Punam Kumari v. The State of Jharkhand

Judgment

2

1. The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated

12.01.2022 passed by the learned Single Judge in W.P.(C) No.25 of 2022, whereby and whereunder, the direction sought for upon the respondents to consider the candidature of the writ petitioner for interview on the post of Assistant Professor (backlog) in the Universities of Jharkhand for the subject of History under Backward Class-I (BC-I) in terms of advertisement being Advertisement No.05 of 2018 issued by the Jharkhand Public Service Commission, has

been rejected while dismissing the writ petition.

2. The brief facts of the case, as per the pleading made in the writ petition, are required to be enumerated which reads as under:-

3. It is the case of the writ petitioner that an advertisement being advertisement no.05 of 2018 for the recruitment of Assistant Professors (Backlog) in the University of Jharkhand was published. The writ petitioner submitted application form before the Jharkhand Public Service Commission (in short ‘JPSC’) along with all the requirements.

4. The Jharkhand Public Service Commission upon scrutiny assessed the Academic marks statement of the writ petitioner as per advertisement, which was assessed as 45.10 marks out of 85 marks. The weightage of remaining 15 marks is to be determined through the interview of the applicants. In the said Academic marks statements, JPSC has awarded zero marks to the writ petitioner for teaching experience category, despite the fact that she deserved 5 3 marks as per the terms of Schedule-VI of the advertisement.

5. The Jharkhand Public Service Commission via press release dated 19.12.2019 published on its website invited objections from the candidates against the Academic Marks Statement published on its website. Thereafter, the writ petitioner, through e-mail, filed her objection before the JPSC along with the requisite documents on

29.12.2019 claiming that she had been awarded zero marks for teaching experience in the Academic Marks statement published.

6. The Department of History, Ranchi University, Ranchi has given certificate to the writ petitioner dated 29.08.2019 whereby it has been disclosed that she has been engaged in teaching the post graduate classes by the University Department of History since December, 2015 to till date. Even after filing of the objection, the writ petitioner has not been awarded marks for the teaching experience.

7. The Jharkhand Public Service Commission on 06.01.2022 uploaded list of candidates called for documents verification and found eligible interview the subject of History advertisement no.05/2018. The Jharkhand Public Service Commission has failed to disclose the cut-off marks for calling candidates for interview process and has also not provided the revised academic marks statement post inviting the objections and considering the same.

8. Thereafter, the writ petitioner enquired from the office of the JPSC on 07.01.2022 whereby it came to her knowledge that no marks was awarded to her as per teaching experience despite her 4 objections filed along with the documents.

9. It is the further case of the writ petitioner that the candidates with less marks than the petitioner, have been found eligible for interview for the post of Assistant Professor (backlog) for the subject of History under the category of backward classes-I (BC-I) in terms of advertisement no.05 of 2018.

10. The writ petitioner, although, was declared to be successful in the written examination but the writ petitioner had not been called upon to participate in the interview and when inquired, she came to know that she has not been given any weightage on the experience count as provided under Schedule-VI(2) of the said advertisement.

11. The writ petitioner, being aggrieved with the same, has approached this Court by filing writ petition being W.P.(C) No.25 of 2022 by taking the ground that the writ petitioner has been engaged for the purpose of subject wise class in the second shift, in pursuant to the decision taken by the State Government and having been appointed by the Principal of the concerned college and as such, the said experience rendered by her while discharging her duty ought to have been considered and if the said had been considered, the writ petitioner would have secured 50.10 marks and she would have been eligible for calling for an interview. But the zero marks for teaching experience has been awarded to the writ petitioner and hence, the said decision of the JPSC suffers from arbitrariness.

12. The learned Single Judge has called upon the JPSC and on consideration of the condition stipulated under Schedule-(VI)(2) has 5 not considered the case to be fit for passing positive direction on the ground that the writ petitioner was not having been appointed as a full time ad-hoc or temporary or permanent and dismissed the writ petition, against which, the present appeal.

13. Mr. Vinay Kumar, learned counsel appearing for the writ petitioner has submitted that the learned Single Judge has not appreciated the fact in right perspective, since, even though, the writ petitioner has obtained teaching experience on the basis of the policy decision of the State Government, wherein, the decision was taken by directing the Principal of one or the other colleges to have the second shift of the courses and for that purpose, the eligible candidates be appointed as lecturers to impart the study.

14. The writ petitioner claims that she was having the requisite experience on the basis of rendering such services, based upon the policy decision of the State Government but erroneously, the same has not been considered thereby, has not been called upon to participate in the interview and hence, non-consideration of the service rendered by her not counting as a teaching experience, is an arbitrary exercise of the JPSC, but this aspect of the matter has not been considered and the writ petition has been dismissed, therefore, the instant appeal.

15. Per contra, Mr. Sanjoy Piprawall, learned counsel for the respondent-JPSC and Mr. Anoop Kumar Mehta, learned counsel appearing respondent-Ranchi University have jointly submitted that there is no illegality in the decision taken by the JPSC, 6 since, the Schedule-(VI)(2) of the advertisement is very clear where the teaching experience is to be counted for the purpose of allocating extra marks which is only in the case of teachers who have been appointed as a full time ad-hoc or temporary or permanent basis.

16. But herein, the writ petitioner has not been appointed as full time either on ad-hoc or temporary or permanent or contractual basis, rather, she has been appointed as ‘Guest Faculty’ in terms of policy decision of the State Government, wherein, the second shift of courses have been decided to be conducted.

17. It has been contended on the strength of the counter affidavit filed on behalf of the Ranchi University, the respondent no.6 that even in the case of appointment on contractual in terms of the government policy decision, the process of recruitment is required to be followed by inviting the applications by making publication widely and the candidate is only to be appointed if having the eligibility for such appointment.

18. It has been submitted that the writ petitioner was not having NET passed certificate, since, the requirement of NET has been notified by virtue of decision of the University only on 07.02.2017, while the writ petitioner has been appointed prior to that i.e., on

23.05.2016, as would be evident from Annexure-14 series (page-138 of the paper book).

19. Further, even the post was to be filled up by issuance of proper advertisement by inviting application from the eligible candidates but it appears from the entire material, as has been brought on behalf of 7 the appellant in the paper book that selection so made of the writ petitioner was in absence of any advertisement and in that view of the matter also, the writ petitioner cannot get extra marks on the count of experience.

20. Both the learned counsel have jointly submitted that the learned Single Judge, after taking into consideration the aforesaid fact since has dismissed the writ petition, as such, the same suffers from no infirmities.

21. We have heard the learned counsel for the parties and perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order.

22. This court, on consideration of the material available on record as also on the basis of the argument advanced on behalf of the parties, has gathered therefrom that the issue which is required to be considered; “Whether the service rendered by the appellant-writ petitioner as a ‘Guest Faculty’ without issuance of an advertisement can be termed as full time ad-hoc or temporary or permanent for the purpose of allocation of marks on the teaching experience.”

23. This Court, in order to consider the aforesaid issue, deems it fit and proper first to refer about the requirement made in the advertisement for this purpose.

24. The advertisement being advertisement no.05 of 2018 refers that the marks have been directed to be allocated as per Schedule- (VI) by making reference therein that post Ph.D Research 8 experience/Teaching experience to be claimed for appointment (the period require to acquire M.Phil and/or the residency period to acquire Ph.D degree shall not be considered as teaching experience)-Maximum 05 marks, for the ready reference, the said part of the advertisement as under Schedule-VI is being referred as under:- Schedule-VI “Post Ph.D Research experience/Teaching experience to be claimed for appointment (the period require to acquire M.Phil and/or the residency period to acquire Ph.D degree shall not be considered as teaching experience)-Maximum 05 marks.”

25. Here, we are concern with the condition no.(2) under Schedule-VI, i.e., for teaching experience maximum 5 marks are to be given if the nature of appointment is full time ad-hoc or temporary or permanent in recognized University/Institution.

26. The period of time taken by the candidates to acquire M.Phil and/or Ph.D Degree shall not be considered as teaching/research experience.

27. The writ petitioner has made an application for consideration of her candidature based upon the experience certificate, as was issued by the University Prof. & Head, Department of History, Ranchi University, Ranchi dated 29.08.2018, whereby and whereunder, the certificate was given that the writ petitioner was engaged for taking Post-Graduate classes in the Second Shift of the University 9 Department of History, Ranchi University since, December, 2015 till date of class-wise payment basis with usual breaks, for ready reference, the content of the said certificate is being referred as under:- To WHOM IT MAY CONCERN This to certify that Dr./Mr./Mss./Mrs. PUNAM KUMARI S/o, D/o RAJENDRA PRASAD SAHU has been engaging the Post-Graduate classes in the Second Shift of the University Department of History, Ranchi University since Dec 2015 till date on class wise payment basis with usual breaks. He/She is highly co-operative and ready to shoulder in all academic and administrative schemes of Department and who has been very helpful to the students all the time.

28. The writ petitioner was not called upon to participate in the interview and subsequently, when she inquired, then came to know that she has not been allocated any marks in the teaching experience head as per the condition stipulated under Schedule- VI(2) of the advertisement.

29. The justification has been shown on behalf of the JPSC as also the Ranchi University by making reference of the condition of the advertisement, wherein, the first criteria is of requirement for getting experience is that the appointment must be full time either on ad-hoc 10 or temporary or permanent.

30. The claim of the respondents that the engagement of the writ petitioner to conduct the Post-Graduate classes in the second shift of the University, cannot be construed to be a full time either on ad-hoc or temporary or permanent and as such, the benefit of experience has not been given, hence, there is no illegality in the same.

31. The law is equally settled that there cannot be any relaxation from the condition otherwise, it will lead to violation of principle of Article 14 of the Constitution of India, since, any relaxation to one particular candidate, then the question would be why not to the others, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Bedanga Talukdar Vs. Saifudullah Khan & Ors., reported in AIR 2012 SC

1803. The relevant paragraphs, paragraph nos. 28 and 29 of the said judgment, are quoted hereunder as:- "28.We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it 11 could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.

29. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of respondent No. 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India."

32. The law is well settled that the condition stipulated in the advertisement is strictly to be adhered to, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Yogesh Kumar & Ors. Vrs. Govt. of NCT, Delhi & Ors., reported in (2003) 3 SCC 548, wherein, at paragraph-8, it has been held as under:-

8. “…. …. …. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the BEd candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. …. …. ….”

33. Likewise, the Hon’ble Apex Court in the case of Chief Manager, Punjab National Bank & Anr. Vrs. Anit Kumar Das, 12 reported in (2021) 12 SCC 80, has held at paragraph-17.1 as under:-

17.1. “In Yogesh Kumar [Yogesh Kumar v. State (NCT of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] , it is observed and held by this Court that recruitment to public service 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.”

34. Admittedly herein, the benefit of experience by allocating maximum five marks are to be given as per the condition stipulated under Schedule-VI(2) of the advertisement only to such candidates who have got teaching experience as a full time ad-hoc or temporary or permanent basis under recognized University/Institution.

35. The further admitted position is that the writ petitioner has not been appointed as a full time basis, rather, her appointment ,as would appear from the certificate furnished by the Head of the Department, Ranchi University, Ranchi that she has been engaged for taking the Post-Graduate classes in the Second Shift of the University on class-wise payment basis with usual breaks.

36. The further fact is that when the preference is being claimed by one or the other candidates, the validity of appointment is also one of the considerations, since, allocating of marks on the basis of said experience, will have bearing in the process of selection.

37. Herein, although, the State has taken policy decision for conducting the second shift of the classes by giving instruction in this regard to the Universities to have the said arrangement, as would 13 appear from the resolution dated 02.03.2017 issued in the name of the Governor of the State, whereby and whereunder, the policy has been taken that the appointment even on contract basis, be made after following the due procedure.

38. Here, the policy decision was taken by virtue of resolution issued on 10.09.2015, i.e., prior to the resolution dated 02.03.2017, whereby and whereunder, the decision for appointment of the lecturer has been taken for imparting study in the second shift.

39. It further appears that one communication has been issued by the Registrar, Ranchi University, Ranchi dated 07.02.2017 addressed the Principal/Professor In-charge constituent/autonomous Colleges under Ranchi University and Ranchi Women’s College, Ranchi for approving subject wise and category wise panel, according to merit of NET qualified candidates to be engaged as ‘Guest Faculty’ for the second shift teaching in the college for the session 2016.

40. It has further been stipulated therein that the aforesaid arrangement will be purely temporary. No claim shall be entertained for the regularization of the NET qualified ‘Guest Faculty’ at any stage. The State resolution policy must be followed in engaging the candidates from the panel as the ‘Guest Faculty’.

41. It is, thus, evident that the resolution of the Government dated

02.03.2017 is for appointing the person on contract basis, while the communication dated 07.02.2017 is for the purpose of appointing the teaching staffs only on the basis of merit of NET qualified candidates. 14

42. This Court needs to refer these documents in order to assess as to whether the claim of the writ petitioner for seeking benefit of experience by allocating marks on such certificate issued by the concerned authority can be said to be proper claim.

43. The certificate so issued dated 29.08.2018, appended as Annexure-5 to the paper book is the certificate given by the University Prof. & Head, Department of History, Ranchi University, Ranchi and the engagement of the writ petitioner is at page-138 of the paper book issued by the Head of the Department of History, Ranchi University, Ranchi, by which, the appellant has been assigned to engage classes in the P.G. Department of History on class wise payment basis for the classes of second shift.

44. It is not evident therefrom as to whether such engagement was made after following the procedure laid down for fulfilling the public post.

45. Since, serious objection has been raised on behalf of the learned counsel for the respondent-University that the power to make appointment of the teaching staff vests upon the Vice- Chancellor with the approval of the Syndicate.

46. Further, as would be evident from the affidavit filed in this case by the Ranchi University in terms of the order passed by this Court on 03.04.2023 stating inter-alia therein that the appellant is not working on ad hoc/permanent/temporary/contractual basis, rather, she is the ‘Guest Faculty’ in the Post-Graduate in the Department of History, Ranchi University, Ranchi. 15

47. The rejoinder to the said affidavit has been filed by claiming the fact that the appellant is otherwise eligible and even though, has been appointed as the ‘Guest Faculty’ even then, it will be said to be rendering of services. The said rendering of services will be considered to be the teaching experience.

48. This Court has referred the judgment rendered by the Hon’ble Apex Court regarding the condition stipulated in the advertisement is strictly to be adhered to and if there will be any deviation, then it will amounts to giving relaxation to the concerned party, then the question will be that why such relaxation to one single candidate who has approached to the Court of law and why not to the others, in this regard reference may be made to the judgment rendered by the Hon’ble Apex Court in the case of Bedanga Talukdar Vs. Saifudullah Khan & Ors. (supra).

49. The condition so stipulated in the advertisement speaks about the full time teaching experience either in the capacity of ad hoc appointment or temporary appointment or permanent appointment.

50. The word ‘full time’ has got importance which cannot be equated with the appointment of a candidate as a ‘Guest Faculty’.

51. The appointment either on ad hoc or temporary or permanent of one or the other candidates, will be construed to be full time appointment and in that respect, the experience obtained by such candidate can be utilized for the purpose of rendering the benefit of experience to the candidates.

52. The ‘Guest Faculty’ as the case herein is on the class wise 16 basis, which cannot be equated with the full time teaching job. Since, the law is well settled that there cannot be any deviation from the condition stipulated in the advertisement, therefore, this Court is of the view that the consideration of experience to one or the other candidates is to be extended, if such candidates are coming under the fold of such condition.

53. It is the admitted case of the writ petitioner that she was not having full time teaching job, rather, she was the ‘Guest Faculty’, as would appear from her admission, i.e., from the engagement letter, whereby and whereunder, she has been engaged to assign the classes of the second shift which itself suggests that the writ petitioner is not in the full time teaching job and hence, she cannot be held entitled for the marks, as per the condition stipulated under Schedule-VI(2) of the advertisement.

54. The experience has got meaning, if referred in the condition of advertisement is to get the benefit of such experience and moreover herein, the marks have been allocated on the basis of experience of one or the other candidates and as such, said condition is strictly to be adhered to, since, the appointment of the Assistant Lecturer will depend upon the marks secured in the experience head.

55. This Court, therefore, is of the view that when the condition has been stipulated, the same cannot be interpreted by the Court of law, rather, it is incumbent upon one or the other candidates to strictly adhere to and equally, it is the bounded duty of the appointing authority to carry out the recruitment process strictly in accordance 17 with the condition stipulated in the advertisement.

56. Herein, the condition of advertisement has not be questioned, rather, the interpretation has been sought for by the writ petitioner that the ‘Guest Faculty’ will be construed to be temporary in nature.

57. But, this Court is not in agreement to such submission, since, the nature of appointment either on ad hoc or permanent or temporary is to be coupled with the fact as per the condition stipulated under Schedule-VI(2) that the candidate is to be full time teaching experience either on ad hoc or temporary or permanent and it does not speaks about the candidate who is teaching as a ‘Guest Faculty’.

58. This Court, after having discussed the factual aspect along with the legal issues as above and coming back to the impugned order passed by the learned Single Judge, is of the view that while discarding the contention of the writ petitioner to have the benefit of marks on the experience head as per Schedule-VI(2) of the advertisement, the same according to our considered view, cannot be said to suffer from an error.

59. Accordingly, the instant appeal fails and is dismissed.

60. Pending Interlocutory Application(s), if any, stands disposed of. (Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Rohit/-A.F.R.