JUDGMENT
1. The petitioner passed Master of Computer Application (in brief MCA) In first class. He belongs to OBC category. An advertisement was issued by Veer Bahadur Singh Poorvanchal University, Jaunpur on 9.10.1999 for appointment of Lecturer on adhoc basis on honorarium in the MCA department. The petitioner after facing selection committee was appointed and he joined on 23.2.1999 and worked till 30.9.2001. On 17.8.2000 advertisement No. 3/1/2000 was issued inviting applications for regular appointment on the post of Lecturer in Computer Applications mentioned at item No. 16 of the advertisement. In the advertisement following essential qualification were prescribed for the post of Lecturer, in Computer Application which are extracted below:
Qualification other than Engineering & Technology Lecturer
1. Master's Degree or an equivalent degree in the relevant subject which at least 55% marks or its equivalent grade with consistency good academic record.
2. Who has passed University Grant Commission or Council of Scientific and Industrial Research or Junior Research fellow ship examination.
3. Who has been awarded Ph, D. Degree upto December 31, 1993 or
4. Who has submitted thesis or Ph.D. Degree upto December 31, 1993 or
5. Who has been awarded M.Phil Degree upto December, 31, 1993 shall not be required to qualify in such comprehensive test.
2. The petitioner applied in pursuance to the advertisement as an O.B.C. candidate. The selection was only on the basis of interview. The selection took place on 4.2.2001. The result of interview was declared and the following four persons were selected:
3. The select list and the waiting list had not been disputed by the university in counter affidavit or the supplementary counter affidavit. In paragraph 5 of the counter affidavit it is admitted that the petitioner was placed in the waiting list at the second position.
4. Out of the aforesaid four selected candidates Shri Amarendra Singh did not join and Shri Prabhat Verma resigned on 8.4.2003. The petitioner claimed the post of Shri Amrendra Singh. The respondents appointed Shri Surjit Kumar, in the aforesaid vacancy, who was at serial No. 1 in the waiting list. The petitioner challenged both the advertisement and selection of Shri Saurabh Pal and Shri Surjit Kumar. It is claimed that the qualification prescribed in the advertisement of Masters Degree with at least 55% marks In the relevant subject was contrary to the norms laid down for such lecturers by the All India Council For Technical Education (in brief AICTE). As regards selection the petitioner claims that Saurabh Pal and Surjit Kumar being only M.Sc. they were not eligible for the post of lecturer in computer applications. In the counter affidavit filed by the University the advertisement, waiting list and other facts relating to selection have not been disputed. In the supplementary counter affidavit it is alleged that the petitioner having participated in the selection cannot challenge it.
5. We have heard Shri M.A. Qadeer, learned Counsel for the petitioner, Shri Anil Tiwari, learned Counsel appearing for respondents No. 2 to 4 and Shri Prabodh Gaur, learned Counsel appearing for respondents No. 5 and 6. Shri Neeraj Tripathi has accepted notice for respondent No. 1.
6. The AICTE was set up in 1945 by a Central Government resolution as a National Expert body to advise the Central and State Government for ensuring the coordinated development of Technical Education in accordance with approved standards. It was found that various technical institutions have come up in complete disregard of the guidelines framed by AICTE, therefore, in 1981 the AICTE came to conclusion that it should be vested with statutory powers to regulate and maintain the standard of technical education. The national working group was set up in November 1985 to look into the role of AICTE and to make recommendations so that AICTE be able to play its role effectively and be vested with statutory authority. Same view was taken by the National Council of Education in 1986. The Central Government enacted the All India Council for Technical Education Act, 1987 (in brief the Act 1987) for laying down norms and standards for technical institutions. The Act, 1987 as published in 28,12,1987, came into force by the Central Government notification on 28.3,1988,
7. Section 10 of Chapter III of the Act, 1987 provided that in order to perform its duty and to take all such necessary steps to ensure that the object and purpose of the Act may be fulfilled the AICTE may lay down the norms and standards to achieve the objective of the Act and for proper planning and co-ordinated development of the technical education system uniformly throughout the country. Section 10(1)(a) to (v) of the Act, 1987 empowered AICTE to lay down the norms and standards for ensuring co-ordinate and integrated development of technical and management education. In Sub-section (i) the AICTE was empowered to lay down norms for staff pattern and staff qualifications etc. Section 10(1)(i) of the Act is extracted below:
10. Functions of the Council-
(1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical and management education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may--
(i) lay down norms and standards for courses, curricula physical and instruction facilities, staff pattern, staff qualifications, quality instructions, assessment and examination.
8. The norms and standards which has to be laid down under the Act, 1987 by AICTE have to be uniform throughout the country so that the technical education in the entire country is integrated into one system. The Apex Court in State of Tamilnadu and Anr. v. Adhiyaman Educational & Research Institute and Ors. has observed that, "since the standards have to be laid down on a national level, they have necessarily to be uniform throughout the country without which the co-ordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute.
9. We had directed the learned Counsel for the University to bring on record as to what were the essential qualifications for the post of appointment of Lecturer in Computer Applications. Shri Anil Tiwari, learned Counsel for the University has filed a Supplementary Counter Affidavit along with it he has annexed the norms fixed by AICTE which provides essential qualifications for the post of Lecturer. Shri Tiwari has fairly informed the court that apart from the instructions issued by AICTE prescribing essential qualifications no where else the essential qualification for the post in question had been prescribed. In 2002 the AICTE revised Pay Scales and Service Conditions Degree Level Technical Institutions. From annexure-2 filed by the University with the supplementary counter affidavit it is clear that a letter fixing the minimum qualification for lecturer, approved by Government of India was issued on 15.3.2000 to all concerned for necessary action. Table 3.1 lays down the cadre structure for Teachers in Degree Level Technical Institutions. Table E-2 prescribes minimum qualification and experience for teaching posts in Degree Level Technical Institutions, Master of Computer Application (MCA) programmes. Table E-2 is extracted below:
10. The essential qualification, as mentioned in the norm issued by AICTE, Table E-2 for the teaching post in Degree Level Technical Institutions Master of Computer Application (M.C.A.) Programmes for Lecturer is extracted as under:
First Class B.E./B.Tech in Computer Science/Engineer/ Technology.
Or First Class M.C.A. degree
11. It was further provided that there would be no minimum requirement, From the aforesaid essential qualification, laid down by AICTE it is clear that a candidate possessing M.C.A. would be eligible for the post of Lecturer in Computer Science. Post Graduate Degree of M.Sc. in Computer Applications has not been prescribed as an essential qualification. The University had accepted the qualification fixed by AICTE. The advertisement issued by the University was contrary to the minimum essential educational qualification fixed by the AICTE. Once essential qualification has been prescribed as First Class MCA it could not be changed or altered by the University nor it can lay down or fix a different minimum essential qualification. The advertisement Issued by the University was contrary to the norms laid down by the AICTE.
12. The petitioner challenged the selection of respondents No. 5 and 6 by Civil Misc. Writ Petition No. 35255 of 2001 which was disposed of on 28.11.2002 on the ground of alternative remedy of reference before the Chancellor under Section 68 of the U.P. State Universities Act, 1973. The petitioner approached the Chancellor under Section 68. The stand of the University before the Chancellor had been filed as Annexure-1 to the counter affidavit. It was stated that in M.Sc Computer Science the subjects of MCA are taught at Banaras Hindu University and Allahabad University. The courses are similar, therefore, the selection committee treated both the courses to be equivalent. In paragraph 4 and 5 of the parawise reply it was stated as under:
4- ;g fd Jh lkSjHk iky ,oa Jh lqjthr dqekj] vky bafM;k dkmfUly Qkj VsfDudy ,tqdsku }kjk fu/kkZfjr vgZrk ds vuqlkj ,e-lh-,- foHkkx esa izoDrk in ij mPpre kS{kf.kd ;ksX;rk j[krs gSa] tSlk fd vky bafM;k dkmfUly Qkj VsfDudy ,tqdsku ds Vscy&B&2] dzekad&3] dSMj izksQslj ds ;ksX;rk ds dkye esa of.kZr Gs%& layXud&1 ^^[email protected];[email protected] kk[kk esa ih-,p-Mh- rFkk izFke Js.kh esa dEi;[email protected]@dE;wVj bUthfu;[email protected];wVj VsDukykth esa Lukrd vFkok ijkLukrd fMxzh ;k dEi;wVj lkbal esa ih-,p-Mh- rFkk izFke Js.kh esa ,e-lh-, vr% mijksDr ls iw.kZr;k Li"V Gs fd dEi;wVj lkbal esa ijkLukrd fMxzh ,e-,l-lh dEi;wVj lkbal rFkk ,e-lh-, nksuks dh leku ekU;rk Gsa 66- ;g fd foofo|ky; }kjk lk{kkRdkj ds fy;s rS;kj fd;s x;s pkVZ ij ch- [email protected],e-lh-,- kSf{kf.kd ;ksX;rk dk o.kZu fd;k x;k Gs tks fd U;wure Gsa bl lanHkZ esa ;g Hkh lwfpr Gs fd izoDrk in gsrq [email protected]] dEi;wVj [email protected];[email protected] ;k izFke Js.kh dh ,e-lh-, fMxzh] ,-vkbZ-lh-Vh-bZ- }kjk U;wure vgZrk ekuh x;h Gs] ij ;g vfuok;Z vgZrk ugha Gsa Jh lkSjHk iky ,oa Jh lqjthr dqekj }kjk /kkfjr ,e-,l-lh dEiwVj lkbal dh fMxzh dks dbZ foofo|ky;ksa }kjk ,e-lh-, ds led{k ekuk x;k Gs tSlk fd mijksDr izLrj pkj esa nkkZ;k x;k Gsa We have already exhibited Table E-2 earlier. It does not mention M.Sc Computer Science as one of the qualifications. The stand taken by the University that since some of the subjects which are taught in M.Sc. Computer Science and MCA are common, therefore, a candidate possessing M.Sc. degree from such University is treated possessing MCA cannot be appreciated. In paragraph 4 of the parawise reply before the Chancellor, the university has mentioned the essential qualification for the post of Professor prescribed by AICTE to demonstrate that M.Sc, would be eligible for the post of professor then there could be no objection in considering a M.Sc, for the post of lecturer. It cannot be accepted. Fixing of eligibility for the post of lecturer and professor was in the wisdom of AICTE. It cannot be substituted or altered. Further the statement in paragraph 4 and 5 that the respondent No. 5 and 6 possessed the essential qualification is factually Incorrect. First Class in B.Tech in Computer Science is not equivalent to M.Sc Computer Science for the posts of Lecturer, Assistant Professor and Professor. M.Sc Computer Science is not equivalent to MCA. The Chancellor had merely paraphrased the parawise reply of the university. The argument of the learned Counsel for the respondents that academic record of the respondents is better than the petitioner is of no help to the respondents. The Division Bench of this Court in State of U.P. and Ors. v. Param Hansh Singh 2001 (3) A.W.C. 2106 has held that the candidate who does not possess necessary qualification or satisfies the eligibility criteria cannot be selected and his selection and appointment would be invalid. It has held as under:
14. It is well settled by catena of decisions of Hon'ble Apex Court that a person who does not possess minimum qualification prescribed for a post cannot be appointed t that post. In District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi . It was held as follows:
When an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned, the aggrieved are all those who has similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement It amounts to a fraud on public to appoint persons with inferior qualification in such circumstances unless it is clearly stated that the qualifications are relaxable, No court should be a party to the perpetuation of the fraudulent practice.
66. In State of Rajasthan v. Hitendra Kumar Bhatt (1977)6 SCC 574. the last date for receipt of application was 29.6.1992 and the minimum qualification prescribed was BSTC or its equivalent. The respondent had appeared in the B.Ed, examination but his result was declared on 6.8.1992. By the interim order of the High Court n a writ petition, he was called for interview and was selected and appointed. In appeal, the Supreme Court held that the respondent was not eligible for consideration as he did not possess the qualification on the last date prescribed for submission of the application. It was further observed that relaxing the prescribed requirement in the case of one individual may, therefore, cause In Justice to others and accordingly his appointment was set aside. In Union of India v. Ravi Shankar . It was held that the person not possessing the requisite qualification under the recruitment rules cannot have any right of appointment. Similar view was taken in Upen Chandra Gogal v. State of Assam .
13. The respondents No. 5 and 6 were not eligible to appear in the selection as they did not possess the essential education qualification for the post of Lecturer laid down by AICTE. The order of the Chancellor being illegal cannot be maintained.
14. The stand taken by the University in the Supplementary Counter Affidavit that M.Sc in Computer Science is equivalent to Master of Computer Application is liable to be rejected. Apart from placing the course content of M.Sc Computer Science and M.C.A. no other material has been placed on record. No rule or circular or Government order has been shown or filed where this equivalence has been provided. Both the courses are different. Only the AICTE had prescribed the minimum educational qualification. It is not open to the University to change or alter the minimum educational qualification on its whims under the garb of equivalence. For the aforesaid reasons we are of the opinion that the respondents no, 5 and 6 who possessed M.Sc in Computer Science did not possess the minimum essential qualification for being appointed as Lecturer in Computer Application. In Dr. Bhanu Prasad Panda v. Chancellor, Sambalpur University and Ors. . the Apex Court has held as under:
Though the Department concerned for which the appointment is to be made is that of Political Science and Public Administration/ the appointment with which we are concerned, is of the lecturer in Political Science and not Public Administration and subject matter wise they are different and not one and the same. It Is not in controversy that the posts of Lecturers in Public Administration and in Political Science are distinct and separate and on selection the appellant could not have been appointed as Lecturer in Public Administration be it in the Department of Political Science and Public Administration since the advertisement was specifically to fill up the vacancy in the post of Lecturer in Political Science. Merely because the Department is of Political Science and Public Administration the essential requirement of academic qualification of a particular standard and grade, viz., 55% in the "relevant subject" for which the post Is advertised, cannot be rendered redundant or violated by Ignoring the relevant subject and carried away by the name of the Department only which, in substance, encompass two different disciplines.
15. It has been held by the apex court in Yogesh Kumar and Ors. v. Government of NCT Delhi and Ors. as under:
...Recruitment to Public Services should be held strictly in accordance with the terms of advertisement and the recruitment rules, If any, Deviation from the Rules allows entry to ineligible persons and deprives many others who could have competed for the post.
16. The petitioner possessed the essential qualification of First Class M.C.A. degree and he was fully eligible for being appointed but the respondent University had denied appointment to him arbitrarily.
17. The advertisement issued by the University and the essential qualifications prescribed for the post of Lecturer in Computer Application was not in accordance with the minimum educational qualification fixed for the aforesaid post. The advertisement as well as the entire selection was liable to be quashed, but in spite of the error in the advertisement some candidates who were First Class MCA and fully qualified for the post had been selected. The Apex Court in Sri Ashok alias Somanna Gowda and Anr. v. State of Karnataka and Ors. has held as under:
In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground. Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any mala fides In the matter of the impugned selections. However, the Rules are clearly in violation of the dictum laid down by this Court In the above referred cases and in case the marks for viva voce would have been kept say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks.
18. Nooper George is fully qualified and she is working a Lecturer as a general category candidate since 2001 and looking to the interest of students we refrain ourselves from quashing the advertisement. Interest of justice would be served if the petitioner is appointed as Lecturer in Computer Application as OBC candidate.
19. In the result the writ petition succeeds and is allowed and the order of Chancellor dated 8.4.2003, annexure-15 to the writ petition and the selection and appointment of respondent No. 5 and 6 as Lecturer in Computer Application in the University are quashed. Writ of mandamus is issued to the University to appoint the petitioner on the post of Lecturer in Computer Application within a period of two months from the date a certified copy of this order is produced before Registrar of the University.
20. Parties shall bear their own costs.