CWP No.4112 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4112 of 2010 DATE OF DECISION:08.09.2011 Dr.Micky Verma .....Petitioner versus Punjabi University Patiala and others …..… Respondents CORAM:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.K.S.Kang,Advocate for the petitioner. Mr.Ashok Kumar, Advocate for Mr.S.K.Sharma, Advocate for respondent No.1. Mr.Akshay Bhan, Advocate for respondent No.2. Mr.Kanwaljit Singh, Senior Advocate with Mr.Siddharth Gupta, Advocate for respondent No.3. .. DAYA CHAUDHARY,J. Dr.Micky Verma is the petitioner, who is aggrieved by the selection of respondent No.2 Dipan Wita Singha Roy, has approached this Court for quashing the appointment letter dated 27.2.2009, Annexure P.4, whereby respondent No.2 has been given appointment to the post of Lecturer in the Department of Dance, Punjabi University, Patiala. Further, a prayer has been made to issue direction to respondent No.1 to appoint the petitioner on the 1 CWP No.4112 of 2010 said post from the date respondent No.2 was appointed alongwith all consequential benefits arising therefrom. Background of the facts of the case in a nutshell are as under: An advertisement was issued inviting applications for various posts, including one post in the cadre of Lecturer in the Department of Dance. The qualification required for the said post is as under: “Dance Good Academic record with at least 55% marks or an equivalent grade of B in the 7 point scale with latter grades O,A,B,C,D,E & F at the Master’s degree level, in the relevant subject or an equivalent degree from an Indian/Foreign University. Besides fulfilling the above qualifications, candidates should have cleared the eligibility test (NET) for lecturers conducted by the UGC, CSIR or similar test accredited by the UGC OR A traditional or a professional artist with a highly commendable professional achievement in the concerned subject: 2 CWP No.4112 of 2010 Note: “NET shall remain the compulsory requirement for appointment as lecturer for those with post graduate degree. However, the candidates having Ph.D. degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phill degree in the concerned subject are exempted from NET for UG level teaching only.” Good academic record will be determined as under: “Master’s degree in the relevant subject with 55% marks and second class (50%) in the Bachelor’s degree.” In response to the said advertisement, the petitioner applied for the post of Lecturer in the Department of Dance. Having secured 58% marks in Bachelor of Arts with Music and Dance as an elective subject; 82% marks in MA in Classical Dance; a degree of Ph.D; and various gold medals in National and International levels, the petitioner claimed to have fulfilled the eligibility criteria for the said post, whereas, respondent No.2 has secured only 40.5% marks in Bachelor of Arts with English Honours; 76.93% marks in MA and 85.33% 3 CWP No.4112 of 2010 marks in Sangeet Prabhakar in Kathak from Prayag Sangeet Samiti, Allahabad. Four candidates appeared in the interview for the said post which was held on 25.2.2009. The selection committee recommended the names of two candidates, including respondent No.2 who was already working on the said post on adhoc basis, for appointment, whereas, the advertisement was issued for appointment of one post only. Accordingly, vide letter dated 27.2.2009, respondent No.2 was appointed on the said post. The petitioner ran from pillar to post raising his grievance that respondent No.2 did not fulfill the requisite qualifications and her selection was wrongly made but his request fell deaf ear of University which did not take any action in this regard. Having failed in getting justice before the authorities of University, the petitioner has approached this Court through the present petition. The claim of the petitioner was contested by the respondents by filing separate written statements. The stand taken by respondent No.1 is that respondent No.2 fulfilled the requisite qualifications as she secured 85.33% marks in Sangeet Parbhakar; 40.5% marks in BA (Hons.) English from University of Delhi; and 76.93% marks 4 CWP No.4112 of 2010 in MA in Kathak dance from Indira Kala Sangeet Vishav Vidayala. Besides this, she is possessing Ph.D degree from the same University, three years diploma (Hons.) in Kathak, two years post diploma in Kathak and Punjabi Prabhodh examination from the languages Department of Punjabi University, Patiala. The degree of Sangeet Prabhakar is recognized by the University and, therefore, it is equivalent to graduation. A person, having the said diploma of Sangeet Prabhakar is eligible for admission to MA in Music. Respondent No.2 in her reply submitted that she has been selected by duly constituted committee and, therefore, she has rightly been selected and appointed on the said post. The relevant portion of the reply is as under: “…….that the answering respondent has done a course in Sangeet Prabhakar in Kathak from Prayag Sangeet Samiti, Allahabad with more 85.33 marks. It is further pertinent to mention herein that Sangeet Prabhakar is a comprehensive six level course and each level takes at least one year to clear/pass. Before clearing the sixth level one has to clear/pass the earlier 5 levels before this degree is awarded. Thus, it does not take one year to clear 5 CWP No.4112 of 2010 this course as stated but much more than that….” Respondent No.3 in its reply has taken the stand that Prayag Sangeet Samiti, Allahabad is not a deemed University within the meaning of Section 3 of the University Grants Commission Act, 1956. I have heard the learned counsel for the parties and have also gone through the record of the case. Learned counsel for the petitioner has submitted that the selection and appointment of respondent No.2 was wrongly made only with a view to favour her by ignoring the rules/guide- lines/regulations framed by the University from time to time. Placing reliance on the recommendation of Syndicate dated 10.2.2006, Annexure 8/A, learned counsel for the petitioner submitted that respondent No.2 did not fulfil the requisite qualification as she is not having diploma in Sangeet Parbhakar and, therefore, one year certificate course in music/dance cannot be said to be equivalent to BA in music. Learned counsel for respondent No.1 University has submitted that respondent No.2 fulfilled the requisite qualifications. He further submitted that selection of respondent No.2 was made by duly constituted committee. 6 CWP No.4112 of 2010 Learned counsel for respondent No.2 has submitted that once the selection process has been completed and the petitioner has participated in the said selection and the selection process is over long back, then it cannot be challenged at a subsequent stage. If the petitioner is having any grievance, she would have challenged the same at an appropriate stage. He further submitted that the selection of respondent No.2 was made being more meritorious in qualifications and, therefore, she was rightly appointed on the said post of Lecturer. In support of his contention, reliance has been placed on the judgment of the Apex Court in State of Bihar and others v. Bihar Rajya MSESKK Mahasangh and others Civil appeal No.6098 of 1997, decided on 12.10.2004. A challenge has been made to the selection qua respondent No.2 for the post of Lecturer in the Department of Dance. An advertisement was issued by the University for various posts, including the post of Lecturer in the Department of Dance. As per advertisement, the candidate is required to have the qualifications of BA with 50% and MA with 55% in the relevant subject, meaning thereby that the candidate must have the educational qualification with Music as one of the subjects. Besides the aforesaid qualification, the candidate should have 7 CWP No.4112 of 2010 cleared the NET for Lecturers conducted by the UGC, CSIR or similar test conducted by the UGC or in the alternative, the candidate should have traditional or professional artist with a highly praiseworthy professional achievement in the relevant subject. It is evident that post graduate degree with NET is compulsory for the appointment of Lecturer. However, a candidate who is having Ph.D. degree in the relevant subject is exempted from NET for PG level and UG level teaching. Further, it is evident that a candidate having M.Phil degree in the relevant subject is exempted from NET for UG level teaching only. There are also some relaxation clauses. In the present case, the candidate is required to have BA with 50% marks and MA with 55% marks in the relevant subject. Additionally, the candidate is also required to have cleared the NET for lecturers or in the alternative, he/she should have traditional or professional artist with praiseworthy achievement in the relevant subject. In case, candidate is having Ph.D degree in the relevant subject has no need to clear NET for PG Level and UG level teaching and the candidate having M.Phil degree in the relevant subject is exempted from NET for UG level teaching. In response to the said advertisement, the petitioner, respondent No.2 and several other 8 CWP No.4112 of 2010 candidates applied for the said post. The petitioner qualified BA (Hons.) with Music and Dance as an elective subject and secured 58% marks and MA in Classical Dance and secured 82% marks. She is having Ph.D degree. Various gold medals in National and International Level were also received. She is having experience in her credit. Whereas, respondent No.2 has secured 40.5% marks in Bachelor of Arts with English (Hons.); 76.93% marks in MA and 85.33% marks in Sangeet Prabhakar in Kathak from Prayag Sangeet Samiti, Allahabad. After screening the applications, four candidates were short listed for interview. Having given my thoughtful consideration to the arguments of learned counsel for the parties, in my considered opinion, the present petition deserves to be allowed. The main issue arising for consideration before this Court is whether the selection and appointment made qua respondent No.2 for the post of Lecturer in the Department of Dance can be quashed when the selection process is over long back. On the threshold, it would be appropriate to go through the course of Study. The relevant portion of the prospectus/brochure is extracted below :- 9 CWP No.4112 of 2010 “xxxx XXXXX XXXX IV.THREE-YEAR JUNIOR DIPLOMA COURSE IN MUSIC/DANCE (As per Thakur Committee Report) 3-year- Junior Diploma: Junior Diploma Level-I Junior Diploma Level –II Junior Diploma Level-III 1. Rules for admission, deposit of Fees, Examination etc. i) Passed High School (10th Class) ii) Duration with nature of course will be three year part – time. iii) Fee for Diploma Courses in Music and Dance be fixed @ Rs. 600/- p.a. with an Examination Fee of Rs. 65/- (including Marks Receipt Fee of Rs. 5/-) Candidates selected for admission to the Three Year Junior Diploma Course shall attend the course of instruction prescribed in these Ordinances, and shall satisfy all other conditions laid down hereinafter in these Ordinances, before appearing at the Examination of either I, II or III year Junior Diploma Course. They 10 CWP No.4112 of 2010 shall not be allowed to contest any election or vote for any election in the University. They will not be permitted to represent the University in sports and debates. They shall also not be eligible for other University facilities like hostel accommodation, membership of University Library, flying club, free ship, merit scholarship etc. 6. A candidate who has completed a regular course of study for the Three-Year Junior Diploma Course, but fails to pass or to appear at the above examination may be considered as per University rules. i) Such candidates as have failed in the Diploma Examination and desire to appear at the said Examination, shall have to pay fee as per University rules. ii) Such candidates who having pursued the Course of Studies in Diploma failed to appear at the said examination shall require to pay the above tuition fee / examination fee as per University rules. iii) A candidate appearing at the Diploma examination has to obtain examination form from the faculty office and submit the 11 CWP No.4112 of 2010 same to the faculty office before the last date. 7. I or II year Diploma Examination: (see astrix below) (VOCAL/INSTRUMENTAL/DANCE) Nomenclature of the course Name of course prior to AC Duration with nature of course No. of seats Eligibility Conditions Teaching Hours No. of Theory Papers and Marks Practicala nd Marks Total Marks 3-Year Junior Diploma 1) Junior Diploma Level- I* 2) Junior Dipl. Level-II 3) Junior Dipl. Level-III Diploma Course in Music and Dance 3-year Part time 50 in each discipline Passed High School (10th Class) Each Theory Paper in each year should have at least 30 lectures. Level-I-One- 100 Level-II-One- 100 Level-III- Two-100 Marks each 200 Marks 200 Marks 400 Marks 300 300 600 * In case a student leaves the course after completion of the First Year/i.e. Junior Diploma Level-I he/she be given a Certificate only. After completion of the whole Junior Diploma Course i.e. after Passing Junior Diploma Level-III students be given Diploma to that effect. If a student completes the Diploma Course Levels I and II, Mark sheets shall be issued to him/her for 12 CWP No.4112 of 2010 300+300=600 Marks, taking both Years’ marks together. 1. In case a student leaves the course after completion of the First Year i.e. Diploma Level-I & II, he/she will be given a Certificate only. 2. After completion of the whole Diploma Course i.e. after passing Diploma Level-III, students be given a Diploma. NOTE: 1. Examination will be conducted at the end of each year. 2. To pass a course the minimum percentage of marks in each paper and in aggregate should be 45%. Candidates securing 75% or more marks in aggregate should be declared as Passed with “Distinction”. 3. Issuance of Certificates The Controller of Examinations should issue certificates for all those examinations, which are conducted by the University. A conjoint reading of the aforesaid extract, it is evident that the said course is a 13 CWP No.4112 of 2010 three year course. It is also evident that the student who completes one/two year course in music/dance would be issued certificate only, whereas, student who completes the whole course (i.e. Junior Diploma Level III) would be given diploma to that effect. Concededly the respondent No.2 is having one year course in Sangeet Prabhakar in Kathak, Prayag Sangeet Samiti, Allahabad. As per the aforesaid extract, it is clear that the petitioner has only issued a certificate. One year course cannot be taken to be diploma. Even as per the recommendation of syndicate dated 10.2.2006, Annexure P.8/A, diploma of Sangeet Parbhaka,Paryag Sangeet Samiti, Allahabad is taken to be eligible for the admission of MA, Music (Vocal and Instrumental Part I). It is no where mentioned in the said recommendation that a candidate holding certificate in the field of music/dance is eligible for admission in the aforesaid post graduate degree. Thus, it can be held that respondent No.2 is not having the requisite qualification in Bachelor of degree and, therefore, marks 85.33% secured in Sangeet Prabhakar have wrongly been taken into consideration by the interview committee. In case marks of 40.5% secured in BA, Eng.(Hons.) by the respondent No.2 are taken into 14 CWP No.4112 of 2010 account, then she was not even eligible for applying the said post. The argument of learned counsel for respondent No.2 that respondent No.2 is having six years course in the said field does not hold water because the course of one year in Sangeet Prabhakar Kathak was qualified by her in the year 1996 which was wrongly taken to be as Bachelor of Degree. No doubt, in case she qualified three years course in music/dance from the said University, which is also approved by the syndicate of Patiala University vide its recommendation dated 10.2.2006, Annexure P.8/A, respondent No.2 was eligible for the said post and this Court cannot interfere in the process of selection. It is an admitted position between the parties that while conducting interview qua the percentage of BA, only percentage of Sangeet Prabhakar was taken into consideration. Doing three years diploma and post diploma after getting admission in MA in Kathak dance from the University which is not recognized by the Patiala University are of no help because at the time of interview only qualification of Sangeet Prabhakar in Kathak from Prayag Sangeet Samiti, Allahabad was taken into consideration. Even the judgment relied by learned counsel for respondent No.2 is not applicable to the facts of the present case as it says that a 15 CWP No.4112 of 2010 person having qualified Sangeet Prabhakar is treated as equivalent to BA in Music. However, in the present case, respondent No.2 has done only one year course in the field of music/dance, which is as per the prospectus/brochure of the University, is only a certificate course and not diploma course. Thus, the argument addressed by learned counsel for respondent No.2 on this point does not impress me. The argument of learned counsel for respondent No.2 that selection process has been completed long back does not help him. It is well settled proposition of law that once it is detected that the irregularities in selection have been committed, then the selection qua the ineligible candidate can be quashed. In view of the aforesaid discussion, the present petition is partly allowed. The selection and appointment qua respondent No.2 are declared as null and void and accordingly appointment letter dated 27.2.2009 is hereby set aside. A direction is issued to the respondent-University to hold the selection afresh for the aforesaid post, in case vacancy is available, by considering all the candidates, except respondent No.2, who have been screened for interview, in accordance with law. Needless to say that the person(s) who will be selected would be offered the consequential 16 CWP No.4112 of 2010 appointment but he/she will not be entitled to any pecuniary benefits, if any claim is raised that the selection should relate back to the original date of interview. September 08, 2011 (DAYA CHAUDHARY) KD JUDGE 17