Allahabad High Court
Dr. Indra Pratap Singh vs B.H.U. Varanasi Thru Registrar And ... on 5 September, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:175175 Reserved on 11.08.2023 Delivered on 05.09.2023 Court No. - 10 Case :- WRIT - A No. - 18863 of 2006 Petitioner :- Dr. Indra Pratap Singh Respondent :- B.H.U. Varanasi Thru Registrar And Others Counsel for Petitioner :- Gautam Baghel, Vivek Kumar Singh Counsel for Respondent :- A.K. Nigam A.S.G.I., K.S.Chauhan, Kuldeep Singh Chauhan, Ritvik Upadhya, S.C., Vikram D. Chauhan connected with Case :- WRIT - A No. - 18309 of 2006 Petitioner :- Dr. Indra Pratap Singh Respondent :- B.H.U. Varanasi Thru Registrar And Others Counsel for Petitioner :- P.S. Baghel, Vivek Kumar Singh Counsel for Respondent :- A.K. Nigam A.S.G.I., H.P. Singh, K.S.Chauhan, Kuldeep Singh Chauhan, S.C., Vikram D. Chauhan Hon'ble Kshitij Shailendra, J.
WRIT - A No. - 18863 of 2006
1. Heard Shri B. P. Singh, learned Senior Advocate assisted by Shri Raunak Tiwari, learned counsel for the petitioner and Shri V. K. Upadhya, learned Senior Advocate assisted by Shri Ritvik Upadhya, learned counsel appearing for the respondents.
2. This writ petition has been filed challenging the order dated 23-24.12.2003 passed by the Executive Council, Banaras Hindu University (herein-after referred to as "B.H.U.") as well as another order dated 16.07.2005 passed by the Visitor of the said University, as communicated by the Registrar of the University, by communication/order dated 07.11.2005. Further prayer is that a direction be issued to the respondent-University to promote the petitioner on the post of Professor under the Career Advancement Scheme (herein-after referred to as the "C.A.S") from the date when the Executive Council had accepted the recommendation of the Selection Committee dated 17.11.2000 in respect of other Readers. Third prayer is for re-fixation of pension of the petitioner according to Basic Pay fixed in the promotional post of Professor.
3. Shorn of unnecessary details, the case of the petitioner is that he was appointed as Lecturer in B.H.U. on permanent basis on 22.09.1982 and was accorded 14 advance increments as pay protection. The University, later on, promoted him on the post of Reader in the year 1983 under the Merit Promotion Scheme. The University Grants Commission (herein-after referred to as "U.G.C.") floated a Career Advancement Scheme (C.A.S.) on 27.10.1999 for promotion of University Teachers and notified the process by inviting applications in the prescribed proforma. The petitioner applied for his promotion to the post of Professor on 31.12.1999 and was invited by the University for being interviewed. The petitioner appeared in the interview before the Selection Committee and it is pleaded that the Committee unanimously recommended his name for the post of Professor. It is further pleaded that appointment letters were issued to other persons who were promoted as Professors, excluding the petitioner.
4. The discrimination has been pleaded to the effect that those Readers, who were promoted and whose research papers had never been published in the Indexed Journals were accorded promotion illegally denying the same to the petitioner, whereas he fulfilled all the requisite criteria. It is further pleaded that the University denied promotion on the ground that certain complaints were pending against the petitioner.
5. The case of the petitioner is that the Selection Committee comprising of nine persons unanimously recommended in favour of the petitioner, but later on, by entertaining a complaint subsequently made by one member of the Selection Committee, namely, Professor Dr. R.V. Sohgaura, the Executive Council took a wrongful decision denying the promotion to the petitioner and on the basis of recommendation made by the Executive Council, the decision of the Visitor approving the decision of the Executive Council suffers from patent illegality.
6. The submission of Shri B. P. Singh, learned Senior Advocate is that once the Selection Committee made unanimous recommendation in favour of the petitioner, the University was not justified in seeking opinion from any third/external expert. He further submits that the Executive Council was not competent to take any decision in the matter at its own in view of the Banaras Hindu University Act, 1915, as amended upto date as well as Ordinances framed thereunder. It is further argued that one of the members of the Selection Committee, namely, Professor Dr. R.V. Sohgaura acted in all mala fides against the petitioner and though no cognizance of his complaint could have been taken by the University as the same was made subsequent to the closure of proceedings by the Selection Committee, even otherwise, the reassessment of the work submitted by the petitioner has been done by a third alleged expert, namely, Dr. Brahmananda Gupta, who was not even a member of the Selection Committee, which finalized the proceedings in November, 2000.
7. Shri B. P. Singh has laid emphasis on the stand taken by the University in paragraph No. 16 of the counter affidavit, in which it is stated that although the petitioner was eligible for applying for the post of Professor, he was not found suitable for the said post on the basis of opinion furnished by external expert to the effect that the learned scholar (the petitioner) could not produce even a single book in print throughout his academic career as a demonstrator. Shri Singh submits that once the eligibility of the petitioner has not been disputed, denial of promotion on the ground that he was not found suitable is not only contrary to the procedure prescribed under the Act and Ordinances, but also the concerned guidelines framed by the U.G.C.
8. He has referred to guidelines 7.5.0 and 7.6.0 in this regard, which read as follows:
"7.5.0 PROFESSOR (Promotion) In addition to the sanctioned position of Professors, which must be filled in through direct recruitment through all India advertisements, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader.
7.6.0. The Selection Committees for promotion to the post of Professor should be the same as that for direct recruitment. For the promotion from Reader to Professor, the following method of promotion may be followed:
The candidate should present herself/himself before the Selection Committee with some of the following:
(a) Self-appraisal reports (required)
(b) Research contribution/ books/ articles published
(c) Any other academic contributions The best three written contributions of the teacher (as defined by her/him) may be sent in advance to the experts to review before coming for the selection. The candidate should be asked to submit these in 3 sets with the application.
(d) Seminars/Conferences attended.
(e) Contribution to teaching/academic environment/institutional corporate life.
(f) Extension and field outreach activities."
9. By laying emphasis on the aforesaid guidelines, it has been argued that once the petitioner had submitted before the Selection Committee, self-appraisal reports, research contribution/books/articles and other academic contributions and his eligibility has not been disputed by the University, no ground alleging the petitioner to be unsuitable could be taken by the University while denying promotion to him.
10. Shri Singh has further referred to section 27 of the Banaras Hindu University Act, 1915 with respect to Selection Committee. The provision reads as follows:
"27. Selection Committees (1) (a) There shall be Selection Committee for making recommendations to the Executive Council for appointment to the posts of Professors, Readers, Lecturers, Registrar, Controller of Examinations, Librarian and such other posts as are declared teaching posts by the Academic Council.
(b) Every Selection Committee shall consist of the Vice-Chancellor who shall be the Chairman thereof and a person nominated by the Visitor, and, in addition, the Selection Committee for making recommendations for appointment to a post specified in column (1) of the Table below shall have as its members the persons specified in the corresponding entry in column (2) of the said Table.(1) (2)
Professor (1) The Dean of the Faculty concerned, provided he is a Professor, except in cases where they are applicants or when the post held by them is being filled up.
(2) The Head of the Deptt. concerned, provided he is a Professor, except in cases where they are applicants or when the post held by them is being filled up (3) Not less than three persons not being in the service of the University or member of the Executive Council who have special knowledge of the subject with which the person to be appointed will be concerned, to be nominated by the Executive Council.
Reader/Lecturer and Teaching post (1) The Dean of the Faculty concerned;
(2) The Head of the Department concerned (3) Not less than two persons not being in the service of the University or members of the Executive Council who have special knowledge of the subject with which the person to be appointed will be concerned, to be nominated by the Executive Council.
Registrar/Controller of Examinations Three Members of the Executive Council nominated by it.
Librarian Not less than three persons not being in the service of the University or members of the Executive Council who have special knowledge of the subject of Library Science to be nominated by the Executive Council.
Professors, Readers and Lectures and other teaching post in the Institute of Technology, Institute of Medical Sciences and the Institute of Agricultural Sciences The Director of the concerned Institute will also be a member of the Selection Committee constituted as above for the respective post.
Professor, Readers and Lecturer and other teaching post in Mahila Mahavidyalaya, Principal, Mahila Mahavidyalaya, will also be a member of the Selection Committee, constituted as above for the posts of Mahila Mahavidyalaya.
Professors, Readers and Lecturers in the Centre of Advanced Study/ Departments selected for Special Assistance Programme/Schools.
Programme Co-ordinator of the concerned Departments, (CAS/SAP and Schools) will also be a member of the Selection Committee.
(c) Provided that the meetings of the Selection Committee shall be fixed only after prior consultation with and subject to the convenience of the Visitor's nominee and the persons nominated by the Executive Council under Clause (b) above Provided further that the proceedings of Selection Committee shall not be valid unless:-
(i) Where the number of Visitor's nominee and the persons nominated by the Executive Council is four in all, at least three of them attend the meeting; and
(ii) Where the number of Visitor's nominee and the persons nominated by the Executive Council is three in all, at least two of them attend the meeting.
(d) Notwithstanding the provision under Statute 27(1)(a) the Executive Council may constitute a Special Committee to suggest names of persons of high academic distinction, eminence and professional attainments for filling in special Chairs of Professors.
(2) The procedure to be followed by a Selection Committee in making recommendations shall be laid down in the Ordinances.
(3) If the Executive Council is unable to accept any recommendation made by the Selection Committee, it shall record its reasons and submit the case to the Visitor for orders.
11. By emphasizing upon section 27 (2) of the Banaras Hindu University Act, 1915, it has been argued that the procedure to be followed by the Selection Committee in making recommendations shall be the same as laid down in the Ordinances.
12. Shri Singh has also referred to Ordinances of the University, particularly Ordinance 14.1.7, which reads as follows:
"14.1.7 - Process of selection for direct recruitment and promotion:
(i) The process of selection for direct recruitment and promotion shall be by the same Selection Committee for each category as prescribed under Statute 27(1).
(ii) The process of selection in both the aforesaid cases shall involve inviting the bio-data and reprints of three major publications (in case of promotion to the post of Professor, out of three major publications one could be a book or research report) and getting them assessed, before interview, by the same external experts who will be invited to interview the candidate. The assessment report shall be placed before the Selection Committee.
(iii)Wherever the requirement of Orientation/Refresher Course has remain in complete, the promotion would not be held up but these must be completed by December, 2000.
(iv)Cases entailing hardship on any account shall be placed before the Executive council."
13. It is, therefore, contended that as per statute 14.1.7 (ii), the external experts shall be the same, which form part of the Selection Committee and not any third expert.
14. By placing reliance upon section 27 (3) of the Banaras Hindu University Act, 1915, it has been argued that the Executive Council was not justified in taking any decision against the petitioner, but it could only record reasons behind its inability to accept any recommendation made by the Selection Committee and could submit the case to the Visitor for orders.
15. Shri Singh has further argued that principles of Natural Justice were utterly violated in the present case as the petitioner, under the garb of certain complaints made by one of the members of the Selection Committee, namely, Professor Dr. R.V. Sohgaura, was throughout kept in dark and decision was taken after so much delay on the aspects, which were not only contrary to the factual position, but also contrary to law.
16. Learned counsel for the petitioners has placed reliance upon the following authorities:
(i) Union Public Service Commission vs Arun Kumar Sharma and others, reported in 2015 (12)SCC 600.
(ii) Tajvir Singh Sodhi and others vs The State of Jammu and Kashmir & others, reported in 2023 Live Law (SC) 253.
17. Shri B. P. Singh has placed further reliance upon following judgments of the Apex Court to buttress his submission that the decision of the Selection Committee cannot be superseded or reversed by any subsequent intervention and the same is final.
(i) M.V. Thimaiah vs. Union Public Service Commission, reported in 2008(2) SCC 119
(ii) R.S. Dass vs Union of India, reported in AIR 1987 SC 593
(iii) Anil Katiyar vs Union of India, reported in 1997 (1) SCC 280
(iv) Union Public Service Commission vs Arun Kumar Sharma and others, reported in 2015 (12) SCC 600
(v) Sunita Devi vs State of Himachal Pradesh and others (CWPOA No. 4801 of 2019 dated 25.09.2020)
(vi) Dalpat Abasaheb Solunke vs Dr. B.S. Mahajan, reported in AIR 1990 SC 434
(vii) Secretary (Health) Department of Health & F.W. vs Dr. Anita Puri, reported in 1996 (6) SCC 282
(viii) Om Prakash Poplai and Rajesh Kumar Maheshwari vs Delhi Stock Exchange Association Ltd., reported in 1994 (2) SCC 117
(ix) Manish Kumar Shahi vs State of Bihar, reported in 2010 (12) SCC 576
(x) Ramesh Chandra Shah vs Anil Joshi, reported in 2013 (11) SCC 309
(xi) Ashok Kumar vs State of Bihar, reported in 2017 (4) SCC 357
(xii) Mohinder Sain Garg vs State of Punjab, reported in 1991 (1) SCC 662
(xiii) Dr. G. Sarana vs University of Lucknow and others, reported in AIR 1976 SC 2428
18. While referring to the aforesaid authorities, it has been emphasized that it is within the exclusive domain of the expert Selection Committee to judge the suitability of the candidate and it is not the function of the Court to hear appeals over the decisions of the Selection Committee and to scrutinize the relative merits of the candidates and, further, that the recommendations made by the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of statutory Rules.
19. A counter affidavit has been filed on behalf of the University and Shri V. K. Upadhya, learned Senior Advocate, by referring to various pleadings contained in the counter affidavit supported by various Annexures, argued that Professor Dr. R.V. Sohgaura was one of the members of the Selection Committee and he submitted a complaint dated 10.02.2001 before the Vice Chancellor, who is the Chairperson of the Executive Council, stating that the petitioner was not qualified to be promoted to the post of Professor under the C.A.S. as per the guidelines of U.G.C., particularly to the effect that a candidate must have minimum two or three publications to his credit besides other criteria. He submits that bio-data presented by the petitioner before the Selection Committee was misleading and fabricated as he did not have even a single publication to his credit in the Indexed Journals. In the complaint, Dr. R.V. Sohgaura submitted that he had protested during selection proceedings, but on the insistence of other members, he could not put his note of dissent on the minutes of the Selection Committee and requested the Vice Chancellor that before the Executive Council approves the recommendation of the Selection Committee, the points complained of must be indicated as to whether the petitioner fulfills criteria to be promoted as Professor.
20. Shri Upadhya further submits that the petitioner had earlier filed Writ A No. 23864 of 2003 (Dr. Indra Pratap Singh vs Union of India and others) at the time when he was claiming promotion and the Division Bench of this Court by order dated 03.07.2003 disposed of the writ petition noting the attitude of the petitioner, who was not submitting the copies of his articles and while disposing of the writ petition, the Division Bench directed the petitioner to submit photo copies of the said articles with proof of their publication in Indexed Journals within ten days permitting the University to verify the same and conclude the enquiry, which was already pending against the petitioner and further requested the Vice Chancellor to convene a meeting of the Executive Council to take a final decision on the issue.
21. Shri Upadhya further submits that in pursuance of the directions issued by the Division Bench of this Court in Writ A No. 23864 of 2003, the petitioner submitted certain documents, which were got examined during the course of enquiry and the expert Dr. Brahmananda Gupta, M.A. (Cal). Ph.D. (Germany), Ayurvedatirtha (St. Fac. Ayur. Med. W.B) Ex-Prof. of History of Medicine, The Asiatic Society, Kolkata. Former Director of Ayurveda, Govt. of West Bengal. Fellow, National Academy of Ayurveda, New Delhi, submitted a detailed evaluation report dated 09.11.2003 before the Vice Chancellor to the effect that the petitioner could not produce even a single book in print throughout his academic career as a Demonstrator, Lecturer and Reader of the B.H.U. and that considering all the points noted in the report dated 09.11.2003, he concluded that publications of the petitioner did not justify his suitability for attaining the higher post of a Professor.
22. Meeting the submissions made by Shri B.P. Singh to the effect that provisions of Act of 1915 as well as the Ordinances were violated, it was argued by Shri V. K. Upadhya that step by step procedure was followed by the University Authorities and no decision has been taken by the Executive Council at its own, but the matter was referred to the Visitor as per section 27 (3) of the Banaras Hindu University Act, 1915 in the meeting of the Executive Council, which was again held on 23rd/24th of December, 2003 after the petitioner had submitted copies of reprints of his works and following resolution was passed:
"RESOLVED THAT in view of the reports of the external expert, the recommendations of the Selection Committee dated 15.11.2000 regarding promotion of Dr. I.P. Singh, Department of Basic Principles, I.M.S. as Professor under Career Advancement Scheme be not accepted and be submitted to the Visitor under Statute 27(3) for final decision.
RESOLVED FURTHER THAT the Hon'ble High Court be also apprised of the above decision of the Council through University Senior Standing Counsel."
23. Shri Upadhya further submits that the Visitor examined the entire material on record and through the Ministry of Human Resources Development, communicated the following decision dated 16.07.2005:
"I am directed to refer to your letter No.AA/VI-SC/8235 dated 20.3 2004 on the above subject and to say that the President, in his capacity as Visitor of the BHU, in exercise of the powers conferred upon him by Statute 27(3) of the Statutes of the University, has been pleased to approve the decision of the Executive Council of the University not to accept the recommendations dated 15.11.2000 of the Selection Committee for promotion of Dr. Indra Pratap Singh, Reader in the Faculty of Ayurveda as Professor under Career Advancement Scheme considered by the Executive Council at its meeting held on December 23-24 2003."
24. Meeting the arguments advanced by Shri Singh with respect to experts, it has been argued by Shri V. K. Upadhya that the requirement of sending reprints etc. to the experts as per Ordinance 14.1.7 is that the work shall be assessed by the Selection Committee before the interview by the same external experts, who will be invited to interview the candidate and since whatever work the petitioner had submitted before the Selection Committee prior to 15.11.2000, was examined by the same experts, who formed part of the Selection Committee, but since pursuant to the complaints made against the petitioner and in view of dissent note made by Dr. R.V. Sohgaura, coupled with the directions issued by the Division Bench in its order dated 03.07.2003 passed in Writ A No. 23864 of 2003, once the petitioner again submitted the documents as per the requirement, the same were examined in the on-going enquiry, which was pending on the date of passing of the order by the High Court and was, in fact, allowed to be continued by the Division Bench which, and was concluded in terms of report dated 09.11.2003 submitted by Dr. Brahmananda Gupta.
25. Shri Upadhya further submits that there is no bar in any provision under the Act or the Ordinances or otherwise that such an enquiry is impermissible and in case the petitioner had any grievance regarding continuance or conclusion of enquiry, he should have challenged the decision of the Division Bench of this Court before the Apex Court, but he chose not to challenge the same.
26. Shri Upadhya further argued that the petitioner raised some dispute regarding no necessity to submit publication in "Indexed Journals" and filed an application seeking modification of the order of the Division Bench, but the modification application was rejected by order dated 07.12.2016 recording that no error was found in the order dated 03.07.2003. He, therefore, submits that every grievance raised with regard to order of the Division Bench dated 03.07.2003 became over and hence, whatever proceedings were held pursuant to the directions of the Division Bench, the same cannot be assailed by the petitioner in the present writ petition.
27. Shri Upadhya has vehemently argued that principle of res-judicata as covered by section 11 of the Code of Civil Procedure, especially Explanations IV and V thereof, would apply against the petitioner as he has claimed the same relief, which he had claimed in the previous round of litigation and once no relief was granted to him, his claim is hit by principle of res-judicata. Shri Upadhya has placed before this Court a copy of the modification application as well as order passed thereon, which documents were taken on record by the Court during the course of hearing.
28. In support of his submission, Shri V. K. Upadhya has referred to decision of Apex Court in the case of State of U.P. vs Nawab Hussain, reported in 1977 (2) SCC 806. Paragraph No. 3 of the said judgement reads as follows:
"The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough council, (1939) 2 KB 426, it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action." This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality. and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata."
29. Further reliance on the identical legal principle has been placed upon State of Punjab and another vs Varinder Kumar, reported in 2005 (12) SCC 435.
30. Having heard the learned counsel for the parties and after carefully perusing the record, following position stands emerged:
(A) The Selection Committee which finalized the proceedings on 15.11.2000 comprised of following nine members:
(i) The Vice Chancellor (Prof. Y.C. Simhadri) as Chairperson.
(ii) The visitor's nominee (Prof. P.N.B. Kurup)
(iii) The Vice Chancellor, Ayurveda University, Jamnagar, Gujarat
(iv) The Director, Institute of Medical Sciences (Prof. V.P. Singh)
(v) The Dean Faculty of Ayurveda (Prof. J.K. Ojha)
(vi) The Head Department of Basic Principles (Prof. G.P. Dubey)
(vii) Prof. S. Radadey of Pune
(viii) Prof. R.P. Mishra, National Institute of Ayurveda Jaipur.
(ix) Prof. R.V. Sohgaura, Principal, Government of College, Rewa, M.P. (B) There were certain complaints made against the candidature of the petitioner with reference to his works including the allegations of furnishing misleading information and fabrication. (C) One expert Dr. Brahmananda Gupta, vide his report dated 01.12.2002, had made all adverse remarks against the petitioner with regard to his claim for promotion. (D) Writ A No. 23864 of 2003 was filed by the petitioner in 2003, which was disposed of with the following directions:
"In view of the statement made by Shri Upadhyay, we dispose of the petition with the direction to the petitioner to submit photo copies of the said articles with proof of their publication in indexed Journals within a period of ten days from today, and if he so submits, the respondents shall verify the same and conclude the enquiry expeditiously. After conclusion of the enquiry, we request the learned Vice Chancellor to convene the meeting of the Executive Council of the University expeditiously to take a final decision on the issue.
With these observations, the petition stands disposed of."
(E) The Executive Council placed the matter in its meeting held on 02.08.2003, after the judgment of this Court in Writ A No. 23864 of 2003 and resolved as follows:
"RESOLVED THAT in the light of orders passed by Hon'ble High Court in writ petition No. 23864 of 2003, all documents/reprints of publications of Dr. I.P. Singh be again sent to the external expert for opinion, explicitly mentioning the publications which pertain to the period subsequent to the date of interview.
RESOLVED FURTHER THAT the MHRD be informed of the development."
(F) Dr. Brahmananda Gupta, the external expert submitted another report dated 09.11.2003 against the petitioner making it clear that he did not deserve promotion.
(G) The Expert's report dated 09.11.2003 was again placed in the meeting of the Executive Council dated 23rd-24th of December, 2003 with the following resolution:
"RESOLVED THAT in view of the reports of the external expert, the recommendations of the Selection Committee dated 15.11.2000 regarding promotion of Dr. I.P. Singh, Department of Basic Principles, I.M.S. as Professor under Career Advancement Scheme be not accepted and be submitted to the Visitor under Statute 27(3) for final decision.
RESOLVED FURTHER THAT the Hon'ble High Court be also apprised of the above decision of the Council through University Senior Standing Counsel."
(H) The Visitor, vide order dated 16.07.2005, approved the decision of the Executive Council by not accepting the recommendations dated 15.11.2000 made by the Selection Committee for promotion of the petitioner.
31. I do not find anything to establish that either the procedure prescribed under section 27 of the Banaras Hindu University Act, 1915 or the Ordinance 14.1.7 was violated. I also find that the conduct and conclusion of enquiry was allowed by the Division Bench itself while disposing of Writ A No. 23864 of 2003 by order dated 03.07.2003. The grievance of the petitioner against the decision of Division Bench, though pressed by means of a modification application, was turned down by the Division Bench on 07.12.2016. No further challenge was made by him to the aforesaid decisions. There is no bar, either factual or legal, restraining the University to hold and conclude the enquiry against a candidate when the matter pertains to examination of his research papers for the purposes of consideration of his claim for promotion, particularly when one of the members of the Selection Committee proceeded to object to the same.
32. The submission of Shri B.P. Singh that Dr. R.V. Sohgaura himself admitted that on 15.11.2000 he could not make his dissent note but submitted complaint on 10.02.2021, which is later in point of time, does not appeal to the Court in view of his report dated 15.11.2000 submitted in a printed proforma, forming part of the counter affidavit as Annexure CA-2, in which Dr. R.V. Sohgaura noted that the petitioner had enclosed only one publication made in the year 1972 and one article in four pages in 1993 with various further remarks concluding that he cannot be recommended for professorship in the Department. Even if, the submission of Shri B.P. Singh to the effect that action taken pursuant to subsequent communications made by Dr. R.V. Sohgaura was unjustified, could otherwise have some force, the same would not be helpful to the cause of the petitioner in the present case as the issue was continuance and conclusion of the enquiry, which the Division Bench permitted and directed with a further request to the Vice Chancellor to convene a meeting after the petitioner submits his publications, for the purposes of taking a final decision on the issue. Admittedly, the issue was that of promotion of the petitioner based upon his works and once the same has been analyzed by external expert and the report having been considered by the Executive Council, was forwarded with its opinion to the Visitor as per section 27(3) of Banaras Hindu University Act, 1915, no flaw, either factual or legal, is found in the approach or action of the Executive Council and also in the consequential decision taken by the Visitor.
33. The judgments of the Apex Court, cited by the learned counsel for the petitioner, to the effect that decision of the Selection Committee should not normally be interfered with, are of no help to him as the proceedings, in the present case, were not finally concluded on 15.11.2000 but, in view of sequence of events, as described herein-above, including the intervention made by this Court and proceedings held subsequently, continued and ultimately concluded in terms of the impugned decision taken by the Visitor on 16.07.2005 as communicated to the petitioner by the Registrar vide letter dated 07.11.2005.
34. Insofar as submission of Shri V.K. Upadhya, learned Senior Advocate with regard to plea of res-judicata is concerned, the Court does not find any substance therein, inasmuch as the principle of res-judicata applies only when something is fnally adjudicated upon. In the present case, when Writ A No. 23864 of 2003 was filed and decided, the issue of promotion of the petitioner was not finally concluded or adjudicated upon, but it was left open to be considered and decided as per the directions contained in the order dated 03.07.2003, by which time, the subsequent order dated 16.07.2005 and communication dated 07.11.2005 had not even come into existence. Explanations IV and V of section 11 of Code of Civil Procedure, to the effect that any matter which might and ought to have been made a ground of defence or attack etc. etc. or deemed refusal of relief claimed, but not granted in the previous round of litigation, have no application in the facts and circumstances of the present case in view of above discussion. Reference made by Shri V.K. Upadhya to paragraph No. 2 of the affidavit supporting the modification application in Writ A No. 23864 of 2003 is misconceived as it appears that the prayers made in the present writ petition were erroneously quoted therein, inasmuch as there was no occasion to challenge the decisions dated 16.07.2005 and 07.11.2005 in the writ petition filed in 2003. For this reason also, arguments advanced on the line of principle of res-judicata have no force.
35. For all the aforesaid reasons, I do not find any factual or legal error in any of the orders impugned as the Court cannot substitute its findings on merits of the claim of a candidate, which has been examined by the expert after intervention by the Division Bench, as explained herein-above.
36. Writ A No. 18863 of 2006 fails and is, accordingly, dismissed.
37. No order as to costs.
Writ A No. 18309 of 200638. While reserving the judgment, it was observed by this Court that for the time being the judgment would be pronounced in Writ A No. 18863 of 2006 and since Writ A No. 18309 of 2006 has not been heard on merits, prayers made therein may be dependent upon the result of the present writ petition.
39. Office is directed to list Writ A No. 18309 of 2006 on 18.09.2023 for final hearing.
Order Date :- 05.09.2023 Sazia