion is a matter not only between the appointing authority and the appointee but the aggrieved are (sic. and) all those who are similarly or better qualified than tine appointee. The apex Court opined that no Court should be a party to the perpetuation of such fraudulent practice. In Smt. V. Rama Chowdary Vs. University of Hyderabad and Others, , a Division Bench of this Court, adverting to several pronouncements of the Supreme Court, held that the eligibility criteria to a post must be satisfied on the date of application or on the last day of receipt of applications or on any cut off date indicated therefore and that if a candidate or an applicant did not satisfy the eligibility criteria on the relevant date, his selection cannot be upheld. It was further observed that when once the Court is apprised of the position of an irregular, if not an illegal, appointment taking place to a public post, the Court must act and direct the authorities concerned to act fairly and in accordance with the requirements of law. If this court does not do so, as observed by the apex Court, that would amount to this Court being a party to the perpetuation of fraudulent practice. This must be set right and the authority or authorities must be directed to act properly, fairly and legally and the Court cannot shirk the solemn obligations cast by the Constitution on it.

In the instant case, the material on record clearly goes to establish that the petitioner did not have the minimum experience of 5 years by 21-7-1990 which is the last date for receipt of applications and that his total experience by that date was only 4 years and 8 months which is less than the minimum prescribed service for the post of Assistant Professor. The petitioner had only the minimum qualification of M. Tech. and he did not possess the desirable qualification of Ph.D. in the concerned subject. Admittedly there were several other candidates having Ph.D. with longer experience than the petitioner. There was also a panel prepared on 19-3-1990 which was still valid and subsisting. The selection and appointment of the petitioner, who is no other than the son of the Registrar of the University ignoring the subsisting panel and also the claims of several other candidates having superior qualifications and experience than the petitioner, clearly appears to be an act of favouritism which cannot be justified. Sri V. Venkatramaniah, the learned counsel for the petitioner, however, contended that the period of study spent by the petitioner for doing M. Tech. in the Regional Engineering College should also be treated as experienced and if the said period is taken into consideration, the petitioner clearly fulfills the eligibility criteria. He submitted that the expression "experience'' should be liberally construed. In this context, the learned counsel sought to place reliance on the judgments of the Supreme Court in Dr. Asim Kumar Bose Vs. Union of India (UOI) and Others, and Government of Andhra Pradesh and Another Vs. Dr. R. Murali Babu Rao and Another, . The said judgments, in my view, are not relevant to the case on hand. Those cases involved the interpretation of certain rules for promotion to the post of Professor from Assistant Professor and Associate Professor respectively and they essentially turned on the language employed in the said rules. In the instant case we are not concerned with the interpretation of any such rules. According to the advertisement, the qualification prescribed is 5 years'' experience in Teaching/Industry/Research at the appropriate level. The period of study for doing M. Tech. course cannot be classified as experience in Teaching/Industry/Research at the appropriate level as provided in the advertisement. It is, therefore, not possible to accept the contention of the petitioner in this regard. Even otherwise, when admittedly several other candidates with superior qualification and experience are available, I find no justification whatsoever for the selection of the petitioner. When it is clearly found that the petitioner does not fulfill the eligibility criteria prescribed in the advertisement and his selection and appointment is irregular, this Court, in exercise of its jurisdiction under Article 226 of the Constitution, will not be inclined to come to the rescue of the petitioner to sustain such an irregular appointment on technical pleas like estoppel or on other equitable considerations like hardship to the petitioner. I do not, therefore, find any merit in the contention that the University is estopped from annulling the appointment of the petitioner. In this view of the matter, I do not think it necessary to go into the further question whether, in the absence of any specific provision in the JNTU Act or the statutes conferring the power of annulment, such power can be implied. Irrespective of any such question, I am satisfied that it is a fit case where the Court should refuse to grant any relief to the petitioner in exercise of its jurisdiction under Article 226 of the Constitution. I do not also find any substance in the contention that the impugned order is in violation of . principles of natural justice on the ground that no opportunity was given to the petitioner to appear before the two-member fact-finding committee and the show-cause-notice subsequently issued to him is only an empty formality. The enquiry made by the two-member fact-finding committee is only in the nature of a preliminary enquiry and petitioner is not entitled to be given any opportunity at that stage. Subsequently a show-cause-notice was given to him and he submitted his explanation to the same and it was duly considered by the Executive Council. Further the impugned order shows that after the petitioner submitted his reply to the show-cause-notice, one more opportunity was given to him to appear before the Vice-Chancellor to explain his case personally on 23-4-1991, but the petitioner did not appear before the Vice-Chancellor and instead he sent a letter dated 23-4-1991 stating that there is nothing further to add at the personal hearing beyond what is already stated in his reply to the show-cause notice. As such I do not find any substance in this contention of the petitioner as well. For the foregoing reasons, I do not find any merit in W.P.No. 8454 of 1991 and it is accordingly dismissed.

As regards the claim of the petitioners in W.P.Nos. 2206, 2207 and 3063 of 1991 that they are entitled to be appointed to the post in question based on their rank in the panel dated 19-3-1990 and that the action of the respondent-University in issuing the advertisement dated 18-6-1990 without exhausting the said panel is illegal, it is stated by the learned counsel for the petitioners as well as the learned Standing Counsel for the University that the petitioners in these three writ petitions have since been promoted to the post of Assistant Professor under the career advancement scheme and they are now working as Assistant Professors. Further the validity of the panel dated 19-3-1990 expired long ago. The fact remains that the petitioners in these three writ petitions did not question the advertisement dated 18-6-1990 before the selections were made, and on the other hand, they have applied to the post pursuant to the advertisement and went through the selection process and they were not selected by the selection committee. Simply because the appointment of the petitioner in W.P.No. 8454 of 1991 is annulled, they cannot claim any right for appointment to the said post automatically. Having regard to these facts and circumstances, I do not find any merit in these three writ petitions as well. Accordingly W.P.Nos. 2206, 2207 and 3063 of 1991 are also dismissed directing the respondent to re-advertise the post in question.

I shall now deal with W.P.Nos. 3057 and 3062 of 1991 which relate to the posts of Professor in Mechanical Engineering and Professor in Electrical Engineering respectively. The petitioners in these two writ petitions applied for the said posts in the year 1989. They were not selected at that time, but they were kept in the panel prepared and approved on 17-3-1990. In these writ petitions, they question the validity of the action of the respondent-University in issuing the advertisement dated 18-6-1990 calling for fresh applications without exhausting the panel dated 17-3-1990 which was valid and subsisting for one year. The petitioner in W.P.No. 3057 of 1991 has not applied for the post pursuant to the advertisement dated 18-6-1990 whereas the petitioner in W.P.No. 3062 of 1991 has applied, but he was not selected. In the selections made pursuant to the advertisement dated 18-6-1990, the two posts in question were filled up by appointing some other candidates. The petitioners have not impleaded those selected candidates as party-respondents to these writ petitions and their appointments are not questioned. As such I am of the view that the petitioners are not entitled to any relief in these writ petitions. Accordingly these writ petitions are dismissed.

In the result, all the above six writ petitions are dismissed. But in the circumstances, there will be no order as to costs.