ORDER
Prabha Sridevan, J.
1. The petitioner challenged the order dated 31.3.1995 whereunder the third respondent’s services were regularised with effect from 10.1.1985. The facts of the case in brief are as follows:
2. The petitioner was appointed as an Instructor in Mathematics in the first respondent College on 11.6.1982. The files produced by the first respondent show that this appointment was made by a resolution of the Selection Committee of the first respondent College. The petitioner’s appointment was subject to confirmation of her probation of two years of continuous service or three years from the date of joining of the duty. The post next higher to the post of Instructor is Associate Lecturer. For direct recruitment as Associate Lecturer, two years’ experience as an Instructor is required and for the direct recruitment of the post of Lecturer, five years experience as an instructor is required.
3. In 1983, an interview was called for the post of Lecturer in Mathematics, the qualification being first or second class Master’s Degree in the branch concerned, with an experience for a period not less than five years. On 5.1.1983, the Selection Committee assembled and it was recorded that 24 persons attended the interview and of them, no one possessed the requisite qualification for appointment as Lecturer and therefore, the third respondent was appointed as an Associate Lecturer by downgrading the post.
The third respondent was appointed temporarily as an Associate Lecturer subject to probation period of two years or continuous service of three years from the date of joining her duty.
4. On 13.7.1984 by proceedings L.Dis. No. 30290/E6/84, the Director of Technical Education viz. the second respondent gave approval for the temporary appointment of the third respondent. On 4.12.1986, the petitioner’s post was upgraded as Associate Lecturer with effect from 17.7.1985. The petitioner in the meanwhile, had made representations repeatedly alleging that the appointment of the third respondent was not valid. By the impugned order dated 31.3.1995, the third respondent’s services were regularised with effect from 10.1.1985. The petitioner’s grievance is that by back door entry, the third respondent has gained seniority over her. When her initial entry was irregular, she cannot be allowed to steal a march over the petitioner who had at the relevant date viz., 10.1.1985 the necessary qualifications for an Associate Lecturer namely Master’s Degree Class I or II and 2 years experience as an Instructor. Therefore she ought to have been given seniority over the claims of the third respondent. The impugned order places the third respondent ahead of the petitioner.
5. The learned counsel for the petitioner also objected to the impugned order on the ground that the respondent-College ought not to have unilaterally down graded the post for which the applications were called for, especially since the additional staff sanctioned for the said College for the period 1982 to 1983 which is the relevant period does not include an Associate Lecturer in Mathematics.
6. It was further submitted that it is apparent from the manner in which the College has proceeded with the continuance of appointment of the third respondent showed that they were keen on ensuring that the third respondent is retained in the said post. According to the learned counsel, if this attitude is condoned by this Court, then, it would result in unauthorised appointment without any adherence to the criteria. The learned counsel pointed out to the audit objections raised which clearly show that the appointment of the third respondent was not valid. The learned counsel would submit that all the representations of the petitioner fell on deaf ears and the petitioner at least deserved a reply to her numerous representations be it favourable or unfavourable. It was prayed therefore, the impugned order be set aside to secure the seniority of the petitioner.
7. The learned counsel for the respondent-college, on the other hand would submit that it was not as if one person only had appointed the third respondent. But, it was a joint decision taken by the Selection Committee and there was nothing irregular in it. It was also pointed out by the learned counsel that no purpose would be served by referring to the audit objections at this stage, when the audit objections preceded the impugned order. The impugned order clearly shows that the Department was satisfied by the correctness of appointment of the third respondent and therefore, the effect of the audit objections have been set at naught. It was also submitted by the learned counsel that a satisfactory explanation has been given by the College for the appointment of the third respondent. None of the applicants who had responded to the advertisement possessed the necessary qualifications. The College at that relevant time required the services of a lecturer and in the interest of the College and the students, the post was downgraded and an Associate Lecturer was appointed after weighing the merits of the candidates who appeared. By the appointment of the third respondent, neither the students nor the Government suffered because the salary payable to the Associate Lecturer is less than that of a Lecturer. The learned counsel also pointed out that if at all the petitioner had any grievance, she should have agitated the matter at the time when the third respondent was appointed temporarily as an Associate Lecturer. Much water had flown under the bridge since then. An issue that had acquired finality cannot be raked up again and again. It was also submitted that pending the writ petition, both the petitioner and the third respondent had been promoted as Lecturers. The learned counsel for the third respondent would submit that the third respondent had stood first in the university and that must have persuaded the Committee to appointment her. According to the learned counsel, no malafide had been established against the Selection Committee and therefore, the Selection of the third respondent cannot be set aside.
8. A comparative chart has been annexed in the file produced by the respondent-College and it is reproduced.
Details Third Respondent Petitioner
1. Date of birth 25.04.1959 31.7.1959
2.Educattional
Qualification M.Sc. (Maths) M.Sc.(Maths)
3.Year of gradua- April 1982 April 1981
tion I Class, 86% I Class
4.Date of joining 10.01.1983 FN 02.7.1982FN
in this Institu- as instructor as Associate
tion Lecturer.
By the letter
No.80741/C1/86
dated 4.12.1986
upgraded as an
Associate
Lecturer from
17.7.1985.
5.The date on 05.01.1983 11.6.1982
which the (Lecturer (Maths)) (Instructor
Selection (Maths))
Committee
was held
6.The date on 09.06.1983 15.12.1982
which approval
approval was
obtained from
Selection
Committee
7.Basic salary Rs.700-40-1100-50- Rs.500-20-700-
in the post 1300 25-900
Associate
Lecturer
Rs.700-40-
1100-50-1300
8.Details of Selection Committe The payment as
the candidate selected and appoin- Instructor was
being made ted her as an Associ- approved by
permanent ate Lecturer in the letter dated
post of Lecturer.The 08.08.1984 in
sanction for the 64025/E6/84.
temporary appointment By letter dated
was given by letter 04.12.1986 in
dated 13.7.1984 in 80741/C1/86 was
30290/E684 by first upgraded as
respondent. The first Associate
respondent has inti- Lecturer.
mated in Letter No.
117103/C1/89 that she
is entitled to
increment one year
from the date on which
she has acquired full
qualification for the
post of Associate
Lecturer.
9. The news paper cutting which has been produced in the file shows that the applications were called for the post of Lecturer in Mathematics. Qualifications were first or second class Master’s Degree and experience for a period of not less than five years. Subsequently, on the ground that there were no candidates who possessed the requisite qualifications, the third respondent was appointed temporarily on 13.7.1984. The second respondent-College had been addressing the first respondent for approval of the appointment. On 9.2.1988, a letter was addressed by the Director of Technical Education stating that it was not possible to approve the appointment of third respondent as an Associate Lecturer and that steps should be taken to appoint a person for the post of Lecturer which was the sanctioned post. At this juncture, petitioner started making representation expressing her grievance about the manner in which the third respondent has been appointed. It is specifically stated by the petitioner that since the post of Lecturer is due to be filled up and since she is the only person having seven years of experience in a permanent post, she should be permitted to take part in the interview so that her seniority could not be affected. Additional typed set of papers filed by the petitioner shows the audit objections raised in respect of the appointment of the third respondent. The following is the extract.
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10. The audit objections show the strong language that is used with regard to the appointment of the third respondent. The 1st respondent-College also appears to have taken the stand that since the petitioner had not objected to the appointment of the third respondent as an Associate Lecturer, it is now too late in the day for setting aside what happened on 5.1.1983.
11. An almost identical situation came up for consideration before the Supreme Court, in the case of K. Shekar, Appellant vs. v. Indiramma and others Respondent (2002 AIR SCW 1018). The advertisement was issued by the National Institution of Mental Health and Neuro Sciences (NIMHANS) to fill up the Research Project Posts in the Centre. In the advertisement it was made clear that the project was for a period of three years and that some posts were likely to be made permanent after three years. The qualifications for the post were prescribed in the advertisement. It was also stipulated in the advertisement that if a suitable candidate is not found, the Selection Committee could recommend a candidate for a lower post. The appellant before the Supreme Court, had applied for the post of Assistant Professor. The Selection Committee did not appoint him as an Assistant Professor but it appointed him as a Lecturer in Psychiatric Social Sciences. After the 2nd advertisement was issued, the Indian Council of Medical Research Centre wrote to the Director of NIMHANS that there was an agreement between the two institutions to absorb the faculty positions and therefore, the appointment order could be suitably modified. The appellant, a temporary Lecturer now became a permanent Lecturer. Then, a third advertisement was issued during July, 1989 and pursuant to that, the appellant was appointed as an Assistant Professor in NIHMANS in 1990. The first respondent challenged the appointment of the appellant. The learned single Judge of the Karnataka High Court scruitinised the records and set aside the appointment of the appellant. The Division Bench also confirmed the finding of the learned single Judge. Challenging that matter, the appellant came before Supreme Court. The Supreme Court held that appointment given to the appellant as a Lecturer when the advertisement was for an Assistant Professor, is illegal.
12. It was observed that Courts are generally reluctant “to interfere with the running of educational institutions. There can be no island of subordination to the rule of law. The actions of educational institutions however highly reputed and not immmuned from judicial scrutiny”. It was stressed that to preserve the high reputation of the institutions, “there was a greater need to avoid even the semblance of arbitrariness or extraneous considerations colouring the institutions’ actions”.
13. This question that is posed here before this Court is identical. The advertisement was for a Lecturer. The sanctioned post was for a Lecturer. In the circumstances, when the candidates were responded to the advertisement obviously do not possess the criteria for appointment, the College ought not to have called them for interview. As observed by the Supreme Court, ” the power in the Selection committee to relax the eligibility criteria cannot be read as including the power to do away with the eligibility criteria altogether”. In this case, the criterion relating to experience has been totally done away with. There is no dispute regarding the fact that the third respondent did not possess even one year’s experience in teaching when she was appointed as an Associate Lecturer. If the Selection Committee thought fit to down grade the post, it ought to have called for applications once again because as held by the Supreme Court in the above case, absence of an advertisement deprived of persons who could have applied for the post of Associate Lecturer and therefore, there was a violation of Article 14 and 16 of the Constitution of India. This squarely applies to the present case.
14. The next ground that is raised to resist the petitioner’s prayer is delay. This has also been answered by the Supreme Court in the above case. It was observed by the learned Judges in that case that petitioner could not directly challenge the appellant’s appointment in 1986 either because she herself was not an applicant but was unqualified to be appointed. In fact in 1983, the petitioner cannot claim to possess the qualifications for the post of Lecturer because she was appointed only during 1982. The following extracts from the above decision are reluctant:
“To get rid of the “weed” so to speak, one had to eliminate the root. It is nobody’s case that the respondent No.1 could not be considered for appointment as Assistant Professor in 1990. The Writ Application was filed in the same year. There was as such no question of the respondent No.1’s application being defeated because of any delay.
Once the barrier of eligibility was crossed, the Selection Committee could consider the suitability of the candidate for the post advertised. It follows that the appellant should not have been called for interview at all. His application clearly showed that he did not fulfill the requisite eligibility criteria for the post he had applied, because he lacked any post-doctorate experience at all”.
Therefore, there is violation. In the instant case also, the third respondent should not have been called for the interview for the post of Lecturer when she did not possess entire qualification.
15. The Supreme Court set aside the appellant’s appointment as a Lecturer in 1986 and while acknowledging that unfortunate consequence of the Order would be that the appellant will suffer but these questions cannot be avoided on any equitable consideration although the harshness may be mitigated to some extent and therefore while affirming the decision of the High Court in setting aside the unfortunate appointment, the learned Judges modified to the extent that the actual experience gained by the appellant by virtue of his appointment as Assistant Professor may be taken into account if the appellant applies in future. Since this case applies on all fours to the case on hand, the appointment of the third respondent must be set aside.
16. The Supreme Court has stressed the necessity of educational institutions to be beyond the pale of reproach in appointment, any action which gives room for suspicion that it was to provide a back door entry must be scrupulously avoided. In the instant case, the learned counsel for the respondent-College submits that both the petitioner and the third respondent have been promoted as lecturers. The third respondent has also been working as an Associate Lecturer from 10.1.1985 the date on which the second respondent had permitted the increment in salary on the ground she had acquired full qualification. The petitioner on the other hand was upgraded as an Associate Lecturer on 17.7.1985. Though the Supreme Court had come to the conclusion that equitable considerations cannot be weighed when the initial appointment itself is not valid. In the instant case, the rival interests have to be balanced between the petitioner and the third respondent. On 10-01-1985, the petitioner had also acquired two years’ experience as a lecturer. By upgrading her only in July 1985, she has lost her seniority. The third respondent has worked since 10-01-1985, though by an invalid appointment. The injustice caused to the petitioner can be set right by placing her seniority above the third respondent.
16. The following directions will serve the purpose:
(1) The impugned order is quashed insofar as the third respondent is concerned.
(2) The services of the third respondent shall be regularised with effect from 17-07-1985 the date on which the petitioner was upgraded.
(3) The petitioner will be placed in seniority above the third respondent for the purpose of promotion ftot he post of lecturer or senior lecturer and any consequential benefits will be calculated accordingly.
This order shall not entitle the respondent to recover any amount from third respondent pursuant to Clause No.3, above.
17. This Court is of the opinion that injustice caused to the petitioner by invalid appointment of the third respondent can be set right by giving her seniority over the third respondent. The writ petition is allowed as above. No costs.