Allahabad High Court
Shyam Behari Agarwal vs Chancellor Of Allahabad University And ... on 9 September, 1998
Equivalent citations: (1999)1UPLBEC498
Author: Bahgwan Din
Bench: Bahgwan Din
JUDGMENT S.H.A. Raza, J.
1. Dr. Shyam Behari Agrawal has filed the present writ petition assailing the decision of the Chancellor, by means of which the Chancellor found that the decision arrived at by the Members of the Selection Committee in favour of Dr. R.K. Vishwakarma, respondent No. 3 recommending him to the post of Lecturer in Painting in Allahabad University, was justified and secondly, the Allahabad University must give the appointment to Dr. R.K. Vishwakarma to the post of Lecturer in question. Thus, the representations, which were filed before the Chancellor under Section 68 were accordingly disposed of.
2. The present dispute pertains to the appointment of Lecturer in Painting in the University of Allahabad in the year 1985. Advertisements were issued inviting applications for the post of Lecturer in Painting in the University of Allahabad. The petitioner as well as respondent No. 3 applied for the said post.
3. On 20-10-1985 the Selection Committee met for the purpose of recommending the name for the appointment. The Selection Committee made its recommendation in favour of respondent No. 3. No other name was recommended by the Selection Committee. On 27- 10-1985 the Executive Council of the University of Allahabad in its meeting resolved not to accept the recommendation of the Selection Committee and reference was made to the Chancellor under Section 31(A) of the State Universities Act.
4. On 19-11-1985 the petitioner also preferred a representation under Section 68 of the Act before the Chancellor against the recommendation of the Selection Committee. On 14-12-1985 as well as on 25-5-1986 the petitioner filed supplementary references before the Chancellor. On 19-5-1986 the petitioner preferred a representation to the Chancellor, Allahabad University for the withdrawal of the diploma conferred on respondent No. 3, as, according to the petitioner, it was obtained by deceit because the respondent No. 3 was simultaneously enrolled in three institutions, namely, Colonelganj Inter College, University of Allahabad and Agra University. On 19-5-1986 the petitioner also made a representation in that regard to the Chancellor, Agra University. On 21-5- 1986 the petitioner also preferred a representation to the Chancellor Kanpur University for withdrawal of M.A. degree of respondent No. 3 as he appeared second time in the examination for the M.A. Painting.
5. On 10-1-1986 the respondent No. 3 also preferred a reference before the Chancellor against the decision of the Exeuctive Council of the University of Allahabad. Some of the Members of the Executive Council also preferred a representation before the Chancellor.
6. As stated above, the Chancellor disposed of all the representations by observing that the recommendation of the Selection Committee regarding the appointment in favour of respondent No, 3 was justified and hence the University of Allahabad will appoint Dr. R.K. Vishwakarma on the post Lecturer in Painting in Allahabad University.
7. The thrust of the petitioner in assailing the recommendation of the Selection Committee and the decision of the Chancellor is as under:
"1. The Chancellor has not exercised the powers in accordance with the provisions contained in Section 31-A of the State Universities Act and ignored to consider the reason given by the Executive Council in rejecting the recommendation of the Selection Committee.
2. The recommendation of an Selection Committee indicated that it did not consider the merit of the candidates.
3. In absence of any consideration of the record of he Selection Committee, the decision of the Chancellor is vitiated.
4. Professor C.S. Mehta, an expert was prevented from participating in the meeting of the Selection Committee and the name of Shri R.C. Shukla, an expert, was included in the panel for selection, who was one of the examiners of respondent No. 3. Shri R.C. Shukla favoured respondent No. 3 for the reason that respondent No. 3 was instrumental in organising one man exhibition of Shri R.C. Shukla."
8. On 4-1-1968 the petitioner was appointed as a Teacher/Instructor in Painting Department and since then he has been imparting education in the department. On 21st/25th August, 1972 the petitioner was informed by the Assistant Registrar (Administration), Allahabad University that the petitioner was confirmed on the post of Teacher in Painting (Fine Arts Department) of Allahabad University with effect from 24th May, 1972 and was entitled to the Provident Fund benefit according to the University Rules. In pursuance of the recommendation of the University Grant Commission in the year 1961 to abolish the post of Instructor and categorising the teachers in three grade, namely, Professor, Reader and Lecturer in all the Universities of India, the State Government on 1-1-1962 accepted the recommendation of the University Grant Commission.
9. On 19th March, 1974 the Executive Council of the University of Allahabad resolved that the post of all eight Instrutors in the Department of Fine Arts be converted into the posts of Lecturers and all the confirmed incumbent working against these posts be designated as the Lecturers.
10. As the University failed to implement the resolution of the Executive Council, the petitioner as well as four other Instructors including respondent No. 3 filed a writ petition bearing No. 5327/1982 before this Court, praying that the respondents be commanded for providing the right and entitlement of pay and allowance of Lecturers to the petitioners in the approved pay scale of Lecturers in pursuance of the conversion of the posts of Instructors to Lecturers by the Executive Council. The writ petition was admitted and this Court was pleased to pass an interim order directing the respondents in the said writ petition to pay the salary to the petitioners which is admissible to Lecturers. The Writ Petition is still pending.
11. There were eight Instructors in the Department of Fine Arts. According to the petitioner the Department of Fine Arts included Painting Section and Music Section. Although the Department is one, but in practice the Department of Fine Arts consisted of two departments, Painting and Music and separate degrees are granted to the students who qualified in either of the sections.
12. In the meantime in the year 1985 one post of Lecturer in Painting in the Department of Fine Arts, as indicated in the foregoing paragraphs, was advertised. Twenty nine candidates including the petitioner and respondent No. 3 applied for the post. The Selection Committee recommended the name of Dr. R.K. Vishwakarma, respondent No. 3 for appointment to the post of Lecturer, but the Executive Council in its meeting held on 27-10-1985 did not approve the recommendation of the Selection Committee and referred the matter to the Chancellor Committee and referred the matter to the longer teaching experience and had done excellent work in comparison to respondent No. 3 in the subject in question.
13. In his reference to the Chancellor, the petitioner asserted that he possessed more experience of teaching in comparison to Dr, Vishwakarma and had better academic record. The Selection Committee committed a mistake in not recommending his name for the post in question. He also asserted in his representation that respondent No. 3 pursued two separate courses of studies at the same time, which is contrary to the Rules. Respondent No. 3 appeared twice in M.A, examinations in two different courses, Drawing and Painting, and while doing his M.A. course for the second time, he did not seek permission from the University of Allahabad and suppressed the fact that he has been drawing salary from two institutions with effect from July to September, 1976, which he could not do in accordance with the Rules. The petitioner also averred that Professor R.C. Shukla, an expert was favourably inclined in favour of respondent No. 3 and while recommending the name of respondent No. 3 he acted mala fide.
14. Dr. R.K. Vishwakarma in his representation challenged the resolution of the Executive Council, by means of which the Executive Council referred the matter to the Chancellor under Section 31(8)(a). Respondent No. 3 asserted that the petitioner did not possess the necessary minimum qualification for being elected as Professor in Fine Arts (Painting) as the petitioner did not have any research experience in Fine Arts. (Painting) and he completed the course of D.Phi. in Hindi Literature while respondent No. 3 obtained D. Phil, in Fine Arts. Respondent No. 3 also averred that teaching experience of diploma class in Fine Arts is not a statutory qualification. The Executive Council transgressed its authority by setting aside the recommendation of the Selection Committee and the recommendation of Selection Committee, which is an experty body, could not be substituted by the Executive Council without valid reason.
15. The University of Allahabad in its comment averred that there is only one Fine Arts Department in the Faculty of Arts in which music and painting are taught. Professor Jha was its Head and he had a right to be a member of the Selection Committee. Consent of three experts namely, Professor S. Lahiri, Professor C.S. Mehta and Professor R.C. Shukla was sought to form a panel for making selection to the post of Lecturer in Painting. However, Professor C.S. Mehta could not arrive in the meeting of the Selection Committee, which was held on October 20, 1995. The Members of the Selection Committee waited for Professor C.S. Mehta for some time and as he could not arrive the Selection Committee in which Professor S. Lahiri and Professor R.C. Shukla were also expert interviewed the candidates.
16. The Unviersity in its comment further averred that respondent No. 3 under the Improvement Scheme of Division appeared again in M.A. Drawing and Painting and thus, improved his division. Respondent No. 3 possessed better qualification and his overall performance before the members of the Selection Committee was upto the mark, so he was recommended for the selection to the post in question. The allegation of the petitioner was denied by the University.
17. The petitioner in his rejoinder affidavit reiterated what he had already stated in his representations.
18. Some of the members of the Executive Council also preferred the representations challenging the recommendation of the Selection Committee mainly on the ground that the petitioner possessed more teaching experience in comparison to Dr. R.K. Vishwakarma. They supported the decision of the Executive Council stating that the respondent No. 3 was less qualified to the post in comparison to the petitioner. They also asserted that respondent No. 3 suppressed true facts and misrepresented his qualification.
19. Respondent No. 3 filed his response against the references made by some for the members of the Exeuctive Council refuting the allegations, which have been asserted by those members.
20. The University in its comment also refuted the allegation of the members of the Executive Council and submitted that those members were not aggreived persons, hence they had no right to prefer a representation under Section 68 of the Act.
21. Before dealing with the controversy involved in this writ petition, it is pertinent to mention here that the qualification for the post of Lecturer is constantly good academic record with first class or high second class of Master Degree or an equivalent degree of diploma recognised by the University and two \ ears research or professional experience or creative work or achievement in the field of specialisation or combined research and professional experience of three years in the field as an Artist of outstanding talent, or a traditional or professional Artist with highly commendable professionable achievement in the subject concerned.
22. As far as the academic qualification of the petitioner is concerned, he passed his high school examination in third division from the U.P. Board in the year 1956. He passed his intermediate examination from the U.P. Board in the year 1958 in third division. He cleared his B.A. Part 1 examination in the year 1961 and cleared his B.A. Part II examination in the year 1969 in third division. He completed his M.A. in Drawing and Painting securing first division with 64% marks in the year 1974. He also completed a five years diploma course from the College of Arts and Crafts, Calcutta in the year 1966; as at the relevant time subject Painting was not available in Allahabad University, in the B.A. Course, so after completing his B.A. Part I examination, he joined the Government College of Arts and Crafts, Calcutta in the year 1962 and after completing the said course, he returned to Allahabad and completed the course of B.A. Part II in the year 1969. Petitioner also succeeded in obtaining a diploma in photography in the year 1972 and then obtained his Master's Grade Time examination in the year 1979 from the Baord of Fine Arts and Crafts Examination, University of Allahabad. Thereafter, he completed his M.A. in Drawing and Painting from Kanpur University, as stated above. He also completed the course of D. Phil, from Hindi Department of the University of Allahabad in the subject "Bharti Chitrakar Rajput Evam Kangra Shaili May Ritikalin Ki Abhivyaki". Besides the above, it has been averred that the paintings of the petitioner were exhibited by the State Lalit Kala Academy, Indian Society of Oriental, Calcutta and various others organisations, which were commended by various newspapers and publications. Respondent No. 3 joined the Department of Fine Arts (Painting) for obtaining diploma in Painting in the year 1963 and was taught by the petitioner.
23. As far as the academic record of respondent No. 3 is concerned, he did his High School in the year 1962 from the U.P. Board in Second Division. He cleared his Intermediate Examination in the year 1966 in Second Division from the U.P. Board. He passed the Intermediate Technical Drawing Examination in the year 1968. He cleared his B.A. Examination in Third Division from Agra University in the year 1971. He cleared Sahitya Ratna Examination in Second Division in the year 1974. He was awarded a certificate in photography from the University of Allahabad in Second Division in the year 1978 and passed M.A. Examination in Drawing and Painting from Kanapur University in First Division with 72% marks in the year 1980. He was awarded the degree of D. Phil, from the University of Allahabad in Fine Arts (Painting) in the year 1984 and also successfully completed the course of diploma in Painting in Second Division. He has been working as Lecturer in Allahabad University with effect from 1-3-1976.
24. From the above, it is evident that the academic record of respondent No. 3 in comparison to the petitioner was better, put as for as the teaching experience is concerned, the petitioner has been teaching in the University of Allahabad since 4-1-1968 while respondent No. 3 has been teaching in the University of Allahabad with effect from 1-3-1976.
25. Shri Yogesh Agrawal, learned Counsel appearing on behalf of the petitioner, submitted that the Chancellor, while considering the references made by Executive Council, totally ignored the degrees, diplomas, degrees, publications, teaching experience, other materials and the resume of the petitioner, which were available on the record and thereby failed to exercise his discretion vested to him under Section 31(8) of the Universities Act. He also ignored the resolution of the Executive Council, which rejected the recommendation of the Selection Committee, firstly, on the ground that the petitioner was senior by nine years to respondent No. 3 and secondly, that there were various documents and precies which revealed that the petitioner had done excellent work in comparison to respondent No. 3 and the petitioner had obtained the D. Phil, degree five years earlier to respondent No. 3 and in that regard the decision of Hon'ble Supreme Court in The Kerala Agricultural University v. K. R. Anil and Ors., 1997(10) Supreme Today 61, was relied upon, wherein it was observed :
"After considering the facts and circumstances of this case and submissions made by the learned Counsel appearing for the parties it appears to us that the proviso to Rule 14(c) and clause (d) of Rule 14 and also 15 indicate that a merit assessment is required to be made even for the candidate who is eligible to be appointed against the reserved vacancy. The High Court in our opinion, was not justified to hold that if a candidate belongs to a community for which there is a vacancy and such candidate is otherwise eligible on the basis of his academic qualification such candidate cannot be eliminated by assessing his merit. Therefore, the impugned judgment of the High Court indicating that no selection is required to be made in the matter of appointment against reserved vacancy under Rules 14 to 17 of the said Rules must be held to be incorrect and the same is set aside. It is the specific grievance of the respondent No. 1 that even though he had fared well in the interview his elimination was improper and amounted to mala fide. Considering such case and also taking into consideration the fact that the University failed to produce records of the Selection Committee to show that fair assessment had been made so far as respondent No. 1 is concerned, we do not think that the direction of the High Court to give appointment to respondent No. 1 should be interfered with in the specific acts of the case. Therefore, although the principle on which the decision has been rendered by the High Court is not accepted and the same is set aside for the reasons indicated by us we are not inclined to interfere with the ultimate direction of the High Court to give appointment to the respondent No. 1 to the post of Assistant Professor. It is made clear that the approval of the direction for appointment of respondent No. 1 has been given in the special facts of the case and also by taking into consideration that the respondent No. 1 has requisite qualification for such appointment and he had also been given temporary appointment to the post of Junior Assistant Professor in the said University on the basis of academic qualification and there is nothing adverse on records to suggest that the respondent No. 1 is unsuitable to hold the post of Assistant Professor. This appeal is accordingly disposed of without any order as to costs. It is made clear that such appointment of the Respondent No. 1 to the post of Assistant Professor will be effective from the date of this judgment."
26. Mr. Yogesh Agarwal also placed reliance upon the decision of Hon'ble Supreme Court in State of Bihar v. Kumar Pramod Narain Singh and Ors., 1997(3) AWC 1971(SC). The dispute in that case pertains to the recruitment to the Class III posts in several categories in the State of Bihar. Selection was challenged before the Patna High Court. Patna High Court took the view that selection and appointments of the candidates were without preparing merit list and without calling for the option, hence the selection was arbitrary and violative of Article 14 of the Constitution. Thereafter, the State of Bihar filed and S.L.P. before the Hon'ble Supreme Court. Hon'ble Supreme Court, while hearing the said appeal directed the learned Counsel appearing on behalf of the State of Bihar to place before the Court the merit list to substantiate the stand taken in the affidavit filed in the behalf. Learned Counsel failed to place before the Court, the merit list, instead the list of the candidates who were selected, which was published in the newspapers was placed before the Court. In view of the findings recorded by the High Court that no merit list was prepared and in spite of the opportunity having been given, the Government failed to substantiate the merit list, the Supreme Court found it difficult to accept the averments made in the affidavit. In view of the fact that the select list was not prepared and options were not called for from the candidates to be appointed to the departments, depending upon their job necessity and requirement, the Hon'ble Supreme Court declined to interfere with the order passed by the High Court of Patna.
27. Learned Counsel for the petitioner has laid great emphasis by stating that the Chancellor has not indicated any reason as to why the petitioner, who was senior by nine years and was more meritorious in comparison to respondent No. 3 was ignored by the Selection Committee and also failed to indicate the reason for brushing aside the decision of the Executive Council.
28. It is pertinent to mention here that the Statute 11.01(2) lays down the minimum qualification for the appointment on the post of Lecturer in the University. Statute 11.01(2)(A) and Statute 11.01(2)(B) provide that minimum qualification for the appointment on the post of Lecturer should be constantly good academic record, which means above 54% of marks. Admittedly, neither the petitioner nor respondent No. 3 possessed good academic record. According to the petitioner he was in a advantageous position in comparison to respondent No. 3 inasmuch as he has alternative qualification of a traditional or professional Artist with high commendable professional achievement in the subject concerned. Grievance of the petitioner appears to be is that neither the Selection Committee nor the Chancellor assessed the comparative merit of the petitioner within the parameter of the additional qualification as provide in Statute 11.01 (2).
29. It was asserted that while judging the merit of an Artist, his professional achievements, number of exhibitions, publications and workshop etc. are the relevant factor, the other additional qualification which the petitioner possessed was five years diploma course from Government College from Arts and Crafts, Calcutta, which has produced eminent and famous Artists. Instead of giving any weightage to the petitioner for being a professional Artist with high commendable professional achievements in the subject concerned, the Chancellor only considered the relevant academic record of the candidates, which were not relevant for judging the merit of candidates in the field of arts and paintings as specified in the additional qualifications contained in Statute 11.01(2).
30. It was asserted that the Chancellor while dealing with the "academic attainments" took a perverse view by indicating in his order that the petitioner took eight years in completing his B.A. Degree, although the petitioner had explained that after passing B.A. Part I examination, he joined the Government College for Arts and Crafts, Calcutta and there he completed a five years course and was conferred a diploma. It was also asserted that the Chancellor was duty bound to objectively consider the qualification and merit of both the candidates and should not have relied upon the representations under Section 68 of the State Universities Act, because under Section 31(8) of the Act the merit of the candidates was to be considered on relevant consideration, which was not done in the present case.
31. It was further asserted that the Chancellor rejected the allegation of mala fide, which the petitioner had levelled, by observing that the petitioner was stopped from raising that question as he had participated into the selection process and did not raise any objection for being Prof. R.C. Shukla as an expert.
32. It was next asserted that the Chancellor did not consider the record of the Selection Committee and based his decision on the comments of the University and without looking into the record of the Selection Committee as to whether the Selection Committee made objective appraisal of the relevant merit of the candidates, by confining himself to the academic attainments of the petitioner and the respondent No. 3.
33. From the side of the petitioner reliance was placed on the letter of Prof. Lahiri, which has been annexed as Annexure 1 to the rejoinder affidavit that the bio-data of the candidates were not available to the Selection Committee and as such no objective appraisal of the respective merit of the candidates could be done.
34. It was further argued that the Chancellor committed an error, apparent on the face of the record, by indicating in his order that the diploma in Arts and Crafts from the Government College, Calcutta is not recognised by the University of Allahabad, particularly when the initial appointment of the petitioner as Teacher/Instructor in the year 1968 was made on the basis of that diploma.
35. It was vehemently argued by Shri Agarwal, learned Counsel for the petitioner that the Department of Fine Arts consisted of two decipline, music and painting. Prof. Jha, who was the Head of Department, was teaching music and hence he was incompetent to examine the merit of any candidate to become Lecturer in Painting. It was asserted that the petitioner was senior most Teacher in the Department of Painting and was senior to Prof. R.A. Jha and hence Prof. Jha could not be a member of the panel to select a Lecturer in Painting. It was also asserted that the petitioner has obtained D. Phil. Degree in Arts (Painting) and not in Hindi.
36. It was asserted by the learned Counsel for the petitioner that respondent No. 3 was guilty of simultaneously obtaining the diploma from Allahabad Unviersity and B.A. Degree from Agra University, which is not permissible. He was simultaneously employed in Colonelganj Intermediate College and Unviersity of Allahabad and drawing salary from both the institutions. Respondent No. 3 also forged a letter from the Principal of the College, which fact had not been denied. Learned Counsel for the petitioner also lead emphasis that respondent No. 3 mis- lead the Selection Committee as well as the Chancellor about his qualifications. Respondent No. 3 has not come up with clean hands before this Court.
37. It was again asserted that the Selection Committee as well as the Chancellor ignored the fact that the petitioner was more meritorious and deserving candidate, which is evident from the comparative chart and no prudent person could reach the difference conclusion.
38. Lastly, it was urged that the Selection Committee did not allot marks to the candidates separately under separate head and did not make any merit list and recommended only respondent No. 3, which shows that from the inception, the Selection Committee delve with a pre-conceived notion and determination to recommend the name of respondent No. 3 without considering the respective merit of the candidates.
39. As far as the contention of the petitioner, that the Chancellor has not exercised the powers as contemplated under Section 38(1)(8) of the State Universities Act and has failed to consider the reason indicated by the Executive Council for deferring from the recommendation of the Selection Committee, is concenred, the Chancellor in his order indicated that neither the petitioner nor the members of the Executive Council, who filed their representations that respondent No. 3 did not fulfil the minimum qualifications prescribed for the post in question. The Chancellor indicated that longer teaching experience has no role to play in the selection in question, because the selection is not to be made on the basis of longer teaching experience, but is based on academic attainments of the candidates, their overall performance before the Selection Committee and other relevant factors.
40. As far as academic attainments is concerned, the Chancellor observed that the petitioner did not fair better than respondent No. 3. He also observed that the diploma course obtained by the petitioner from the Government College of Arts and Crafts, Calcutta is not recognised diploma in the list of the examinations recognised by Allahabad University. So nothing material turns upon the diploma examination passed by the petitioner. The minimum qualification for the post in question is constantly good academic record with first class or high second class Master's Degree or an equivalent Degree of diploma recognsied by the University and two years research experience or professional experience of creative work. Respondent No. 3 possessed comparative better academic record. He was also Ph. D. in the subject concerned, which qualification the petitioner lacked, as according to the Chancellor the petitioner did his Ph. D. in Hindi while the respondent No. 3 did his Ph. D. in Fine Arts. The Chancellor was of the opinion that if the Selection Committee considered the academic persuit and performance of the candidates, who appeared before it and on that basis, it selected respondent No. 3 for the post in question, then the decision rendered by the Selection Committee in favour of respondent No. 3 is not vitiated on any score.
41. As far as the question about the academic merit of the candidates is concerned and its comparison, it has been more or elss settled that such an exercise should be left to the judgment of the expert on the subject.
In Neelima Misra v. Harinder Kaur Paintal and Ors., (1990) 2 SCC 746, Hon'ble Supreme Court observed :
"Power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasi judicial power. No judicial or quasi judicial duty is imposed on the Chancellor. The function of the Chancellor is to consider and direct appointment of a candidate on the basis of relative performance assessed by the expert selection committee and in the light of opinion, if any, expressed by the executive council. His decision nonetheless is a decision on the recommendation of the selection committee. Such a power cannot be considered as a quasi judicial power. There is no need to conform to the principle of natural justice. Section 31 confers no such right to make representation to the executive council or to the Chancellor against the recommendation of the selection committee. There is no provision in the section for hearing any candidate."
It is further observed :
"The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the Statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the anture of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14. The principle of equality enshrined in Article 14 must guide every State action, whether it be legislative, executive or quasi Judicial."
which involves civil conseqeunces must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. Hon'ble Mr. Justice K. Jagannatha Shetty, speaking on behalf of the Bench indicated:
"All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. Fair play in action evokes application of a sensitive judicial conscience to the facts of the case."
42. In University of Mysore v. CD. Govinda Rao, AIR 1965 SC 491, Hon'ble Supreme Court held:
"Recommendation made by the Selection Committee cannot normally be challenged. Even the Courts may be show to interfere with the opinion expressed by the experts unless there an allegation of mala fide against members, who constituted the Selection Committee. If, however, an appointment is made on the basis of the recommendation and such appointment contravence any statutory or binding rule or ordinance, the Court can interfere."
43. Power of the High Court to issue a writ under Article 226 of the Constitution, has been circumscribed by Hon'ble Supreme Court in MC Gupta v. Arun Kumar, 1979(2) SCC 339. In that case, Hon'ble Supreme Court relied upon its earlier decision in State of Bihar v. Asis Kumar Mukharjee, (1975) 3 SCC 602, wherein it was observed :
"When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Article 226 of the Constitution. Even then the Court, while enforcing the rule of law, should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted. If the recommendations made by the body of experts, keeping in view the relevant rules and regulations, manifest due consideration of all the relevant factors, the Court should be very slow to interfere with such recommendation."
44. In B.S. Minhas v. Indian Statistical Institute and Ors., (1993) 4 SCC 582, wherein the appointment of the Director in the Indian Statistical Institute;, was challenged, Hon'ble Mr. Justice R.P. Misra, speaking for the Bench, taking a cue from Ramanna Dayaram Shetty v. International Airport Authority of India,(l979) 3 SCC 489, indicated that in view of the pronouncement of this Court on the point, it must be held to be obligatory on the part of the respondent No. 1 to follow the byelaws, if the byelaws have been framed for the conduct of its affairs to avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by byelaw 2.
45. In Ramanna Dayaram Shetty v. International Airport Authority of India, (supra), Hon'ble Supreme Court relied upon the rule enunciated by Mr. Justice Frankfurter in Vitarelli v. Seaton 359 US 535, which is extracted below:
"An executive agency must be regorously held to the standards by which it professes its action to be judged.....Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.........This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."
46. As the power of the Chancellor under Section 31(8)(a) is purely of an administrative character and is not in the nature of judicial or quasi-judicial power, as held by Hon'ble Supreme Court in Neelima Mishra (supra). The Chancellor has not been vested with any appellate or supervisory power to interfere in the matter of appointment of Lecturer. He can interfere only when any person has not been selected by the Selection Committee, although he is eligible and qualified to be appointed as contained in Statute or if the Selection Committee has committed any illegality or irregularity or non-confirmity with the provisions of the Act, Statute or the Ordinance made thereunder.
47. The minimum qualification for the appointment of a Lecturer in the University as contained in Statute 11.01(2)(a) and 11.01(2)(b), which requires constantly good academic record and the alterantive qualification for the Lecturer in Fine Arts is the traditional or professional Artist with highly commendable professional achievement in the subject concerned.
48. As far as the constantly good academic record is concerned, neither the petitioner nor the respondent No. 3 possessed the good academic record, although the academic record of respondent No. 3 was superior to that of the petitioner.
49. As far as the alternative qualification is concerned, it was for the experts to adjudge the same, who have the necessary expertise to decide that matter. The Selection Committee which consisted of Dr. R.P. Mishra, Vice-Chancellor, Prof. R.C. Shukla Department of Fine Arts, Banaras Hindu University (Expert), Proff. Shanu Lehri, Department of Fine Arts R.B. University, Calcutta (Expert), Shri R.A. Jha, Head of Department Fine Arts (Expert), after interviewing all the candidates and perusing the precies, which were presented at the time of interview, made the following recommendations :
"The Selection Committee after considering the relative merit of the candidates recommended the following for the appointment as Lecturer : (1) Dr. R.K. Vishwakarma with salary to be protected."
50. The recommendation of the Selection Committee was unanimous.
51. In Dr. B.R.K. Shukla v. Chancellor, University of Lucknow and Ors., Writ Petition No. 1110(SB)/1993, decided on 16-9-1996 by a Division Bench of this Court sitting at Lucknow, in which one amongst us (Justice S.H.A. Raza) was a member, held :
"The qualifications of appointment of a Professor in the University is contained in Statute 11.01(2), which we have already referred. The appointment can be made only within the defined procedure and that procedure binds upon every authority of the University, namely the selection committee, executive council or the Chancellor. If the procedure has been scrupulously followed, then no interference can be made by any authority of the University, including the Chancellor and even the High Court's power to issue a writ shall be circumscribed to the well established principle of judicial scrutiny, meaning thereby, as to whether the procedure has been followed or not, and whether in the process of making appointment, irrelevant factors and extraneous matters have influenced the authority or the order suffers from bias. While doing so, neither Chancellor, nor the Court will reappraise the over all merits of the candidate and substitute another judgment for that of selection committee constituted under the provisions of the Act. The Chancellor by exercising power under Section 3 l(8)(a), or Section 68 of the Act cannot be reappraise or re-evaluate the merit of the candidates or substitute his own views in the matter of selection of a teacher or Professor of the University particularly when the Selection Committee has arrived at the subjective satisfaction and graded one teacher to the post Professor, a better one in comparison of others. The question whether a particular candidate fulfilled the requisite qualification or not is although based on subjective facts but it should be within the well defined provisions, of the Act and Statute."
It was further indicated :
"The Selection Committee which consisted of experts, arrived at a subjective satisfaction that Dr. B.R.K. Shukla deserved to be placed at serial No. 1 No authority can substitute its own opinion in place of that expert body."
It was also indicated :
".........but exercising his (Chancellor) power under Section 68 of the U.P. Universities Act, he (Chancellor) totally ignored the recommendation of the experts, who were the only competent persons to evaluate and assess the expertise of the candidates. Hence, it can safely be said that his decision not only suffers from manifest error of law but also is in flagrant violation of Statute 11.02(2) framed under the U.P. Universities Act."
52. The question as to whether the assessment of the Selection Committee regarding the alternative qualifications given in Statute 11.01(2) (b) can be subjected to judicial scrutiny. The answer would be negative. The Selection Committee which consisted of the experts. The Selection Committee after seeing the resume of the petitioner as well as respondent No. 3, arrived at a conclusion that the professional achievements of respondent No. 3 was superior to the petitioner and respondent No. 3 possessed the qualifications of traditional or professional Artist with high commendable performance in the subject concerned. The Selection Committee as well as the Chancellor found that the academic record of the respondent No. 3 was much superior to that of the petitioner, hence the subjective satisfaction arrived at by the Selection Committee as well as by the Chancellor cannot be subjected to judicial review.
53. We are of the view that neither the recommendation of the Selection Committee nor the decision of the Chancellor suffers from such an arbitrariness or irrationality that no prudent man can arrive at to such opinion or conclusion.
54. Regarding the allegation of mala fide, which has been levelled against Prof. R.C. Shukla, who was a member of the Selection Committee, being an expert, is concerned, it is pertinent to mention here that the petitioner has not arrayed Prof. R.C. Shukla as a party to the writ petition to file a response against such an allegation.
55. In All India State Bank Officers Federation and Ors. v. Union of India and Ors., 1996(8) SCC 550, the law has been settled that if malice infact is alleged against a person, such a person should be arrayed as a party to rebut the allegation failing which the charge of mala fide cannot be attributed against such a person.
56. The Chancellor in his order has indicated that if anyone wanted to take the plea of mala fide and prejudice etc., he must take it at the earliest opportunity. The Chancellor expressed an opinion that anyone may take the plea of mala fide at the earliest, but as the petitioner did not raise any such objection, hence his version of prejudice against Dr. R.C. Shukla, one of the experts of the Selection Committee, must be deemed to be purely afterthought, and cannot be accepted.
57. The Chancellor further observed that it may be noted that besides Prof. Shukla, there were another members in the Selection Committee and majority view has prevailed, so for that reason it cannot be said that due to any initiative of Prof. R.C. Shukla, Dr. R.K. Vishwakarma was selected on the post of Lecturer and his selection could not take place on merit.
58. The view which has been expressed by the Chancellor was in accordance with law as declared by Hon'ble Supreme Court in Dr. G. Sarana v. Lucknow Unviersity, 1976 SCC 2428 (Para 15) and Bhagwati Prasad Kambog v. Vice Chancellor, 1975 ALR 150 (DB).
59. The petitioner has alleged that respondent No. 3 has organised a one man exhibition of painting of Prof. R.C. Shukla. Respodnent No. 3 denied this fact before the Chancellor as well as before this Court. Assuming that the allegation is correct, then as to whether, for that reason a Senior Professor, who is Head of Department of Fine Arts in Banaras Hindu Unviersity would favour a candidate merely because he had organised the exhibition of his paintings, is beyond imagination. In the academic field such coincidence is natural.
60. It has been observed in J.N. Gupta v. Dr. B.S. Gupta, 1978 ACJ 78 (DB), that "candidates and expert being students and teachers staying together was not sufficient to hold a bias.
61. Neither any provision of the State Universities Act nor any Statute framed thereunder, provides that it is incumbent upon the Selection Committee to award marks under the respective heads or give marks separately on distinct head. As we have already observed that the assessment of merit of respective candidates before the Selection Committee is subjective one, which is based on objective material, i.e. academic attainments, experience, expertise in research and other published work, in the case of selection of a Lecturer in Fine Arts, hence the recommendation of the Selection Committee cannot be faulted until and unless it is violative of any provision of the State Universities Act or the Statute framed thereunder or suffers from malice.
62. It is the overall performance of a candidate at the time of interview which matters in the process of selection. If in the opinion of the experts, performance of a candidate in interview was above the mark and experts recommend a person for selection, their opinion neither can be brushed aside nor be substituted by anybody. As there exists no provision for giving marks to candidates on different heads. The contention of the petitioner to find fault with process of the selection by the Selection Committee cannot be accepted. The petitioner cannot be permitted to raise this sort of the grievance before this Court which he has not raised before the Chancellor.
63. The other grievance of the petitioner that the Chancellor while deciding the reference, did not peruse the record of the Selection Committee, is concerned, is mis-conceived inasmuch as the entire record was before the Chancellor. Besides the above the comments of the University of Allahabad was also before the Chancellor. The order of the Chancellor indicates that he had all the relevant records before him and he has stated that all the experts have deliberated separately while giving their opinion.
64. As far as the letter of Prof. S. Lahiri, which has been annexed by the petitioner in his rejoinder affidavit is concerned, we are of the view that the opinion of expert at the time of selection is material and any subsequent opinion expressed by the expert has no relevance or use. No doubt the petitioner was a Senior Instructor, in comparison to respondent No. 3, but that is not the only criterion for the selection to the post of Lecturer in the University. The academic record, experience in research, published work and other attainments are the criteria for selection. If the Selection Committee recommended the name of respondent No. 3 after comparing the merit of both the candidates, the recommendation cannot be vitiated only for the reason that the petitioner was senior to respondent No. 3.
65. As far as the contention of the petitioner regarding defect in the constitution of the Selection Committee is concerned, it is totally mis-conceived, because the Department of Fine Arts and Music is one, which is headed by Prof. R.A. Jha.
66. Regarding the allegation that respondent No. 3 suppressed and concealed certain facts, that aspect has been dealt with by the Chancellor in detail. The Chancellor observed in his order that the stand of the petitioner cannot be given any credence in view of the fact, that Allahabad University in its comments has clearly averred that there was no legal bar from the University about such course being completed simultaneously by a candidate. Respondent No. 3 had obtained a permission from the Pro-Vice-Chancellor, Allahabad University for granting him permission to appear as a private candidate in Drawing and Painting examination, and on the basis of that permission, he appeared as a private candidate in M.A. Fine Arts to improve his Division, which was permissible at the relevant time. The Chancellor further indicated in his order that if Dr. R.K. Vishwakarma under the Scheme of Improvement in the Division was permitted by Kanpur Unviersity to appear in M.A. Fine Arts and Drawing examination and he appeared after seeking permission from Allahabad University, then he cannot be blamed in any manner.
67. The Chancellor found that the recommendation of the Selection Committee was based on sound discretion which was in favour of Dr. R.K. Vishwakarma, hence such a recommendation cannot be assailed on grounds. The selection was made by the members, who were experts having technical experience and high academic qualifications in the specialised field, so the decision taken by the members of the Selection Committee cannot be interfered with. In that regard the Chancellor relied upon the Decision of Hon'ble Supreme Court in University of Mysore v. Govinda Rao, AIR 1965 SC 491 and M.C. Gupta v. Arun Kumar Gupta, 1979(2) SCC 339.
68. We are of the view that the Chancellor has given detailed reasons while upholding the recommendation of the Selection Committee and his order does not suffer from any infirmity.
69. In view of what we have indicated hereinabove, the writ petition is devoid of merit, it is accordingly dismissed.
70. However, the parties are directed to bear their own costs.