CWP No.19349 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.19349 of 2003 Date of Decision:- February 18, 2010 Dr.R.K.Sarin ...Petitioner Versus Union of India and others. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.Rajiv Atma Ram, Senior Advocate with Mr.Nikhil K. Chopra, Advocate for the petitioner. Dr.Urmil Gupta, CGSC for respondent No.1 Mr.Anupam Gupta, Advocate for respondents No.2 and 3 None for respondent No.4. ***** K.KANNAN, J. 1. The petitioner and the fourth respondent were vying with each other for the post of Professor of Electronics and Communication Engineering, in response to public advertisement for direct recruitment by selection process through a Committee that had set to itself several parameters for eligibility and appraisal of relative merits. The advertisement dated 28.6.2001 yielded to the ultimate selection of the fourth respondent, after the initial hiccups through advertisement dated 23.5.1997, 26.3.1998 and 7.7.1999, when during all the times, the petitioner had been an eligible candidate for selection, while the fourth respondent did not even make it to the benchmark for consideration. CWP No.19349 of 2003 -2- 2. In the selection chart released by the Selection Committee in its meeting on 26.9.2001 on the basis of criteria laid down by the Punjab Government Department of Technical Education and Industrial Training Punjab, for recruitment to the post, the fourth respondent had been shown to have secured 55 marks out of 100, while the petitioner had been shown to have secured 45 marks and placed accordingly second in the merit list. The fourth respondent, therefore, had been declared as selected for the post by direct recruitment but the petitioner had a grievance, which is sought for redressal, claiming that the appraisal had been wrongly done, when on four counts, the selection of the fourth respondent was said to be suspect:- (i) The petitioner had not been apprised for supervisory work and assigned no marks, while the fourth respondent has been granted four marks. (ii) Marks ought to have been assigned for small talk given by the petitioner. (iii) The marks to be assigned for research had not been properly done. (iv) There had been a bias in selection of fourth respondent, since one of the members in the Selection Committee, Dr.R.A.Aggarwala was also a co-guide of the reader and co-author of the most of the papers, laid in the seminars with the fourth respondent. 3. Vide appointment letter dated 7.11.2001, the Chairman, Board of Governors of the Regional Engineering College, Jalandhar communicated to the fourth respondent that he had been appointed as CWP No.19349 of 2003 -3- the Professor in the discipline of Electronics and Communication Engineering and on the same day, the petitioner had also been informed that he had been appointed to the post of Professor under the “Carrier Advancement Scheme” as per terms and conditions of All India Council for Technical Education notification. 4. The petitioner had a grievance that he had not been selected although he appointed to the post under the “Carrier Advancement Scheme” in view of the fact, the National Institute of Technology (earlier called as Regional Engineering College) Jalandhar, provided through its bye-laws dated 14.2.1992, inter alia the manner of settling seniority issues of employees. Rule 4.4 provided as follows:- “Seniority of the Employees (a) The seniority inter se of the employee shall be determined by the dates of their continuous appointment to the posts: Provided that in the case of employee appointed directly the order of merit determined by the Selecting authority shall not be disturbed and persons appointed as a result of an earlier selection of the same shall be senior to those appointed as a result of subsequent selection: Provided further that in the case of two or more employees appointed on the same date, their seniority shall be determined as follows: (i) An employee recruited by direct appointment shall be senior to a member recruited otherwise, (ii) An employee recruited by promotion shall be senior to a person recruited by transfer, (iii) In the case of employee recruited by promotions or transfer, seniority shall be determined according to CWP No.19349 of 2003 -4- the seniority of such employees in the appointments from which they were promoted or transferred, and (iv) In the case of employees recruited by transfer from different cadres, their seniority shall be determined according to pay, preference being given to a member who was drawing higher rate of pay in his previous appointment and if the rates of pay drawn are also the same then by their length of service in those appointments and if the length of such service is the same, an older member shall be senior to the younger member. XXX XX XX XXX 5. Since, Rule provided that an employee recruited by direct appointment was to be treated as senior to a member recruited otherwise, which included an employee recruited by promotion, the petitioner, who was a senior to the fourth respondent in the lower scale, agitated for his right that he should have been considered for selection in the direct recruitment process, which he otherwise lost by the direct recuitment of the fourth respondent. 6. The representation of the petitioner gave place to constitution of an enquiry committee with two senior Professors to make a report. The report was submitted on 24.6.2002, which vindicated the grievance ventilated by the petitioner and stated that the petitioner should have been put to No.1 in the selection panel. Curiously, the report had not been placed before the Board of Governors by the Secretary in its meeting held on 10.7.2002 and instead, a new committee had been formed on 10.7.2002 to again look into the representation of the CWP No.19349 of 2003 -5- petitioner. 7. The contention of the petitioner was that Dr.R.D.Sharma, Secretary of the Board of Governors, constituted himself as member of the second enquiry committee, when through second report, it was concluded that both the candidates had obtained equal marks and that both the candidates should be appointed under the open category, since already two posts of Professors existed and the seniority of the petitioner should be maintained. It was only after the second report was submitted, that the first enquiry report itself was placed before the Board of Governors on 5.7.2003 when the Board directed that the entire matter should be placed in proper chronology of events. In the subsequent meeting held on 13.9.2003, it was decided that the selection made to the post of Professor be set aside and to hold another selection process for the same post and in the meantime decided to maintain status-quo. 8. The fourth respondent, who had earlier obtained favourable consideration was aggrieved against the above decision of the Board to re-open the entire selection process and hence filed writ petition in CWP No.15210 of 2003, but it appears that the writ petition was disposed of at the stage of admission itself on 25.9.2003 without even serving notices on the respondents, that the writ petition should be treated as a representation and directed the respondents to dispose of it with a speaking order within four months. With no tangible result flowing from the situation, the petitioner himself filed the present writ petition on 12.12.2003. At the time when notices were issued by this Hon'ble Court, it directed that the result of the selection for the post should be stayed but the selection process should go on. Curiously, the Board of Governors reversed all its previous decisions to hold a fresh selection process and had decided to re-evaluate the marks of the candidates and had come to a fresh conclusion that there was nothing amiss in the selection of the CWP No.19349 of 2003 -6- fourth respondent as a more meritorious candidate. 9. The incident of subsequent decision during the pendency of the writ petition is brought out through replication filed by the petitioner but it did not result in a fresh writ petition only by the circumstance that the fourth respondent had opted to shift himself from the Department of Electronics and Communication Engineering to Computer Science and Engineering Department, when a post of Professor fell vacant in the department, which he occupied on 16.8.2007. The subsequent event has been brought out through a fresh affidavit by the petitioner on 27.10.2008 along with this application in CM No.1585 of 2008. 10. In the present situation, the petitioner remains on the post of Professor and the person whom he was competing with, namely, the fourth respondent has opted for the same post in another department. The petitioner still prays for adjudication only by virtue of the fact that the issue of seniority could be decided only if the selection made on 7.11.2001 is set aside and when the petitioner is declared to have been selected by direct recruitment. The decision of the college Administration in re-affirming the selection already made on 7.11.2001 during the pendency of the writ petition, in spite of two earlier reports finding that the selection result made on 7.11.2001 required to be reviewed and its own decision made subsequently to opt for a fresh selection process, in my view, does not help the petitioner to bury the hatchet. The course adopted by the Administration is not even fair or just. It must be seen that the both first and second reports recommended the retention of the seniority of the petitioner over the fourth respondent. 11. Learned counsel appearing on behalf of the petitioner referred to a decision of the Hon'ble Supreme Court in Prof.S.A.Siddique Vs. Prof.M.Wajid Khan & Ors. Reported in JT 1999(1) SC Page 1, which dealt with the case of a person, who though promoted under a merit CWP No.19349 of 2003 -7- promotion scheme, was under the bye-laws, to be treated as a member of a cadre and hence, it was held that he would be entitled to rank as senior even against the person directly recruited. The Hon'ble Supreme Court had held so in the context of the regulations laid down by the Executive Council, which treated all post of Readers and posts of Professors, whichever was the method of appointment belonging to the same cadre. The inter se seniority, therefore, was considered in the context of specific regulations. The decision referred to its earlier pronouncement in Dr.Rashmi Srivastava Vs. Vikram University and Ors. Etc, JT 1995(4) SC Page 51 that dealt with M.P. Vishwavidyalaya Adhiniyam, 1973. The Act provided direct recruitment as the only source of appointment and therefore, direct recruits alone, were held to form a regular cadre. Merit promotees, consequently, fell outside the cadre and direct recruits were always held to rank as seniors. In this case, I have already extracted the relevant bye-laws set down by the College Engineering Council, that provided for grant of seniority to a person coming through direct recruitment. Unless, the selection made on 7.11.2001 itself is set aside and the subsequent decision during the pendency of the writ petition re-affirming the selection already made as bad, the petitioner would not be able to merit consideration of his seniority over the fourth respondent. It may probably have a bearing on a future occasion for still higher post, though they may not compete in the same department. Having regard to the fact that the selection results announced on 7.11.2001 has been found fault with in the first two committee reports and by the decision of the Board of Governors themselves, a subsequent decision by the Board of Governors during the pendency of the writ petition is set aside, although no specific prayer is made in the writ petition. Indeed, no such prayer could be made since, it was an event subsequent to the writ petition and it was also a non- CWP No.19349 of 2003 -8- sequeter to a direction given by this Court that a fresh selection process should go. Interest of justice would be met, only if the petitioner who was placed second in the merit list on 7.11.2001, is considered as having been been selected by direct recruitment on that day and he is allowed to maintain the seniority over the fourth respondent. 12. By the decision that I have come to, the appointment letter dated 7.11.2001 is quashed to the extent that the fourth respondent alone was treated as a person appointed by direct recruitment. The petitioner and the fourth respondent shall be treated as appointed on the same day by direct recruitment, since, after all, as found by the second report, there were two posts available for being filled up to the post of Professor by direct recruitment on that day. The fourth respondent cannot, therefore, be prejudiced. He shall no doubt be entitled to be considered as appointed by direct recruitment on 7.11.2001 but by the fact that the petitioner was admittedly a senior in the lower post, the petitioner is entitled to maintain the seniority. 13. The writ petition is allowed in above terms. February 18, 2010 (K.KANNAN) Vt JUDGE