Allahabad High Court
Dr. Ravi Shankar Pandey vs State Of U.P. And Others on 24 February, 2012
Bench: Sheo Kumar Singh, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- WRIT - A No. - 22953 of 2007 Petitioner :- Dr. Ravi Shankar Pandey Respondent :- State Of U.P. And Others Petitioner Counsel :- G.K. Singh, V.K. Singh Respondent Counsel :- C.S.C., Anil Tewari, Neeraj Tripathi, S.K. Tyagi, Sanjay Singh, V.B. Mishra, V.D. Vyas Hon'ble Sheo Kumar Singh,J.
Hon'ble Pankaj Naqvi,J.
(Delivered by Hon'ble Pankaj Naqvi, J.) Can a Chancellor in exercise of powers conferred under Section 31 (8) (a) of the U.P. State Universities Act, 1973 (hereinafter referred to as the Act) assess the relative merit and suitability of a candidate and recommend an appointment, even though such a person has not been recommended by the selection committee?
1. The aforesaid issue has cropped up in relation to the facts and circumstances, which are enumerated hereunder: -
Sampoornanand Sanskrit University (for short the University) issued an advertisement no.1-2004 dated 6.8.2004 inviting applications for 27 posts of lecturers including a post of lecturer in the Department of Sanskrit Vidya. It was provided therein that in order to be eligible to apply for the aforesaid post a candidate should possess a degree of Acharya or Post Graduate degree in the subject with specialization in Vyakaran. About 50 candidates applied against the aforesaid advertisement. The petitioner has to his credit a degree of Acharya in Vyakaran and has also cleared his National Eligibility Test (NET) held by University Grant Commission (UGC) and is also P.hD holder in Vyakaran. The petitioner also claims to have taught Vyakaran in the Department of University as a part time lecturer for one academic session. Interview took place on 12.1.2005 in which the petitioner along with others also appeared. The petitioner claims that even though Dr. Smt. Pramodini Panda was not eligible, as she did not possess requisite qualification, as required in the advertisement, as she neither had a degree of Acharya nor a Post Graduate degree in Sanskrit with specialization in Vyakaran, yet she appeared before the Selection Committee. The Selection Committee unanimously recommended the petitioner for appointment to the post in question at serial no.1 and also recommended Dr. Smt. Pramodini Panda - respondent no.6 at serial no.2. The recommendation of the petitioner was unanimous, but in the case of Dr. Smt. Pramodini Panda there was a note of dissent by the Head of Department, as he was of the view that her name should not be recommended, as she did not possess either the degree of Acharya in Vyakaran or a Post Graduate degree in the subject with specialization in Vyakaran and also that she was not able to answer question on Vyakaran. Accordingly, recommendations made by the Selection Committee were placed before the Executive Council of the University in its meeting held on 23.1.2005 and the Executive Council passed a resolution appointing respondent no.6 on the post of lecturer, even though she was at serial no.2 and accordingly, an appointment order was issued in favour of respondent no.6 on 23.1.2005. The petitioner, being aggrieved against the appointment of Dr. Smt. Pramodini Panda - respondent no.6 as lecturer filed Civil Misc. Writ Petition No.8003 of 2005 (Dr. Ravi Shankar Pandey v. State Of U.P. and others). In the said petition a stand was taken by the University that the Vice Chancellor/Chairman of the Selection Committee had given his marks in a sealed cover, which were disclosed for the first time before the Executive Council, and on that basis respondent no.6 was more suitable than the petitioner. Following findings were recorded in the judgment dated 16.12.2005, which are enumerated hereunder:
(I)A Selection Committee takes a collective decision as a Body which cannot be affected subsequently by any act or an individual member of the Selection Committee. The decision of the Selection Committee placing the petitioner at serial number 1 was its final recommendation notwithstanding the fact that the Vice Chancellor initially without there being any provision reserved his right to disclose the marks awarded by him before the Executive Council.
(II)The Executive Council was supposed to make appointment as per position or ranking obtained in the recommendation and it had no power to override the recommendations made by the Selection Committee and to appoint a candidate of its own choice.
(III)The Vice Chancellor being Chairman of the Selection Committee was the master to control, manage and supervise the proceedings of the Selection Committee. He took active part in the selection process. There was absolutely no justification for the Vice Chancellor being the Chairman of the Selection Committee in adopting a novel method even after he had some difference of opinion with the Head of Department. The 2 experts were there, who took active part when merit list was drawn. Merit list which was prepared by Prof. K.C. Panda, one of the experts in the presence of all the committee members and had been certified by the Vice Chancellor under his signatures wherein the petitioner had been shown at serial number 1. It was part of the recommendation of the Selection Committee. The reservation made by the Vice Chancellor could by no stretch of imagination be called as part of the recommendation by the Selection Committee.
(IV)The Executive Council was, therefore, not authorized to take a different view than the view taken by the Selection Committee. In case it wanted to defer with the recommendations made by the Selection Committee, it should have referred the matter to the Chancellor under Section 31 (8) (a) of the Act.
(V)The Vice Chancellor was not right in not disclosing the marks awarded by him before the Selection Committee in the meeting of the Selection Committee and could not do so subsequently after the meeting was over. The Executive Council also acted against law in not honoring the recommendation of the Selection Committee by changing the order of merit on the basis of a subsequent disclosure made by the Vice Chancellor.
(VI)The Selection Committee including its Chairman becomes functus officio immediately on completion of the selection process.
(VII)The argument made on behalf of the respondent no.6 that the court should be guided only by marks awarded by the two experts lacks merit. It runs counter to the statutory provisions, which contains the constitution of the Selection Committee, therefore, the said argument sans merits and is hereby rejected.
(VIII)According to the stand taken by the University in the aforesaid case it was held by the Hon'ble Court that the petitioner as well as the respondent no.6 both possessed the minimum qualification.
Accordingly, the Court observed that in case the Executive Council wanted to differ with the recommendations made by the selection committee then the only option before it was only to refer the matter to the Chancellor under Section 31 (8) (a) of the Act. Judgment dated 16.12.2005 was assailed by respondent no.6 before the Apex Court and the Apex Court also dismissed her SLP on 28.4.2006.
Pursuant to the order passed by this Court and that of the Apex Court, the matter was again placed before the Executive Council in its meeting held on 29.6.2006 and the Executive Council resolved to differ with the recommendation made by the Selection Committee and, therefore, referred the entire matter to the Chancellor under Section 31 (8) (a) of the Act for his decision. Accordingly, the Chancellor by means of an order dated 23.2.2007 has held that it is respondent no.6, who should be appointed as lecturer in Sanskrit Vidya. The petitioner, being aggrieved against the aforesaid order of Chancellor dated 23.2.2007, has filed present writ petition.
2.A counter affidavit has been filed on behalf of the University wherein, inter alia, it is stated that respondent no.6 has better qualification than the petitioner and in this connection a comparative chart with educational qualifications and experience was also filed as annexure 3 to the counter affidavit to demonstrate that respondent no.6 is more suitable for the post in question than the petitioner. It was further stated that in the Selection Committee there were six members and out of them two members were experts of their subjects, two members represented Backward Caste and Scheduled Caste Community and other two being the Vice Chancellor and the Head of Department. The Selection Committee had decided to allot the marks on the performance of each candidate and the Vice Chancellor had given his marks in a sealed envelop and that when the recommendations of the Selection Committee were placed before the Executive Council, where all the marks allotted by the members were counted and it was found that respondent no.6 got maximum marks and, therefore, she was recommended for appointment on 23.1.2005.
3.More or less, a similar counter affidavit has also been filed on behalf of respondent no.6 wherein, inter alia, it has been stated that as she was found at serial no.1 in the panel after including the marks of the Vice Chancellor, thus there was no illegality in the decision of the Executive Council and that after inclusion of marks given by the Vice Chancellor respondent no.6 has shifted to serial no.1 and, therefore, it is incorrect to allege on behalf of the petitioner that he was at serial no.1.
4.In the rejoinder affidavit it has been stated that as action of Vice Chancellor in giving marks in a sealed cover and not disclosing the same before the Selection Committee did not find favour by this Court in Civil Misc. Writ Petition No.8003 of 2005 decided on 16.12.2005, therefore, the issue, which was raised as regards the propriety of allocation of marks by the Vice Chancellor in a sealed cover or at a stage subsequent to the recommendation of the Selection Committee having been found de hors the provisions of law, therefore, the same cannot again form the basis for elevating the ranking of respondent no.6 from serial no.2 to serial no.1. It was further stated by the petitioner that the members of the Executive Council or for that matter the Chancellor are not in a position to judge the comparative merit and suitability of the candidates as neither of them possess the requisite expertise nor was a candidate before them and that selection and appointment is not only on the basis of academic qualifications, but the same is also based on their performance in the interview, before the experts constituting the Selection Committee.
5. Heard Shri G.K. Singh, learned counsel for the petitioner, Shri Neeraj Tripathi, learned counsel for the Chancellor, Shri V.B. Mishra, learned counsel for the University and Shri Ashok Khare, learned Senior Counsel assisted by Shri Sanjay Singh for respondent no.6.
6. The submissions of Shri G.K. Singh, learned counsel for the petitioner are as under: -
A. The principal submission is that the learned Chancellor while passing the impugned order dated 23.2.2007 has taken into consideration the marks allotted by the Vice Chancellor in the capacity of Chairman of the Selection Committee after the selection process was over and as this Court in the earlier litigation interparties had held that the Vice Chancellor being a Chairman of the Selection Committee was not authorized to do so, therefore, the marks allotted by him at a subsequent stage were meaningless and, therefore, the said marks could not have formed the basis for passing the order dated 23.2.2007 by the Chancellor.
B. Second submission of the learned counsel for the petitioner is that merit and suitability are the twin considerations, which have to be assessed by the Selection Committee comprising of all the experts and, therefore, it was neither open for the Executive Council nor the Chancellor to dwelve on the said issue, as they did not possess the requisite expertise to evaluate the same and, therefore, it was not open for either of them to comment upon as to who is more suitable than the other.
C. Third and final submission of the learned counsel for the petitioner is that the Chancellor while exercising power under Section 31 (8) (a) of the Act has a very limited role, who is only to ensure as to whether the candidate possesses the requisite qualifications or not and as to whether the procedure prescribed under the Act or statutes or the Ordinances or the constitutional norms have been complied with or not and that he cannot assess the merit and suitability, as the same is within the exclusive domain of the Selection Committee, comprising of experts.
7. Per contra, submission of Shri Ashok Khare, learned Senior Counsel assisted by Shri Sanjay Singh, learned counsel for respondent no.6 is that the Chancellor while exercising his power under Section 31 (8) (a) of the Act is an intrinsic part of the hierarchical system of the selection mechanism and, therefore, his power cannot be curtailed or restricted, unlike the power conferred under Section 68 of the Act, where the Chancellor can interfere only under certain specific contingencies. Second submission is that if Section 31 (8) (a) of the Act is given a very narrow and a restricted meaning, then such a power would absolutely become otiose as Chancellor will have nothing to decide.
8. Before examining the rival contentions, it would be apt to quote relevant part of Section 31 of the U.P. State Universities Act, 1973 pertaining to the appointment of teachers in the University;
"31(1) Subject to the provisions of the Act, the teachers of the University and the teachers of an affiliated or associated college (other than a college maintained exclusively by the State Government) shall be appointed by the Executive Council or the Management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided.
(4)(a) The Selection Committee for the appointment of a teacher of the University (other than the Director of an Institute and the Principal of a constituent college) shall consist of--
(i)the Vice-Chancellor who shall be the Chairman thereof,;
(ii) the head of the Department concerned:
(iii) in the case of a Professor or Reader, three experts, and in any other case, two experts be nominated by the Chancellor;
(6) No recommendation made by a Selection Committee referred to in sub-section (4) shall be considered to be valid unless one of the experts had agreed to such selection.
(7-A) It shall be open to the Selection Committee to recommend one or more but not more than three names for each post.
(8)(a) In the case of appointment of a teacher of the University, if the Executive Council does not agree with the recommendation made by the Selection Committee, the Executive Council shall refer the matter to the Chancellor along with the reasons of such disagreement, and his decision shall be final.
Provided that if the Executive Council does not take a decision on the recommendations of the Selection Committee within a period of four months from the date of meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final."
9. From the aforesaid statutory scheme it is established that in the process of appointment of a teacher of a University three authorities are involved: -
(1) Selection Committee (2) Executive Council (3) Chancellor The Selection Committee constituted under Section 31 (4) (a) of the Act contemplates that for the appointment of a teacher, the Selection Committee is to consist of (i) Vice Chancellor, who shall be the Chairman thereof; (ii) Head of Department concerned; (iii) Two Experts nominated by the Chancellor for the post of a Lecturer. The Selection Committee, so constituted, collects and collates relevant materials in respect of each candidate, who appeared before it, and makes a recommendation for selection of a candidate. Selection Committee can either recommend one candidate or prepare a panel of three candidates in the order of merit, as against one post. Presence of experts in the Selection Committee plays a pivotal role in selecting the best available candidate for which the Selection Committee comprising the experts possesses the necessary expertise. The recommendations of the Selection Committee are placed before the Executive Council, which happens to be the appointing authority of the teachers of the University and in case the Executive Council does not agree with the recommendations made by the Selection Committee, then the Executive Council shall refer the matter under Section 31 (8) (a) of the Act to the Chancellor along with reasons of such disagreement and his decision shall be final. Thus, what is referred to the Chancellor is the recommendation made by the Selection Committee and the reasons of such disagreement, so recorded, by the Executive Council and thereafter a decision is to be taken by the Chancellor as regards the appointment of a teacher.
10. Accordingly, the moot question before this Court, is what is the scope and extent of power, which is sought to be exercised by the Chancellor under Section 31 (8) (a) of the Act. In other words, is it open for the Chancellor to act as an appellate authority by assessing the relative merit of a candidate on the basis of the materials produced before him and thereafter to record a suitability of a candidate or the said power is restricted only to ensure the compliance of the provisions of the Act etc.?
11. Reverting to the facts of the present case, we find that the Selection Committee, so constituted, on 12.1.2005 was comprising of following six members : (1) Prof. Ravindra Mishra, Vice Chancellor - Chairman, (2) Prof. Vasudev Dhuse - Subject Expert, (3) Prof. K.C. Padi - Subject Expert, Dr. Uma Kant Yadav - Member OBC and Dr. Prem Prakash - Member SC and Prof. Rajeev Ranjan Singh - Head of Department. The minutes of the Selection Committee have been annexed as Annexure 4 to the counter affidavit of the University and it is also recorded in the minutes that records were examined and interviews were conducted in respect of the candidates, who appeared before it and thereafter, it prepared a panel of persons, who were to be offered appointment in the order of merit and accordingly, petitioner no.1 was placed at serial no.1 and respondent no.6 at serial no.2. The Vice Chancellor, who otherwise was a Chairman of the Selection Committee, had reserved his right to disclose his marks before the Executive Council. The Head of Department even though concurred with the unanimous recommendation of the Selection Committee in so far the placement of the petitioner at serial no.1 is concerned, but, however, he appended a note of dissent in respect of respondent no.6 and one Dr. Kamlesh Mani Tripathi. However, the Selection Committee unanimously recommended for the appointment of the petitioner on the post in question.
12. As stated above, in the first instance, the Executive Council had disagreed with the aforesaid recommendation of the Selection Committee dated 12.1.2005 and vide its resolution dated 23.1.2005 while disagreeing with the recommendations of the Selection Committee it had straight away offered appointment to respondent no.6 on the post of lecturer and which was assailed by the petitioner before this Court by filing Civil Misc. Writ Petition No.8003 of 2005, which came to be allowed on 16.12.2005. Against the order dated 16.12.2005 respondent no.6 filed SLP No.6983 of 2006, which came to be dismissed by the Apex Court on 28.4.2006 whereby the Apex Court declined to interfere with the aforesaid decision of this Court dated 16.12.2005.
13. Pursuant to the order dated 16.12.2005 of this Court, the Executive Council again met on 29.6.2006 and deliberations of the Executive Council have been filed as Annexure 2 to the counter affidavit of respondent no.6. A perusal thereof would indicate that the Executive Council was comprising of ten members. Opinion recorded by the Executive Council is given hereunder: -
1- lq/kkdj feJ & eSa Jherh Mk0 izeksfnuh i.Mk ds fu;qDrkFkZ vuqeksnu djrk gwWaA blds fuEu dkj.k mfpr izrhr gks jgs gSa& 1- ;ksX;rk dh n`f"V ls Jherh izeksfnuh i.Mk lcls ;ksX; gSaA ¼a½ budk ch0,0 esa vaxzsth fo"k; gS vkSj bl in ij fu;qfDr ds fy, vaxzsth dk Kku vR;Ur vko';d gS ;r% bl foHkkx esa fons'kh Nk= Nk=k,a fo'ks"k #i ls v/;;u djrs gSaA 2- p;u lfefr }kjk lokZf/kd vad 43 ¼frjkyhl½ bUgsa izkIr gSA 3- p;u lfefr esa egkefge dqykf/kifr egksn; ds }kjk ukfer nks fo"k; fo'ks"kKksa }kjk Hkh MkW0 izeksfnuh i.Mk dks lokZf/kd vad 16 ¼lksyg½ iznku fd, x;s gSaA 2- Jh ;ksxsUnz ukjk;.k ik.Ms; & mijksDr izdj.k esa U;k;ky; dk fu.kZ; fnukad 16-12-05 ds lUnHkZ esa ;ksX;rk dze ds vuqlkj fo'ks"kKksa }kjk p;fur izeksfnuh i.Mk vgZ gSa] jfo'kadj ik.Ms; ds i{k esa mPpre U;k;ky; us ,oa izeksfnuh i.Mk ds i{k esa mDr U;k;ky; us dk;Z ifj"kn ds fu.kZ; dks gh fu/kkZfjr fd;k gSA vr% izeksfnuh i.Mk dks ojh;rk dze ds vk/kkj ij lgefr dh tkrh gSA vr% izeksfnuh i.Mk laLd`r fo|k in dh vf/kdkfj.kh gSaA 3- izks0 JhdkUr ik.Ms; & mDr izdj.k esa ekuuh; mPp U;k;ky; ds fu.kZ; fnukad 16-12-2005 dk v/;;u djus ds ckn eSaus p;u lfefr ds izR;kosnu dk ijh{k.k fd;k ,oa ik;k fd v/;{k ,oa lnL;x.k ds vadksa dks feykdj Mk- izeksfnuh i.Mk vf/keku dze esa izFke LFkku ij vkrh gSaA lkFk gh dsoy okg~; fo"k; fo'ks"kKksa ¼dqyifr ,oa foHkkxk/;{k dks NksM+dj½ ds vadks dks feykdj ns[kus ij Hkh Jherh izeksfnuh i.Mk gh izFke LFkku ij vkrh gSa vr% nksuksa n`f"Vdks.k ls laLd`r fo|k ds izk/;kid in ij fu;qfDr gsrq Mk0 izeksfnuh i.Mk ds uke ls eSa loZFkk lger gwWA 4- izks0 ujsUnz ukFk ik.Ms; & izeksfnuh i.Mk ,oa jfo'kadj ik.Ms; dh fu;qfDr lEcU/kh izi=ksa dk voyksdu fd;kA vf/keku dze tks p;u lfefr us fu/kkZfjr fd;k mlesa p;u lfefr esa gh fookn gks x;kA ekuuh; v/;{k ¼foHkkxk/;{k½ us foefr fy[kk] ekuuh; dqyifr us Hkh fVIi.kh nhA vr% vf/keku fookfnr gqvkA ,d ls ekuuh; dqyifr vlger Fks] ekuuh; foHkkxk/;{k f}rh; ls vlger FksA ,slh fLFkfr esa ;fn v/;{k ,oa dqyifr egksn; ds vadks dks fudky fn;k tk; rks fo"k; fo'ks"kKksa dh vad rkfydk ls izeksfnuh Ik.Mk gh izFke vf/keku ij vkrh gSa] foHkkxk/;{k igys ls izeksfnuh i.Mk ds izfr nqjkxzg ¼u djus dk½ ugha j[krs] ;g dgk ugha tk ldrk D;ksafd mUgksaus ekuuh; dksVZ esa Loa; i{k ds #i esa mifLFkr gks dj Mk0 jfo 'kadj ik.Ms; ds i{k dks iq"V djus dk iz;kl fd;kA ekuuh; dqyifr us vad p;u lfefr esa gh fn;k FkkA cUn fyQkQs dks dk;Zifj"kn~ esa [kksyk x;kA mi;qZDr dkj.kksa ds ifjizs{; esa U;k; dh n`f"V ls rFkk fons'kh Nk=ksa dks i<+kus ds vaxzsth Hkk"kk dh {kerk ,oa laLd`r Kku ds dkj.k izeksfnuh Ik.Mk dh fu;qfDr ls lgerA 5- lqJh fouhrk flag & egkefge dqykf/kifr egksn; }kjk p;u lfefr esa fu;qDr nks fo"k; fo'ksa"kKksa ds vuqlkj Mk0 izeksfnuh Ik.Mk gh mDr in ds fy;s loZJs"B vH;FkhZ gSa ftldh iqf"V muds }kjk Mk0 izeksfnuh Ik.Mk dks fn;s x;s vf/kekuksa ds ;ksx ls gksrh gSA vr,o eSa mDr in gsrq egkefge dqykf/kifr egksn; }kjk fu;qDr nksuksa fo"k; fo'ksa"kKksa dh jk; ls lger gksrs gq, Mk0 izeksfnuh Ik.Mk dh fu;qfDr dk leFkZu djrh gwWaA ifj"kn ds ,d lnL; Jh dSyk'k pUnz feJ us fuEufyf[kr dkj.kksa ds lkFk bl in ds iqufoZKkiu ds fy, viuk eUrO; izLrqr fd tks v/kksfyf[kr #i esa gS & ^p;u lfefr dh cSBd fnukad 12 tuojh 2005 esa p;u lfefr ds nks lnL;ksa ¼dqyifr ,oa foHkkxk/;{k½ ds chp erHksn gksus ds dkj.k p;u lfefr ds laLrqfr dks u ekuk tk; rFkk izk/;kid & laLd`r fo|k ds in dks iqufoZKkfir fd;k tk;A* ifj"kn ds v/kksfyf[kr nks lnL;ksa us mDr izdj.k ij dqykf/kifr egksn; dks fopkjkFkZ ,oa fu.kZ;kFkZ izsf"kr djus dk v/kksfyf[kr eUrO; izLrqr fd;k & 1- izks0 d`".kpUnz nwcs 2- Mk0 lw;ZdkUr izdj.k fookfnr gSA U;k;ky; ds fu.kZ; ds mijkUr lnL;ksa ds vfHker dh izklafxdrk ugha izrhr gksrh gSA vr% esjk futh er gS fd mDr izdj.k dks leLr lfEefyr ewy izi=ksa ds lkFk dqykf/kifr egksn; dks fopkjkFkZ ,oa fu.kZ;kFkZ izsf"kr fd;k tk;A mDr izdj.k ij ifj"kn~ ds ,d lnL; MkW0 jktho jatu flag us MkW0 jfo'kadj ik.Ms; dh fu;qfDr dk vfHker izLrqr djrs gq, v/kksfyf[kr eUrO; izLrqr fd;k% & eSa vdsys vkSj O;fDrxr #i ls bl i{k ls lger gwWa fd ^fnukad 12 tuojh] 2005 dks lEiUu p;u lfefr dh laLrqfr ds vk/kkj ij ojh;rk dze ,d ij fLFkr Jh jfo'kadj ik.Ms; dh izk/;kid] laLd`r fo|k ds in ij fu;qfDr dh tk;sA* rFkk dk;Zifj"kn ds vf/kdka'k lnL;ksa }kjk fn;s x;s er dks vf/kfu;e@ifjfu;u rFkk ekuuh; U;k;ky;ksa ds fu.kZ; ds fo:) vkSj mlds fdz;kUo;u esa ck/kd ekurs gq, dk;Zifj"kn ds cgqer ds fu.kZ; ls vius dks vyx djrk gwWa rFkk vyx ls foefr i= nsrk gwWaA
14. Accordingly, the position, which emerged after 29.6.2006 i.e. the date of the meeting of the Executive Council, was that five members were in favour of respondent no.6; one wanted re-advertisement; two members desired the matter be referred to the Chancellor and one member approved the recommendation of the petitioner for appointment on the post in question and the Vice Chancellor was excluded, therefore, as there was disagreement between the recommendation of the Selection Committee and the Executive Council the matter was referred to the Chancellor.
15. The Chancellor while passing the impugned order dated 23.2.2007 in favour of respondent no.6 has placed reliance on the following materials: -
(I) Five members of Executive Council have approved the appointment of respondent no.6 have based their opinion, in view of her eligibility, suitability and marks given by the experts.
(II) Comparing the academic achievements of the petitioner vis-a-vis respondent no.6, the Chancellor finds that Dr. Smt. Pramodini Panda - respondent no.6 has three published works to her credit whereas petitioner has none. Therefore, both, as per academic qualifications and published work, Dr. Smt. Pramodini Panda is more suitable than the petitioner.
(III) The Executive Council's resolution dated 29.6.2006, which has been quoted in the order of the Chancellor dated 23.2.2007, it has been stated that considering the total marks awarded to the petitioner and respondent no.6 by all the members the position, which emerged after final allocation of marks, is that respondent no.6 should be placed at serial no.1 and offered an appointment for the post of lecturer. Marks tally of the petitioner and respondent no.6 reads as under: -
Chairman Members 1. Ravi Shankar 8 + 34 = 42 2. Pramodini Panda 14 + 29 = 43 3. Rama Kant Pandey 11 + 28 = 39 4. Kamlesh Mani Tripathi 12 + 28 = 40 Sdz0la0 uke dqy vad vf/kekudze 1. Pramodini Panda 43 1 2. Ravi Shankar 42 2 3. Kamlesh Mani 40 3 4. Rama Kant Pandey 39
16. In Neelima Mishra v. Harinder Kaur Paintal and others reported in (1990) 2 SCC 746 the Apex Court had an occasion to deal with the nature of power conferred upon the Chancellor under Section 31 (8) (a) of the Act. The Apex Court held that the Chancellor is not the appellate authority in the matters of appointment. No dispute is referred before the Chancellor under Section 31 (8) (a) of the Act and that what is referred is the recommendation of the Selection Committee and the reasons of such disagreement recorded by the Executive Council. Paragraphs 24, 25, 28 and 29 of the said judgment are quoted hereinunder: -
"24. In the light of these considerations, we revert to the central issue, that is with regard to the nature of the Chancellor's power under Section 31(8)(a). It may be noted that the Chancellor is one of the three authorities in the Statutory Scheme for selecting and appointing the best among the eligible candidates in the academic field. The Chancellor is not an appellate authority in matters of appointment. He is asked to take a decision, because the Executive Council who is the appointing authority has no power to reject the recommendation of the Selection Committee and take a decision deviating therefrom. The Chancellor's decision is called for when the Executive Council disagree with the recommendation of the Selection Committee. What is referred to the Chancellor under Section 31(8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue. Nor it is a dispute between two rival candidates on any controversy. What is referred to the Chancellor is the recommendation of the Selection Committee with the opinion, if any, recorded thereon by the Executive Council. In fact, even without any opinion of the Executive Council, the matter stands automatically remitted to the Chancellor if the Executive Council delays its decision on the recommendation of the Selection Committee. The proviso to Section 31 (8) (a) provides for this contingency. It reads:
"Section 31(8)(a) ...........
Proviso: Provided that if the Executive Council does not take a decision on the recommendation of the Selection Committee within a period of four months from the date of the meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final."
25. The matter thus goes to the Chancellor for decision since the Executive Council could not take a decision on the recommendation of the Selection Committee. The Chancellor in the circumstances has to examine whether the recommendation of the Selection Committee should be accepted or not. If any opinion by way of disagreement has been recorded by the Executive Council on that recommendation, the Chancellor has also to consider it. He must take a decision as to who should be appointed. It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statutory authorities. Such a decision appears to be of an administrative character much the same way as the decision of the Executive Council with regard to appointment.
28. Taking all these factors into consideration, we would sum up our opinion in this way. The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasi-judicial power. No judicial or quasi-judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function. The function of the Chancellor is to consider and direct appointment of a candidate on the basis of the relative performance assessed by the Expert Selection Committee and in the light of the opinion, if any, expressed by the Executive Council. His decision nonetheless is a decision on the recommendation of the Selection Committee.
29. The Chancellor, however, has to not properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the Statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution............"
17. The Apex Court in the case of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan reported in AIR 1990 SC 434 held in para 9 as under: -
"It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."
18. Similarly, in National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyana Raman and others reported in AIR 1992 SC 1806 it was held in para 7 as under: -
"7. ...........In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with.............."
19. In a yet another decision in the case of Dr. Kumar Bar Das v. Utkal University and others reported in (1999) 1 SCC 453 after reviewing the earlier authorities it has been held that in view of high qualifications of the experts and the reasons furnished by the Syndicate as being the obvious basis of the experts' opinion, the Chancellor ought not to have interfered with the view of the experts. The experts' view are entitled to great weight.
20. In a recent judgment in Basavaiah (Dr.) v. Dr. H.L. Ramesh and others reported in (2010) 8 SCC 372 the aforesaid legal proposition with regard to showing deference to the recommendation of the Selection Committee has been reiterated and it has been held that the Courts are not to sit as Court of appeal on the recommendations made by the experts, as experts have evaluated the qualifications, experiences and published works of the recommendee for an appointment. The Court further held that in academic matters, the Court have a very limited role especially when no mala fide has been alleged against the experts constituting Selection Committee and, therefore, it would be prudent and safe for the Court to leave the decisions to the academicians and experts.
21. Thus, in view of the legal pronouncement the law is absolutely clear that the recommendations of the Selection Committee are sacrosanct, which are entitled to respect and weight both by the courts and other statutory functionaries, who have a role in the selection and appointment of teachers and the scope of judicial review against the decisions of the Selection Committee is very limited.
22. In so far as, the decision in Neelima Mishra v. Harinder Kaur Paintal and others (supra) is concerned, the Apex Court has held that in exercise of powers conferred under Section 31 (8) (a) of the Act the Chancellor is not sitting as the appellate authority in matters of appointments and that he has to take a decision because the Executive Council, which is the appointing authority, has no power to reject the recommendation of the Selection Committee and take a contrary decision and, therefore, it is only in a case of disagreement between the recommendation of the Selection Committee and that of the Executive Council, the Chancellor is called upon to take a final call in the matter of appointment. Thus, the decision has to be taken by the Chancellor in the light of the recommendations made by the Selection Committee and the opinion/reasons recorded by the Executive Council.
23. The first ground, which has been taken by the Chancellor while passing the impugned order dated 23,2,2007 in favour of respondent no.6 is that five members of the Executive Council had approved the appointment of respondent no.6 on the post in question, as they have based their opinion in view of her eligibility, suitability and marks given by the experts.
24. There is nothing on record to show that the said five members of Executive Council were experts of the subject in question and, therefore, their opinion was not of any relevance. Moreover, one member Sudhakar Mishra has commented that as respondent no.6 has done her B.A. in English, therefore, she is more suitable than the petitioner, as in the department, students from abroad are also studying Sanskrit. This member also takes note of the fact that in all, 43 marks have been allotted to respondent no.6. This member had no competency to comment as to whether for teaching Sanskrit, B.A. in English is a desirable qualification or not. Allotment of 43 marks also could not have benefited respondent no.6, as it did contain 14 marks, which were allotted by the Vice Chancellor before the Executive Council, which has been found to be de hors the law by this Court in earlier litigation between the parties.
25. Similarly, other member namely, Yogendra Narayan Pandey too went in favour of respondent no.6, on the basis of the opinion of experts, whereas the recommendation of the Selection Committee, as a whole, had to be considered.
26. Similar is the fate of Prof. Srikant Pandey, Prof. Narendra Nath Pandey and Km. Vinita Singh, as neither of them are experts in the subject concerned. Selection of respondent no.6 cannot be based upon inclusion or exclusion of marks of few members of the Selection Committee and the sole exception being that of the Vice Chancellor/Chairman of the Selection Committee, who disclosed marks for the first time before the Executive Council only, and, as stated above, the marks allotted by him were not to be taken note of either by the Executive Council or the Chancellor.
27. Second ground taken by the Chancellor while passing the impugned order is that after comparing the academic achievements of the petitioner vis-a-vis respondent no.6 he has come to the conclusion that it is respondent no.6, who is more suitable than the petitioner, as she has three published works to her credit, whereas the petitioner has none.
28. The Chancellor and for that matter the members of the Executive Council are not experts of the subject in question and, therefore, neither of them had competency to assess the suitability on the basis of published works, as the same was within the exclusive domain of the Selection Committee comprising of subject experts, who were in a best position to examine the effect, if any, of the published works of the candidates.
29. Third ground on which the claim of the petitioner has been rejected by the Chancellor is that in view of over all score obtained by respondent no.6, she stands at serial no.1 with 43 marks, whereas the petitioner stands at serial no.42 marks. Once again, this view of the Chancellor is in the teeth of the findings recorded by the writ court in the earlier round of litigation between the parties i.e. Civil Misc. Writ Petition No.8003 of 2005, decided on 16.12.2005 wherein it has been held that the Selection Committee upon completion of selection process had become functus officio. Therefore, in the opinion of this Court the marks disclosed by the Vice Chancellor/Chairman before the Executive Council for the first time cannot be taken cognizance of. If such a novel procedure adopted by the Vice Chancellor is permitted, then the same can play havoc with the selection process by providing unfair advantage to a candidate and thereby making the selection process vulnerable and, therefore, the same was rightly disapproved. Accordingly, third ground taken by the Chancellor is not sustainable in the light of the findings/observations recorded by the writ court in earlier round of litigation between the parties.
30. In other words, the Chancellor while finding respondent no.6 to be a more suitable candidate as compared to the petitioner has placed reliance on the marks awarded by the Vice Chancellor before the Executive Council, which procedure, in fact, was held de hors the law by this Court in the aforesaid writ petition therefore, the marks given by the Vice Chancellor could not form the basis for rejection of the claim of the petitioner.
31. It is an admitted position that but for the allocation of marks by the Vice Chancellor at the stage of Executive Council, it is the petitioner alone, who is at serial no.1 with 34 marks, whereas respondent no.6 has 29 marks to her credit.
32. Sri Ashok Khare, learned Senior Counsel for the respondent no. 6 vehemently contended that if Section 31(8)(a) of the Act is given a narrow and a restricted meaning then the power which is conferred upon the Chancellor would absolutely become redundant as he will have nothing to decide.
33. Even though no limits have been defined for the exercise of the power under section 31 (8) (a) of the Act, yet considering the nature of power which is to be exercised by the Chancellor in the light of the statutory scheme and the legal position, it is evident that a Chancellor in appropriate cases can interfere even against the recommendations of the Selection Committee, where there is an allegation of a defect in the constitution of the Selection Committee which has resulted in miscarriage of grave justice/prejudice to a candidate or where there are allegations supported by cogent materials indicating certain bias on the part of the members of the Selection Committee or where selection is challenged on the ground of favouritism/nepotism and for which there are materials on record to draw such an inference or where selections are held in violation of the statutory and constitutional norms. These cases are only illustrative and not exhaustive and in such matters the Chancellor would be well within his jurisdiction either to constitute a fresh Selection Committee or obtain an opinion from the experts as the case may be before arriving at any decision. But certainly the Chancellor cannot and should not straight away tread in an area where even angels would fear to tread, as it is absolutely safe to leave such decisions only upon the wisdom of the Selection Committee.
34. Moreover, a Division Bench of this Court in Writ Petition No.1110 (SB) of 1993 (Dr. B.R.K. Shukla v. Chancellor, University of Lucknow and others), decided on 16.9.1996 has held as under: -
"The Chancellor by exercising power under section 31 (8) (a) or Section 68 of the Act cannot re-appraise or re-evaluate the merit of the candidate or substitute his own views in the matter of selection of a teacher or Professor of the University particularly when the Selection Committee has arrived at the subjective satisfaction and graded one teacher to the post of Professor; a better one in comparison of others. The question whether a particular candidate fulfilled the requisite qualification or not is although based on subjective facts but it should be within the well defined provisions, of the Act and Statute"
35. Learned Senior Counsel for the respondent no. 6 further submits on the strength of the decision Chancellor Vs. Shankar Rao and others reported in 1991 (6) SCC 255 that unless Statute gives power to the Chancellor as was given in the said case, the power of the Chancellor should be construed without any restriction. The court is of the view that merely because limits of the power of the Chancellor are not defined under section 31 (8) (a) of the Act, that by itself can not confer absolute power on the Chancellor, in as much as, a Chancellor is not an expert of a subject and therefore, subject to the limited powers which are available to him he can not assess on his own, the relative merits and suitability of a candidate. Such a restricted power even though not by a legislative mandate fits well in the statutory scheme of selection mechanism and is also in consonance with the legal position settled by the Apex Court in the aforesaid judgments. If the argument of Mr. Khare, Learned Senior Counsel for the petitioner is accepted that a Chancellor should be given full free play in the selection mechanism, then the same could be extremely detrimental and prejudicial to the interest of the selection system as a whole.
36. Thus, in view of what has been stated above, the court would like to summarize its conclusion, which are as follows: -
1. The Chancellor while passing the impugned order dated 23.2.2007 could not have placed reliance upon the opinion expressed by the five members of the Executive Council as regards the eligibility, suitability and marks given by the experts for respondent no. 6 as neither the learned Chancellor nor the members of the Executive Council were competent to comment upon the suitability of respondent no. 6.
2. The Chancellor was not competent to consider and compare the relative suitability of petitioner vis-a-vis respondent no. 6 so as to come to the conclusion that respondent no. 6 is more suitable than the petitioner.
3.Chancellor could not have based the suitability of respondent no. 6 on the total marks awarded by the Selection Committee including 14 marks awarded by the Vice Chancellor, which were disclosed before the Executive Council for the first time, as the same was in teeth of the judgment dated 16.12.2005 in Writ Petition No. 8003 of 2005 and thus, the score of petitioner and respondent no. 6 excluding the marks given by the Vice-Chancellor would stand at 34 and 29 respectively.
4.Recommendation of the Selection Committee dated 12.1.2005 were unanimous in favour of the petitioner and the said recommendation on the available materials did not fall within the scope of judicial review.
Accordingly, the impugned order dated 23.2.2007 passed by the learned Chancellor becomes vulnerable in law and, therefore, the same stands vitiated.
37. The writ petition succeeds and is hereby allowed. The order dated 23.2.2007 (Annexure 3 to the writ petition) passed by the learned Chancellor is set-aside. We request the learned Chancellor to pass fresh orders in the light of the observations made above and in accordance with law, within a period of two months from the date of the production of certified copy of this judgment. No order as to costs.
Order Date :- February 24, 2012 Anupam