IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.5581 of 2006 Date of Decision: May 16, 2008 Gurpreet Kaur .......Petitioner Versus Sikh Educational Society, Chandigarh & others .......Respondents CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.RK Malik, Senior Advocate with Mr.Sandeep Thakur, Advocate for the petitioner. Mr.RS Ahluwalia, Advocate for respondents No.1 and 2. Mr.Deepak Sharma, Advocate for respondents No.3 and 4. ... HEMANT GUPTA, J. The challenge in the present writ petition is to the order dated 31.3.2006, Annexure P15, whereby the services of the petitioner were dispensed with. The petitioner was appointed on 28.7.1998 as Lecturer in Computer Science in Sri Guru Gobind Singh College, Chandigarh run by the Sikh Educational Society, Chandigarh. The said College receives Civil Writ Petition No.5581 of 2006 -2- grant-in-aid from the Government and 95% of the salary is paid to the employees from the grant-in-aid. It is the case of the petitioner that one post of Lecturer in Computer Science was advertised in May, 1998 and being eligible for the said post, the petitioner applied and was selected by a duly constituted Selection Committee in which nominees of the University as well as DPI were present, apart from the representative of the Management. At the time of advertisement of the post, the essential qualification for the post of Computer Science was Bachelor Degree of Engineering in Computer Science. However, in the Panjab University Syndicate meeting held on 18.7.1998, the qualifications for the post of Lecturer in Computer Science were changed. In the amended qualifications, NET (National Eligibility Test) or SLET (accredited by UGC) was made compulsory. It was also contemplated that if the University had already candidates who do not possess such qualifications, they will have to clear NET within two years from the date such letter was issued. The case of approval of appointment of the petitioner was sent to the University as well as to the State Government. Initially, the University imposed a condition that the petitioner will have to clear UGC / NET examination within two years but subsequently, on the representation of the petitioner, the said condition was dispensed with vide communication dated 23.2.2000, Annexure P7. However, the State Government, vide communication dated 5.7.1999, Annexure P5, approved the appointment of the petitioner subject to the condition that she should clear the NET within two years from the decision of the Syndicate dated 18.7.1998. It is further the case of the petitioner that one can appear in NET examination only after Civil Writ Petition No.5581 of 2006 -3- passing the post-Graduate degree i.e. Master of Engineering and that the passing of NET within two years is not feasible. It is also contended that the petitioner was appointed in pursuance of advertisement published prior to the imposition of the condition of qualification of NET examination, therefore, such condition cannot be extended to her. The petitioner was given a show cause notice on 28.6.2005 stating that since she had failed to qualify the test even though a period of four years had elapsed, therefore, the College has appointed one Ms. Suchi Sood, after advertisement and, therefore, the services of the petitioner were liable to be terminated. In reply to the said show cause notice, the petitioner submitted a detailed reply pointing out that she had cleared Master in Engineering with distinction, securing 73% marks in April, 2004 and, therefore, the Management should continue to rely upon her hard work, devotion to duty and loyalty to Institution, but vide communication dated 24.10.2005, Annexure P13, the appointment of the petitioner under the grand-in-aid scheme was cancelled but she was ordered to be retained as Lecturer in Computer Science under the Self-Financing Scheme. After the said order was passed, it was pointed out by the petitioner, vide communication, Annexure P14, that she appeared in the NET examination held in June, 2005 and had been declared successful in the result declared in the first week of January, 2006. In view of the said fact, the petitioner sought to withdraw the communication dated 24.10.2005. Vide communication dated 31.3.2006, Annexure P15, the petitioner was advised by the Management to compete for the post of Lecturer in Computer Science as Ms. Suchi Sood, who was appointed against the grant-in-aid post had resigned by also adding that she stands relieved. It is the said Civil Writ Petition No.5581 of 2006 -4- communication which is subject matter of challenge in the present petition. In reply filed on behalf of respondents No.1 and 2, it was pointed out that the appointment of the petitioner was approved by the DPI (Colleges), Chandigarh subject to her qualifying the NET. It is further pointed out that the petitioner failed to clear the NET even during a period of four years of her appointment, therefore, the post of Lecturer in Computer Science was re-advertised on 26.5.2004. The petitioner did not apply for the said post. It is further pointed out that Ms. Suchi Sood has since resigned and the post is required to be re-advertised for filling up the same from amongst the eligible candidates. During the course of arguments, it was pointed out that in pursuance of advertisement published on 28.6.2006 in 'Hindustan Times' and on 29.6.2006 in 'the Tribune', one post of Lecturer in Computer Science was advertised under 95% grant-in-aid scheme. The duly constituted Selection Committee considered eleven candidates who applied for appointment in pursuance of such advertisement and one Balwinder Kaur has been appointed on 18.9.2006 as Lecturer in Computer Science. The Chandigarh Administration has approved the appointment of said Balwinder Kaur subject to outcome of the writ petition filed by the present petitioner on 14.2.2007. Mr. Malik, learned counsel appearing for the petitioner has also pointed out that services of Ms. Balwinder Kaur have been confirmed from 18.3.2008 under 95% grant-in-aid scheme without prejudice to the decision of this Court in the present case. It is, thus, contended by the petitioner that appointment of Ms. Balwinder Kaur, during the pendency of the present writ petition will not defeat the rights of the petitioner, more so, when the operation of order, Annexure P15, was stayed by this Court on Civil Writ Petition No.5581 of 2006 -5- 6.4.2006. Learned counsel for the respondents has raised a preliminary objection that Ms. Balwinder Kaur, who has been appointed in pursuance of a separate advertisement in May, 2006, has not been impleaded as respondent in this petition and, therefore, the present writ petition is bad for non-joinder of necessary parties. We have heard learned counsel for the parties at length and do not find merit in the preliminary objections raised by the learned counsel for the respondents. The order, Annexure P15, was to dis-continuation of the services of the petitioner from 31.3.2006. The operation of the said order was stayed by this Court on 6.4.2006. It was thereafter, the respondents advertised the post of Lecturer in Computer Science in June, 2006 and appointed Ms.Balwinder Kaur on 18.9.2006. The appointment of Ms. Balwinder Kaur has been approved by the Chandigarh Administration subject to the decision of the present writ petition and so is the order of confirmation passed by the respondent-Management. Therefore, it is apparent that the respondent-Management, Chandigarh Administration as well as Balwinder Kaur are aware of the pendency of the writ petition that the appointment so made is subject to the decision of the writ petition. Therefore, non-impleading of Balwinder Kaur is wholly inconsequential as the entire selection process has been initiated after the filing of the writ petition and, therefore, her appointment is hit by the doctrine of lis- pendence. Learned counsel for the petitioner has vehemently argued that the condition of NET qualification within two years of the date of the decision of the Syndicate dated 18.7.1998 was wholly impracticable at least Civil Writ Petition No.5581 of 2006 -6- in the subject of Computer Science as a candidate must have had a degree in Master in Engineering, and only then one would become eligible for appearing in NET examination. It is further contended that for obtaining Master's Degree, a period of three years for the part-time students is the minimum period which is required to qualify, therefore, the period of two years fixed was wholly unjustified. It is also contended that such condition came to be introduced after the advertisement in pursuance of which the petitioner was appointed, therefore, such condition cannot be made applicable in respect of the petitioner. It is further contended that the petitioner has since qualified the NET i.e. before the order, Annexure P15, was passed, thus, the order, Annexure P15, is wholly illegal and unjustified. The argument that the eligibility conditions were required to be seen on the date of advertisement is not tenable. The decision, Annexure P3, prescribes minimum qualification for future appointments as well as for the candidates who have been appointed after 29.11.1995 and 13.5.1996. As a matter of fact, the petitioner came to be appointed after ten days of the decision of the Syndicate on 18.7.1998, therefore, the said decision of the Syndicate is applicable in respect of the petitioner who had been appointed after such decision was communicated. Such decision is in fact applicable to the candidates who have been appointed on 29.11.1995 as well. However, the condition of two years for qualifying NET seems to be impracticable at least in the subject of Computer Science. It is admitted that for qualification of NET, a candidate has to be a post-Graduate. Reasonable time was required to be given to a candidate to obtain post graduate degree and then to qualify NET. Though the petitioner has taken some time to qualify the test, but the fact remains that she has qualified such test before Civil Writ Petition No.5581 of 2006 -7- she was ordered to be relieved on 31.3.2006 and much before the advertisement inviting fresh applications. In Ram Sarup Vs. State of Haryana and others, (1979)1 SCC 168, it was held that if a candidate is not eligible on account of lack of necessary qualification, but as soon as the necessary qualifications are acquired, the candidates must be regarded as having been regularised. Still further, a Division Bench of this Court in Ram Bhagat Sharma and others, 1997(4) RSJ 134 has given time to the candidates to acquire qualification whose qualifications certificates were found to be bogus. It is, thus, contended that if the candidates who have submitted bogus certificates, can be granted time to acquire requisite qualification, therefore, the petitioner, who was qualified in terms of conditions of advertisement, should have been given reasonable time to qualify the test. Since the petitioner has qualified the test before the order, Annexure P15, was passed, the action of the respondents in terminating the services of the petitioner is wholly unjustified. On 24.10.2005, when the post of the petitioner was converted into Self-Financing Scheme, the petitioner had already obtained Master of Engineering Degree i.e. in April, 2004. It was thereafter the petitioner became eligible for NET and qualified the same in January, 2006. The petitioner has worked more than seven years, therefore, we are of the opinion that such order of discharge is unjustified when she has acquired the necessary qualifications in January, 2006, though the order of discharge was passed on 31.3.2006. In view of the above, we set aside the communications dated 24.10.2005 and 31.3.2006, Annexures P13 and P15, and hold the petitioner Civil Writ Petition No.5581 of 2006 -8- to be a duly appointed Lecturer in Computer Science. However, the petitioner shall not be entitled to any arrears of salary prior to the date of this order as Ms.Balwinder Kaur has been granted wages as a Lecturer in Computer Science appointed against the aided post. With the above said directions, the present writ petition stands disposed of. ( HEMANT GUPTA ) JUDGE ( MOHINDER PAL ) May 16, 2008 JUDGE SRM Note: Whether referred to the Reporter? Yes/No