CWP No.9104 of 2008 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 14.07.2009 1.CWP No.9104 of 2008 Dr. Rajesh Kumar and another ... Petitioners Versus Sant Longowal Institute of Engineering and Technology (SLIET), Longowal and others. ... Respondents 2.CWP No.8574 of 2008 Dr. Sukhwinder Singh and another ... Petitioners Versus Sant Longowal Institute of Engineering and Technology (SLIET), Longowal and others. ... Respondents 3.CWP No.9894 of 2008 Dr. Vijay Kumar Kukreja ... Petitioners Versus Sant Longowal Institute of Engineering and Technology (SLIET), Longowal and others. ... Respondents Present: Mr.SK Sharma, Budhladhawala, Advocate, for the petitioners. Mr.Naveen Mahajan, Advocate, for respondent Nos.1 and 2. Mr.RK Malik, Senior Advocate, with Mr.Parveen Kumar Rehla, Advocate, for private respondents. CWP No.9104 of 2008 -2- PERMOD KOHLI, J. Since common questions of law and facts arise in all these writ petitions, same are being disposed of by this common order. It is necessary to refer to the factual background separately in each case. CWP No.9104 of 2008 The petitioners in this case were recruited/appointed as Lecturers in respondent No.1 Institute in the discipline of Mechanical Engineering against the available vacancies. They were granted the benefit of Carrier Advancement Scheme (hereinafter referred to as the CAS) after putting in requisite number of years of service in terms of the AICTE decision dated 19.09.2003. This benefit is like Assured Career Progression Scheme and does not amount to a regular promotion to the next higher post of Assistant Professor in the department. While the petitioners were working in the Institution in the above capacity, respondent No.1 advertised four posts of Assistant Professors in the Mechanical Engineering in the regular pay scale of Rs.12000-18300/- vide notification No.02/06 dated 089.11.2006, published in Hindustan Times in its issue dated 19.09.2006. Vide a subsequent corrigendum published in Hindustan Times on 21.01.2007, the last date for receipt of the applications was extended and one post of Assistant Professor was reserved for persons with disabilities. The CWP No.9104 of 2008 -3- petitioners applied for the posts in question along with other persons. As many as 33 persons applied for the four posts. It is alleged that petitioner No.1 occupied slot No.1, petitioner No.2 was placed at Serial No.3 in the merit list, whereas respondent No.3 was placed at Serial No.2 and respondent Nos.4 and 5 were placed at Serial Nos.4 and 5, respectively. Respondent No.1, however, appointed respondent Nos. 3 to 5 against three available posts of Assistant Professors in Mechanical Engineering ignoring the higher merit of the petitioners attained in the selection process and their preferential claim for appointment over and above the private respondents. CWP No.8574 of 2008 The petitioners in this case were initially recruited as Lecturers in the discipline of Computer Science and Engineering in respondent No.1 Institute in the year 1992 and on the basis of the decision of the AICTE referred to above. They were granted the benefit of Carrier Advancement Scheme and made Assistant Professors. While they were working as such, respondent No.1 Institute advertised number of posts of Assistant professors in various disciplines including the Computer Science and Engineering vide notification referred to above while dealing with CWP No.9104 of 2008. As many as four posts of Assistant Professors were advertised for the discipline of Computer Science and Engineering. The petitioners applied for the posts in question and were considered along CWP No.9104 of 2008 -4- with other applicants. It is claimed that the petitioners occupied Slot No.1 and 2 in the merit list whereas private respondent Nos.3 to 5 occupied positions 3 to 5. Despite their higher merit acquired in the selection process, the petitioners have been ignored and private respondents appointed as Assistant Professors in the discipline of Computer Science and Engineering. CWP No.9894 of 2008 In this writ petition, petitioner was recruited as Lecturer in the Mathematics in respondent No.1 Institute. Two posts of Assistant Professors in Mathematics were advertised along with other various posts of Assistant Professors in various disciplines in respondent No.1 Institute vide notification referred to here-in-above. The petitioner also applied for the said post claiming to be eligible. He was considered for selection by the appropriate Selection Committee. It is alleged that the petitioner occupied second position in the merit list whereas respondent No.4 was placed at Serial No.1. Respondent No.4 secured 59.2 marks as against 53.9 marks secured by the petitioner. Resultantly, respondent No.4 being at Serial No.1 was selected/appointed and the petitioner who was at serial No.2 of the Select list was not offered appointment. The petitioner applied under the Right to Information Act which information was denied to him. However in appeal he has been supplied the information wherein the claim of the petitioner is found to be correct. CWP No.9104 of 2008 -5- Respondent Nos.1 and 2 and private respondents have filed their separate replies. From the replies filed by the Institutional respondents and private respondents, factual averments made in the writ petitions are admitted. The merit positions attained by the petitioners in all the writ petitions qua private respondents stand admitted and established from record. Respondent Nos.1 and 2, however, have attempted to justify the non-selection of the petitioners on the grounds that they are already designated and working as Assistant Professors under CAS. The pay scale and status of the petitioners is the same as directly recruited Assistant Professors. It is also the case of respondent Nos.1 and 2 that station seniority of the petitioners is being maintained at par with the direct recruits Assistant Professors for all purposes and other benefits like House Rent Allowance etc. It is further mentioned that some of the petitioners while working as Assistant Professors are functioning as Head of the Departments in their respective disciplines. Thus, for all practical purposes, they are Assistant Professors. It is specific case of the petitioners that the directly recruited Assistant Professors are to be placed on a higher place in the seniority list as against the Assistant Professors promoted under the CAS in view of the judgment of the Hon'ble Supreme Court in the case of Dr.Rashmi Srivastava Vs. Vikram University and others, AIR 1995, Supreme Court, 1694. In view of the judgment of the Hon'ble Apex Court,Government of India, Ministry of Human Resources CWP No.9104 of 2008 -6- Development and Higher Education, New Delhi, has also issued clarificatory notification dated 13.12.2006 certifying that the direct recruits and promotees under the CAS are two different and distinct categories. It is further clarified that the promotion under the CAS is not linked to a physical vacancy and it is only personal to the candidate. Similar clarification has been issued by the AICTE vide its communication dated 19.09.2003 to all the State Governments, Union Territories and the Secretaries, Technical Education's, stating that direct recruits will be considered senior to the persons promoted under the CAS in view of the norms adopted by the University Grants Commission whereby CAS was introduced. The clarificatory letter from the Ministry of Human Resources Development dated 13.12.2006 specifically provides for maintaining two separate seniority lists-one for the direct recruits and other for CAS promotees. The selection/appointment with respondent No.1 Institute is regulated by Rules and Regulations framed by the All India Council of Technical Education, notification dated 15.03.2000. Respondent No.1 being affiliated and recognised Institute is bound to follow the mandate of Articles 14 and 16 of the Constitution of India. There is no difference of opinion on this issue between the parties. It is admitted position that petitioner No.1 in CWP No.9104 of 2008 has higher merit than all the private respondents being at Serial CWP No.9104 of 2008 -7- No.1 of the select list whereas petitioner No.2 is higher in merit than respondent Nos.4 and 5 being at Serial No.3 in the merit list. As many as four vacancies were advertised, but only three have been filled up. One post is still lying vacant. From the select list, it appears that no reasons have been recorded for denying appointments to the petitioners even though they have better merit than the selectees/appointees i.e private respondents in the manner indicated here-in-above. It is, however, argued by Mr. RK Malik, learned Senior Counsel, appearing for the private respondents that some of the private respondents have joined the Institute by resigning from other Institutes and the petitioners being already working as Assistant Professors, they are not prejudiced in any manner. His further argument is that since the vacancies stands occupied and the private respondents are not parties in any wrong decision taken, they cannot be thrown out. It is admitted position that the petitioners have been denied the appointment despite acquiring higher merit in the process of selection without any valid reasons. This itself is sufficient to allow these writ petitions. There has been gross violation of the mandate contained in Articles 14 and 16 of the Constitution of India. Mere fact that some of the private respondents have resigned from other posts/Institutions and joined the respondent No.1 Institute and that they are allegedly not parties to the wrong decision, does not dilute the enforceability of the mandate contained in Articles 14 and 16 of the CWP No.9104 of 2008 -8- Constitution of India. Fact remains that the petitioners have been deprived of their right of appointment in gross violation of their fundamental rights and despite their better merit in the process of selection. The private respondents are beneficiary of illegal and wrong orders passed by respondent Nos.1 and 2 and, thus, they are contributory to the violation of law. Mr.RK Malik, learned Senior Counsel has further argued that if the petitioners can be adjusted without disturbing the private respondents, they will have no objection in this regard. In CWP No.9104 of 2008, one post is still lying vacant against which petitioner No.1 can be conveniently adjusted/appointed. However, petitioner No.2 is also higher in merit than respondent Nos.4 and 5 and in order to make room for petitioner No.2, respondent No.5 has to go out being the last selectee in the merit list. In the event respondent Nos.1 and 2 are willing to adjust petitioner No.2 at Slot No.2 without disturbing respondent No.5, they are at liberty to do so. However, in the event it is not feasible or possible to add one vacancy of Assistant Professor for any valid reasons, appointment of respondent No.5 shall stand cancelled and petitioner No.2 shall be appointed in his place at his own merit as per the select list. In CWP No.8574 of 2008, admittedly, petitioner Nos. 1 and 2 were at Serial Nos.1 and 2 of the merit list. Out of four advertised vacancies, one vacancy is still lying vacant and petitioner No.1 can be adjusted against the available vacancy. The same principle will apply CWP No.9104 of 2008 -9- for adjustment of petitioner No.2 as in CWP No.9104 of 2008. In CWP No.9894 of 2008, the petitioner is, admittedly, at Serial No.2 in the select list and only one vacancy has been filled up and the private respondent is also, admittedly, higher in merit than the petitioner. If respondent Nos. 1 and 2 intend to fill up the second vacancy within one year from the date of this order the petitioner in this case shall be given preference and adjusted against the available vacancy. However, if respondent Nos.1 and 2 have no intention to fill up the vacancy, the petitioner shall have no right of appointment in view of the settled legal position that the selectee has no right for appointment if the employer do not want to fill up the vacancy for any valid reasons. The respondents are directed to pass consequential order in view of the above directions within a period of one month from the date a certified copy of this order is made available to them. For the reasons recorded above, these writ petitions are disposed of in terms of the aforementioned directions. A copy of this order be placed on the record of each concerned file. 14.07.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? NO