w w w . L a w y e r S e r v i c e s . i n



Dr. R. Anandraj v/s The Director, Jawaharlal Institute of Post Graduate Medical Education & Research & Others


Company & Directors' Information:- M G INSTITUTE OF EDUCATION PRIVATE LIMITED [Active] CIN = U80301DL2002PTC118047

Company & Directors' Information:- E-GRADUATE INSTITUTE INDIA PRIVATE LIMITED [Strike Off] CIN = U80302TN2003PTC051577

Company & Directors' Information:- M. S. INSTITUTE OF EDUCATION PVT. LTD. [Active] CIN = U80301DL2006PTC152100

Company & Directors' Information:- INSTITUTE OF EDUCATION AND RESEARCH [Active] CIN = U80904UP2012NPL048973

Company & Directors' Information:- P R EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129195

Company & Directors' Information:- V C EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129201

Company & Directors' Information:- R V EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129311

    Writ Petition No. 35398 of 2012 & M.P. Nos. 1 of 2012 & 1 of 2013

    Decided On, 19 December 2013

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR & THE HONOURABLE MR. JUSTICE R. MAHADEVAN

    For the Petitioner: A. Edwin Prabhakar, Advocate. For the Respondents: R1 & R2, T. Arunan, Advocate, R3, Central Administrative Tribunal.



Judgment Text

(Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the third respondent in T.A.No.1 of 2012 dated 13.7.2012 confirming the order passed by the second respondent in No.Estt.1(13)/2009 dated 28.3.2011 and quash the same and consequently direct the first and second respondents to appoint the petitioner as Assistant Professor in the Department of Obstetrics and Gynaecology, Jawaharlal Institute of Post Graduate Medical education and Research, Puducherry - 605 006, within the time frame fixed by this Court.)

N. Paul Vasanthakumar, J.

1. This writ petition is filed by the petitioner, who was unsuccessful in T.A.No.1 of 2012 dated 13.7.2012 on the file of the Central Administrative Tribunal, Chennai (CAT), wherein the order of the second respondent dated 29.3.2011 was sought to be quashed and seeking direction to the first respondent to appoint the petitioner as Assistant Professor in the Department of Obstetrics and Gynaecology, JIPMER, Puducherry-6.

2. The brief facts necessary for disposal of this writ petition are as follows:

(a) Petitioner has passed M.D.Degree in Obstetrics and Gynaecology from JIPMER in the year 2006 and he joined in Mahathma Gandhi Medical College Research Institute, Puducherry as Assistant Professor in the Department of Obstetrics and Gynaecology and worked there for seven months. Thereafter he joined at Arupadai Veedu Medical College and Hospital, Puducherry, and worked in the said institution for one year six months and fifteen days as Assistant Professor. Thereafter he joined in Melmaruvathur Adhi Parasakthi Institute of Medical Science, Melmaruvathur as Assistant Professor and served there for a period of two years.

(b) Petitioner applied for the post of Assistant Professor in the Department of Obstetrics and Gynaecology pursuant to a notification issued inviting applications in the first respondent College/JIPMER and appeared for interview on 20.1.2011. When the selection list was published, his name was not found, eventhough there was a vacancy notified for Scheduled Caste and the petitioner was the only Scheduled Caste candidate, applied and attended the interview.

(c) It is the case of the petitioner that as per the notification, he is fully qualified and when he tried to know the reasons for his non-selection there was no response. Hence he submitted representation by telegram and letter on 15.3.2011 and also applied under RTI Act. Thereafter the second respondent gave a reply on 28.3.2011 stating that appearing for interview is not a guarantee for selection to any post, even if only one candidate appeared for interview for any post. Whether it is the reserved category or general category, it is the prerogative of the Selection Committee to select the candidate based on the performance of the individual and suitability to the post and petitioner's case was not recommended for selection by the Selection Committee either in the reserved category or in general category.

(d) The said reply given was challenged by the petitioner in W.P.No.4343 of 2011 before this Court and as JIPMER comes under the jurisdiction of the Central Administrative Tribunal (CAT), the said writ petition was ordered to be transferred to CAT/2nd respondent herein, wherein it was numbered as T.A.No.1 of 2012.

(e) The contention before the CAT was that the first respondent issued an advertisement for the post of 32 professors and 52 Assistant Professors in various discipline on 10.11.2010; that out of three posts of Assistant Professor, Obstetrics and Gynaecology, one post each were reserved for SC, unreserved and OBC; that the second respondent for filling up the three posts of Assistant Professor in Obstetrics and Gynaecology, issued call letters to 11 candidates, of which ten candidates appeared for the interview; that out of the ten candidates, five candidates appeared belonged to General category, four from OBC and the petitioner is the only SC candidate reserved for SC vacancy; that the qualification prescribed for the post of Assistant Professor was three years teaching experience and out of the 52 posts notified, only 30 candidates were selected after interview, based on the alleged performance of candidates in the interview, teaching experience, publication in national and international journals and academic credentials; that in the interview marks were awarded by following grading system by the Standing Selection Committee in the following manner;

A+ .. Exceptionally Brilliant;

A .. Outstanding;

B+ .. Well above average;

B .. Average;

B- .. Below average; and

C .. Poor.

(f) It was the further contention of the petitioner that the petitioner having passed M.D.Obstetrics and Gynaecology in the first respondent Institution, is a meritorious candidate and also gained required teaching experience as per the notification and according to the petitioner, no weightage was given to the academic credentials and teaching experience by the Standing Selection Committee and awarded grades in an arbitrary manner, and the vacancy reserved for SC has not been filled up in spite of availability of fully qualified candidate, i.e, petitioner for selection.

3. The said claim of the petitioner is opposed by the respondents by filing a counter affidavit before the Tribunal contending that even the vacancies reserved for OBC were not filled up even though number of candidates were interviewed, and though petitioner was the sole candidate under SC category for the post of Assistant Professor, Department of Obstetrics and Gynaecology, the Standing Selection Committee found that his performance during interview has not met the requirements and his name was not recommended for selection. There is no discrimination on the part of the respondents in the non-selection of petitioner. The assessment of merits on the basis of grades was applied uniformly to all the candidates interviewed and there is no illegality or arbitrariness in the assessment of merit and ability of the petitioner.

4. The Central Administrative Tribunal dismissed the T.A.1 of 2012 on the ground that no fundamental right of the petitioner was violated and as per the norms followed, there were ten members in the Committee. Two members were absent and the remaining eight members including two external experts and one internal expert awarded grades to the petitioner as, 'B, B-, B, B-, B-, B-, B, C, B- B- and B- respectively. Based on the assessment of performance, the petitioner was not recommended for selection and appointment. The Tribunal concluded that the Standing Selection Committee being an expert body, Tribunal is not competent to go into the award of marks and therefore there is no illegality or irregularity in not recommending the name of the petitioner for selection under SC category.

5. Mr.A.Edwin Prabhakar, learned counsel appearing for the petitioner submitted that as per the notification issued by the Ministry of Health and Family Welfare, Government of India, dated 14.7.2008, the Standing Selection Committee shall make appointments to all faculty posts, either through Direct Recruitment or Assessment Under Promotion Scheme. The Director General of Health Services, Government of India shall be a member of the Standing Selection Committee and in this case, the Director General of Health Services, Government of India was not made as member of the Standing Selection Committee to assess the merits of the candidates appeared for interview. Therefore the constitution of Standing Selection Committee itself is in violation of the statutory rule and consequently, the assessment of merit and ability of the petitioner by the incompetent Standing Selection Committee is not valid. Learned counsel further submitted that the Standing Selection Committee, without the presence of the Director General of Health Services, Government of India, constituted with ten members, awarded three 'B' grade to the petitioner and the 'B' grade being 'average' and only one expert having awarded 'C' grade, and no minimum grade having been fixed for selection, there is no rhyme or reason to reject the candidature of the petitioner, particularly when he has fulfilled the required qualification, experience and being the sole candidate appeared for selection to one SC vacancy. The learned counsel also submitted that though normally the Courts are not entitled to assess the grading given by the Expert Committee as valid or not, if in any given case, if incompetency and arbitrariness is established, the Court can direct the duly constituted expert body to reassess the merit and ability and to that extent at least, the petitioner is entitled to pray for reassessment of his claim for selection to the post of Assistant Professor, Obstetrics and Gynaecology, which is reserved for SC category, as he is the only candidate applied.

6. Mr.M.T.Arunan, learned counsel appearing for the respondents 1 and 2 on the other hand submitted that no mala fide is alleged against the Standing Selection Committee and the said Committee members having assessed the merit and ability of the petitioner and awarded grades, and the petitioner having been awarded B- grade by seven Committee Members, and 'C' grade by one Committee Member, his name was not recommended for selection, and there is no illegality in the procedure adopted by the Standing Selection Committee. The learned counsel further submitted that merely because the petitioner is the only candidate appeared for interview for one post reserved for SC category, the same will not confer any right on him, unless he is found qualified by the Standing Selection Committee, and therefore there is no illegality in the said non-selection of petitioner. The learned counsel further submitted that the non-inclusion of the Director General of Health Services, Government of India as a member in the Standing Selection Committee will not vitiate the selection, and the petitioner at the time of taking part in the selection/interview, has not raised any objection, and having participated in the selection, he is not entitled to challenge the composition of the Standing Selection Committee after he was found as not selected, and the petitioner is estopped from challenging the said composition of the Standing Selection Committee at this distance of time. Therefore, according to the learned counsel for the respondents 1 and 2, the writ petition is liable to be dismissed.

7. We have called for the entire file relating to selection and perused the same. We have considered the rival submissions of the learned counsel appearing for the petitioner as well as learned counsel for the respondents 1 and 2.

8. Petitioner was the only candidate applied for selection under SC category, who attended the interview for the post of Assistant Professor in the Department of Obstetrics and Gynaecology. He has obtained M.D.degree and has required number of years of experience are not disputed. The Standing Selection Committee assessed the merits of the candidates, who have attended interview on 20.1.2011. The Standing Selection Committee members individually assessed the performance of the petitioner and according to the respondents, three members awarded 'B' grade; six members awarded 'B-' grade; and one member awarded 'C' grade to the petitioner. The basis on which the performance of the candidates was assessed, is not mentioned in the file relating to selection. In the file produced, the candidates awarded 'B-' were either found 'fit' or 'unfit' and the remarks made is 'may be'. That remark is also made only in one sheet, wherein the technical advisor external viz., Vani Ramkumar has signed. In the assessment sheet of Dr.M.S.Ramachandran, the column 'fit or unfit' is left blank for all the candidates. Similarly, in the assessment sheet of Dr.Surendran, no date is mentioned and no remark is made in the column 'fit or unfit'. In the assessment sheet signed by K.Saraswathi, the column 'fit or unfit' is not filled. Similar is the case in the assessment sheets of Dr.Malli Yuvaraj and Dr.V.Kanagaraj. One S.Habibullah, who assessed and awarded 'C' grade to the petitioner, is not found as a member of the Standing Selection Committee, who signed as Technical Advisor internal. Dr.V.Nagaraj, Dr.K.S.V.K.Subba Rao, Dr.Indra Chakravarthy, have also not filled up the column 'fit or unfit'. It is not clear as to how a non-member of the Standing Selection Committee viz., one S.Habibullah, who acted as Technical Advisor internal, was allowed to sit as Standing Selection Committee member during interview. Further the Standing Selection Committee has not found any candidate as 'unfit' and only one member recorded that six persons are 'fit' and four persons including petitioner were assessed as 'may be'.

9. On the above factual aspect this Court is of the view that the Standing Selection Committee has not assessed the merit and ability of the petitioner in a proper perspective viz., not filling up the column specifically stating as to the candidate is 'fit or unfit'. The words mentioned in the column can be taken to mean that 'may be fit' or 'may be unfit'.

10. As per the notification issued by the Ministry of Health and Family Welfare, dated 14.7.2008 in exercise of the powers conferred by sub-section (2) of Section 1 of JIPMER Puducherry Act, 2008, which came into force from 14.7.2008, the Standing Selection Committee shall consider the appointment to all the faculty posts, filled either through Direct Recruitment or under Assessment Promotion Scheme, the Director General of Health Services, Government of India, shall be a member of the Standing Selection Committee. Admittedly, the notification inviting application for filling up of posts at JIPMER was issued after the said notification issued on 14.7.2008. The said notification clearly states that the Director General of Health Services, Government of India, shall be a member of the Standing Selection Committee, which take up the task of appointment to all the faculty posts either through Direct Recruitment or under Assessment Promotion Scheme. Nowhere in the counter affidavit or in the file produced, we could see that the Director General of Health Services, Government of India was included in the Standing Selection Committee, which assessed the merits of the candidates interviewed, including the petitioner. Thus, there is a statutory violation in the constitution of Standing Selection Committee, which goes to the root of the matter in this case. Merely because the petitioner attended the interview before the Standing Selection Committee without being aware of the composition of the Standing Selection Committee at the time of the interview, the respondents 1 and 2 are not justified in contending that the petitioner is estopped from raising the point of incompetency of the Standing Selection Committee as there cannot be any estoppel against statute. Therefore the objection raised insofar as estoppel against the petitioner by respondents 1 and 2 is unsustainable.

11. When a person, who applies for public employment as per the right conferred under Article 16 of the Constitution of India, is called for to attend interview, the Department is bound to conduct interview by the duly constituted Selection Committee, with all seriousness, which can be inferred under the said Article. Such person attending interview must have the satisfaction while appearing in the interview and in assessment of his merits in an objective manner. Conducting interview in a casual manner without showing seriousness, is not expected from the Interview Committee, and the same can be interfered by the Courts, if the facts are established in a given case.

12. It is an admitted case of the petitioner as well as respondents 1 and 2 that the petitioner is the only candidate applied for selection to the post of Assistant Professor, Department of Obstetrics and Gynaecology in JIPMER, Puducherry, under SC category, for which one post is reserved. The action of the respondents 1 and 2 and the Standing Selection Committee in not assessing the merit and ability of the petitioner, is the reason for non-selection of the petitioner. Thus, the first respondent is unable to fill up the post of Assistant Professor, Department of Obstetrics and Gynaecology, reserved for SC. The said action is in violation of Article 16(4) of the Constitution of India, particularly when there is no minimum grade fixed under the Rule, for selection. As stated supra, the incompetent Standing Selection Committee members also not stated that the petitioner was found 'unfit' for selection, and they have only stated "may be" in the column provided. In such circumstances, not filling up the post, reserved for SC category, is definitely a violation of the said constitutional provision. However, having regard to the stand taken by the respondents 1 and 2 in the counter affidavit, we are not issuing any positive direction in this

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case. 13. Insofar as awarding of grade, except the statement that 'B' means 'average'; 'B-' means 'below average'; and 'C' means 'poor', the guidelines for such assessment has not been shown in the file, or stated in the counter affidavit. Having regard to the fact that the constitution of the Standing Selection Committee is not in terms of the statutory rule, we are of the view that petitioner's claim for selection is bound to be reassessed by the duly constituted Standing Selection Committee and on such assessment of the merit and ability of the petitioner, the respondents 1 and 2 can decide as to whether the petitioner is fit or unfit for selection to the post of Assistant Professor, Department of Obstetrics and Gynaecology. 14. In such circumstances, we are of the considered view that giving direction to reassess the claim of the petitioner for selection, will not affect the rights of anyone, including the already selected candidates. 15. For the above reasons, we are of the view that the writ petition is to be disposed of with a direction to the respondents 1 and 2 to reassess the merit and ability of the petitioner for selection, by duly constituted Standing Selection Committee and depending upon the fresh assessment to be made by the duly constituted Standing Selection Committee, which shall consist the Director General of Health Services, Government of India as a member, as required under the notification issued by the Ministry of Health and Family Welfare dated 14.7.2008, the respondents 1 and 2 shall pass fresh orders. Such an exercise is directed to be completed within a period of eight weeks from the date of receipt of copy of this order. The order of the Tribunal dated 13.7.2012 is set aside and the writ petition is disposed of with the above directions. No costs. Connected miscellaneous petitions are closed.
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