Andhra HC (Pre-Telangana)
S.B. Dwarkanath And The Registrar, ... vs R. Dilip Kumar And Ors. on 29 September, 1992
Equivalent citations: 1993(3)ALT24
JUDGMENT Sivaraman Nair, J.
1. These appeals arise from the judgment of our learned brother Upendralal Waghray, J., in Writ Petition No. 1677/1990. Appeal No. 854/91 is filed by the 8th respondent: Appeal No. 864/91 is filed by petitioners 1 to 3; and Appeal No. 977/91 is filed by respondent No. 2. We will refer to the parties in the order as they were arrayed in the Writ Petition.
2. In Writ Petition No. 1677/90 petitioners challenged the appointment of respondents 8 to 13 as Lecturers in Law Colleges of Osmania University. Respondents 1 and 2 were the Vice-Chancellor and the Registrar of the University respectively. The Ist respondent was impleaded by his name as the 5th respondent in his capacity as the Chairman of the Selection Committee. Respondents 6 and 7 were the Principals of the University College of Law and Post Graduate College of Law respectively under the University. Secretary to Government, Education (UE) Department and Secretary of the University Grants Commission were respondents 3 and 4. By his Judgment dated 25-6-1991, the learned single judge allowed the Writ Petition and quashed the appointment of respondent No. 8, since he had not acquired the qualification necessary for appointment on the date of the advertisement. Even though he found that the appointments of respondents 9 to 13 were also irregular, he refused to grant relief for four reasons viz., that -
1. The petitioners had made reckless allegations against the Vice-Chancellor without verifying the facts:
2. that the petitioners' rankings were lower than those of the respondents:
3. that respondents 9 to 13 had given up posts held by them earlier:
4. that the courts should be slow to interfere with the action of academic bodies like universities.
Petitioners submit that the learned single Judge should not have dismissed the Writ Petition on assumptions which were contrary to the record. They submit that having found the entire process of selection totally irregular and improper, the learned single judge should not have upheld the selection and appointment of respondents 9 to 13 for reasons, which according to them, were totally extraneous. Having found that the process of selection was defective, counsel submits that the rankings or the marks awarded by the selection committee ought not to have been taken into account in refusing relief to the petitioners. In his appeal (No. 854/91) the 8th respondent submits that the finding against him that he was not qualified is illegal, since he had acquired the necessary qualification before the date of interview. Writ Appeal No. 977/91 is directed against the observations contained in the judgment relating to the conduct of the process of selection.
3. The facts leading to the filing of the Writ Petition and the present appeals are the following:
Osmania University (2nd respondent) issued Advertisement No. 2/88 dated 11-2-1988 inviting applications for appointment of teachers in various departments including one post of Lecturer in law. Later, by Advertisement No. 3 /89 dated 6-7-89, the 2nd respondent invited applications for appointment of teaching staff in various departments including six posts of Lecturers in law. It is necessary to extract the relevant portion which was as follows:
"Post No. 20 - Lecturer in Law (VII Plan) At least a high Second Class Masters' Degree in Law with not less than 55% marks in the aggregate from an Indian University or an examination recognised as equivalent thereto from any other recognised University.
Specialisations:
1. Constitutional Law .. One Post
2. International Law .. One Post
3. Mercantile Law .. One Post
4. Labour Law .. One Post
5. Crimes and Torts .. One Post
6. General .. One Post (Other things being equal, preference will be given to Crimes and Torts) .. One Post.
The candidates were interviewed on 13-11-1989 by a Committee consisting of the 5th respondent, a nominee of the UGC, 3 Expert Members, the Chairman of the Board of Studies - Osmania University, and the Head of the Department of Law of the Osmania University respectively. Petitioners, respondents 8 to 13 and others appeared for the interview. In the award list which was published, respondents 8 to 13 were selected for appointment, whereas the petitioners were not. The learned single Judge had found that over 50 candidates were interviewed in about four hours on a single day, each candidate having been interviewed hardly for a few minutes. He also found that the award list indicated that out of 100 marks, 25 were given on the basis of qualifications, 25 on the basis of experience (15 for teaching and 10 for research) and 50 for the performance in the interview. The criteria for awarding marks for qualification and teaching experience were indicated in the award list and there was serious dispute about the adoption of the award list in respect of departments other than law. We may have have to deal with this aspect later. The award list also indicated that the fate of the candidates was decided largely by the award of marks in the interview, some of the successful candidates having been awarded as much as 47 out of 50. Petitioners submit that the award of 50 marks for interview without prescribing any guidelines for award of those marks, resulted in arbitrariness in eliminating and selecting candidates. They assert that the choice of the respondents indiscriminately, without reference to qualifications and other guidelines, had resulted in arbitrary exclusion of the petitioners in spite of better entitlement and equipment for selection. Counsel for the petitioners submit that all norms were violated by the Committee in its deliberations and in the resultant selection of candidates.
4. Counsel invited our attention to the advertisement which mentioned that the six posts of Lecturers would be in- (1) Constitutional Law, (2) International Law, (3) Mercantile Law, (4) Labour Law, (5) Crimes and Torts and (6) General with preference to Criminal law. The initial submission of the petitioners is that respondents 8 to 12 acquired their LL.M. degree only after they submitted their applications. Respondent No. 13 who claimed to have specialised in Labour Law had produced a bogus marks list. As a matter of fact, his marks were less than 55%. Respondents 9 and 11 had specialised in Jurisprudence, which specialisation was not advertised. Respondent No. 10, though a post-graduate in Constitutional law and therefore was qualified, had not appeared for the UGC test which was obligatory. Petitioners submit that compared to those selected, they were definitely better qualified. The 1st petitioner is a postgraduate in Commerce, and a 1st class Post-graduate in law with specialisation in Constitutional Law. He acquired doctorate in law subsequently. Since, 1977, he has been working as a regular lecturer in an aided college. Since 1983, he has been working as a part-time lecturer teaching LL.B., and LL.M. students. He was so appointed, since he came out successfully in the selection conducted by the University. He claims that he had consistently high academic record and had 13 years of teaching experience, out of which six years was as part-time lecturer in the faculty of law. The 2nd petitioner holds a first class degree of LL.M. (Jurisprudence). Since December, 1983, he has been a part-time lecturer in law teaching LL.M. students. The 3rd petitioner is a post-graduate in Arts with a diploma in Industrial Relations and Personnel Management. He is also a post-graduate in law (LL.M. Labour Law). He had been working as a part-time lecturer in the University since 1985. All the petitioners had registered for Ph.D. in law in 1989 (petitioners 1 and 2) and 1986 respectively. The 3rd petitioner had published 8 Articles on law and 2 publications in 2 seminars.
5. Petitioners submit that members of the Expert Committee who were to select lecturers in various specialisations were experts only in Jurisprudence and International law, the former not being a specialisation mentioned in the advertisement. The submission of the petitioners is that either by design or by default, the 5th respondent picked up experts unmindful of the requirements mentioned in the advertisement and apparently for the only purpose of choosing "yes-men" who would sign on the dotted line. Counsel for the petitioners submit that this apprehension was more than justified by the performance of the selection Committee. He submits that the allegations which they made in the petition of impropriety on the part of the 5th respondent was more than vindicated by the findings entered by the learned single Judge. Their grievance is that after finding the selection improper, the learned single Judge refused to grant relief on assumptions which totally irrelevant in the matter of exercise of jurisdiction of this court under Article 226 of the Constitution of India.
6. Petitioners had raised six contentions in assailing selection of respondents 8 to 13. The first was that in the absence of any rule for reservation and in the light of Section 6 of the Osmania University Act which provides for appointment only by merit, appointment to five out of six posts on the basis of reservation was unsustainable. The learned single judge rejected that submission. The second point was that selection of respondents 8 to 13 and elimination of petitioners and others were made entirely on the basis of marks obtained at the interview, for which 50% of the marks were earmarked. According to the petitioners, the learned single Judge was ambivalent in dealing with this objection, after indicating that the selection committee had not acted properly in interviewing 50 candidates in about four hours allotting hardly a few minutes for each candidate. The learned judge did not enter a positive finding one way or the other. He left the point observing that it would be appropriate for the University either to reduce the marks or add some more time for evaluation by interview particularly when the candidates to be selected were post-graduates. The third contention which the petitioners had raised was that respondents 8 and 12 were not eligible to be considered as they had acquired the requisite qualification, namely, LL.M., Degree only by the time of the interview. The learned single Judge found that -
"the action of the respondents in entertaining applications from the candidates viz., respondents 8 and 12 who had appeared for LL.M., cannot be justified as they were not eligible."
On the 4th point that respondent 13 was not eligible as he did not possess the requisite 55 per cent marks in the LL.M. Degree as required by the rules, the learned single Judge found that -
"clearly the 13th respondent was not entitled to have his marks revised according to the rules for improving the percentage and if the marks obtained by him in the full examination are taken into account, he will not be eligible."
On the fifth point that respondents 9 and 13 who were post-graduates in jurisprudence were not eligible to be considered for appointment, the learned single Judge found that -
"apparently this was the beginning to make specialisation at the LL.M. stage as in the case of other professions like medicine. But in the background of the earlier practice and in the absence of a statutory provision, it cannot be said that LL.M. candidates who have completed their course in other specialities are not eligible though the advertisement in a way indicates this. The award list and selection also indicates that there was no separate selection for the post for any specific subject."
In respect of the sixth point that respondents 8 to 13 had neither appeared nor passed NET examination which was a pre-requisite for appointment as lecturer in accordance with the guidelines of the Government of India which were accepted by the State Government and also the University, the learned single Judge found that the above requirement was obligatory and could be relaxed only with the consent of the University Grants Commission and the Government of India, but is was competent for the authorities to make a conditional appointment requiring passing of the test within a specified time.
7. Petitioners reiterated their submission that the learned single Judge, having found that the entire process of selection was improper and arbitrary, ought not to have approved the selection and appointment of respondents 9 to 13, for the only reason that there were no allegations of mala fides against the selection Committee. They submit that the reasons mentioned for dismissing the Writ Petition were- (1) they make reckless allegations against the Vice-Chancellor without verifying the facts; (2) that petitioners had lower ranks in the award list than the respondents; (3) respondents 9 to 13 had pursuant to the impugned selection and appointment, abandoned the posts held by them earliers; and (4) Courts are generally slow to interfere with the action of the academic bodies, like Universites, which are unsustainable.
8. Parties joined issue on the correctness of the findings on the six points mentioned in paragraph-6 above as also the four reasons stated by the learned single judge for declining jurisdiction. We heard counsel at great length.
9. On the first point of reservation of five out of six posts, to candidates belonging to Scheduled Castes (1) and Backward Classes(4), the learned single Judge found that only one candidate belonging to Scheduled Caste and 2 candidates belonging to Backward Classes were selected on the basis of reservation. Two backward class candidates and one forward caste candidate were selected on the basis of merit in open competition as the rules which the University had been adopting are as in Government service. It is clear that the reservation did not exceed 50% of the vacancies. We are of the opinion that even in the absence of a specific rule, it is open for the State to make special provision in favour of Scheduled Castes and Schedule Tribes in the matter of appointment to posts under it. We are also of the opinion that Section 6 of the Osmania University Act has to be read in the light of Constitutional provisions enabling reservations. Article 335 of the Constitution contain provision enabling the State to take into consideration the claims of members of Scheduled Castes and Scheduled Tribes in making appointments to services and posts. Similar provision is contained in Article 16(4) of the Constitution of India enabling the State to reserve appointments or posts in favour of any Backward Class of citizens, which in its opinion is not adequately represented in its service. We have no doubt that the University is an "other authority" which answers the definition of "State" under Article 12 of the Constitution of India. We are also of the opinion that it is open to the State to comply with the mandate of Articles 16(4) and 335 of the Constitution even in the absence of statutory Rules. We are therefore of the opinion that the learned single Judge was right in holding that the reservation of three posts was fully justified. It may not however be necessary for us to consider this aspect any further in view of the manner in which we propose to dispose of these appeals.
10. It appears to us that the petitioners are right in their submission that the learned single judge erred in refusing to enter any positive finding on point No. 2. He submits that on the facts found, the finding was irresistible that the selection based on interview of 50 candidates in about 4 hours, allotting only a few minutes to each candidate but awarding as much as 47 out of 50 marks at least to one of the ineligible candidates was clearly arbitrary and perverse; and as a consequence, the selection and appointment should have been set aside. Counsel for the respondent submitted that unless mala fides were alleged against the Selection Committee, its proceeding cannot be set at nought.
11. A division bench of this court consisting of one of us (Sivaraman Nair, J) had examined at great length the award of marks for interview, in S.V. Subba Rao v. APSRTC, . On a consideration of number of decisions viz., R. Chitralekha v. State of Mysore, AIR 1964 SC 1829, A. Periakaruppan v. State of Tamilnadu, , Janaki Prasad v. State of J & K, , Ajay Hasia etc. v. Khalid Mujib Sehravardi, , Liladhar v. State of Rajasthan, , Javid Rasool Bhatt v. State of J & K., , R.S. Dass v. Union of India, , State of UP. v. Rafiquddin and Ors., 1988 (1) SLR 491, Mahmood Alain Tariq v. State of Rajasthan, 1988 (2) SLR 595, Vikram Singh and Ors. v. The State Subordinate Services Selection Board, Haryana, , and Mohinder Sain Garg v. State of Punjab, 1991 SLR 546, the Bench held that in cases where appointments were to be made to higher and more important positions, from among those who had fully developed their personalities, allocation of even 33% or 35% marks for interview would not perhaps be arbitrary. This court upheld award of 24% marks for interview in that case for the following reasons.
"32. We feel that it is safe to avoid unalterable imperatives in a region where a lot o imponderables figure in the make-up of a fairly seasoned officer claiming promotion for higher executive assignments. As between fresh and young candidates, the marks for personal interview or oral test may better be comparatively low; but in cases where seasoned and mature men are to be selected for senior assignments, comparatively higher marks may be allocated to facilitate evaluation of the personality with reference to a number of a considerations, some of which may elude precise and specific delineation with mathematical exactitude. Some amount of trust in the Selection Committee consisting of disinterested senior executives, a little elbow room for honest choice and some play in the joints in choosing the right man for the right job seem to us to be reasonably justified to maintain excellence in administration."
What is clear from the decisions referred to above is that award of even as much as 35 marks for oral test or interview, without providing guidelines as to how those marks were to be awarded will definitely be unreasonable and arbitrary, and that it will open the flood gates of capricious and whimsical selection. The present is a glaring illustration in point of the gross abuse of the power of selection. In R.S. Dass (8 supra) the Supreme Court had to observe -
"There has been considerable erosion in the intrinsic sense of fairness and justice in the senior officers by all concerned. From the instances of conduct of many - some of senior officers and men in high position it cannot be said that such erosion is wholly unjustified."
We may also refer to the decision of the Supreme Court in Mohinder Sain Garg (12 supra) which dealt with initial recruitment into State service. The court held that -
"We deem it proper to lay down after taking in view the dictum of all the authorities decided so far that percentage of viva-voce test in the present case at 25% of the total marks was arbitrary and excessive."
12. On a perusal of the award list which the learned single Judge had referred to, we find that one of the successful candidates was awarded as much as 47 out of 50 marks for interview. It is not clear how marks were awarded at the interview. At least in some cases, marks for interview were so awarded as to neutralise and over-ride the better marks which some of the candidates including the petitioners had obtained for qualifications and experience. The entire ¦ process of selection was therefore so vitiated as to leave no option for this court except to set it aside.
13. Counsel for the University invited our attention to the decision in Dr. Chetkar Jha v. Dr. Viswanath Prasad Verma and Ors., where in the Supreme Court dealt with a case where the University of Patna, after advertising a post of Professor of 'Political Science' with the specification initially that the candidate must have 'First or Second Class Masters' Degree in Political Science" issued an amended notification including the following words- "or in an allied subject like History or Economics", appointed a candid ate with the requisite qualification other than in Politics but in an allied subject. The court held that the question whether the candidate was proficient in the subject for which he applied for appointment was rightly left for decision by the appointing authority. It is important to note that the Supreme Court held that the earlier notification confining eligibility to apply only to those with first or second class Master's degree in 'political science' was contrary to the University statutes and required clarification that those with the specified qualification in "an allied subject like History or Politics" could also apply. The person who was selected did have the prescribed qualifications. The main challenge in that case related to the power of the Vice Chancellor to modify the notification. The other contention was whether the selection committee should not have preferred a candidate with qualifications in 'Political Science' to another with qualifications only in allied subjects. The Supreme Court rejected both contentions and held on the latter point that the selection of one of the duly qualified candidates could not be successfully assailed. We do not understand that decision to lay down that even if the University appoints a person not qualified in terms of the notification inviting applications or the relevant statutory provisions, the courts are bound to affirm such actions. We do not find any such proposition to have been laid down by the Supreme Court that the Courts shall be 'hands off Universities whatever irregularities or discrimination or arbitrariness is found in their actions.
14. In J.P. Kulshrestha v. Allahabad University, the Supreme Court dealt with the question of the role of the Courts of judicial review of exercise of academic functions by educational authorities. Krishna Iyer, on a review of earlier decisions on the subject held:
"rulings of this court were cited before us to hamer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system, is bound by the rule of law and cannot be a law unto itself. If the chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the court out. In Govinda Rao's case Gajendra Gadkar, J. (as he then was) struck the right note:
"What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance and in doing so, the High Court should have shown due regard to the opinions expressed by the Board and its recommendations on which the Chancellor has acted."
15. There was a feeble yet valiant effort by counsel for the respondent to assail the finding of the learned single Judge on point No. 3 that respondents 8 and 12 were not eligible to be considered, since they were not qualified even on the last date of receipt of applications. They submitted that selection and appointment of applicants who were eligible and qualified as on that date was unassailable.
16. In Writ Appeal Nos. 854/91 and 977/91 respondents 8 and 2 respectively assailed the judgment on this aspect. We have seen the advertisement which the 2nd respondent had issued on 6-7-89 inviting applications from candidates who had at least a high second class Master's Degree in Law with not less than 55% marks in the aggregate from an Indian University or an examination recognised as equivalent thereto from any other recognised University. The last date for receipt of applications was notified as 31st July, 1989. Condition No. 10 in the advertisement was to the effect that "candidates should bring all the original Certificates at the time of interview." The obvious intention was that only candidates who were post-graduates in law with 55% marks as on the last date need apply. It does not appear to us that candidates yet to acquire the prescribed qualifications also were eligible to apply. It is of course true that no cut-off date was specified in the advertisement. In the absence of any such specification, it is but natural that the last date for receipt of applications was to be the relevant date for ascertaining whether the candidates were eligible and qualified in terms of the advertisement. The learned single Judge has adopted that standard. Unless we are persuaded to hold that it was unreasonable, perverse and arbitrary, we cannot interfere with that finding.
17. It is necessary that there shall be a fixed and unalterable date to determine whether the candidates who had responded to the advertisement were eligible and qualified in terms thereof. We are of the opinion that it is elementary that the person who applies has all the necessary qualifications at least as on the last date of submission of applications. It was so laid down by the Supreme Court in Principal, King George's Medical College, Lucknow v. Dr. Vishan Kumar Agarwal, . The last date for submission of the applications is a date which cannot be altered on the individual whims and fancies either of the applicants or of the University inviting applications. On the other hand, if eligibility and qualifications are to be determined as on the date on which a person had acquired the qualification after the last date for submission of applications and by the actual date of interview, it may result in arbitrary postponement of the interview to suit one or the other of the candidates. That was the specific case which the petitioners had advanced in the Writ Petition. Neither the University nor respondents 8 and 12 could or did effectively controvert that assertion. The decision of the Supreme Court in A.P. Public Service Commission v. Sarathkumar, is to the effect that-
"the date to attain minimum or maximum age, must therefore, be specific and determinate as on a particular date for candidates to apply and the recruiting agency to scrutinise the applications."
18. We are also of the opinion that if it was possible that candidates other than those who were in possession of the prescribed general or special qualifications as on the date of advertisement could also apply, it should have been so stated in the advertisement inviting applications, so that not only the fortunate respondents but others in a similar position could also have applied. It appears to us curious that the University which had prescribed the last date for submission of applications by qualified and eligible candidates should turn turtle and urge that candidates who were not eligible or qualified on the date for submission of applications could also be treated as eligible, if they had acquired the qualification by the date of interview. We have no hestitation in rejecting this contention as absolutely unreasonable and untenable.
19. We are not persuaded to differ from the findings of the learned single judge on point No. 4 to the effect that respondent No. 13 was not entitled to have his marks revised contrary to the relevant rules and therefore he was not eligible to be considered for appointment. It is unfortunate that none other than the Vice-Chancellor of the University was instrumental in subverting the examination system including award or revision of marks.
20. We are not impressed by the findings in the judgment under appeal on point No. 5. The University had invited applications mentioning the required specialisations. Obviously, candidates not possessing the special qualifications were put on notice that they need not apply. The only fact that some of the adventurers did apply is no reason to consider and appoint them in spite of the specific indication contained in the notification that those without the special qualifications were not eligible to apply. The University was expected to received and consider applications only from eligible candidates. If the eligibility criteria was to be altered, the University ought, in fairness, to have amended its notification to the effect that even persons without special qualifications were eligible to apply and would be considered. In the absence of such an amendment to the notification, the University ought to have considered only persons who were eligible in terms of the notification. The only reason which the learned single Judge had mentioned was that with the background of earlier practice and in the absence of statutory provision it could not be said that LL.M. candidates who had completed their courses in other specialities were not eligible though the advertisement indicated otherwise. The far more important point which counsel for the petitioners rightly urged before us was that if the qualifications as per the notification were to be relaxed, it ought to have been so done only by amending the eligibility criteria, thus enabling other like persons also to apply. We are therefore of the opinion that counsel for the petitioners is right in his submission that respondents 9 and 13 should not have been considered for appointment, since they did not possess the eligibility in terms of the notification inviting applications. We also hold that the alteration of eligibility criteria at the time of selection and appointment in favour of those candidates who were not otherwise eligible or qualified was arbitrary and discriminatory.
21. Nor are we impressed by the finding of the learned single Judge on point No. 6. After having found that the requirement of pass in the U.G.C. test was obligatory and the same could have been relaxed only with the consent of the University Grants Commission and the Government of India, the learned single Judge should not have hastened to regularise the appointments by introducing a new condition that respondents should pass that test within a specified time.
22. We are of the opinion that even in the light of the findings on points 3,4 and 6, the petitioners were more than justified in invoking the jurisdiction of this court to interfere with the impugned selection and appointments. We are of the view that the findings entered by the learned single Judge fully justified the allegations of impropriety committed by the 5th respondent in his capacity as Vice-Chancellor of the University. We therefore hold that in spite of the restraint which courts shall exercise in interfering with academic matters including appointments made by the University, the glaring improprieties committed by the selection Committee, which included the 5th respondent, resulting in arbitrary denial of the claims of the petitioners for public employment were such as called for interference. We are also of the opinion that even in the absence of specific allegations of mala fides against the Committee, its very performance contain the germs of its condemnation and such condemnation as could be spelt out of the findings contained in the judgment under appeal left no course open except interference with the selection. We are further of the opinion that petitioners are right in their submission that the conduct and performance of the 5th respondent in connection with the impugned selection and appointment fully justified the allegations of impropriety and arbitrariness on his part in picking and choosing ineligibles to man the Selection Committee in order to manipulate the Committee to select manifestly ineligible and unqualified persons for appointment.
23. We are of the view the exclusion of academic matters from judicial review is the product of restraint which the courts exercise as a matter of prudence, and shall not operate as a protective shield for arbitrariness masquerading under academic freedom. If unfairness and impropriety evidencing unconstitutional discrimination is exposed in the actions of the University and other like academic bodies, the court will not be justified, if it declines jurisdiction in deserving cases. It is essential that the court considers the complaint of the petitioners that there was abuse of power by the University in the alleged exercise of its academic discretion; and if it finds positively that the complaint was sustainable, the court has a positive duty to set at naught the impugned action. The court is not expected to strain its nerves even beyond the breaking point on the assumption that it has a duty always to protect freedom of the University or other such academic bodies. Nor is the court expected to substitute its notions of propriety in an all out-effort to salvage the decision of the academic bodies at any cost. Unless there are compelling circumstances, the court has no alternative except to exercise its power of judicial review even when the decisions of academic bodies are called in question. The rule of prudence is that the court shall exercise greater restraint in such matters than in the case of purely judicial or administrative functions. Such restraint shall not amount to a licence for academicians to trample upon the constitutional rights of people. Instances of such interference by courts into appointments in Universities in total disregard of the provisions of the governing enactment or the relevant statute or notification is a legion. Reference may be made to Dr. Triloki Nath Singh v. Dr. Bhagwan Din Misra and Ors., , Kum. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors., Dr. Suresh Chandra Verma v. Chancellor, University of Nagpur, and Principal, King George's Medical College, Lucknow v. Dr. V.K. Agarwal (15 supra).
24. we have no doubt that the manner in which the Selection Committee and the 5th respondent went about entertaining applications of ineligibles, acting on mark-lists which are fabricated, and manipulating marks for the interview so as to select the under qualified and ineligible candidates in preference to candidates who were fully qualified in terms of the notification, fully justified the findings of the learned single Judge. Counsel is also right in his submission that the entire process of selection ought to have been nullified, leaving it to the University to constitute a fresh selection committee to consider the applications afresh. Having found that respondents 8, 9, 12 and 13 were not even eligible for appointment, the learned single judge should not have upheld their appointment for the only reason that the petitioners had made "reckless allegations" against the 5th respondent or that respondents 9 to 13 had lost their jobs elsewhere due to the impugned orders. The only question for the learned single Judge to consider was whether the petitioners were right in their submission that their claims for employment and for equal protection of laws was invaded by arbitrary and whimsical actions of the 5th respondent or the selection committee of which he was the Chairman. Once the finding was in favour of the petitioners they were entitled to the relief of setting aside the selection and consequential orders. They are entitled to be considered for appointment by a duly constituted committee which will apply its mind to the requirements of the advertisement and the needs of the teaching posts in the specialised professional courses in effecting appointments. The same question had come up for consideration before courts on a number of occasions and the answer which courts have given over the years was not very different. In C. Chennabasavaiah and Ors. v. State of Mysore, a constitution bench of the Supreme Court held that appointment of candidates who had obtained lesser marks in preference to those who had obtained greater marks could not be sustained. The court also held that -
"it was wrong of the High Court to allow a compromise of this kind to be effected when it was patently obvious that three candidates had not attended the viva-voce test at all and there was nothing before the High Court for comparing the remaining thirteen candidates with those who had failed in the selection. There were allegations of nepotism which had not been abandoned and we find now that most of these candidates do not rank as high as some of the rejected candidates in such a case the court should be slow to accept compromises unless it is made clear that what is being done does not prejudice anybody else. To act otherwise opens the court itself to the charge that it did something just as bad as what was complained against. In our opinion, the appointment of these sixteen candidates cannot be accepted and the petitioners are entitled to claim that their marks should be compared with those obtained by the petitioner and the selection made on merit and merit alone,"
25. We are satisfied that it is an extraordinary and perverse contention for an academic body like the University to urge that persons who were not qualified in terms of the advertisement could also apply and be selected on the sly or maneuver to delay the interview till such time as those unqualified candidates acquired necessary qualifications and eligibility. The position taken up by the University in Appeal No. 977/91 is far less edifying than the conduct of the selection committee chaired by the 5th respondent. It is surprising that the University should have contended that the relevant date for acquiring eligibility and qualifications for appointment under an advertisement need not be related to the advertisement and may be acquired after submission of applications. If that was so, the University should have stated in the advertisement itself as was held in Principal, King George's Medical College, Lucknow (15 supra). In the facts and circumstances of the case, we see considerable force in the submission of the petitioners that the entire process of selection was vitiated by unreasonable anxiety to select and appoint ineligible and unqualified applicants whose applications ought to have been rejected at the threshold.
26. The additional ground which the 8th respondent has raised is that like respondents 9,12, and 13 whose appointments have been upheld for the reason that they had abandoned their jobs to accept employment under the University, he had abandoned M.Phil/Ph.D. course in the prestigeous Jawaharlal Nehru University, Delhi, in which he was admitted on the basis of merit and therefore his appointment also ought to have been upheld.
27. We do not agree that two wrongs can make a right. We are of the opinion that the learned single Judge erred in law in allowing compassion to overtake justice and law. If any one of respondents 8 to 13 was not qualified and the process of selection was vitiated by arbitrariness and perversity, there was absolutely no justification to hold in favour of such candidates only for reasons of compassion. The illegality and perversity which pervaded the process of selection called for interference, particularly since the claims of the petitioners were rejected due to the arbitrary process adopted by respondents in selecting ineligibles and eliminating eligible candidates. This is manifest from the very fact that some of the successful candidates were awarded as much as 47 out of 50 marks ear-marked for interview. We are therefore of the view that Writ Appeal Nos. 854/91 and 977/91 cannot but be dismissed. We do so.
28. Counsel for the appellant in Writ Appeal No. 864/91 submitted that the reasons stated for declining jurisdiction except in respect of the 8th respondent are unsustainable. The first is the finding that the petitioners had made reckless allegations against the 5th respondent. We are aware of the fact that the learned single Judge exercised his discretion under Article 226 of the Constitution of India in refusing relief. It is true that except in exceptional circumstances, it is not for an appellate court to interfere with the discretion exercised by the first court. With all these limitations and constraints, we feel that in a case where the 5th respondent was a party to the proceedings and did not file a counter affidavit traversing the serious allegations (which the learned single Judge found were reckless), the learned single judge erred in refusing relief to the petitioners. Some of the allegations were too general and vague. If they were reckless or untrue, it was open to the 5th respondent to controvert them in a counter-affidavit. Absence of good faith can as well be brought out by the conduct of the respondents. Even if the petitioners had made general and vague allegations against the 5th respondent, and in that sense, they had not exercised restraint as was expected of them; the 5th respondent had no justification to refrain from filing at least a formal counter-affidavit denying those allegations. It is trite law that if allegations of mala fides are made in proceedings under Article 226 of the Constitution of India and such allegations are not controverted in an affidavit by the party against whom they are made, the court may accept such allegations to be correct. It will be more so in a case like the present one where impropriety, unfairness and arbitrariness were mainifest in the conduct of the selection committee presided over by the 5th respondent. Therefore, in the facts and circumstances of the case, the learned single Judge ought to have held that the conduct of the 5th respondent as found by him in the judgment justified the relief rather than denying it for the reason that some of the allegations against the 5th respondent were too vague and general or wide of the mark, and in that sense reckless. Even if those allegations were ignored, petitioners deserved relief. The only fact that they made those allegations without due care did not justify refusal of relief as a penalty particularly in the light of the findings of the learned single judge on all material points.
29. The other two reasons which the learned single judge stated to refuse relief were that the petitioners had obtained only lesser marks than respondents 8 to 13 and the respondents 9 to 13 had abandoned their jobs to join the University. We find it difficult to subscribe to that reasoning. The learned single Judge has found repeatedly that the entire process of selection was unreasonable, arbitrary and capricious. We have supplemented that by holding that the allotment of 50% marks for interview vitiated the entire selection. In that event, the petitioners who complained against such capricious selection should not have been refused relief for the reason that they could not or did not manage to get more marks in that very process, which was found to be absolutely illegal.
30. As for compassion, it shall not operate at the expense of justice and equity. The ineligible and unqualified candidates who managed to obtain selection through questionable methods could not be the recipients, in equity of undeserved benefits. Allowing them to benefits which they did not deserve is a traversity of justice. In State of Tamil Nadu and Ors. v. St. Josephs Teachers Training Institute, , the Supreme Court struck down a direction issued by a Full Bench of the Madras High Court on humanitarian grounds in the following terms:
"Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law."
31. We are therefore of the view that the reasons which the learned single judge has mentioned as justifying refusal to grant relief are unsustainable.
32. In this view, we hold that the Selection conducted by the university in which respondents 8 to 13 were selected and appointed as lecturers in law cannot be sustained. We also hold that the learned single judge erred in law in refusing relief to the petitioners. Hence we set them aside. We allow Writ Appeal No. 864/91 to the above extent and dismiss Writ Appeal Nos.854 and 977 of 1991.
33. It is open to respondents 1 and 2 to constitute a fresh selection committee in accordance with the University Act statutes and Ordinances and conduct a fresh selection. Since the entitlement of the petitioners and respondents 8 to 13 for appointment is on the crucible, it is only appropriate that the University expedites proceedings to conduct selection afresh. This shall be done in compliance with the terms and conditions of the Osmania University Act and the relevant Ordinances, statutes, regulations etc., in that regard. In conducting the selections afresh, the period of pendency of the Writ Petition and Writ Appeal and the further period till selections are conducted afresh are excluded so far as petitioners and respondents 8 to 13 are concerned.
34. Respondents 1, 2, and 5 shall pay the costs of the petitioners in this Writ Appeal (W.A.864/91) along with advocate's fee of Rs. 1000/- each.
35. Our common Judgment in W. A.Nos. 854, 864 and 977 of 1991 has covered all the points which are raised in the Cross-Objections.
36. The Cross-Objections are therefore dismissed. No costs