IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3793 of 2011 DR. DWIJENDRA NARAIN SINGH, S/O LATE SURENDRA NARAIN SINGH, R/O VILLAGE-LAXMIPUR, P.S.-UDA KISHANGANJ, DISTRICT-MADHEPURA. .........PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, JAWAHARLAL NEHRU MARG, PATNA. 5. THE SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, JAWAHARLAL NEHRU MARG, PATNA. 6. THE EXAMINATION CONTROLLER CUM ADDITIONAL SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, JAWAHARLAL NEHRU MARG, PATNA. ...........RESPONDENTS. With CWJC No.3902 of 2011 SHREE BHAGWAN SINGH, S/O SRI RAMESHWAR SINGH, R/O MOHALLA-MAHUABAG, P.O.-SAHAYA NAGAR, P.S.-DANAPUR, DISTRICT-PATNA AT PRESENT WORKING AS DIRECTOR, SCIENCE AND TECHNOLOGY, GOVERNMENT OF BIHAR, PATNA. ...........PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BAILY ROAD, PATNA. 4. THE SECRETARY, BIHAR PUBLIC SERVICE COMMISSION, BAILY ROAD, PATNA. ..........RESPONDENTS. ----------- For the Petitioner : Mr.Dhurv Mukherjee, Adv. and Mr.Ratan Kumar, Adv. For the State : Md.Irshad, AC to SC-18. For the B.P.S.C. : Mr.P.N.Shahi, Adv. and Mr.Sanjay Pandey, Adv. ( in CWJC No.3793/11) For the Petitioner : Mr.Shaishav Kumar, Adv. For the State : Mr. Vipin Kumar, AC to GP-8 For the B.P.S.C. : Mr.P.N.Shahi, Adv. and 2 Mr.Sanjay Pandey, Adv. ( in CWJC No.3902/11) -------------- 5 09.05.2011 In sum and substance, the grievances of the two petitioners in the two writ applications are the same. The petitioners are aggrieved by the result published by the Bihar Public Service Commission (for short ‘the Commission’), as contained in Annexure-6 and 5 respectively in their first writ applications, in which the petitioners Roll Numbers do not figure among the successful candidates. Subsequently, the petitioner of the first case has filed I.A. No.3023 of 2011 by which he has brought on record the recommendation made by the Commission to the Government contained in letter no.219 dated 09.03.2011 in respect of three names who were found eligible for appointment as Principals in Government Engineering Colleges with a prayer to grant liberty to the petitioner to add the three successful candidates as respondents in the case and to challenge the recommendation also. The I.A. is allowed and the petitioner is granted liberty to challenge 3 the same. This recommendation shows that out of 21 candidates, after screening, only 6 candidates were found eligible for being called for interview which included the two petitioners also, in which petitioner of first writ application belongs to general category and petitioner of second writ application belongs to BC-II category. They were interviewed by the Interview Board. However, the two petitioners were not found successful by the Interview Board. Consequently, as per the merit list and as per the category-wise vacancies notified, the three candidates of general category who were found successful in the interview were recommended. No candidate of BC-II category or any other category was found eligible and hence no recommendation was made in respect of vacancies of other categories. The petitioners are aggrieved by this rejection of their candidature by the Interview Board. A common stand of learned counsels for the petitioners of both cases is that, as per the advertisement, as contained in Annexure-1, petitioners had requisite 4 academic qualification. The qualification for Principal of Engineering College also contained a clause of experience of minimum of 15 years and out of which 5 years working experience was essential as Professor or any higher level. Since, the real import of the said requirement of experience as mentioned in the advertisement is in dispute, it is appropriate to reproduce the same here itself as appearing in the advertisement issued by the Commission :- vko’;d ;ksX;rk,¡] izf’k{k.k ,oe~ vuqHko% izkpk;Z & izR;sd ’kk[kk ds izk?;kid & lg & foHkkxk/;{k gsrq fu/kkZfjr ;ksX;rk ds vuqlkjA blds vfrfjDr vH;FkhZ dks vius {ks= esa iz[;kfr izkIr gksus ds lkFk 15 o"kkZa dk ’kS{kf.kd@vk|kSfxd@’kks/k dk vuqHko] ftlesa ls 5 dk vuqHko izk?;kid dk mlls mPp Lrj dk gksA The main submissions of learned counsel for the petitioners are two fold (i) that the Interview Board had no authority to reject the candidature of the petitioners. Since it was a delegatee of the Commission, it could only assign marks, which even could be zero, and refer the matter to the Commission for consideration. They submit that the role of the Interview Board was only 5 to interview the candidates found eligible after screening and submit report to the Commission for its decision. Secondly, they submit that the qualification required was 5 years experience of the level of the Professor. Since the petitioners were holding the post of Principals of Polytechnic Institutes of the Government on substantive basis they qualified in this respect as the post of the Principals of the Polytechnic Institutes were of the level of the Professor of an Engineering College. In respect of the second submission, learned counsel for the petitioners heavily relied upon a Resolution of the Department of Science and Technology dated 01.09.2000, a copy whereof is annexed as Annexure-4 with the first writ application. It is submitted that in the light of the orders of this Court Government laid down a mode of appointment of Director/Project Director in the Department. It was pointed out that in paragraph 2 (Ka), for the said post, besides the Director/Principal/Professor of an Engineering College, regular Principals of a Polytechnic or Mining Institute having 6 required qualifications were also held eligible for appointment on the post of Director/Project Director in the Department. Learned counsel for the petitioner appearing in the first case has further relied on a letter of Acting Chairman of the A.I.C.T.E. addressed to a member of the Parliament, as contained in Annexure-7, to contend that so far pay band is concerned, the same was equal between the holders of the post of equal rank in Polytechnic and Mining Institutes vis-a- vis those of Engineering Colleges. He has further relied upon a letter of the Science and Technology Department dated 16.02.1990, as contained in Annexure-11, with his rejoinder to the counter affidavit which is addressed to the Accountant General, Bihar which also talks about the pay scale of posts and shows that the pay scales of teachers of the Polytechnic and Mining Institutes and the Engineering Colleges are the same. He has further referred to two orders of the Department, as contained in Annexure-13 and 13/1 with the rejoinder, to show that the teachers of the Polytechnic Institutes and of the Engineering Colleges are being 7 transferred from one Institution to other and they are being treated as equals. He further submits that, before 1979, the cadre of the teachers of the Government Polytechnic Institutes and the Engineering Colleges were same. They were being treated as of equal rank having equal pay scale. Petitioner was appointed in a Polytechnic Institute as Assistant Professor prior to 1979. Hence, he got equivalence as on that date vis-a-vis Assistant Professor of an Engineering College. Although after 1979 the cadre was bifurcated, but since he was appointed earlier to 1979 his status has remained the same. Hence, experience of the post of Principal of Mining Institute, Dhanbad, which the petitioner is holding must be treated as equivalent of the post of Professor and having worked for more than 5 years as the Principal on a substantive basis he should have been considered as having the requisite experience of the level of the Professor. Learned counsel for the petitioner of the second case submits that, though substantive rank of the petitioner is of Principal, Government Polytechnic, 8 Guljarbagh, Patna, but he was appointed as Director in the Science and Technology Department on 15.07.2009 and has continued till today which appointment was on rotational basis. Counter affidavit has been filed by the Commission in both the cases. It is stated that the petitioners’ experience as Principal of Polytechnic or Mining Institutes on substantive basis is not equivalent to experience as Professor or above. Hence the petitioners were rightly not found eligible by the Interview Board. It is also submitted that the Commission had constituted Interview Board consisting of five experts of the rank of Professor and above as a member, besides the Principal Secretary of the Department and one expert nominated by the A.I.C.T.E. The Interview Board was chaired by a member of the Commission which interviewed the candidates and submitted his findings to the Commission which was accepted. Learned counsel for the petitioner of the first case, in reply, submits that the experience required was not of experience of 5 years as Professor or of above, but it was 9 5 years at the level of Professor. In this regard, he refers to the extract of requisition of the Government, as contained in Annexure-A with the counter affidavit of the Commission. The relevant part of the requisition in this respect is as follows:- Qualifications required :- Ph.D. Degree with First Class degree at Bachelor’s or Master’s Degree in the appropriate branch of Engineering/Technology with 10 years’ experience in Teaching/Industry/Research out of which 5 years must be at the level of Assistant Professor and/or equivalent. In addition the candidates should OR, be an eminent person in the field with 15 years experience in Teaching/Industry/Research out of which 5 years must be at the level of Professor or above. He further submits that the norms of the A.I.C.T.E. also lays down that for appointment of Principal of an Engineering College the required experience should be minimum of 5 years at the level of Professor or above and not of Professor itself. He has referred to norms of the A.I.C.T.E. annexed as Annexure-3/1 with his writ application. Having heard learned counsels for the parties and having considered materials and facts as referred to by them, this Court find 10 that the Interview Board did not commit wrong in finding the petitioners as not eligible. The members of the Commission are not supposed to sit together themselves and interview candidates of each and every examination. Since it is common knowledge that Commission has enough work load, it is not expected that the members shall themselves hold interview and finally declare the result of the candidates. It is common practice that a selection body constitutes an Interview Board of experts for holding interview of the candidates for appointment against specific posts requiring different qualifications and eligibilities. The Interview Board acts as their delegatee and interviews the candidates and submits its report to the Commission for its consideration. As disclosed in the counter affidavit the Interview Board constituted by the Commission in the present case consisted of five experts of the rank of Professor, over and above the Principal Secretary of the Department itself, one expert nominated by the A.I.C.T.E. and the same was chaired by a member of the Commission. Therefore, the 11 Interview Board contained sufficient number of experts to interview the candidates for appointment on the post of principals in the Engineering Colleges. Since it acted as an expert Body, this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, cannot substitute its own opinion over the opinion of the Interview Board. It is not disputed that the findings of the Interview Board was placed before the Commission and approved by the Commission. Hence, the decision of the Interview Board can well be taken as decision of the Commission itself. In this respect the observations of the Apex Court, made in paragraph 27 of the judgment rendered in the case of Dr.Basavaiah Vs. Dr.H.L.Ramesh & Ors. [2010 (3)PLJR (SC)190], referred to by learned counsel for the Commission is useful to be reproduced here:- ‘It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, experts had evaluated the qualification, experience and published work of the appellants and 12 thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country’s leading experts in the field of Serticulture.’ Hence, this Court does not find any merit in the first submission of learned counsel for the petitioners. So far as second submission of learned counsel for the petitioners is concerned, the documents referred to by learned counsels for the petitioners do show that there is some equivalence in pay scale etc. between the teachers of the Polytechnic and Mining Institutes and of those of Engineering Colleges. But this by itself cannot be considered as conclusive proof that the post of Principal of Polytechnic or Mining Institutes can be considered as of the level of the Professor of an Engineering College. Though it does appear that there is a slight difference in the language of the requisition made by the Government to the Commission and the advertisement published by the Commission itself as quoted above, but even if it is accepted that the 5 years 13 experience was required of the level of Professor or above, this Court does not find that the post of Principal of Polytechnic or Mining Institute could be treated as of the level of Professor so as to holder of the post of Principal of the Polytechnic or Mining Institute could be held satisfying this essential qualification. Moreover, no petitioner has challenged the said stipulation in the advertisement published by the Commission by which 5 years experience of the post of Professor or of higher level has been made an essential eligibility. Admittedly petitioners do not fulfill this eligibility. Petitioner of the second case claims that, as he has been holding the post of Director in the Department of Science and Technology since 15.07.2009 till today he can be treated as having experience of a post equal to the professor. This Court does not find much substance in this submission also as admittedly the post of Director of Science and Technology has been made a rotational post. Hence, obviously posting on the post is 14 made by rotation and not on the basis of any merit or comparative eligibility. Moreover he is holding this post only from 15.07.2009 i.e. for less than two years by now. Hence, even if his experience of that post is counted he does not complete 5 years of experience of the level of the Professor. In the circumstances, this Court does not find that either Interview Board or the Commission has committed any error in rejecting the cases of the petitioners. Accordingly, this Court does not find any merit in the writ applications and the same are dismissed. Arvind/ ( J. N. Singh, J.)