A Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force: High Court of J&K and Ladakh
A Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force at the time of issuance of writ on account of his becoming qualified for such appointment on that day. Thus, a Writ of Quo Warranto will not be issued when the alleged usurper could immediately be re-appointed to the very post as held by the High Court of J&amp;K through a learned bench of Justice Sanjay Dhar in the case of Dr. Syed Shujat Hussain Vs State Of J&amp;K And Others [SWP No.683/2013 c/w SWP No.681/2013]. Brief facts of the case are that Sher-e-Kashmir University of Agricultural Sciences &amp; Technology, Kashmir issued advertisement notice inviting applications for various posts including the posts of Assistant Professor/Junior Scientist in the subjects of Plant Pathology and Soil Science. In response to the said advertisement notice, petitioner Dr. Firdous Ahmad Raina applied for the post of Assistant Professor/Junior Scientist in the subject of Plant Pathology whereas petitioner Dr. Syed Shujat Hussain applied in the subject of Soil Science. Both the above-named petitioners claim that they possessed the requisite qualification and experience. The interviews are stated to have been conducted by the respondent University but when the select list was issued, the petitioners did not find their names in the same and instead ineligible persons i.e., respondent No.4 and respondents No.4 and 5, found their way in the select list. The official respondents have taken a stand that the qualification requirements for the posts of Assistant Professor underwent change so as to bring it in line with broad policy framework of Indian Council of Agriculture Research (ICAR) New Delhi and it was because of this reason that in the fresh advertisement notice of 2012, which has been impugned in the writ petitions, the prescribed qualification for the aforesaid posts was changed. It is claimed by the respondents that because the selection of teaching faculty is being made on All India Competition basis in terms of Statute of the University, as such, the University was well within its competence to advertise the posts held by the petitioners on adhoc basis. The High court was of the opinion that the fact of the matter remains that Expert Committee of the respondent University has scrutinized and examined the testimonials of all the candidates’ where after they have found private respondent No.5 eligible for appointment to the post of Assistant Professor, Plant Pathology. It would not be open to this Court to examine and interfere with the findings of the Screening Committee in this regard. Observing the same the court stated that “Apart from the above, it needs to be borne in mind that a Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force at the time of issuance of writ on account of his becoming qualified for such appointment on that day. Thus, a Writ of Quo Warranto will not be issued when the alleged usurper could immediately be re-appointed to the very post.”
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on:16.09.2021 Pronounced on:22.09.2021 SWP No.683 2013 SWP No.681 2013 DR. SYED SHUJAT HUSSAIN ... PETITIONER(S) Through: Mr. A. H. Naik Sr. Adv. with Mr. Shabir Ahmad Najar Advocate. STATE OF J&K AND OTHERS …RESPONDENT(S) Through: Mr. M. Y. Bhat Sr. Adv. with Mr. Ashiq Ahmad Advocate. Mr. T. H. Khawaja Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE JUDGMENT By this judgment two writ petitions one filed by Dr. Syed Shujat Hussainand other filed by Dr. Firdous Ahmad Raina SWP No.681 2013) are proposed to be decided. On 15.02.2008 Sher e Kashmir University of Agricultural Sciences Technology Kashmir issued advertisement notice No.008 dated 15.02.2008 inviting applications for various posts including the posts of Assistant Professor Junior Scientist in the subjects of Plant Pathology and Soil Science. In response to the said 2 SWP No.683 2013 c w SWP No.681 2013 advertisement notice petitioner Dr. Firdous Ahmad Raina applied for the post of Assistant Professor Junior Scientist in the subject of Plant Pathology whereas petitioner Dr. Syed Shujat Hussain applied in the subject of Soil Science. As per the notification the requisite qualification for the aforesaid posts was given as under: i. High Second Class Master’s degree or equivalent post graduate qualification in the concerned subject. ii. Two years experience of teaching research or extension education as the case may be. Ph. D degree in the subject concerned. Note: : i. v. In case of candidates who hold Post graduate qualification in other subject discipline but have been working in the discipline concerned additional two years experience will be required over and above the minimum prescribed period. Requirement of professional degree shall be deemed as essential qualification. in concerned Development Candidates working Departments of the State can also apply for the post provided they possess two years experience and 1st Class Master’s degree in the relevant discipline. In the discipline Agri. Engineering Veterinary Sciences Animal Husbandry requirement of experience is relaxable. Experience relaxable for candidates having qualified National Eligibility Test conducted by ASRB ICAR New Delhi. Both the above named petitioners claim that they were possessing the requisite qualification and experience. The interviews are stated to have been conducted by the respondent University but when the select list was issued the petitioners did not find their names in the same and instead 3 SWP No.683 2013 c w SWP No.681 2013 ineligible persons i.e. respondent No.4 in SWP No.683 2013 and respondents No.4 and 5 in SWPNo.681 2013 found their way in the select list. According to the petitioner in SWP No.681 2013 respondent No.4 Dr. Nasreen Fatima was neither holding the Ph.D. degree nor the requisite experience at the relevant time whereas respondent No.5 Dr. F. A. Mohi ud Din was possessing Master’s Degree in Plant Protection and not in Plant Pathology. Petitioner in SWP No.683 2013 has contended that respondent No.4 Dr. Miss Uzma Bashir was holding only M. Sc. Degree in Soil Science and she was not having any doctorate degree nor was she having any experience. It is the further case of the petitioners that when they pointed out these mistakes to the authorities of the respondent University they were assured that the same will be rectified and in the meantime petitioner Dr. Syed Shujat Hussain was appointed against the available post of Subject Matter Specialist Soil Science on ad hoc basis for a period of 06 months vide University order No.22 of 2010 dated 06.01.2010 whereas petitioner Dr. Firdous Ahmad Raina was appointed as Subject Matter Specialist Plant Pathology on ad hoc basis for a period of 06 months in terms of University order No.23 of 2010 dated 06.01.2010. The aforesaid ad hoc arrangement of the petitioners came to be extended from time to time and they are continuing as such as on date. It is contended by petitioners that they made a number of representations before the authorities of respondent University seeking regularization of their services as they had been appointed on ad hoc basis 4 SWP No.683 2013 c w SWP No.681 2013 after undergoing regular process of selection and were working continuously on sanctioned posts but instead of doing so the official respondents issued impugned advertisement notice bearing No.112 dated 26.12.2012 by virtue of which the posts against which the petitioners are working have been advertised. It is further averred that while issuing the impugned advertisement notice the official respondents have changed the prescribed qualification as a result of which the petitioners have been rendered ineligible for applying pursuant to the impugned advertisement notice. Accordingly the petitioners have challenged the impugned advertisement notice and have further sought regularization of their services on the posts on which they are presently working. Further the petitioners have prayed for a Writ of Quo Warranto declaring that the private respondents in both the writ petitions are usurpers of public posts as they did not possess the requisite qualification at the time they had applied for selection. The writ petitions have been contested by respondents No.1 to 3 by filing a joint reply thereto in which they have while admitting that the petitioners in both the writ petitions had applied pursuant to advertisement notification of the year 2008 claimed that they figured below the selected candidates in the merit list prepared by the Selection Committee and as such the petitioners could not be appointed pursuant to the aforesaid advertisement notice. According to the official respondents the private respondents in both the writ petitions had secured better merit than the petitioners and they were possessing the requisite qualification and 5 SWP No.683 2013 c w SWP No.681 2013 experience at the time of submission of their applications and they were declared eligible by the Screening Committee. The official respondents have however admitted the appointment of petitioners on adhoc basis and have further admitted that the adhoc engagement of the petitioners has been extended from time to time and that they are continuing as such till date. The official respondents have taken a stand that the qualification requirements for the posts of Assistant Professor underwent change so as to bring it in line with broad policy framework of Indian Council of Agriculture ResearchNew Delhi and it was because of this reason that in the fresh advertisement notice of 2012 which has been impugned in the writ petitions the prescribed qualification for the aforesaid posts was changed. It is claimed by the respondents that because the selection of teaching faculty is being made on All India Competition basis in terms of Statute of the University as such the University was well within its competence to advertise the posts held by the petitioners on adhoc basis. One of the private respondents in SWP No.681 2013 namely. Dr. Nasreen Fatima has also contested the writ petition by filing her reply thereto. In her reply she has submitted that as per the note appended to the advertisement notice below the heading “Essential” it is mentioned that the professional degree shall be deemed as essential qualification. Thus it provides a room for appointment of even those persons who possess the required professional qualification only. The said respondent has admitted that she was only holding Master’s Degree in Plant Pathology at the time when she applied pursuant to the advertisement notice of 2008 but 6 SWP No.683 2013 c w SWP No.681 2013 according to her as per the note appended to the advertisement notice she was possessing the requisite qualification. She has further submitted that she belongs to Kargil District of Ladakh and as per Resolution of the respondent University extracts whereof have been annexed with the reply Vice Chancellor of the University is authorized to relax the qualifications of residents of Leh and Kargil for appointment to various scientific ministerial and auxiliary categories of staff for posts earmarked for Leh and Kargil Districts. She has contended that in view of the aforesaid Resolution it is deemed that the requirement of experience in her case has been relaxed. She has also claimed that as on the date of filing of the writ petition she had acquired the requisite experience in the field of Plant Pathology and as such she was otherwise qualified to be appointed to the post of Assistant Professor Junior Scientist. The said respondent has also contended that the petitioners have slept over the matter for four years whereafter they have woken up from deep slumber and challenged the selection of private respondents and as such they are not entitled to any discretionary relief. I have heard learned counsel for the parties and perused the pleadings and documents on record. 10) The petitioners in the instant case have not challenged the selection process which was initiated by the respondent University pursuant to advertisement notice of 2008. They have only sought a Writ of Quo Warranto against the private respondents on the ground that they were not holding the requisite qualification at the time when they applied pursuant to the advertisement notice of 2008. 7 SWP No.683 2013 c w SWP No.681 2013 In order to test the merits of this contention we need to have a look at the advertisement notice so far as it relates to relevant posts i.e. posts of Assistant Professor Junior Scientist. Vide the advertisement notice four posts of Assistant Professor Junior Scientist in the subject of Plant Pathology and two posts in Soil Science have been advertised. The qualifications prescribed are High Second Class Master’s degree or equivalent in the concerned subject and two years’ experience of teaching research or extension education and in the alternative instead of experience a Ph. D degree in the concerned subject has been prescribed. Notequalifies essential requirement as the requirement of professional degree only. Thus there appears to be a contradiction in the essential qualification prescribed under the heading “Essential” and that prescribed in Noteaccording to which only professional degree is the essential qualification. It appears that the advertisement notice is not happily worded. In the face of such an ill drafted advertisement notice the Screening Committee cannot be faulted for clearing the eligibility of even those candidates who had only second class Master’s degree or equivalent post graduate qualification in the concerned subject without any experience or Ph.D. degree. 12) That takes us to the individual cases of private respondents whose appointment has been challenged by the petitioners. Respondent No.4 in SWP No.683 2013 namely Dr. Miss Uzma Bashir has been appointed as Assistant Professor in Soil Science. According to the petitioner Dr. Syed Shujat Hussain she was not holding the requisite experience and that at 8 SWP No.683 2013 c w SWP No.681 2013 the time when she applied for the post she had not completed her Ph.D. degree and as such she was not eligible. The petitioner has placed on record copy of her application form which does not make any mention about the Ph.D. degree. However it appears that the said respondent has acquired Ph.D. degree and she was awarded said degree in terms of notification dated 5th March 2009. Thus prior to her appointment she had already acquired the Ph. D. degree. Further the award roll prepared by the Selection Committee suggests that she was holding the experience as he has been awarded four marks for experience. In the face of this and coupled with the fact that Noteto the advertisement notice provides that only post graduate degree in the relevant subject is an essential qualification it cannot be stated that the Dr. Miss Uzma Bashir was not eligible at the time of her selection. 13) Coming to the case of private respondents No.4 whose appointment is under challenge in SWP No.681 2013 private respondent No.4 Dr. Nasreen Fatima as per the petitioner was not possessing any experience nor was she holding a Ph.D. degree. Thus she was not eligible for appointment to the post of Assistant Professor Plant Pathology. The said respondent in her reply has virtually admitted that she was not holding any experience nor was she holding Ph. D. degree at the time of her selection. She has placed reliance upon Note to the advertisement notice as discussed hereinbefore. Even otherwise the said private respondent has been appointed to a post earmarked for Kargil as such she is entitled to claim relaxation in her qualification experience in terms of Resolution of 9 SWP No.683 2013 c w SWP No.681 2013 the respondent University which is annexed to her reply. Learned counsel for the respondent University has during the course of hearing admitted the existence of the said Resolution. Since the aforesaid private respondent has been selected and continues to function as Assistant Professor in Plant Pathology as such it is deemed that she has been accorded relaxation in accordance with the aforesaid Resolution. Even otherwise the said private respondent at the time of filing of the writ petition was in possession of the requisite experience though she may not have been holding the requisite experience at the time of her selection. 14) That takes us to the case of respondent No.5 in SWP No.681 2013. According to the petitioner respondent No.5 Dr. F. A. Mohi ud Din was holding the Post Graduate degree as well as Ph.D. Degree in the subject of Plant Protection and not in the subject of Plant Pathology for which the advertisement notice had been issued. To substantiate his contention the petitioner has placed on record copies of certificates on the basis of which the private respondent No.5 had applied for his appointment. The certificates indicate that the said respondent had acquired Master’s degree as well as Ph.D. degree in the subject of Plant Protection. 15) Plant Protection and Plant Pathology both appear to be related to plant science that studies plant diseases. This Court is not an expert body to render any opinion as to whether the degrees in Plant Pathology and Plant Protection are interchangeable or equivalent. The fact of the matter remains that Expert Committee of the respondent University has scrutinized and examined the testimonials of all the candidates whereafter 10 SWP No.683 2013 c w SWP No.681 2013 they have found private respondent No.5 eligible for appointment to the post of Assistant Professor Plant Pathology. It would not be open to this Court to examine and interfere with the findings of the Screening Committee in this regard. 16) Apart from the above it needs to be borne in mind that a Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re appointed under the law in force at the time of issuance of writ on account of his becoming qualified for such appointment on that day. Thus a Writ of Quo Warranto will not be issued when the alleged usurper could immediately be re appointed to the very post. The doctrine is that in cases where the initial disqualification is removed it would not be open to the authorities to appoint the same person immediately even if the Court grants Writ of Quo Warranto. The general principle is that the Court would not pass any writ or any decree which becomes futile. In the face of aforesaid settled legal position even if it is assumed that some of the private respondents were initially disqualified to hold the office to which they have been appointed but by the time petitioners filed the instant writ petitions definitely the selected candidates had acquired the requisite experience qualification and as such their disqualification was removed. The petitioners in the instant case have been guilty of laches and they have acquiesced and concurred in the very act against which they have complained through the medium of instant writ petitions. The petitioners participated in the selection process pursuant to advertisement notice of 11 SWP No.683 2013 c w SWP No.681 2013 2008. They were well aware of the fact that the private respondents were appointed way back in the year 2009 but they waited till 2013 to challenge their appointments. The petitioners are therefore guilty of laches acquiescence and are estopped from challenging the appointment of private respondents. If the appointment of private respondent is quashed at this late stage after a lapse of 12 years their entire career will get ruined. Thus equity heavily tilts in favour of the private respondents. In these circumstances this Court would be extremely reluctant in issuing a discretionary writ like a Writ of Quo Warranto against the private respondents. 18) There is another aspect of the matter which requires to be noticed. The petitioners have been admittedly appointed on adhoc basis in January 2010. There is no dispute to the fact that they continued to work on adhoc basis on the posts of Assistant Professor in the relevant subject and even as on date they are discharging their duties and functions to the entire satisfaction of the respondent University. It is also not in dispute that the petitioners had participated in the selection process pursuant to the advertisement notice of 2008 and their names figured in the panel prepared by the Selection Committee though they were found less meritorious than the selected candidates. After having undergone proper selection process the petitioners were appointed on adhoc basis against sanctioned posts and the said adhoc arrangement continues to be in operation till date. It is also admitted case of the parties that the petitioners represented before the authorities of respondent University for their regularization. It is also not in 12 SWP No.683 2013 c w SWP No.681 2013 dispute that the petitioners were holding requisite qualification and experience at the time of their engagement on adhoc basis. The question that arises for consideration is whether petitioners can be thrown out after having served respondent University for more than 11 years continuously against sanctioned posts. 19) A Coordinate Bench of this Court in the case of Faheen v. University of Kashmir & Ors. in somewhat similar circumstances had directed the University of Kashmir to consider the case of the petitioner therein for regularization from a prospective date. The Court while passing the aforesaid direction relied upon following observations of the Supreme Court in Secretary State of Karnataka v. Umadevi AIR 2006 SC 1806: One aspect needs to be clarified. There may be cases where irregular appointments as explained in S. V. Narayanappa R.N. Nanjundappa and B.N. Nagarajan and referred to in paragraph 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context the Union of India the State Governments and their instrumentalities should take steps to regularize as a one time measure the services of such irregularly appointed who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up in cases where temporary 13 SWP No.683 2013 c w SWP No.681 2013 employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization if any already made but not subjudice need not be reopened based on this judgment but there should be no further by passing of the constitutional requirement and regularizing or making permanent those not duly appointed as per the constitutional In the face of aforesaid legal position it is clear that with the passage of time continuance of petitioners on the posts to which they were appointed on adhoc basis has given rise to a legitimate expectation for consideration of their cases for regularization. 21) Vide CM No.1826 2021 filed in SWP No.681 2013 petitioners sought permission to place on record certain documents. The application was allowed in terms of order dated 31.03.2021. No exception to the authenticity of these documents has been taken by the respondent University. As per these documents pursuant to the recommendations of the Board of Managementa Committee has been constituted by the respondent University in terms of order No.627of 2020 dated 28.09.2020 for formulating the guidelines for regularization of services of employees engaged appointed in the University on contractual adhoc basis against available posts through a proper selection process. The petitioners have also placed on record the relevant extracts of agenda and the resolution passed on agenda item No.BoM 68(12) of the Board meeting. In the said agenda names of petitioners’ figure at Serial Nos.1 and 2 of the list of persons appointed on adhoc basis against available teaching and non 14 SWP No.683 2013 c w SWP No.681 2013 teaching category of posts. The Board has after discussing the matter passed the following resolution: “ Resolved that the guidelines for regularization of such categories of employees who have been engaged appointed on contractual adhoc basis in the University against the available posts both teaching & non teaching) through a proper selection process will be formulated by the University in consultation with the Director General Codes Finance Department GoJK and accordingly placed before the Board of consideration.” Petitioners have also placed on record a copy of University order No.60of 2018 dated 17.01.2018 whereby services of one Dr. Shameem Ahmad Shameem Technical Assistant Environmental Science have been regularized with effect from 13.02.2010. 22) The aforesaid documents placed on record by the petitioners clearly suggest that the authorities of the respondent University are seized of the matter pertaining to regularization of services of the petitioners and such like other adhoc engagees. In the face of these developments and legal position discussed hereinbefore it is the bounden duty of the official respondents to formulate a policy for regularization of adhoc appointees and to accord consideration to the cases of petitioners in accordance with the policy. 23) For what has been discussed hereinbefore while declining to issue a Writ of Quo Warranto against the respondents a direction is issued to the official respondents to formulate a policy for regularizing services of those persons who have been appointed against sanctioned posts on adhoc basis 15 SWP No.683 2013 c w SWP No.681 2013 and are continuing for more than ten years and thereafter accord consideration to the case of regularization of petitioners herein in accordance with the said policy. Till the aforesaid exercise is undertaken by the official respondents the petitioners shall be allowed to continue in the present positions on adhoc basis. The writ petition stand disposed of “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No 