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[Cites 10, Cited by 0]

Bombay High Court

Dr. Sudhakar S/O Shankarrao Sarwate & ... vs Visvesvaraya Regional College Of ... on 7 June, 1999

Equivalent citations: 2000(4)BOMCR136, (2000)1BOMLR140, 1999(3)MHLJ433

Author: J.N. Patel

Bench: J.N. Patel

ORDER
 

 J.N. Patel, J.

1. By these Writ Petitions under Article 226 of the Constitution of India, the petitioners seek to challenge the selection and appointment of respondents 4, 5 and 6 as Professors in Industry Institute Interaction, Mechanical Engineering and Industrial Engineering, by seeking writ in the nature of certiorari/ mandamus and appropriate direction or order so as to quash the selection and appointments made by the Selections Committee as Professors in V.R.C.E. and further that the respondents 1 to 3 should constitute a proper Selection Committee as per the Government Resolution dated 25th October, 1977 and be directed that the selection be made strictly on merits from fully qualified candidates as per the qualifications laid down by AICTE and for any other appropriate writ, direction or order with costs of the petition.

2. Visvesvaraya Regional College of Engineering (in short VRCE) advertised the posts of Professors, one in Industrial Engineering (Mech.), one in Urban Planning (Arch.), one Rock Drilling (Mech.), one in Mechanical Engineering, as per advertisement published in 'Hitavada' on 1.4.90. Copy of which is annexed as Annex. I to the petition. In the advertisement, the qualifications and experience required for the said posts were prescribed as laid down by All India Council Technical Education which is annexed as Annex-II to the petition. The thrust of challenge to the selection and appointment of respondents 4 to 6 as Professors in Industry Institute Interactions, Mechanical Engineering and Industrial Engineering is on the grounds that the Selection Committee was not validly constituted vitiating the entire selection process; the respondents 4 to 6 were not duly qualified to apply and to be selected to their respective posts compared to which the higher qualifications and experience of the petitioners and better merits of the petitioners came to be ignored.

3. The comparative qualifications and experience of the petitioners as well as respondents 4 to 6 as contended by the petitioners are as under:

QUALIFICATIONS Essential/Minimum Qualifications and Experience for the post of Professor as per AICTE Circular dt. 28-2-89 Ph.D. with first class degree at Bachelor's or Master's level in Engg/Tech with 10 years experience and 5 years as Assistant Professor.
Sr.No. Particulars Pet. No. 1 Pet. No. 2 Res. No. 4 Res. No. 5 Res. No. 6
1) Bachelor's Degree Dr. S.S. Sarwate B.E. (Mech) IInd Class 1964 Dr. R.V. Kulkarni B.E. (Mech) Ist Class 1971 Dr. D.J. Tidke B.E. (Mech) IInd Class 1966 Dr. J.P. Modak A B.E.(Mech) IInd Class Dr. R.D. skhedkar B.E. Mech IInd Class
2) Master's Degree M. Tech 1st Class 1975 Obtained Nag. Univ.

M. Tech. 1st Class with distinction 1980 Obtained Nag. Univ.

M.E. by Thesis degree 1974 Admitted Nagpur M.E. by Thesis degree 1973 Admitted Nagpur Univ.

M. Tech. 1st class 1975 Nagpur Univ.

3) Doctoral Level Ph.D. in Technical Sciences Supreme Attestatation Commission of USSR 1981 Moscow Power Institute Ph.D. in Engineering/Tech. Faculty Nagpur University 1990 Ph.D. IIT Bornbay (1985) Ph.D. Nagpur University 1979 Ph.D. Nagpur University 1990

4) Date of appointment.

--

--

12th Sept. 1990 12th Sept. 1990 8th Nov. 1990

4. It is the contention of the petitioners that the respondent did not have minimum qualifications as prescribed by AICTE. Even at the time of their respective selection to the post of Assistant Professors in Mech. Engineer in 1982 and 1979 and the selection in 1982 was challenged by the petitioner No. 1 vide Petition No. 1296/82 in which the issue of minimum qualification was not considered and so far as the selection in the year 1979 is considered, this could not be challenged by the petitioner No. 1 as he was under deputation to Moscow for Doctoral studies. This Petition No. 1296/82 came to be decided on 2.8.91. The petition came to be dismissed as the Court felt that it could not interfere with the selection of 1982 in the year 1991 and also because of the undertaking given by the V.R.C.E. that the petitioners will be given all benefits of Assistant Professors practically and legally for all purposes from 10.5.85. These facts are contended by the petitioners just to apprise the Court of previous litigation.

5. Ordinance No. 24 of Nagpur University deals with the management of Colleges and selection as well as appointment of the teachers. Under clause 39(a) of the Ordinance, all teachers are to be appointed after consideration of the recommendations of a Selection Committee and before the Governing Body proceeds to make appointment. The copy of the proceedings of the Selections Committee has to be forwarded to the Vice-Chancellor of the University who may make and forward his comments to the Governing Body and such observations relating to the appointment as he may deem fit in the interest of the Academic efficiency. Under sub-clause (b) Selection Committee is constituted and consists of:

i) Chairman of the foundation society or his nominee.
ii) Principal of the College (Ex-officio) member.
iii) Nominee of the Vice-Chancellor (Ex-officio member) and;
iv) Head of the Department of the subject concerned (co-opted).

It is contended by the petitioners that the respondent No. 1 is bound by clause 39 regarding the selection and appointment of the teachers by properly constituted Selection Committee. V.R.C.E. is not maintained by the State Government but is maintained and managed by the Society but the State Government and the Government of India have their nominees on the Governing Body and so it can not claim exemption from clause 39. As per the State Government Resolution dated 25.10.1977 all appointments of teachers in Colleges are to be made on merit and on the basis of all India advertisement and the constitution of the Selection Committee for recruitment of teachers which is applicable to the V.R.C.E. The resolution is mandatory and all selection and appointment of teachers in a College has to be by properly constituted Selection Committee which consists of the following members:

i) Chairman of the Governing Body or his nominee;
ii) A nominee of the Vice-chancellor;
iii) One expert to be nominated by the University;
iv) One nominee of the Director of Higher Eduction;
v) Principal of the College; and
vi) Head of the Department in the concerned subject.

It is contended that the respondent No. 1 in disregard of clause 39(b) of the Ordinance No. 24 of the University and in utter violation of the aforesaid Government Resolution constituted a selection committee of its choice of the following persons to select teachers-

i) Shri Vilasrao Deshmukh, Minister of Education, Chairman (He was there for a short while);

ii) Shri B.B. Chopne, Director of Technical Education (mostly acted as Chairman);

iii) Shri S.S. Deshpande, Regional Officer, Technical Education, Government of India;

iv) Dr. G.N. Garud, Principal of the College; and v) (a) Dr. S. Raja as Expert for Mechanical Engineering; or

b) Dr. BVA Rao as Expert for Mechanical Engineering; or

c) Mr. A.P. Dhande as Expert for Industry Institute Interaction.

6. It is contended that the Selection Committee was not validly constituted as it did not consist the nominee of Vice-Chancellor or the expert nominated by the University. It is the case of the petitioners that the respondent No. 1 has been constituting Selection Committee as per the Government Resolution dated 25-10-1978 including two experts invariably in the committees for selecting and appointing teachers. The Selection Committee of 1989 for professor for Industrial Engineering consisted of the Vice Chancellor as Chairman, the Principal and two experts viz. Dr. Krishnaswamy and Dr. Philipose. Similarly for 1991 Assistant Professor for Mechanical Engineering the Selection Committee consisted of Vice Chancellor as Chairman, the Principal and two experts, Dr. Parmeswaran and Dr. Narayan Khedkar and in these circumstances there was no valid reason for constituting the Selection Committee of its own and deviating from the Selection Committee as per the Government Resolution dated 25-10-1977 and normal practice of having two experts. There could be no validly constituted Selection Committee without the Vice Chancellor or his nominee and an expert nominated by University. The petitioners further contended that the expert in the Selection Committee i.e. Dr. Raja an expert was present in the Selection Committee was not qualified for selection of a Professor in Industrial Engineering, because he does not have a basic degree of Engineering. To be an expert for the selection of a Professor in any engineering branch the minimum qualification for an expert should at least be a degree in the concerned Engineering Discipline. Therefore, Dr. Raja, expert in the selection committee was not an expert in the discipline, he having post graduation in faculty of medicine and Ph.D. in Industrial Management and not Industrial Engineering and for the said reasons the selection committee was not validly constituted.

7. It is the case of the petitioners that All India Council of Technical Education (AICTE) has prescribed minimum qualifications for selection and appointment of teachers in Regional Engineering Colleges. As per Government of India Circular No. F6-1/88T-5 of Ministry of Human Resources Department (Department of Education), dated 28th February, 1989, there should not be any deviation in merit rating and any anomalies in implementation should be brought to the notice of the Government of India. As per the qualifications prescribed by AICTE/VRCE in 1990 for a Professor's post, a candidate should possess minimum qualification of Ph.D. with Bachelor's or Master's degree in Engineering/Technology in First Division and 10 years teaching experience, 5 years of which should be at the level of Assistant Professor or equivalent and it is desirable that the candidate has;

i) Published work of high standard;

ii) Practical experience in the subject in the field; and

iii) Membership of professional institutions.

It is the case of the petitioners that the Principal respondent No. 2 and the Management had their own favourites to be given promotion but they did not fulfil the minimum qualifications required for the Professor's post. Till the year 1982-83, it was required for the candidate to send the certificate of having passed M. Tech. in First Division as reflected in the interview call for the post of Assistant Professor in 1982 (Annex. IV). Though the minimum academic qualification for the post of Professor is Ph.D. with M. Tech. surprisingly in the advertisement in 1989 for the post of Professor in Industrial Engineering, the qualification mentioned was Ph.D. or First Class Master's Degree in Mechanical Engineering and this was obviously to facilitate the selection of the respondent No. 6 Dr. Askhedkar as he was not holding Ph.D Degree. It is the case of the petitioners that Dr. Askhedkar was not recommended by the selection committee in June 1989 and the three candidates who were recommended were not given appointment in order to give another chance to respondent No. 6. Although he was not Ph.D. yet he was selected in the selection for the next advertisement of the post in June 1990 and approved for the appointment on 29-8-90 and in order to see that Dr. Askhedkar is appointed, the appointment order was kept in abeyance for two months to enable him, to get Ph.D. and as soon as he got requisite qualifications, the appointment order was issued on the very next day. Similarly, in order to favour respondents 4 and 5 i.e. Dr. Tidke and Dr. Modak, their qualifications were relaxed as they were not First Class in B.E. or M. Tech. having got M.E. through research, so after 1982-83, it was not insisted that the candidates should send their certificates of having passed their M.E./M. Tech., in First Division. It is the case of the petitioners that M.E. by research cannot be equated with M. Tech. by regular course inasmuch as:

i) course work has written and practical tests;
ii) has different examiners for different subjects while the guide for research is normally chosen by the candidate or vice-versa;
iii) course work has syllabus and project/dissertation work and;
iv) written test is more authentic and positive while oral test is highly subjective and prone to bias.

It is, therefore, contended that inspite of respondent Nos. 4 and 5 were not having requisite qualifications they were appointed as Professor in Industry Instituted Interaction and Mechanical Engineering.

8. According to the petitioner No. 2, they made representation dated 27-11-1990 against the appointment of the respondent Nos. 4 and 5 on the ground that the selection committee was not validly constituted, experts were called at very short notice with a view to avoid real experts in the selection committee and the persons selected did not have requisite qualification. As there was no response to the said representation, the petitioner No. 2 also sent reminder on 4-4-1991 but to no effect.

9. It is the case of the petitioners that the petitioner No. 1 who fulfilled all the qualifications and having better experience and merits, was deliberately side tracked in 1989 and 1990 as he came in the bad books of the Management and the Principal because he filed Writ Petition No. 1296/82 for his non-selection as Assistant Professor alleging bias against the Management and he was always fighting against injustice done to teachers in his capacity as General Secretary of the Teachers Association. Petitioner No. 1 claims that it is also evident from the fact that the petitioner was not allowed to take up appointment as principal of Sardar Patel College of Engineering at Chandrapur unless he withdraws his writ petition and that the petitioner No. 1 being the only qualified candidate for the post of Professor in Rock Drilling he was not selected and the post was kept vacant.

10. It is contended by the petitioners that issuance of the interview calls to the petitioners and other candidates were mere farce only to make a show of selection when it was predetermined to appoint the respondents 4 to 6. The interviews were mere formality and there was no objective assessment of the respective merits of the candidates.

Therefore, having got no relief, the petitioners have filed this writ petition seeking justice from this Court.

11. The respondents have not disputed the factum of the advertisement, the minimum and requisite qualifications required by the candidates and the advertisement for appointment as Professor but have denied that there was tampering of the selection procedure by moulding the requisite qualifications and the constitution of the selection committee to the advantage of the respondents 4 to 6. In respect of the comparative qualifications of the petitioners and respondents 4,5 and 6, it is the contention of the respondents that the petitioner No. 1 has passed B.E. and M. Tech. from Nagpur University and it is not disputed that he obtained Ph.D. in Technical Science (Thermal Electric Power Stations) from the Moscow Power Institute in the year 1981 which is not equivalent to Ph.D. degree recognised either by the Government of India or by the Indian Universities. In respect of petitioner No. 2, it is submitted that he has also passed B.E. and M.Tech. from Nagpur University and obtained degree of Ph.D. in the year 1990. It is denied that petitioner's employment on deputation with the Steel Authority of India can be treated as equivalent to the post of Professor in the University. As regards the respondent No. 4, he has passed B.E. Mechanic and M.E. by research. He also obtained the degree of Ph.D. It is contended that the respondents had requisite qualifications of M.E. in first class, as M.E. degree by research is always treated by the Universities in India as First Class and the contention of the petitioners that M.E. Degree by research is not equivalent to First Class is not correct. The contentions of the petitioners that both the respondents 4 and 5 were not eligible or qualified to be selected that they were M.E. by research and, therefore, not first class are denied. In case of respondent No. 6, it is submitted that he is B.E. Mechanical, M.Tech, Ph.D. and had necessary qualifications.

It is submitted on behalf of the respondents that the respondent No. 1 College is a joint project of State and Central Government and it is exempted from the provision of Ordinance No. 24. Since last three decades, Article 2(2) of the Ordinance No. 24 was always interpreted by the Nagpur University to include Central Government and State Government colleges maintained by the State Government. The Government Resolution dated 24-10-1997 about the constitution of the selection committee does not apply to the respondent college. It is submitted that the college by its resolution constitutes selection committee. The Vice Chancellor of the Nagpur University was always the nominated member on the Board of Governors of the respondent No. 1 College since about the year 1962 and by virtue of that post, he was always a Chairman of the selection committee. Till 1989, the Staff Selection Committee consisted of the following members;

i) Vice-Chancellor, Chairman;

ii) Director of Technical Education, Bombay;

iii) Deputy Educational Advisor, Government of India.

iv) Expert;

v) Expert; and

vi) Principal, VRCE.

It is contended that the requirement of Clause 39 of Ordinance No. 24 is otherwise fulfilled though the College stood exempted from that Ordinance. It is contended that in the year 1989, the Vice Chancellor of the Nagpur University resigned from the Board of Governors of the respondent No. 1 College vide his letter dated 4-7-1989. The request or the College to nominate his nominee was also refused by the Vice Chancellor by his letter dated 18- 12-1989, as a result on the Selection Committee, neither the Vice Chancellor could come nor his nominee could come. The dead lock had to be solved by the College authorities and, therefore, during 1989-90, the Selection Committee was constituted as follows;

i) Minister of Education-Chairman;

ii) Director of Technical Education, Bombay;

iii) Deputy Educational Advisor, Government of India;

iv) Expert;

v) Expert;

vii) Principal, VRCE.

Thus, the only deviation that the place of Vice Chancellor or his nominee was filled in by the Chairman Governing Board under these special circumstances in the year 1990. It is submitted that present Vice Chancellor vide his letter dated 7-9-91 has accepted the nomination of the Board of Governors, and by virtue of that, he is acting as Chairman on the Selection Committee since 1991. Therefore, according to the respondents, the contention of the petitioner that the Selection Committee for the year 1990 was not validly constituted is not correct and further the college constitutes the Selection Committee as per the Government Resolution dated 25-10-1977 is also not correct.

12. It is the submission of the respondents that the experts in the subject on the selection committee in the year 1990 were drawn from the experts list maintained by the Government of India and is available with the Deputy Educational Advisor, Government of India, Western Region, Bombay and the experts are selected by the respondent College from the said list. In respect of Professor Dr. Raja it is claimed that he is the Professor of Industrial Engineering in NIITE, Bombay and, therefore, the contention of the petitioner that he does not have any basic degree in Engineering is absolutely false. It is submitted that Dr. Raja-Professor of Industrial Engineering in NIITE, Bombay was competent and qualified to act as an expert in the committee so constituted for Industrial Engineering.

13. It is submitted that the petitioners No. 1 and 2 are merit promotees under the Merit Promotion Scheme; the real purpose of which was to avoid stagnation, provide incentives. The benefits are personal. The merit promotees are not counted in total number of posts in the cadre of Assistant Professors for the purpose of merit promotions to the post of Professors. The Assistant Professors promoted under Merit Promotion Scheme if are required to be promoted further under such Merit Promotion Scheme to the posts of Professors (and not any selection in competition in direct selection), they have to come in regular cadre of Assistant Professors by facing regular selection committee in open competition. It is the case of the respondents that the petitioners were aware of this aspect and as such they applied for selection in regular cadre of Assistant Professors vide their applications dated 15-11-1990. They were interviewed on 26-4-1991 by a regular selection committee of Assistant Professors and there also they failed to come in regular cadre. The petitioners who are merit promotees Assistant Professors since 1985 though they are designated as Assistant Professors, get the pay of Assistant Professors and they failed to come in regular cadre of Assistant Professors on 26-4-1991. It is the case of the respondents that the petitioners have applied for the post of professor since they are entitled to apply in open selection and failed in August 1990 to get selected as professors. Thereafter, they applied for regular cadre of Assistant Professors and failed in April 1991 and after they failed as Assistant Professors, they have filed this petition in August 1991 challenging the selection of professors held in August 1990. This would show that the petitioners have miserably failed in their purpose before the Selection Committee and that is why they challenged the selection of the respondents 4,5 and 6. It is submitted that the petitioners having appeared before the Selection Committee consisting of Experts and having failed in the interview, cannot attack about the qualifications of the experts and the same experts whom the petitioners attacked had selected them they would have considered the experts very good for selecting. As they have not been selected, the petitioners with their sour mouth, bad taste are attacking the experts. The petitioners cannot reagitate the issue of selection of respondents 4 and 5 in this petition. It is contended that the allegations against the respondent-Principal that he is having bias against the petitioners is unfounded and without any basis. It is submitted that if the petitioner No. 1 wanted to join as a Principal at Chandrapur, he could have very well withdrawn the petition and for that reason the respondent Principal wanted the petitioner to make a choice for which he cannot be blamed. It is further submitted that the post of Professor of Rock Drilling was not filled in because no suitable candidate was available. It is denied that the petitioner No. 1 was most qualified for the post of Professor of Rock Drilling. It is submitted that the petitioner is Graduate of Mechanical Engineering and Ph.D. in Power Engineering. Rock Drilling has an aspect of Mining Engineering and the petitioner does not know A B C of Mining Engineering and as such cannot claim that he is most qualified for the post of Professor of Rock drilling.

14. It is submitted that in the interviews held on 18-8-1990 and 19-8-1990, only the experts on the Selection Committee asked detailed questions on the subject and expertise the knowledge of the candidates. The other members ask very few questions and the result of assessment is the unanimous decision of the Selection Committee and as the three different Selection Committees have selected the respondents 4 to 6 unanimously from amongst the candidates, it cannot be said that holding of interviews were mere farce and show of selection and, therefore, the whole procedure was predetermined to appoint the respondent No. 4. It is submitted that though the petitioners appeared before the three different Selection Committees they could not impress and with this miserable performance, they have nothing but to make false allegations like bias, malice, farce, show, predetermination without any substantial factual aspect.

15. The respondents 4, 5 and 6 also filed their return challenging the contentions of the petitioners and have submitted that they possess requisite qualifications and came to be selected on merits by properly constituted committee and submitted that the respondents having been selected on merits, the petition challenging their selection on various grounds is not bona fide for the very reasons that the petitioners having failed to get selected to the post of professor. They appeared for the selection held by the respondent No. 1 College for the pose of Assistant Professor. However, they have also failed in the said selection process and they have not become regular assistant professors which is after the impugned selection of respondents 4, 5 and 6 as professors and, therefore, the petitioners have no locus to challenge the selection of the respondents, as such the petition deserves to be dismissed with costs.

16. The main challenge to the appointment of respondents 4, 5 and 6 in W.P. No. 2308/91 and that of respondent No. 4 in W.P. No. 1140/93 is mainly on two grounds. Firstly, the respondents 4 to 6 did not possess minimum qualification for the posts and secondly the selection committee was not validly constituted. The next contention raised by the petitioners is that of bias on the part of the respondent Management against the petitioners and based on the allegations that the management wanted to favour respondents 4 to 6 in the selection and prejudice against the petitioners which vitiates the entire selection. We, therefore, propose to deal with these contentions in order to arrive at the findings as to whether the selection of the respondents is invalid or not.

17. The prescribed qualification and experience for the post of professor as per AICTE circular dated 28-2-89 is Ph.D. with first class degree either at Bachelor or Master level in Engineering/Technology with 10 years experience, out of which 5 years as Assistant Professor. It is contended by Mr. Sen the learned Counsel appearing for the petitioners that the respondents 4 to 6 did not fulfil the minimum qualifications for the post of the Professor i.e. Ph.D. with first class either at Bachelor or Master Degree level. According to him, neither of the respondents 4 and 5 had Bachelor or Master Degree in First Class while respondent No. 6 did not possess Ph.D. Degree on the last date of the application for appointment to the post, on the date of interview and also on the date of selection. It is submitted that AICTE does not recognise the degree of M.E. by thesis and, therefore, respondents 4, 5 and 6 were not qualified to apply to the post of professor and as such their selection is invalid. It is submitted that AICTE is a constituted Body constituted under the All India Council for Technical Education Act, 1987 for proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to plan quantitative growth and the regulation of proper maintenance of norms and standards in the technical education system and the matters connected therewith. It is submitted that under section 10, Clause (I), it has power to lay down the norms and standars for courses, curricula, physical and instructional facilities, staff pattern, staff qualification, quality instructions, assessment and examination. Mr. Sen submitted that it is not disputed that for the post of professor, the AICTE prescribed the minimum qualification for a professor in Engineering to be Ph.D. with First Class Degree at Bachelor's or Master's level in appropriate branch of Engineering/ Technology. It is also not disputed that respondent No. 4 Dr. D.J. Tidke and respondent No. 5 Dr. J.P. Modak, is B.E. Second Class, M.E. by thesis with Ph.D. According to Mr. Sen, their degree for M.E. does not show that they got M.E. in First Class or Grade 'A' or highly commended, which they got in the year 1974 and 1973 respectively. It is submitted that respondents 1 and 3 have contended that M.E. by thesis always treated as First Class which is without any authority. Further, Nagpur University is silent in this respect.

Mr. Sen has drawn attention of this Court to the fact that on 26-4-89, respondents 4 and 5 had represented through their Association that minimum qualification prescribed for the professor be modified so as to include also M.E. by thesis by impliedly admitting that the M.E. by thesis is First Class. It is submitted that the claim of the respondents that M.E. research is always equivalent to First Class is without any basis and can not be accepted. Mr. Sen pointed out that Ordinance No. 93 framed by the Nagpur University in the year 1994, providing for degree of Master of Engineering (M.E. by Thesis). Clause 8(a) of the said Ordinance requires the examiner to give Grade 'A' or Grade 'B' or not highly commended to the candidates and the explanation equates Grade 'A' to First Class and Grade 'B' to Second Class. Clause (c) states that on receiving the report of the Academic Council, the Executive Council shall declare the candidate eligible for admission to the degree and cause his name to be published together with subject of Thesis alongwith the Grade. Therefore, all degree of M.E. by Thesis is not First Class as pleaded by the respondents. It is submitted that it is only respondent No. 5 Dr. Tidke claimed that the examiner has highly commended for his M.E. Degree (W.P. No. 1140/93) and the respondent VRCE supported the case of Dr. Tidke in their additional affidavit. Even then it is submitted that assuming that highly commended is equivalent to Grade 'A' which in turn equivalent to First Class, still the respondent No. 4 Dr. Tidke cannot be treated as First Class because amendment in 1994 of Ordinance No. 93 have no retrospective effect for the reason that after the said amendment, curricular has also undergone change; (i) there is now to be two written papers; (ii) examiners to give Grade on perusal of written, vivavoce test while earlier written test was not a must and (iii) Grade has to be mentioned in the degree awarded. Besides, (i) course work has written and practical tests; (ii) has different examiners for different subjects while the guide for research is normally chosen by the candidate or vice-versa; (iii) course work has syllabus and project/dissertation work and (iv) written test is more authentic and positive while oral test is highly subjective and prone to bias. Mr. Sen submitted that the degree of respondent No. 4 does not show that he got the degree of highly commended or Grade 'A' or First Class. Respondent No. 5 Dr. Modak does not claim that he was highly commended or given Grade "A" by the examiners for his M.E. Thesis degree. In order to substantiate his contention, Mr. Sen submitted that under Ordinance 21 of the Nagpur University in Clause (2) for the post of Lecturer, the minimum qualification is second Class Master Degree in the subject or Master Degree by research. This itself goes to show that earlier, Nagpur University was treating the Master Degree by research to be Second Class. Under these circumstances, it is submitted that respondents 4 and 5 do not possess the minimum qualification of First Class either at Bachelor or Master level in Engineering in the relevant subject. Mr. Sen submitted that the Supreme Court in M.C. Bindal v. R.C. Singh, have held that;

"the appointment without the candidate fulfilling the requisite qualification is bad and quashed the appointment".

Similarly, the Supreme Court in District Collector v. M. T. Sunderadevi, held "that the minimum essential qualification required in advertisement was Second Class Post Graduate Degree but the respondent with III Class Post Graduate Degree was appointed, unless advertisement, states that qualification is relaxable, such appointment would amount to fraud on public, that non availability of better qualified person is no justification".

Therefore, it is submitted that as respondents 4 and 5 do not possess minimum qualification of First Class either at Bachelor or Master level in Engineering in the relevant subject, they do not qualify for being appointed as Professor.

18. As regards the respondent No. 6 Dr. R.D. Askhedkar, it is submitted that he did not possess Ph.D. on the last date of the application i.e. 11-6-90, on the date of interview i.e. 18/19-8-90 and on the date of selection i.e. 19-8-90. He submitted that he got Ph.D. only on 7-11-90 and thereafter his appointment order was issued i.e. on 8-11-90 Mr. Sen submitted that the Supreme Court in Ashok Kumar v. Chandrashekhar, held;

"Eligibility determination of relevant date for advertisement inviting application requiring the qualification to be possessed, in such a case permitting the candidate who did not fulfil the requirement but acquire the requisite qualification later albeit before the holding of an interview, held impermissible and reversed the earlier decision in Asok Kumar v. Chandrashekhar, 1993 (Suppl.) S.C.C. 611 as incorrectly decided that it is enough if the candidate get the requisite qualification on the date of interview".

Mr. Sen further submitted that again the Supreme Court in Dr. M.B. Nair v. Union of India, has held.

"Eligibility- date relevant for assessing to be considered with reference to the last date for receiving the application, unless, the notification calling for application itself specifies such a date-Tribunal not justified that candidate having become eligible during pendency of the proceedings before it be appointed to the post".

It is, therefore, submitted that the selection and appointment of respondents 4 and 5 as Professor in Engineering without fulfilling minimum qualification are bad, invalid and liable to be set aside.

19. On behalf of the respondent No. 1, it is submitted that so far as the educational qualification of respondents 4 and 6 are concerned, the Ordiance No. 93 as amended from time to time, clarify the position. According to the learned Counsel for the respondents, the University has itself accepted by amendment dtd. 16-4-94 to treat the Grade "A" equivalent to First Class and Grade "B" equivalent to Second Class respectively and, therefore, the Selection Committee has rightly assessed the qualifications of the candidates and there is no illegality committed in this respect. It is submitted that the respondents 4 and 5 have done M.E. by research which is equivalent to First Class and not less than that and, therefore, it cannot be said that the respondents are not qualified for the posts. In respect of respondent No. 6, it is submitted that his thesis of Ph.D. was submitted 6 months prior to his application for the post of Professor and that he had informed the Selection Committee that he has already submitted his thesis and the result is made known to him that he has passed Ph.D. and only the official result is awaited and, therefore, the Selection Committee with specific remark has appointed the respondent No. 6 and, therefore, it cannot be said that the respondents do not have necessary qualifications.

20. On behalf of respondents 4, 5, and 6, Shri Dharmadhikari the learned Counsel submitted that the first argument of the petitioners is that the qualification of M.E. by research is not equal to M.E. First Class. According to the learned Counsel for the respondents, Dr. Tidke and Dr. Modak hold the degree of M.E. by thesis. They have also acquired Ph.D. immediately thereafter. It is submitted that the respondent-VRCE accepts that the M.E. by research is equivalent to First Class and the certificate of M.E. by thesis of Dr. Tidke clearly shows that it is highly commended and, therefore, in accordance with the Ordinance No. 93, M.E. by thesis obtained by Dr. Tidke is equivalent to First Class. It is submitted that the contention of the petitioners that the amendment in the Ordinance is not retrospective and, therefore, the respondents cannot be treated as equivalent to First Class is without any substance. According to Shri Dharmadhikar, the amendment is only clarificatory and the certificate of the respondent No. 4 clearly shows that it is highly commended which has not been disputed by the VRCE. It is, therefore, submitted that the replacement of Grades in Ordinance or mere change of it's name does not have effect of change of nature of qualifications. As regards respondent No. 6-Dr. Askhedkar, it is submitted that he had obtained Ph.D. on 7-11-90 prior to his appointment on 8-11-90 and, therefore, his selection cannot be held to be invalid merely on this count, as in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another v. M. Tripura Sundari Devi, . The Supreme Court took a view that the respondent having acquired requisite qualification, it will be unjust to deprive her of the post and directed the Authorities to regularise her appointment. It is further contended that grant of Ph.D. on 7-11-90 relates to the back date earlier to 11-6-90. It is not disputed that respondent No. 6 had submitted his thesis much prior to 6-11-90 i.e. the date on which respondent No. 6 submitted his thesis and it is a settled law that the declaration of result relates back to the date of examination and, therefore, it cannot be said that respondent No. 6 was not qualified on the date he applied for the said post and the date on which he was appointed. Mr. Dharmadhikari relied upon the case of Sukram Pal Singh Saharawat v. U.P. Secondary Education Services Commission, Alenganj and others, 1993 Lab.I.C. 555. Wherein the Allahabad High Court held that;

"Petitioner's success in examination dated back when he appeared for examination and hence he would be deemed to have been possessed with requisite academic qualification on date of occurrence of vacancy and was qualified for post of ad hoc lecturer on that date".

Mr. Dharmadhikari submitted that the respondent No. 6 having been already submitted his thesis for Ph.D. much prior to 11-6-90, grant of degree on 7-11-90 will have to be considered to have been granted on the date the thesis were submitted. Mr. Dharmadhikari has also placed reliance to the case of Ravinder Sharma (Smt.) and another v. State of Punjab and others, and submitted that even though the appellant in the said case was found that she did not possess qualifications prescribed by Regulation 7 and the appointment was held to be bad, the Supreme Court held that "the Government is at liberty to consider her case for regularization on merits with effect from the date of acquiring necessary qualifications and even if it is found that the respondent No. 6 was not qualified on the date of application, his case can be still considered for regularization on merits.

21. On considering the cases cited at Bar by Mr. Sen in support of his contention that the respondents did not possess the requisite qualifications on the last date i.e. 11-6-90 they do not qualify for being considered for the post of Professor, we find that the guidelines prescribed by the Supreme Court in Rekha Chaturvedi's case cited supra settles the law on the subject and it would be fruitful to refer paras 10 and 11 of the said Judgment which are as under:

"10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz, even those candidates who do not have the qualifications in presenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/ notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra and District Collector & Chairman Vizianagaram Social Welfare Residential School Society, Vizianagaram v. M. Tripura Sundari Devi.
11. However, for the reasons which follow, we are not inclined to set aside the selection in spite of the said illegality. The selected candidates have been working in the respective posts since February 1985. We are now in January 1993. Almost eight years have elapsed. There is also no record before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance. If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected. We, however, feel it necessary to emphasise and bring to the notice of the University that the illegal practices in the selection of candidates which have come to light and which seem to be followed usually at its end must stop forthwith. It is for this purpose that we lay down the following guidelines for the future selection process:
A. The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose. The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better than those who apply, can have a legitimate grievance since they are left out of consideration.
C. When the University or its Selection Committee relaxes the minimum required qualifications unless it is specifically stated in the advertisement/notification both that qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.
D. The University/Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made.
E. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently longtime, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available."

22. The Apex Court upheld the proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one.

23. Mr. Sen, the learned Counsel for the petitioner's has drawn our attention to the case of Ashok Kumar Sharma and others v. Chander Shekhar and another, (Review Petition) in which the Supreme Court has reaffirmed the proposition that;

"Advertisement inviting applications requiring the qualification to be possessed on the date of submission of the application. In such a case, permitting the candidates who did not fulfil that requirement but acquired the requisite qualification later albeit before the holding of interview to appear for interview, held impermissible and the Supreme Court reverted its earlier decision in Ashok Kumar Sharma's case, 1993 Suppl. (2) S.C.C. 611."

The Apex Court admitted the Review Petitions confined to the following two issues.

1. Whether the view taken by the majority (Hon'ble Dr. Thommen and V. Ramaswami, JJ) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the application is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy?

2. Whether in the facts and circumstances of the case, would it not be just to restore the direction of the Division Bench with respect to the inter se seniority between the two sets of candidates, namely those who were qualified as on the last date for receiving applications and those who were not so qualified. In other words, the question is whether the direction of the Division Bench to treat the candidates who were not qualified by the last date of receipt of applications as juniors, as a class, to those who were qualified, was not a just one?

and concurred with the opinion of Sahai, J., and held that;

"The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J., (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview".

24. After ascertaining the legal position as to the requirements of qualifications, we propose to examine the case of respondents 4, 5 and 6 in W.P. No. 2308/91 and that of respondent No. 4 in W.P. No. 1140/93.

Dr. D.J. TIDKE.

The appointment of Dr. D.J. Tidke as Professor in Industry Institute Interaction in VRC Nagpur is the matter of challenge in W.P. No. 2308/91. Further his appointment as Professor in Mechanical Engineering in VRC Nagpur is the matter of challenge in W.P. No. 1140/93. Dr. D.J. Tidke has passed his B.E. (Mech.) in Second Class in the year 1966. Thereafter, he did his M.E. by thesis in the year 1974 and Ph.D. from IIT Bombay in the year 1985 and came to be appointed as Professor in Industry Institute Interaction on 12-9-90 pursuant to the advertisement dtd. 1-4-90, published in "Hitavada" under which the application in prescribed form, were invited on or before 11-6-90. It is the contention of the petitioners that the minimum qualification for the post of Professor as prescribed was Ph.D. with First Class either at Bachelor or Master Degree level. Dr. Tidke does not have First Class either at Bachelor or Master Degree. To this it was contended that Dr. Tidke obtained his M.E. by thesis in the field of Production Engineering Examination in the year 1974 with remark "highly commended" by the examiners in their report dtd. 23-11-74 which is recognised as First Division by virtue of Clause 8 of Ordinance 93 of the University of Nagpur. On 25-1-78, the Academic Council by it's Resolution decided that the existing term in Ordiance No. 93 at the end of para 8-A viz. commended or highly commended to be substituted by words "Grade B+" and "Grade A+" respectively. It further resolved that there will be no mentions of these Grades in the Degree Certificates and recommended that the Ordinance be further amended suitably with immediate effect and was to recommend to the Executive Council that the recommendations of the faculty be accepted and the Ordinance No, 93 be suitably amended with immediate effect. On this in the meeting of the Executive Council held on 16/ 19-6-78, this Resolution came to be accepted after considering the report of Dr. B.R. Ashtikar who was appointed to scrutinise the recommendations of the Academic Council regarding the faculty of Engineering, Technical Education and it was accordingly accepted. Subsequently, in the year 1994, section 8-A of the Ordinacne 93 came to be substituted and as amended it reads;

"8. (a) The Examiners shall report jointly to the Academic Council after the Vice-Voce Examination and/or written examination, if any, whether the thesis should be accepted, re-submitted after further work or improvement or rejected. The Board of Examiners who value the thesis and who conduct the Vice-Voce Examination and written examination, if desired, shall report to the Academic Council on the merits of the candidates for the examination as "Grade - B" and "Grade - A" or "not commended".

Explanation: Grade A and Grade B is equivalent to First and Second Division Respectively.

This is contested by the petitioners as having prospective effect, as according to the petitioners amendment of 1994 in Ordinance No. 93 could not have retrospective effect and that there has been certain changes in the pattern of examination in so far as M.E. by thesis is concerned. According to the petitioners, previous to this amendment of 1994, M.E. by thesis was considered as equivalent to Second Class Master Degree and for this the attention of the Court is drawn to the Ordinance No. 21 which prescribes minimum qualification for Lecturer in Engineering i.e. at least Second Class Master Degree in the subject or Master Degree by research and, therefore, it is submitted that the Nagpur University never considered Master Degree by research M.E. by thesis as First Class.

We respectfully disagree with the contentions of the petitioners in this regard. What we find is that though the Amendment to section 8-A of Ordinance No. 93 came to be finally passed in the year 1994, unamended Clause 8-A of Ordinacne 93 did make a distinction in case of the candidates who obtained their Degree of Master of Engineering by thesis as commended or highly commended which was subsequently recognised as "Grade B" and "Grade A", pursuant to the Resolution of the Academic Council on 25-1-71 which was subsequently accepted by the Executive Council. Therefore, in case of Dr. Tidke, it cannot be said that the Degree of M.E. by thesis obtained by him and placed as "highly commended" by the examiners in the year 1974, cannot be considered as equivalent to First Division. The amended section 8-A of the Ordinance 93 by adding explanation to it has only clarified the equivalence of "Grade A and B" to First and Second Division respectively and, therefore, there is no question of the same being applicable retrospectively or prospectively. In the circumstances, we find that so far as Dr. Tidke is concerned, his case cannot be said to be that of not fulfilling the minimum qualification of Ph.D. with First Class at Master level and, therefore, his selection cannot be faulted with on the count of not possessing minimum qualification for being appointed on the post of Professor in Industry Institute Interaction.

25. Dr. J.P. MODAK.

The case of Dr. J.P. Modak is identical to that of Dr. Tidke. Dr. Modak has been selected and appointed as Professor in Mechanical Engineering pursuant to the said Advertisement. Dr. Modak also possess degree in B.E. Mechanical in Second Class. He obtained M.E. by thesis in the year 1973 and Ph.D. of Nagpur University in the year 1979. There is one distinction in the case of Dr. Modak which invalidates his appointment i.e. Dr. Modak has not brought on record the report of the examiners certifying his work in M.E. thesis as highly commended. Therefore, we are left with no alternative but to hold that Dr. Modak does not possess minimum qualification prescribed for being appointed as Professor in Mechanical Engineering i.e. Ph.D. with First Class Degree either at Bachelor or Master level. In the absence of any material on record, it cannot be said that Dr. Modak has obtained his M.E. by thesis in First Division. We may also add that in case Dr. Modak's M.E. by thesis was 'highly commended', there was no reason that he would not have placed it before the Court to show that he was duly qualified for being considered to be appointed as Professor in Mechanical Engineering. Under these circumstances, it will have to be held that Dr. Modak was not qualified for being appointed as Professor in Mechanical Engineering.

26. Dr. R.D. ASKHEDKAR.

Pursuant of the Advertisement dtd. 1-4-90 in "The Hitavada", Dr. R.D. Askhedkar applied for being appointed as Professor in Industrial Engineering (P.G. Mechanic). Admittedly, Dr. R.D. Askhedkar did not possess Ph.D. on 11-6-90 which was the last date for making applications for the said post. Dr. R.D. Askhedkar has obtained his B.E. (Mechanic) in IInd Class, then his Master Degree in M.Tech. in First Class in the year 1975 and Ph.D. from Nagpur University on 8-11-90. While selecting Dr. R.D. Askhedkar, the Staff Selection Committee in it's recommendation has taken note of this fact and while recommending him for appointment mentioned, "It is recommended that the appointment letter be issued only after Ph.D. Degree is awarded to him". This forecloses the case of Dr. R.D. Askhedkar who was then Professor. It cannot be gainsaid as admitted before us by the learned Counsel for respondent No. 6 that as Dr. Askhedkar has already submitted his thesis prior to 11-6-90, subsequent conferring of Ph.D. on 7-11-90 would relate back to the date when the thesis came to be submitted. The case of Sukharam Pal cited supra relied upon by the respondent No. 6 does not come to his rescue. With due respect, the observation of Allahabad High Court was in reference to certain ad hoc appointments which were under scrutiny before the Court and this is not the ratio of the decision in that case. In Rekha Chaturvedi's case (cited supra) the Apex Court has clearly laid down that "unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidiates who do not possess the requisite qualifications in praesenti even to make applications for the posts". It is not disputed that for the post of Professor in Engineering, the A.I.C.T.E. has prescribed the minimum qualification as Ph.D. with First Class Degree either at Bachelor or Master level in appropriate branch of Engineering/Technology which clearly means that on the date of application the incumbent must have Ph.D. to his credit. The very remark of the Staff Selection Committee while recommending Professor R.D. Askhedkar that the appointment letter be issued only after Ph.D. Degree is awarded to him, indicates that he did not possess the necessary qualification on 11-6-90 and as such his case ought to have been rejected at the stage of scrutiny itself, as Dr. Askhedkar was not even found entitled to be called for interview. Therefore, we have no hesitation to hold that Dr. Askhedkar did not possess minimum qualification of Ph.D. in the concerned subject on or before 11-6-90 and, therefore, did not possess minimum qualification for being appointed as Professor.

27. To sum up, we find that on account of academic qualification, it is only Dr. Tidke who had necessary qualification and Dr. Modak and Dr. Askhedkar did not possess necessary academic qualification and, therefore, were disqualified from being considered to be appointed as Professor in Mechanical Engineering and Professor in Industrial Engineering (P.G. Mechanic) respectively.

28. We do not propose to examine comparative merits of the petitioners and the respondents to find fault with the Staff Selection Committee in not selecting the petitioners to the posts to which they had applied though it has been submitted before us in this regard. It is not disputed that the petitioners are working as Assistant Professor under the merits promotion scheme nor we propose to enter into the controversy as to whether the petitioners had necessary qualifications or not for the simple reason that these issues are not before us and further they are not germane for the disposition of the petitions.

29. Next we propose to deal with the issue of constitution of the Staff Selection Committee. It is the contention of the petitioners that the Staff Selection Committee was constituted with a view to favour respondents 4 to 6 and as the Staff Selection Committee was not properly constituted for want of Vice-Chancellor or his nominee and two outside experts to be nominated by the University, the whole selection process was vitiated. According to the petitioners, the Government of Maharashtra's letter dtd. 18th March 1978 particularly Appendix "C (1)" provides for recruitments to all categories of teachers. It was made clear that it shall be made strictly on merits and on the basis of All India Advertisement and Selection. The qualifications prescribed for the posts should essentially be related to Academic attainments in the subject concerned and should not be linked with language or other regional considerations. The appointments should not be made on communal or caste considerations. The Selection Committee should have not less than two experts in the case of Professor, Principals appointed by the Universities. It was submitted that the respondents 1 and 3 in utter violation of the Government Resolution constituted the Selection Committee of their choice and, therefore, the whole Selection process deserves to be quashed and set aside.

We do not find much difficulty in dealing with this issue. The respondent No. 1 in terms accepted that in case of recruitment of Professor, it will be Higher Staff Selection Committee which would deal with the matter and accordingly it should be constituted;

i) Vice-Chancellor of Nagpur University;

ii) Director of Technical Education, Maharashtra State;

iii) Deputy Educational Advisor, (T) Department of Education, Govt. of India;

iv) Two experts

v) Principal and Secretary of VRC Nagpur.

In the Selection Process which is impugned in W.P. No. 2308/91, the respondent No. 1 constituted the Selection Committee consisting;

i) Minister of Education Chairman;

ii) Director of Technical Education, Bombay

iii) Dy. Educations Advisor, Govt.of India

iv) Two experts and

v) Principal of VRC.

This Committee held its meeting on 18-8-90 at 3 p.m. and selected Dr. D.J. Tidke as Professor in Industry Institution Interaction. The challenge to this Committee is limited to two aspects. Firstly, the Vice-Chancellor of Nagpur University was not there on the date and further two experts members were not nominated by Nagpur University. We find that at the relevant time, there were some differences between the Vice-Chancellor and the respondent VRCE. The Vice-Chancellor has resigned from the Governing Board of the Body and also refused to send his representative. This led to the re-constitution of the Committee by appointing the Minister for Technical Education who is also the Chairman of the Staff Selection Committee. This by itself would not vitiate the Staff Selection Committee but as regards the contentions of the petitioners that two expert members of the Committee were not nominated by the University does assume importance as the letter dtd. 18-3-78 relied upon by the petitioners clearly provides that in the case of Professors and Principals, the Selection Committee should have not less than two outside experts appointed by the University. This is also accepted by the respondents. If we refer to the letter dtd. 2-4-92 written by Shri G.N. Garud-Principal of VRCE Nagpur to Dr. P.L. Bhandarkar Vice Chancellor of Nagpur University placed in W.P. No. 1140/93 and Additional Affidavit filed by the respondent No. 1, where it has been categorically mentioned the procedure for filling up the posts by Higher Staff Selection Committee as envisaged that the Chairman, Higher Staff Selection Committee has to approve the panel of experts for each post from each of the list prepared by the Western Regional Committee, of the Government of India. In this connection, the Asstt. Educational Advisor (T) Ministry of Human Resource Development, Western Regional Office, Bombay vide letter dtd. 12-11-90 informed that the Professor in respective fields from the following Institutions should he invited as Experts for the teaching posts in various Institutions including in the Engineering of Western Region and, therefore, an approval, of the Vice Chancellor was sought. The list of experts in respective subjects is not placed before us so as to ascertain whether the two experts who are the members of the Staff Selection Committee which appointed Dr. Tidke were as nominated by the University but considering the backgrounds that there were some differences between the Vice-chancellor and the respondent No. 1 VRC, we find that the Staff Selection Committee which recommended Dr. Tidke to the post of Professor in Industry Institute Interaction, cannot be faulted with as necessary quorum was present. Instead of the Vice Chancellor, Shri Vilasrao Deshmukh Minister for Technical Education functioned as a Chairman and there were two experts members on the Staff Selection Committee whose competency is not challenged.

30. In respect of Dr. J.P. Modak, we find that the Staff Selection Committee had only one expert member i.e. Professor Dr. B.V.A. Rao Prof. of Applied Mech. I.I.T Madras and in case of Dr. Askhedkar also there was only one expert i.e. Professor Dr. Raja, Prof. Industrial Engineering NIIT Bombay and other members of the two Committees were same. Surprisingly, two Committees held their meetings on 19-8-90 at one and the same time i.e. 19-8-90 at 9.00 a.m. Obviously, there should be some typographical mistake as this point is not raised before us by the petitioners. There is no explanation from the respondent No. 1 as to why the Staff Selection Committee consisted of only one expert whereas the requirement as per the Govt. Letter dtd. 18-3-78 for constituting the said Committee is that it should have not less than 2 outside experts which is also admitted by the respondent No. 1 and, therefore, we find that the requirement of not less than 2 outside experts is must. It is the settled principle of law that if the quoram is not present, no business can be validly transacted. We find that as there was only one expert in two committees, whereas the requirement is that it should have not less than two outside experts, the Staff Selection Committee which interviewed and selected Dr. Modak and Dr. Askhedkar was not properly constituted and the whole selection process was vitiated. In the circumstances, the appointment of Dr. Modak and Dr. Askhedkar wall have to be declared invalid.

31. In respect of the appointment of Dr. Tidke as Professor in Mechanical Engineering which is the subject matter of challenge in W.P. No. 1140/93, we do not find any deficiency in his possessing the necessary qualifications in the constitution of the Staff Selection Committee as it did consist of two experts members alongwith the Vice-Chancellor, Chairman and the Member Secretary and, therefore, the selection of Dr. Tidke as Professor in Mechanical Engineering, cannot be found to be invalid.

32. As a consequence of the findings that the appointment of respondent No. 4 Dr. D.J. Tidke as a Professor in Industry Institute Interaction (Writ Petition No. 2308/91) and as a Professor in Mechanical Engineering (W.P. No. 1140/93) was proper and in accordance with law as he did possess the necessary qualifications and was selected by appropriately constituted selection Committee, the Writ Petition No. 2308/91 to the extent of challenge of the appointment of Dr. D.J. Tidke will have to be dismissed whereas Writ Petition No., 1140/93 stands dismissed. Rule is discharged with no order as to costs.

33. In W.P. No. 2308/91 as regards the selection and appointment of Dr. J.P. Modak as Professor in Mechanical Engineering and Professor R.D. Askhedkar in Industrial Engineering (P.G.) Mechanical is found to be invalid as it is not in accordance with law and deserves to be and is quashed and set aside. As a consequence of which, the posts on which they are working would become vacant. We direct the respondent No. 1 to fill in the vacant posts by issuing fresh advertisement and scrupulously following the guidelines laid down by the Apex Court in the case of Rekha Chaturvedi reported in 1993 (Suppl.) Supreme Court Cases, 160. As respondents 5 and 6 have worked for all these years on their respective posts after being so selected, their appointment having been found invalid, we direct the respondent No. 1 to treat their appointment to the said posts as on ad hoc basis for all these years and the respondents 5 and 6 would not be entitled to claim any benefits out of these appointments but we make it clear that this will not debar them from making any fresh application for the said posts, if otherwise, they are qualified to do so. Rule is made absolute in the aforesaid terms with no order as to costs.

34. Rule made absolute.