Gujarat High Court
Suresh Chain Singh Kumar vs Gujarat University on 14 March, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/10968/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10968 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
SURESH CHAIN SINGH KUMAR
Versus
GUJARAT UNIVERSITY & 2 other(s)
==========================================================
Appearance:
PRABHA M S J PRASAD(8453) for the Petitioner(s) No. 1
MR PA JADEJA(3726) for the Respondent(s) No. 3
MRS VD NANAVATI(1206) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 14/03/2019
ORAL JUDGMENT
1. The present petition under Article 226 of the Page 1 of 17 C/SCA/10968/2017 JUDGMENT Constitution of India is filed for the purpose of seeking following reliefs:
"(A) Your Lordship may be pleased to admit and allow my petition;
(B) Your Lordship may be pleased to issue the appropriate writ, order or mandamus to set aside the appointment of respondent No.3 in the Chemistry Department of respondent No.1 Gujarat University;
(C) Your Lordship may be pleased to issue the appropriate writ or order or writ of mandamus to set aside the procedure of selection of respondent No.3 by respondent No.1 Gujarat University;
(D) Your Lordship may be pleased to declare the action of respondent No.1 and 2 of appointing respondent No.3 at the post of Assistant Professor in the Department of Chemistry of Gujarat University as illegal, arbitrary, malafide and against the provisions of law, and further be pleased to appoint the petitioner or the next eligible candidate in place of respondent No.3;
(E) Pending hearing and final disposal of this petition, YOUR Lordship may be pleased to stop the salary and work of respondent No.3 as an Assistant Professor in the Chemistry of Department of Gujarat University, and further be pleased to appoint the candidate who was next to respondent No.3 as per merit in the impugned appointment process;
(F) YOUR Lordship may be please to provide the cost of this petition.
(G) Any other and further relief/s as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."
2. The case of the petitioner is that an advertisement came Page 2 of 17 C/SCA/10968/2017 JUDGMENT to be published on 24.8.2016 by Gujarat University for the post of Assistant Professor, Chemistry, pursuant to which, on-line application was submitted by the petitioner. The petitioner was also short-listed as one of the candidates eligible to appear for personal interview scheduled on 4.1.2017 as the petitioner was also possessing the requisite qualification. On 4.1.2017, the petitioner attended the personal interview and while interacting with other candidates, the petitioner came to know that some of the candidates though did not possess requisite qualification in the subject of Chemistry appear to have been considered and to the reasonable knowledge of the petitioner, respondent No.3, who is having a degree in Pharmaceutical Chemistry, came to be selected for the post of Assistant Professor in the subject of Chemistry. On account of this, the petitioner raised a grievance by submitting a representation on 13.2.2017, but surprisingly, it was found that the candidate not having M.Sc. in Chemistry is selected as an Assistant Professor in Chemistry Department by overlooking the marks and merit. There are several irregularities being considered in respect of such selection process. Raising grievance against the appointment of respondent No.3, the petitioner has invoked extra-ordinary jurisdiction of this Court. Page 3 of 17
C/SCA/10968/2017 JUDGMENT
3. Pursuant to the notice having been issued, the matter then had come up for final disposal in which the learned advocate, Ms. Prabha M.S.J. Prasad appearing for the petitioner has contended that the petitioner is having a Degree as required in the advertisement of a relevant subject and though she has been selected, the appointment order was issued, instead, respondent No.3, though having no Degree in relevant subject, has been considered for appointment. The candidate holding a Pharmaceutical Chemistry subject is being considered by the selection panel, hence, the process has been tainted at the behest of the authority. It has further been contended that even though the requirement of qualification as stipulated under University Grants Commission was not possessed by respondent No.3, she came to be appointed to the post which is nothing but a hostile discrimination and absolutely arbitrary act of the respondent authority and that being so, the appointment of respondent No.3 deserves to be set at naught. Learned advocate has further submitted that in the field of education especially when students are to be taught, the selection committee cannot sacrifice the merit. The entire exercise at the behest of the authority is unjust and improper, smacks malafides, resultantly, requires to be Page 4 of 17 C/SCA/10968/2017 JUDGMENT corrected by setting aside the impugned order. It has been submitted that under Right To Information, it has been found that candidate not having the proper Degree in the relevant subject has been selected and the RTI reply which has been received on 27.2.2017 is also indicating that no material, which was really sought for, was provided. That being so, the appointment made ignoring the petitioner's relevant qualification is invalid in the eye of law. Learned advocate, with a view to substantiate the submission, has relied upon decisions of the Hon'ble Apex Court reported in (2014)3 SCC page 767 in the case of Ganapath Singh and Ors. Vs. Gulbarga University Rep. by its Registrar and Ors., (2013)4 SCC page 540 in the case of Tej Prakash Pathak and Others Vs. Rajasthan High Court and Others and (2009)4 SCC 555 in the case of Mohd. Sohrab Khan Vs. Aligarh Muslim University and Others and contended that if appointment is made to a candidate who does not possess relevant subject, the same being tainted with malafides deserves to be set at naught. It has further been contended that by referring to the particulars with regard to Master of Science in Pharmaceutical Chemistry subject, he has contended that this subject is not dealing with exclusive subject of Chemistry and considering Page 5 of 17 C/SCA/10968/2017 JUDGMENT this particulars also, there is hardly any reason to believe that the relevant subject is held by respondent No.3. Since as compared to respondent No.3, the petitioner is having a better qualification in an appropriate subject for which the post is advertised, the action deserves to be corrected by setting aside the appointment of respondent No.3 and in turn consider the case of appointment of present petitioner. Learned advocate has then submitted that University is also substantially being controlled by University Grants Commission and, therefore, the requisite criteria which has been prescribed by UGC deserves to be complied with and considered. Having not done so, the relief prayed for in the petition deserves to be granted. No other submissions have been made.
4. To meet with the stand taken by the learned advocate for the petitioner, Mrs.V.D.Nanavati, learned advocate appearing on behalf of the respondent University has first of all raised a contention that the petitioner is not in a position to maintain the petition since the petitioner has participated in the selection process and having not successfully completed the said process, it is not open for the petitioner to challenge the selection by raising any grievance in view of the settled position of law. It has been submitted Page 6 of 17 C/SCA/10968/2017 JUDGMENT that the selection committee which is consisting of experts in the field scrutinized as many as 17 candidates who participated in the process including the petitioner and only after such process of selection by the experts, the case of respondent No.3 came to be considered for appointment and, as such, the conclusion of selection by the expert body may not be opened for judicial scrutiny in view of the settled position of law unless any malafides are shown. Here in the present case, the petitioner has not alleged any malafides in any manner and as such, the decision of expert body may not be allowed to be formed a subject matter of scrutiny in exercise of extra-ordinary jurisdiction.
5. Learned advocate, Mrs. Nanavati has further submitted that there is a detailed affidavit-in-reply which has been filed and has drawn the attention that as many as eight members, who were consisting of selection committee and at Sr.No.4 is the name of Dr. Nisha K. Shah, who is the Head of the Department and who herself is a Guide in the Chemistry subject of the petitioner and that Guide has also not considered the case of the petitioner along with others and as such, assessment has been made by the selection committee consisting of experts and hence, said decision cannot be said to be perverse in any form. Further, the Page 7 of 17 C/SCA/10968/2017 JUDGMENT marks which are reflecting on page 43 are also far less than any other candidates which can be seen. The petitioner is figuring at item No.5 and is much behind respondent No.3 and, therefore, even on merit also, case of the petitioner appears to have been rightly not considered by the selection committee. It has further been contended that issue of relevant subject is left open to be considered by the expert body of the University and, therefore, no case is made out by the petitioner. By referring to the minutes of meeting, the assessment which has been made by the selection committee of several candidates is also drawn the attention while contending. The minimum qualifying mark is also not being achieved by the petitioner as compared to respondent No.3 and as such, having participated in the selection process, now it is not open for the petitioner to challenge, resultantly, the petition being devoid of merits deserves to be dismissed.
6. To substantiate the contention raised, learned advocate, Mrs.Nanavati has relied upon the decision delivered by this Court which is reported in 2016 LAB. I.C. 3082 in the case of Ravikant Prabhunath Sharma Vs. State of Gujarat and others and by referring to paragraphs 66 to 70 has stated that Pharmaceutical Chemistry is not at all a foreign subject to the field of Chemistry and as such, is definitely a Page 8 of 17 C/SCA/10968/2017 JUDGMENT part and parcel of relevant subject which has been considered by the selection panel. Yet another decision which has been relied upon by the learned advocate for the University is a decision delivered by Hon'ble Apex Court is reported in (1990)1 SCC 305 in the case of Dalpat Abasaheb Solunke and Ors. Vs. B.S.Mahajan and Ors. and has submitted that no favouritism can be inferred since all individual members will not have a common interest in only one candidate, whereas, here in the instant case, no such malafides are alleged. Hence, in view of the observations made in paragraph 9 of the said judgment, the relief does not deserve to be granted. Additionally, yet another decision which is relied on by learned advocate, Mrs.Nanavati is reported in (1990)2 SCC 746 in the case of Nelima Misra Vs. Harinder Kaur Paintal and Ors. and has submitted that opinion of selection committee of experts not normally to be inferred with as a part of judicial review. When that be so, the learned advocate appearing for the University has vehemently opposed the petition. Yet another decision relied upon by learned advocate for the respondent University is reported in (2016)9 SCC page 134 in the case of Sai Bhaskar Iron Limited. Vs. A.P.Electricity Regulatory Commission and others and has submitted Page 9 of 17 C/SCA/10968/2017 JUDGMENT that in the matter which is reserved in expert body, the scope of interference and judicial review is very limited. In view of the settled principle of law, the learned advocate has submitted that no case is made out by the petitioner. The details of each of the minutes and the consideration are produced along with affidavit-in-reply and has requested to dismiss the petition.
7. The learned advocate appearing for the contesting private respondent i.e. respondent No.3 has adopted the submission made by learned advocate, Mrs. Nanavati for the university but has added that degree which respondent No.3 is holding is a Degree in which common subjects are to be dealt with. The relevant subject means anything related to the main subject meaning thereby the Pharmaceutical Chemistry is a relevant subject to be treated especially when subject of Chemistry is insisted upon. The subjects which respondent No.3 is teaching are the same subjects which respondent No.3 has studied and her performance has been evaluated right from 2017 for a period of two years and having satisfactorily performed the work, her appointment has been confirmed in the year 2019. Hence, simply because the petitioner is not selected by the panel, the appointment of respondent No.3 may not be allowed to be interfered with. Page 10 of 17
C/SCA/10968/2017 JUDGMENT In any case, when the mala fides are not alleged and when the documents indicate that marks obtained by her are far less than what has been obtained by respondent No.3, there is no question of allowing the petitioner to challenge the appointment especially when she has been confirmed after proper scrutiny. Mr. Jadeja has reiterated that this selection made by expert body may not be allowed to be assailed.
8. Having heard the learned advocates appearing for the parties and having gone through the materials produced on record, it prima facie appears that undisputedly, the petitioner did appear in the process of selection and has not been able to successfully achieve requisite criteria for being appointed and as such, having participated in the process of selection, such selection is not amenable to challenge. Apart from that, the documents indicate that assessment sheet which is attached on page 44 clearly reflects that the petitioner in comparison with respondent No.3 has achieved very less marks in each category and as such just because the petitioner is holding a particular subject of Chemistry, on that count, the entire decision of panel of selection cannot be set at naught.
9. Additionally, it is also reflecting that the selection Page 11 of 17 C/SCA/10968/2017 JUDGMENT committee is consisting of subject experts and one of the experts is a Guide of the petitioner herself. When that be so, in the absence of any malafides, there is hardly any question available for the Court to question the selection made by this committee consisting of experts. Such names of committee are reproduced hereinafter:
(1) Dr.M.N.Patel, Hon'ble Vice Chancellor, (2) Dr.Jayesh Sonwalkar, Governor Nominee, (3) Dr.H.A.Pandya, Dean of Faculty, (4) Dr. Nisha K. Shah, Head of the Department, (5) Dr.R.C.Tandel, Subject Expert, (6) Dr. J.J.Vora, Subject Expert, (7) Dr.D.P.Bharambe, Subject Expert, (8) Dr.K.H.Chikhalia, Academic Representative
10. Additionally, the Court has also found that respondent No.3 has obtained M.Sc. Degree in Pharmaceutical Chemistry and has been awarded Ph.D. Degree in Science(Chemistry) which is not possible to be construed as not having the relevant qualification and after anlysing the entire list of candidates, the Ph.D. Degree is found to be in the relevant subject of Chemistry and M.Sc. Degree is having Pharmaceutical Chemistry subject, if that is found to be proper by the selection committee, there is hardly any reason Page 12 of 17 C/SCA/10968/2017 JUDGMENT for the Court to interfere with such decision of selection panel. No irregularity appears to have been undertaken, as a result of this, the Court, after considering the decisions which have been relied upon by the respective parties, is of the considered opinion that no case is made out by the petitioner. The Court has an advantage of looking at the issue of relevant subject which has been analysed by the Coordinate Bench in the case of Ravikant Prabhunath Sharma Vs. State of Gujarat and Ors. reported in 2016 LAB. I.C. Page 3082. The relevant observations contained in paragraphs 67, 68 and 70 deserve consideration and hence, same are reproduced hereinafter:
"67 In Ganapath Singh Gangaram Singh Rajput v. Gulbarga niversity [2014 (3) SCC 767], the Supreme Court observed in para 17 as under:
"17.....when the view taken by the expert body is one of the possible views, the same is fit to be accepted. Further, the yardstick would be different when it concerns eligibility conditions pertaining to 'qualification' and 'experience'. In case of experience it is best known to the expert body in the field in regard to the actual work done and, therefore, its opinion is of higher degree deserving acceptance ordinarily. Hence, in our opinion, this judgment did not fetter the power of the High Court.""
"68 In Tariq Islam vs. Aligarh Muslim University and Ors. (2001) 8 SCC 546, following its earlier decision in the Constitution Bench of the Supreme Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, the Supreme Court observed that Page 13 of 17 C/SCA/10968/2017 JUDGMENT "normally it is wise 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 are"."
"70 On a clarification sought from the University Grants Commission as regards the meaning of the term " relevant subject", it was clarified that the relevance of subject or interdisciplinary nature of subject should be decided by the appointing authority with the help of subject experts as the University Grants Commission had not prescribed any norms on the subject matter. Thus, this is the view of the matter of the University Grants Commission, which is an expert in academic matters and the Court should not set in appeal over its opinion and take a contrary view."
11. In the light of aforesaid observations made in the decisions of Hon'ble Apex Court on the issue of relevant subject, when the selection body consisting of experts has considered the case of respondent No.3 as well as the petitioner and found respondent No.3 to be appointed, there appears to be no irregularity and even if a different view is possible, then also, this decision of experts is not to be interfered with in view of the proposition of law laid down by series of decisions.
12. The relevant observations made in para 32 in the case of Km. Neelima Misra v. Dr. Harinder Kaur Paintal and others reported in AIR 1990 SC 1402, since relied upon, are reproduced hereinafter:
Page 14 of 17
C/SCA/10968/2017 JUDGMENT "32. It is not unimportant to point out that in matters of appointment in the academic field the Court generally does not interfere. In the University of Mysore v. C. D. Govinda Rao, (1964) 4 SCR 575: (AIR 1965 SC 491), this Court observed that the Courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts. When appointments based on recommendations of experts nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance. The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which Chancellor has acted. See also the decisions in Dr. J. P. Kulshreshtha v. Chancellor; Allahabad University, Raj Bhavan, (1980) 3 SCR 902 at 912: (AIR 1980 SC p. 2141 at P. 2146) and Dalpat Abasaheb Solunke v. B. S. Mahajan, (1990) 1 SCR 305 at Pp. 309-310: (AIR 1990 SC 434 at P. 438)."
13. In yet another decision of a recent time which has been reported in (2016)9 SCC page 134 in the case of Sai Bhaskar Iron Limited. Vs. A.P.Electricity Regulatory Commission and others also, the Hon'ble Apex Court has reiterated that the matters which are reserved for expert body, the scope of interference for judicial review is very limited and, therefore, considering the aforesaid proposition of law, the Court is of the opinion that when the properly constituted committee has evaluated the candidates and then has taken a particular decision, the Court should refrain from interfering with such decision Page 15 of 17 C/SCA/10968/2017 JUDGMENT especially when no malafides are alleged.
14. In the context of the aforesaid situation which is prevailing on record, the decisions which are relied upon by the learned advocate appearing on behalf of the petitioner are not sounding that much confidence to dislodge the conclusion of selection panel. No doubt, a strenuous effort is made by the learned advocate for the petitioner to marginalize difference between two subjects of degree of the petitioner as well as of respondent No.3. However, the Court having found that the select list is prepared and appointment is made after proper scrutiny by validly constituted selection committee of experts, no interference deserves to be made.
15. To consider the judgments which have been relied upon by the learned advocate for the petitioner, the Court has kept in mind the well recognized proposition of law on the issue of precedent that if the facts are different or one additional fact exists, the same would make a world of difference in applying the principle of precedent. As a result of this, the recruitment process which has been undertaken appears to have been validly carried out. Hence, the judgments which have been relied upon are not Page 16 of 17 C/SCA/10968/2017 JUDGMENT possible to be applied as a straight jacket formula, in view of this peculiar set of circumstances. On the contrary, the decisions are on the subject that only in exceptional cases, the writ of mandamus is to be issued. When that be so, this Court is not inclined to exercise extra-ordinary equitable jurisdiction. Having gone through the judgments which have been relied upon by the learned advocates and having analysed the facts and keeping in view the recent proposition of law laid down by the Apex Court referred to above, the Court is of the view that no case is made out for interference. Accordingly, the petition deserves to be dismissed. In any case, since respondent No.3 by now is confirmed after her assessment of two years probation period, the Court would not like to disturb the situation which might not be in the interest of education. Hence, the petition being devoid of merit deserves to be dismissed and is hereby dismissed. Rule is discharged. No order as to costs.
(A.J. SHASTRI, J) RADHAKRISHNAN K.V. Page 17 of 17