Punjab-Haryana High Court
Seema Bansal vs State Of Haryana And Others on 30 November, 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 11825 of 2009
Date of decision 30.11.2010
Seema Bansal
...Petitioner
Versus
State of Haryana and others
...Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. R.K. Malik, Sr. Advocate with
Mr. Jitender Bedwal, Advocate,
for the petitioner.
Ms. Mamta Singhal Talwar, AAG Haryana,
for respondent Nos. 1 and 2.
Mr. Ashish Chaudhary, Advocate,
for Mr. Anurag Goyal, Advocate,
for respondent No. 3.
Mr. Brijender Kaushik, Advocate,
for respondent No. 4.
1. To be referred to the Reporter or not? Yes
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR, J.
1. The instant petition filed under Article 226 of the Constitution seeks a declaration that Clause (iv) of sub rule 1 of Rule 7 of the Haryana Affiliated Colleges (Security of Service) Rules, 2006 (for brevity, 'the Rules') is violative of Articles 14 and 16(1) of the Constitution, inasmuch as, it clothes any one of the nominee of the Vice Chancellor or nominee of CWP No. 11825 of 2009 2 Commissioner of Higher Education to record a dissenting note in the proceedings of the Selection Committee which is considered to be binding and nullifying the majority opinion. A further prayer made is that letter dated 14.7.2009 (P.9), issued by the Commissioner, Higher Education, disapproving the appointment of the petitioner be also quashed being arbitrary and without jurisdiction; and still further it is prayed that all the consequential relief be granted to the petitioner.
2. Brief facts of the case necessary for the disposal of the instant petition are that on 11.11.2006 the Vaish College, Bhiwani, advertised one post of Lecturer in Math. The petitioner had applied for the same on 14.12.2006. She was interviewed alongwith other candidates and was selected at No. 2 in order of merit. One candidate, namely, Shri Ramesh Bansal, who was selected at No. 1 in order of merit, has been declared ineligible being overage and his appointment on that ground has not been approved. He had filed CWP No. 20845 of 2006 which was dismissed on 3.12.2008. On 9.1.2009, the Principal of the College requested the Government to approve the appointment of the petitioner, who was selected at No. 2 in order of merit. However, the appointment of the petitioner was not approved on the ground that there was a dissenting note of the nominee of the Vice Chancellor as well as Subject Expert. The 'dissenting note' further directed to re-advertise the post. Hence, the instant petition.
3. Mr. R.K. Malik, learned Senior Counsel for the petitioner, has vehemently argued that there is no justification for vesting the nominee of the Commissioner of Higher Education or the nominee of the Vice Chancellor to record a dissenting note and set aside the views of other seven members. Mr. Malik has read out Rule 7(1)(iv) of the Rules to us and CWP No. 11825 of 2009 3 argued that totally unbridled power has been vested with the nominee of the Vice Chancellor or the nominee of the Commissioner of Higher Education. Learned counsel has argued that in the absence of any rationale and justifiable reason such a power is being misused which is wholly arbitrary. Another aspect highlighted by the learned counsel is that the autonomy of the institution can be interfered with only to advance excellence of education or to bring exalted or higher standard. The nominee has not recorded any thing with regard to the performance of the petitioner who fulfills all the essential qualifications as well as preferable qualifications. In support of his submission, learned counsel has placed reliance on a Division Bench judgement of this Court rendered in the case of Dr. Sushma Arya v. State of Haryana, 2003(1) SCT 1044, where the nominee of the Director, Higher Education had recorded a dissenting note ignoring the recommendations made by the Selection Committee. The observations made in para 6 of the judgement have been relied upon to argue that the selection process has to be completed by taking into consideration the majority opinion and not the opinion of one or two persons. He has also placed reliance on a judgement of the learned Single Judge rendered in the case of Ashok Kumar v. M.D.U., 1994 (3) SCT 447, as also the judgement of Hon'ble the Supreme Court rendered in the case of Brahmo Samaj Education Society v. State of West Bengal, 2004 (4) SLR 612, and argued that the management of aided institutions are entitled to administer their institutions which include the right to appointment of teachers of their choice from amongst those who have cleared NET/UGC qualifications.
4. Ms. Mamta Singhal Talwar, learned State counsel has argued CWP No. 11825 of 2009 4 that once the State is giving aid to an institution to the extent of 95% then its nominee has to be given superior power which is recognized by the Act as well as by the Rules. She has particularly placed reliance on Sections 13 to 16 of the Act and the Rules.
5. Having heard the learned counsel, we are of the view that the short issue raised for consideration of this Court is whether individual view expressed by one or two members being nominees of the Vice Chancellor or Commissioner Higher Education could constitute the basis to over-ride the views of other members favouring the selection of the petitioner on the post of Lecturer or any other post. It would be apposite to read Rule 7(1) of the Rules, which is as under:
"Method of Recruitment: 7(1) Recruitment to the service shall be made
(a) in the case of Principal, by direct recruitment through a Selection Committee comprising the following:-
(I) Chairperson of the Governing Body as Chairperson. II) One member of the Governing Body to be nominate by the Chairperson.
III) Two Vice-chancellors' nominees out of whom one should be a subject expert.
IV) Three experts consisting of Principal of a college, a Professor and an accomplished educationist not below the rank of a Professor (to be nominated by the Governing Body) out of a panel of experts approved by the Vice- Chancellor.
QUORUM CWP No. 11825 of 2009 5
i) At least four members, including two experts, should constitute the quorum. But the presence of the Vice Chancellor's nominee and the Director's nominee shall be essential.
a) Assessment of attitude for teaching and research.
b) Ability to communicate clearly and effectively.
c) Ability to analyze and discuss.
d) Optional: Ability to communicate may be assessed
by requiring the candidate to participate in a group discussion or by exposure to a classroom situation/ lecturer wherever it is possible.
ii) If the Chairman of the Managing Committee or his nominee is unable to attend, the Vice-Chancellor's nominee shall be the Chairman of the Selection Committee.
iii) The recommendations of the Selection Committee shall be subject to the approval of the Vice-Chancellor and Director.
iv) In the meeting of Selection Committee for the selection of Lecturers, Librarians and Principals and also if any one of the nominees of the Vice Chancellor or the Director gives a dissenting note, the proceedings of the Selection Committee shall not be approved by the University/ Director and the post shall be re-advertised."
6. A perusal of the aforesaid rule shows that selection of the Lecturer by direct recruitment is made by the Selection Committee. The CWP No. 11825 of 2009 6 Chairperson of the Selection Committee is the President/Chairman of the Governing Body and the other members are - (i) a member of the Governing Body to be nominated by the Chairperson; (ii) two nominees of the Vice Chancellor; one of them must be a subject expert; (iii) the nominee of the Director; and (iv) three experts consisting of Principal of College, a Professor and an accomplished educationist not below the rank of a Professor out of a panel of experts approved by the Vice Chancellor. The rule further provides that to constitute quorum there should be at least four members including at least two experts and a nominee of the Vice Chancellor and that of the Director have been made essential. There are numerous traits and parameters given in clauses (a), (b), ( c) and (d) which constitute the basis of assessment of various qualities of a candidate. The recommendations of the Selection Committee have been made subject to the approval of the Vice Chancellor and Director. However, Clause (iv) stipulates that in a meeting of the Selection Committee for the selection of Lecturers, Librarians and Principals if one of the nominees of the Director Higher Education or Vice Chancellor records a dissenting note then the proceedings of the Selection Committee are not to be approved by the University/Director and the post has to be re-advertised. It is in pursuance of clause (iv) of sub-rule 1 of Rule 7 of the Rules, the selection of the petitioner has not been approved because the nominee of the Vice Chancellor as well as Subject Expert has recorded a dissenting note whereas six out of eight members have recommended the name of the petitioner.
7. In the case of Bihar Public Service Commission v. Dr. Shiv Jatan Thakur, AIR 1994 SC 2466, Hon'ble the Supreme Court has CWP No. 11825 of 2009 7 highlighted that a single member cannot be permitted to question the functioning of the Public Service Commission as a body. The observations of Hon'ble the Supreme Court in that regard reads as under:
"No member of a Public Service Commission can be allowed to question the validity or correctness of the functions performed or duties discharged by the Public Service Commission as a body, while he was its member. It ought to be so for the simple reason that, such member must be regarded to be a party to the functions required to be performed or the duty required to be discharged by the Public Service Commission as a body or institution, even though he might have been a dissenting member or a member in a minority or a member who had abstained from taking part in such function performed or duty discharged." (emphasis added)
8. It is, thus, evident that collective decision is the foundation of functioning of a multi member commission and body. Therefore, individual view must give way to the decision of the majority. Similar view was taken by a Division Bench of this Court in the case of Ashok Kumar (supra) and Ms. Sunita Aggarwal v. State of Haryana (CWP No. 448 of 1997, decided on 31.3.1997). The Division Bench after examining the whole controversy has observed as under:
" After hearing learned counsel for the parties, we are of the view that non-grant of approval to the selection of petitioner Sunita Aggarwal was for no valid reason. Simply because the nominee of the Vice Chancellor and the nominee of the Director, Higher Education had placed petitioner Sunita CWP No. 11825 of 2009 8 Aggarwal at no. 2 and another candidate at Sr. No.1 in the merit list was no ground to decline approval. This was the view taken in the aforesaid judgement also. To avoid any such situation, we may suggest that if each member of the Selection Committee awards certain marks in the interview and certain marks were reserved for the academic qualifications, this situation may never arise as the person getting maximum average marks would be placed at Sr. No.1." (emphasis added)
9. The question whether such a course is permissible in law came up for consideration before a Division Bench of this Court in the case of Dr. Sushma Arya (supra). In that case reliance was placed on the aforesaid observations of Hon'ble the Supreme Court as also the observations made in various judgements of this Court and then following conclusion was reached in paras 6 and 7:
" Evident from the afore-noticed extract of the notification/ instructions, it is clear that the selection committee consists of highly educated and expert members whose decision would normally not call for interference particularly in the absence of any specific allegation of mala fide or bias. Even in the reply filed on behalf of the respondents, no such allegations have been made, however, the nominee of the Director, Higher Education Haryana, has only questioned the selection on the basis of merit of other candidates who have better academic qualifications. This per se cannot be ground for setting aside the selection. Selection of a candidate by the selection committee is based upon collective wisdom of the Selection CWP No. 11825 of 2009 9 Committee. In terms of rules of business of such Selection Committee, the selection has to be by majority opinion. The seven members of the selection committee including nominees of the Vice Chancellor, experts all were in favour of selection of the petitioner, thus selection of the candidate by collective wisdom cannot be frustrated by dissenting note recorded by the nominee of the Director. Dissent is appreciable view but where upon deliberation unanimity of the selection committee by majority must take precedence over such a dissent note unless facts averred or apparent from the record were so startling and were based on bias or mala fide of the nature which would prick the judicial conscious of the Court, the majority view should prevail.
7. The above stated facts which are to be taken into consideration by the Selection Committee do not permit the selection committee to make the selection only on academic qualification. It has to take into consideration aptitude in teaching ability, to communicate ability, to analysis and discuss and other facts. In other words, the academic record, service profile and performance of the candidates before the selection committee collectively would be lynchpin to the process of selection culminating into final selection." (emphasis added)
10. The Selection Committee in that case had selected Dr. Sushma Arya by a majority view of 7:1. However there was a dissenting note recorded by the nominee of the Director Higher Education, who was also one of the members of the Selection Committee, which was constituted in CWP No. 11825 of 2009 10 accordance with the Rules. The guidelines which were to be followed by the Selection Committee and are spelled out in the judgement are pari materia to the guidelines to which reference has been made in the preceding paras of the present case.
11. It is, thus, evident that the contents of clause (iv) of sub-rule 1 of Rule 7 of the Rules highlight arbitrary and unbridled power, which is violative of Articles 14 and 16(1) of the Constitution. The decision of the Selection Committee comprised of four experts, the nominee of the Vice Chancellor and other eminent people cannot be set at naught on the arbitrary discretion vested in the nominee of the Vice Chancellor and dissenting note given by one expert. We are also of the view that such a power can also not be vested in the nominee of the Commissioner of Higher Education. It has come on record that the petitioner fulfills all the qualifications In the written statement filed by respondent Nos. 1 and 2 and respondent No. 4 there is no mention of any shortcoming in the essential qualification of the petitioner and the only case put up by them is that once the nominee of the Vice Chancellor has recorded a dissenting note it was not permissible for the University to approve the recommendations. Therefore, the only reason disclosed in these proceedings is the dissenting note of the nominee of Vice Chancellor. The aforesaid note does not disclose any other lacuna except the expression of opinion that 'no candidate found suitable. Post be re- advertised'.
12. The matter is no longer res integra as the vires of clause (iv) of sub-rule 1 of Rule 7 of the Rules have been declared as arbitrary and ultra vires of Articles 14 and 16(1) of the Constitution in the case of Dr. Subhash Chander Lohan v. State of Haryana and others (CWP No. CWP No. 11825 of 2009 11 10027 of 2009, decided on 23.11.2010).
13. As a sequel to the above discussion, the resolution dated 14.7.2009 (P.9) of Maharishi Dayanand University, Rohtak, refusing to approve the proceedings of the Selection Committee is hereby quashed. Accordingly a direction is issued to the respondent Nos. 2 and 3 to grant approval to the proceedings of the Selection Committee by ignoring the dissenting note recorded by the nominee of Vice Chancellor as well as subject expert because the petitioner fulfill the qualifications otherwise required. The needful shall be done within a period of 30 days from the date of receipt of a copy of this order which be given dasti on payment of usual charges.
(M.M. KUMAR)
JUDGE
(RITU BAHRI)
November 30, 2010 JUDGE
okg/Pkapoor