Judgment:
S.C. Sharma, Acting Chairman:
1. Instant Original Application has been instituted seeking to quash the selection process dated 16.10.2009 and to declare the ARS viva voce conducted on 18.09.2009 as null and void being contrary to the principles of natural justice and in breach of fundamental rights of the applicants, and to direct the respondents to select the candidates as per the eligibility criteria mentioned in the notification dated 03.12.2008.
2. The facts of the case may be summarized as follows:
It has been alleged by the applicants that the applicant No.1 is working as Assistant Professor in Veterinary College, Palampur, Himachal Pradesh, whereas the applicant No.2 is working as Assistant Professor in College of Veterinary and Animal Sciences, Udgir, District Latur, Maharashtra. The respondent No.1 is the Agricultural Scientists Recruitment Board (ASRB), New Delhi, which conducted the selection process for the post of major discipline: Animal Product Technology, and sub discipline: Livestock Product Technology. The respondent No.2 is the Indian Council of Agricultural Research (ICAR), New Delhi, which is the parent body having control over the respondent No.1. The respondent No.3 is the Ministry of Agriculture, Government of India, and is the Ministry under which the respondents 1 and 2 are functioning. Respondents 4 and 5 are the students whose applications have been entertained and who have been selected for the post of Livestock Products Technology. Respondents 4 and 5 are alleged to be ineligible persons who have been selected as against the eligible candidates. A notification was issued by the respondent No.1 on 17.09.2008 with respect to the Agricultural Research Service (ARS)/National Eligibility Test (NET) Examination, 2009. A notification dated 03.12.2008 was also issued to fill up the additional vacancies for ARS through ARS/NET Examination, 2009. The notification comprised details of the discipline, number of the posts and reserved category, showing the qualifications required. It is pleaded that the applicants were eligible for ARS post in the discipline of Livestock Products Technology. They submitted their applications for the major discipline: Animal Product Technology and sub-discipline: Livestock Products Technology. Respondents 4 and 5 also submitted their applications for the ARS/NET Examination, 2009. The closing date was extended up to 31.12.2008. The applicants came to know that respondents 4 and 5 had also filed applications for the post of Livestock Products Technology, although they belong to different discipline and were not eligible for the post of Livestock Products Technology. The applicants verified the list of the students called provisionally for the written test for admission to Ph.D degree Programme 2008-09, and they came to know that the 4th respondent was not qualified for the Livestock Products Technology as he belongs to Poultry Science discipline. The applicants also verified the list of the students to be called for written test/interview for admission to P.G. programme 2007-08, and came to know that the respondent No.5 too was not qualified for the Livestock Products Technology as he belongs to Poultry Science discipline. It is alleged that in blatant disregard to its own notification, the respondent No.1 not only called the respondents 4 and 5 for viva voce, but also selected them for the post of Livestock Products Technology discipline against the OBC seats by pushing other qualified OBC seats into unreserved category, by giving special favour. Application under the Right to Information Act was also submitted to which the respondents replied. It is alleged that illegally, selection was made of respondents 4 and 5 for the post for which they were not eligible, whereas the applicants, even though eligible for the post according to their qualifications, have not been selected. Hence, the OA.
3. Separate counter affidavits have been filed on behalf of respondents 1 to 3 and respondents 4 and 5. The official respondents 1 to 3 in their counter reply have raised certain preliminary objections regarding maintainability of the OA. It has been alleged that the respondent No.2 is a Society registered under the Societies Registration Act, 1860 and can be sued in the name of the Secretary, ICAR, and that the present OA is bad for mis-joinder of parties, as the respondents 2 and 3 have wrongly been arrayed as respondents. It has further been alleged that the contents of paras 4(i) to (vii) are matter of record and need no reply. It is then alleged that respondents 4 and 5 were candidates for ARS/NET Examination in the discipline of Livestock Product Technology and possess the qualification of Master’s Degree in Veterinary Science, and that the prescribed qualification for the discipline of Livestock Products Technology is ‘Master Degree in Veterinary Science/Animal Science with specialization in Livestock Products Technology/Food Processing Technology’. It is alleged that the eligibility of the respondents 4 and 5 for the discipline was examined by the technical experts, and that these respondents were eligible in view of the prescribed qualification for the discipline of Livestock Products Technology, as Poultry Product Technology is part and parcel of Livestock Products Technology, and further that the contention of the applicants contrary to that is not to be relied, and that there was no violation of the prescribed qualification for the discipline. That it is wrong to allege that respondent No.5 was not qualified for Livestock Products Technology discipline. The prescribed qualification for the discipline of Livestock Products Technology is Master Degree in Veterinary Science/Animal Science with specialization in Livestock Products Technology/Food Processing Technology. The eligibility of respondents 4 and 5 for the discipline was examined by technical experts and they were held eligible in view of the prescribed qualification for the discipline of Livestock Products Technology, and as the said respondents were eligible, hence they were called for viva voce on the basis of merit list drawn for calling the candidates for viva voce, and final merit list was drawn on the basis of marks obtained in the written examination as well as viva voce for ARS. Respondents 4 and 5 were recommended for appointment as per vacancies available for OBC category. Merit list has also been annexed with the counter reply. It is pleaded that the folders of the candidates selected and recommended for appointment are sent in original to the ICAR, who is the appointing authority, and that whatever has been alleged by the applicants is contrary to the facts of the case, and further that the OA lacks merit and is liable to be dismissed.
4. Respondents 4 and 5 have filed separate counter reply, and it has been alleged in the counter reply that the respondents were eligible candidates and there was no violation of the prescribed qualification for the concerned discipline, and that it is wrong to allege by the applicants that the respondents were not qualified for Livestock Products Technology discipline. The prescribed qualification for the discipline of Livestock Products Technology is Master’s Degree in Veterinary Science/Animal Science with specialization in Livestock Products Technology/Food Processing Technology. The respondents are stated to be possessing Degree in Veterinary Science with the relevant subject and also sub-discipline (minor discipline) in Livestock Products Technology. The respondents have also filed copies of their certificates in that regard. The qualifications of the respondents were examined by the technical experts of the ASRB with reference to the requisite prescribed qualification as per notification dated 17.09.2008, and it was held that the respondents were eligible and suitable for the discipline of Livestock Products Technology, as the Poultry Product Technology is the part and parcel of the Livestock Products Technology. That the eligibility is to be decided by the ASRB, which is the final authority in this connection and no third authority is entitled to decide the eligibility of the respondents. As the respondents qualified in the written examination, hence their names were recommended for the viva voce examination, and ultimately they were declared successful for the relevant vacancies in the discipline of Livestock Products Technology. It has also been alleged by the respondent No.5, namely, Yogesh Kumar, that he secured good marks in the examination and in merit he was placed at serial number 3 in the OBC quota vacancies, and that he has rightly been selected against one of the three OBC quota vacancies. It is also provided in the notification of DOPandT dated 08.09.1993 that the candidates belonging to OBCs recruited on the basis of merit in an open competition on the same standards as prescribed for the general candidates, shall not be adjusted against the reservation quota of 27%, and due to this reason, two OBC candidates, namely, Tanbir Ahmad and Arun Kumar Verma, who secured more marks than the applicants, have been recommended against the unreserved vacancies by the ASRB. It is pleaded that it is wrong to allege that the two candidates belonging to OBC category were wrongly placed against the unreserved quota vacancies, and it was in accordance with the OM issued by the DOPandT, and that the OA lacks merit and is liable to be dismissed.
5. Separate rejoinder affidavits have been filed on behalf of the applicants to the counter replies filed on behalf of respondents 1 to 3 and respondents 4 and 5. In the rejoinders, the applicants have reiterated the same facts which they have alleged in the OA.
6. We have heard Shri Dilip Annasahed Taur with Shri Amol V. Deshmukh, advocates for the applicant, and Shri Gagan Mathur, Shri B. S. Mor and Mrs. C. Vani Reddy, advocates, for the respondents. From perusal of the pleadings of the parties, most of the facts have been admitted by the respondents. Annexure-1 is copy of notification dated 17.09.2008 issued by the Agricultural Scientists Recruitment Board, New Delhi. It has been provided in the notification that the Board would hold a competitive ARS/NET Examination-2009 on 26th April, 2009 for filling up the vacancies of Scientists in Agricultural Research Service (ARS) in the pay scale of Rs.8000-13500 in the ICAR Institutes, combined with National Eligibility Test (NET) for determining eligibility for recruitment of Lecturers and Assistant Professors by the State Agricultural Universities. It has also been provided regarding educational qualification for ARS and NET that a candidate for the ARS/NET must have Master’s degree or equivalent in the concerned subject with specialization as defined in Annexure-II against each discipline, from any Indian University incorporated by an Act of Central or State Legislature in India, or other educational institutions established by an Act of Parliament or declared to be deemed University under Section 3 of the University Grants Commission Act, 1956, or he must have qualification from a foreign University recognized as equivalent by the Government of India. It has also been provided in Annexure P-2 notice dated 03.12.2008 that selection was to be conducted in connection with various disciplines of the service, and in the present case dispute is as regards Livestock Product Technology at serial number 37. There were 8 posts for this discipline - 2 posts were unreserved, two posts were reserved for SC, 1 post for ST and 3 posts for OBC. Code number of the major/broad discipline of Animal Product Technology is 38, and Livestock Product Technology is mentioned as sub-discipline. Educational qualification has been provided as Master’s degree in Veterinary Science/Animal Science with specialization in Livestock Product Technology/Food Processing Technology. It will be material to state that the selection was to be conducted on the basis of a competitive examination after conducting written examination as well as viva voce of the qualified candidates of the written examination. Those who were eligible to participate in the examination of this discipline were required to possess the qualifications prescribed in the notification. It has not been provided that every candidate must possess all these qualifications. Any candidate who may be possessing any of these qualifications will be eligible to participate in the examination. The sub-discipline of the broad/major discipline is Livestock Product Technology, and it was not necessary that only the candidates who have got specialization in Livestock Product Technology will be eligible to participate in the examination. Master’s degree in Veterinary Science/Animal Science is the basic qualification required for each candidate to participate in the selection. Further, it has also been provided that such candidate must possess specialization in Livestock Product Technology/Food Processing Technology. One can have expertise in any of these two specialties, i.e., Livestock Product Technology or Food Processing Technology with Master’s degree in Veterinary Science or Animal Science, and such candidate shall be eligible to participate in the selection.
7. It has been alleged by the applicants that they were eligible for the ARS post in the discipline of Livestock Product Technology and that they submitted their application for the major discipline Animal Products Technology, sub-discipline Livestock Product Technology. It may be a different matter that the post was meant for Livestock Product Technology discipline, but it was not essential that only those candidates who have specialization in Livestock Product Technology only shall be eligible to participate in the selection, whereas the contention of the applicants is that as the posts were advertised for sub-discipline Livestock Product Technology, hence only those candidates shall be eligible to participate in the selection who may be having specialization in Livestock Product Technology. It is a different matter that the applicants were specialized in Animal Products Technology, but a person possessing Master’s degree in Veterinary Science with specialization in Food Processing Technology cannot be said to be ineligible for participation in the examination. There may be a competitive examination for the Civil Services providing the eligibility qualification of graduation in any discipline - Arts, Science, Commerce, etc. It is not necessary that only persons of a particular specialization will be entitled to participate in the selection. It has also been alleged by the applicants that the respondents 4 and 5 also submitted their applications for the post of Livestock Product Technology, but they belong to different discipline and were not eligible for the post of Livestock Product Technology, and further that the respondent No.4 was not qualified for Livestock Product Technology post as he belongs to Poultry Science discipline. Same has also been alleged against the respondent No.5 that he was not qualified for the post of Livestock Product Technology as he too belongs to Poultry Science discipline. It has been alleged by the respondents that the prescribed qualification for the discipline of Livestock Product Technology was Master’s degree in Veterinary Science/Animal Science with specialization in Livestock Product Technology/Food Processing Technology, and that the eligibility of the respondents 4 and 5 was examined by technical experts and the said respondents were found eligible in view of the prescribed qualification for the discipline of Livestock Product Technology, as Poultry Product Technology is part and parcel of the Livestock Product Technology, and it would be wrong to allege that the respondents were not qualified for Livestock Product Technology, and as they were possessing the minimum qualification prescribed in the notification of the respondents, hence they participated in the selection.
8. The official respondents 1 to 3 in their separate counter affidavit have alleged that the qualification prescribed for the post in the discipline of Livestock Product Technology was Master’s degree in Veterinary Science/Animal Science with specialization in Livestock Product Technology/Food Processing Technology, but the eligibility of respondents 4 and 5 was examined by technical experts and they were held entitled to participate in the examination. Much has been argued by the learned counsel for the applicants that as respondents 4 and 5 were not having specialization in Livestock Product Technology, hence they were wrongly permitted to participate in the examination, and they have wrongly been called for interview, and have wrongly been selected. We have stated above that any person who may have been possessing the above mentioned qualifications was entitled to participate in the selection for the post in the discipline of Livestock Product Technology, and that respondents 4 and 5 were possessing the requisite minimum qualifications which were essential for participation in the selection. We disagree with this contention of the learned counsel for the applicants that as the respondents 4 and 5 were not fit for selection for post of Livestock Product Technology, hence they have wrongly been permitted to participate in the selection and they have wrongly been selected.
9. We have stated above that for the major discipline of Animal Product Technology, sub-discipline Livestock Product Technology, 8 posts were advertised. Three posts were reserved for OBC, two posts were earmarked for general category, two posts were reserved for SC and one post for ST category. Respondents 4 and 5 were selected against the reserved category of OBC, whereas the applicants belong to general category. It has been alleged by the applicants that in blatant disregard to its own notification, the respondent No.1 not only called the respondents 4 and 5 for viva voce, but also selected them for the post of Livestock Products Technology discipline against the OBC seats by pushing other qualified OBC seats into unreserved category, by giving special favour. The contention of the respondents is that other candidates belonging to OBC have been pushed against unreserved category and respondents 4 and 5 were selected against the reserved category of OBC. It has been alleged by the respondent No.5 in this connection that there is an OM issued by the DOPandT dated 08.09.1993 which provides that the candidates belonging to OBCs, recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%, and due to this reason two OBC candidates Shri Tahbir Ahmad and Shri Arun Kumar Verma who secured more marks than the applicants, have been recommended against unreserved vacancies by the ASRB, and that the respondents 4 and 5 have been selected against the OBC reserved category, and the two OBC candidates who have been selected on their own merits were placed against the unreserved quota vacancies. Annexure R-1 to the counter reply filed by the respondent No.5 is the copy of the OM dated 08.09.1993 issued by DOPandT. It has been provided in para 2(b) of the said OM that ‘Candidates belonging to OBCs recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%’. Under these circumstances, it has been stated on behalf of the respondents that two candidates belonging to OBC category were selected on their own merits and they have been placed against the unreserved vacancies in view of the OM issued by DOPandT. Respondents 1 to 3 have also filed the merit list regarding Animal Product Technology, sub-discipline Livestock Product Technology, and from perusal of Annexure R-1 merit list it is evident that Tahbir Ahmad and Arun Kumar Verma belonging to OBC were selected on their own merits in view of OM issued by the DOPandT. Moreover, the applicants have not challenged the selection of Tahbir Ahmad and Arun Kumar Verma on this ground. Rather, the selection and appointment of R. S. Rajkumar and Yogesh Kumar, respondents 4 and 5, has been challenged on the ground that they have been wrongly selected as not possessing the requisite qualification of specialization in Livestock Product Technology. As we have adjudicated this matter above, hence it is not required to be considered afresh. The contention of the applicants is unjustified that two OBC candidates were selected illegally against unreserved vacancies. The two OBC candidates were selected against their own merit, in view of the OM issued by the DOPandT, and respondents 4 and 5 were selected against the reserved vacancies of OBC. One more candidate was selected in the OBC category, namely, Devendra Kumar, and hence the contention of the applicants is not reliable.
10. Learned counsel for the applicants cited the judgment of the Hon’ble Supreme Court reported in (2009) 4 SCC 555 Mohd. Sohrab Khan v Aligarh Muslim University and others. It has been held by the Hon’ble Supreme Court, thus:
“23. The post advertised was meant for a person belonging to the Pure Chemistry Department for if it was otherwise, then it would have been so mentioned in the advertisement itself that a person holding a Masters Degree in Industrial Chemistry should only apply or that a person holding such a degree could also apply alongwith other persons. It was not so mentioned in the advertisement and therefore, except for Merajuddin Ahmad, no other degree holder in Industrial Chemistry had applied for becoming a candidate as against the aforesaid post.
24. According to us, the Selection Committee as also the University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach and what essential qualification the person must possess to be suitable for making application for filling up the said post.”
Learned counsel for the applicants further cited the judgment of the Hon’ble Supreme Court reported in (2001) 8 SCC 532 Dr. Bhanu Prasad Panda v Chancellor, Sambalpur University and others. It has been held by the Hon’ble Supreme Court as follows:
“Though the Department concerned for which the appointment is to be made is that of ‘Political Science and Public Administration’, the appointment with which we are concerned, is of Lecturer in Political Science and not Public Administration and subject-matterwise they are different and not one and the same. On selection the appellant could not have been appointed as Lecturer in Public Administration, be it in the Department of Political Science and Public Administration since the advertisement was specifically to fill up the vacancy in the post of Lecturer in Political Science.”
The applicants are not entitled to the benefit of the judgments of the Hon’ble Supreme Court because in view of the notification issued by the respondents for conducting the selection, various vacancies of ARS in the pay scale of Rs.8000-13500 were to be filled up on the basis of competitive examination. As we have stated above, the controversy in the present case is regarding the post Code No.38 in the major/broad discipline of Animal Product Technology, sub-discipline Livestock Product Technology, and the candidates possessing the qualification of ‘Master degree in Veterinary Science/Animal Science with specialization in Livestock Product Technology/Food Processing Technology’ were entitled and eligible for participating in the competition. The applicants as well as the respondents 4 and 5 are possessing the essential Master’s degree in Veterinary Science, even though in different sub-disciplines, and as the respondents are possessing the essential qualification, hence they would be entitled and eligible for participation in the competition. As it has been provided in the notification, hence it cannot be said that the respondents 4 and 5 have illegally been selected as they are not having specialization in the Livestock Product Technology. Along with this qualification, other candidates who are possessing specialization in Food Processing Technology along with Master’s degree in Veterinary Science are also entitled and eligible for participating in the competition. The expert committee of the respondents had examined the eligibility of the respondents 4 and 5, and they were of the opinion that the said respondents are fulfilling the requirement as provided in the notification. Hence, the facts of the judgments of the Hon’ble Supreme Court are distinct from the facts of the present case, and in the present case, as the respondents 4 and 5 were possessing the minimum qualification prescribed for participation in the competition, hence they were entitled and eligible for participating in the competition.
11. One judgment has been produced by the learned counsel for the respondents, reported in (2011) 9 SCC 645 Chandigarh Administration v Usha Kheterpal Waie and others. It has been held by the Hon’ble Supreme Court as follows:
“22. It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualification prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, statute and Rules. [See J. Rangaswamy vs. Government of andhra Pradesh - (1990) 1 SCC 288 and P.U. Joshi vs. Accountant General - (2003) 2 SCC 632]. In the absence of any rules, under Article 309 or Statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of PhD is unreasonable.”
Hence, in view of the judgment of the Hon’ble Supreme Court, the rule-making authority or the appointing authority may prescribe the mode of selection and minimum qualification for recruitment, and the courts and tribunals cannot prescribe the qualification. In the present case, the respondents had prescribed the minimum qualification for the post and the mode of selection, and we cannot prescribe and hold that the minimum qualifications which have been prescribed in the notification were not justified and the specialization was required in Livestock Product Technology only for the post in the major discipline of Animal Product Technology, sub-discipline Livestock Product Technology. Master’s degree in Veterinary Science/Animal Science was the minimum qualification prescribed by the respondents for selection, and the respondents 4 and 5 were also possessing the minimum requisite qualification, and they were entitled to participate in the selection.
12. For the reasons mentioned above, we are of the opinion that respondents 4 and 5 have rightly been selected and participated in the selection for the post in the major discipline of Animal Product Technology, sub-discipline Livestock Product Technology. Respondents 4 and 5 have been selected against OBC quota. Moreover, two persons belonging to OBC category were selected on their own merit as per the OM issued by the DOPandT, and their selection has not been challenged, and their selection is valid as per rules, and the respondents 4 and 5 have been selected against the reserved vacancies of OBC. The applicants belong to the general category and they cannot be selected against the reserved category of OBC, and it cannot be held that two persons of the OBC category were illegally selected because they have been selected against the unreserved category on their own merits.
13. The OA lacks merit and is liable to be dismissed. Dismissed accordingly. There shall, however, be no order as to costs.