Orissa High Court
Dr. Biswanath Sahoo vs Vice Chancellor on 11 March, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 11144 of 2018
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Dr. Biswanath Sahoo .... Petitioner
-versus-
Vice Chancellor, Odisha .... Opposite Parties
University of Agriculture and
Technology, BBSR & Ors.
For Petitioners : Mr. S. Rath, Advocate
For Opp. Parties : Mr. A. Tripathy,
Addl. Govt. Advocate
Mr. A. Mohanty, Sr. Advocate
along with
Mr. S.S. Padhi, Advocate
(Opp. Party No. 3)
Mr. S.C. Rath, Advocate
(Opp. Party Nos. 1 & 2)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 18.12.2024 & Date of Judgment: 11.03.2025
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Biraja Prasanna Satapathy, J.
The present writ petition has been filed by the Petitioner challenging the selection and appointment of Opp. Party No. 3 as // 2 // against the post of Senior Scientist (Horticulture) vide order of appointment issued on 28.02.2018 under Annexure-1.
2. It is contended that Odisha University of Agriculture & Technology (in short „OUAT‟) vide its advertisement dtd.26.09.2017 under Annexure-2 invited applications from eligible candidates for recruitment to the post of Senior Scientist and Junior Scientist.
Petitioner and Opp. Party No. 3 made their applications as against the post of Senior Scientist (Horticulture). In the said advertisement as against the post of Senior Scientist, the minimum essential qualification indicated in Para 5 of the advertisement reads as follows:-
"(i) Minimum 2nd Class Bachelor's Degree in Agriculture/ Horticulture/ Agril. Engg & Technology/ Veterinary Science / Fishery Science/ Home Science/ Forestry with at least 55% marks or equivalent grade point
(ii) Minimum 2nd Class Master's Degree in relevant subject with atleast 55% marks or equivalent grade point
(iii)Ph.D. Degree in the relevant subject
(iv) Five (5) years experience in teaching/research/ extension education in concerned subject (excluding the period spent on Ph.D. study, subject to a maximum period of 3 years) in the rank of Assistant Professor / equivalent in the pay scale of the Rs.8,000-
275-13,500/-(Pre-revised) or AGP Rs.6,000/-Rs. 15,600-39,100/-+ (revised)
(v) Significant contribution to Research /Teaching/ Extension Education as supported by published works / innovations"
Page 2 of 43// 3 // 2.1. It is contended that as provided under Para 5 of the advertisement along with the qualification of 2nd class Bachelors Degree with 2nd Class Masters Degree having 50% mark or equivalent grade, a candidate should have acquired Ph.D. degree in the relevant subject.
Since Petitioner and Opp. Party No. 3 both made their applications as against the post of Senior Scientist (Horticulture) as provided under Para 5, a candidate should have Ph.D. degree in the relevant subject i.e. Horticulture.
2.2. It is contended that as found from Annexure-3, Petitioner does have the required Ph.D. in Horticulture and is having 2 nd Class Bachelor‟s Degree with 2nd Class Masters degree with 55% mark.
Accordingly, in terms of the advertisement Petitioner does have the required qualification as against the post of Senior Scientist (Horticulture).
2.3. However, it is contended that even though Opp. Party No. 3 who was selected and appointed vide order of appointment issued under Annexure-1, does not have the required Ph.D. in Horticulture.
Accordingly, she was not eligible to make the application as against the post in question. As found from Annexure-6, Opp. Party No. 3 does have the Ph.D. in the subject Botany (Science) from Utkal Page 3 of 43 // 4 // University, BBSR. It is accordingly contended that since Opp. Party No. 3 in terms of Para 5 of the advertisement does not have the Ph.D. in the relevant subject i.e. Horticulture and she does have the Ph.D. in Botany, in view of the clear stipulation in Para 5, Opp. Party No. 3 was not eligible to make the application. But the authorities of OUAT illegally and arbitrarily not only selected Opp. Party No. 3 as against the post in question, but also issued the impugned order of appointment in her favour under Annexure-1, which is the subject matter of challenge in the present writ petition.
2.4. It is also contended that Botany and Horticulture are two different streams/disciplines. While the former predominantly revolves around the study and learning of plants, the latter is more diversified in nature and leans towards practice and implementation. Webster's Universal Dictionary defines Botany as 'the science of plants' and Horticulture as 'the science of cultivating fruits, vegetables, flowers and plants.' Similarly, the definition of Botany according to the Oxford English dictionary is 'the science which treats of plants' and a Botanist has been defined as 'one who studies Botany.' According to the same dictionary, Horticulture means 'the science of cultivating and managing gardens, including the growing of flowers, fruit and Page 4 of 43 // 5 // vegetables' and a Horticulturist is one who 'practices horticulture scientifically.
2.5. It is accordingly contended that since in terms of the advertisement Opp. Party No. 3 does not have the required qualification, her selection and appointment as against the post of Senior Scientist (Horticulture) is illegal and not sustainable in the eye of law and in her place Petitioner is required to be appointed.
3. Mr. S.C. Rath, learned counsel appearing for Opp. Party Nos. 1 & 2-University on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that as against the post of Senior Scientist (Horticulture) in terms of Annexure-2, 6 nos.
of candidates made their applications, which includes the Petitioner and Opp. Party No. 3. Out of those 6 candidates, applications of 5 nos.
of candidates were found eligible in all respect and accordingly all those 5 candidates were called for to appear the interview, which was held on 27.02.2018. The selection committee so constituted in terms of Statute 3 (1) (ii) of OUAT Statute, 1966 conducted the interview of the candidates, who were called for the interview on the scheduled date.Page 5 of 43
// 6 //
3.1. It is contended that the selection committee on examining all aspects recommended the case of Opp. Party No. 3 for her appointment as against the post of Senior Scientist (Horticulture) vide Annexure-C to the counter affidavit / Annexure-1 to the writ petition.
It is contended that since Opp. Party No. 3 was appointed basing on the recommendation made by the Selection Committee, duly constituted in terms of the provisions contained under the Statute, no illegality or irregularity can be found with such selection and appointment of Opp. Party No. 3.
3.2. It is also contended that in the recommendation so made, while Opp. Party No. 3 stood first in order of merit and suitability, Petitioner stood 2nd. It is also contended that the word „relevant‟ as reflected in Para 5 of the advertisement, was prescribed taking into account the advertisement issued by the Agricultural Scientists Recruitment Board (in short ASRB) of Indian Council of Agriculture & Research (ICAR).
Taking into account such advertisement issued under Annexure-D series, the word „relevant‟ was reflected in Para 5 in place of the word „concerned‟.
3.3. A further submission was also made taking into account the stand taken in the additional affidavit so filed by Opp. Party Nos. 1 & 2. It is Page 6 of 43 // 7 // contended that Opp. Party No. 3 since has acquired Ph.D. in the subject Botany, but her Ph.D. thesis is „Integrated Nutrient Management in African Marigold‟. The Selection Committee who were the subject experts, after going through the thesis, certified and recommended her selection. Therefore, decision of the Selection Committee in treating the Ph.D. thesis is not liable to be questioned.
The question of „relevant‟ and „concerned‟ should not dilute the knowledge of experts treating a Ph.D. thesis and making a selection of subject specialist. It is also contended that in a broader sense Horticulture is a part of the parent subject Botany. It is accordingly contended that since Opp. Party No. 3 has acquired Ph.D. in Botany, which is a broader subject and she was recommended by the Selection Committee who were all subject experts, no illegality or irregularity can be found with such selection and engagement of Opp. Party No. 3.
4. In spite of appearance no counter affidavit has been filed by Opp.
Party No. 3. But Mr. A. Mohanty, learned Sr. Counsel appearing along with Mr. S.S. Padhy, made his submission in the light of the stand taken by the University in its counter.
4.1. Learned Sr. Counsel appearing for Opp. Party No. 3 does not dispute that Opp. Party No. 3 has acquired the Ph.D. in the subject Page 7 of 43 // 8 // Botany, but in view of the nature of thesis i.e. "Integrated Nutrient Management in African Marigold (Tgetes Erecta) Cv. Sirakole for higher yield and quality flower", the selection committee comprising subject experts from various Universities in its wisdom evaluated the Ph.D. thesis of Opp. Party No. 3 and found the thesis of Opp. Party No. 3 to be a relevant subject as required in the advertisement.
4.2. It is contended that since no malafide has been attributed against such action of the Selection Committee, such a decision of the Selection Committee is not required to be interfered with by this Court in exercise of its extraordinary jurisdiction. It is also contended that the word „relevant subject‟ so appeared in Para 4.4.0 of the UGC Regulation was clarified by the UGC in the letter issued in the year 2015. In the said clarification the word „relevant subject‟ as provided under Para 4.4.0 was clarified as follows:-
"The relevance of subject or inter-disciplinary nature of subject is required to be decided by the concerned University/Appointing Authority with the help of subject experts in the concerned/related field as per its requirement."
4.3. It is contended that even though Opp. Party No. 3 does have the Ph.D. in Botany, but taking into account the nature of thesis so submitted by her in her Ph.D., the subject experts who were the Page 8 of 43 // 9 // members of the Selection Committee, since found that the Ph.D. done by Opp. Party No. 3 also includes Horticulture as part of it, no illegality or irregularity can be found with such selection and appointment of Opp. Party No. 3.
4.4. It is also contended that in the science journal published by American Association for the Advancement of Science, it has been indicated that Botany is the mother subject and Horticulture is a part of it. Not only that persons having Ph.D. in Botany and Zoology were earlier recruited as against the post of Senior Scientist (Horticulture) in OUAT.
4.5. It is also contended that after participating in the selection process and on becoming unsuccessful, Petitioner is not permitted to assail the selection and appointment of Opp. Party No. 3.
4.6. Learned Sr. Counsel in support of his aforesaid submissions relied on the following decisions of the Hon‟ble Apex Court:-
"1. Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University, Sirsa reported in (2008) 9 SCC 284
2. Basavaiah (Dr.) Vs. Dr. H.L. Ramesh and Others reported in (2010) 8 SCC 372
3. R. Dominic Sahaya Ranjan Vs. The State of Tamil Nadu and Others reported in MANU/TN/5908/2020 Page 9 of 43 // 10 //
4. The Chancellor and Another Vs. Dr. Bijayananda Kar and Others reported in (1994) 1 SCC 169
5. Dalpat Abasaheb and Others Vs. Dr. B.S. Mahajan and Others reported in (1990) 1 SCC 305
6. Tariq Islam Vs. Aligarh Muslim University and Others reported in (2001) 8 SCC 546 4.7. Hon‟ble Apex Court in Para 27, 30 to 32, 42 and 49 of the Judgment in the case of Rajbir Singh Dalal has held as follows:-
"27. In Tariq Islam v. Aligarh Muslim University [(2001) 8 SCC 546: 2002. 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.
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30. Political Science is the mother subject and Public Administration is the offshoot of the same.
31. We agree with Mr Patwalia, learned counsel, that it is not appropriate for this Court to sit in appeal over the opinion of the experts who are of the view that Political Science and Public Administration are interrelated and interchangeable subjects, and hence a candidate who possesses Masters degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa. We are told that a large number of persons having qualifications in the interchangeable/interrelated subjects have been appointed Readers/Professors/Lecturers and are continuing as such in various colleges and universities in the State.
32. The appellant was selected by a Selection Committee consisting of eminent experts after evaluating his qualifications and work.
Page 10 of 43
// 11 //
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42. We are of the opinion that the impugned judgment and order of the High Court cannot be sustained and it is hereby set aside. The appeal is allowed and the writ petition filed in the High Court stands dismissed. There shall be no order as to costs.
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49. In my view, the expression "appropriate subject" was intended to cover the post of Reader and once the expert bodies had indicated that the appellant who held a postgraduate degree in Political Science was eligible to be appointed to the post of Reader in Public Administration and had been rightly appointed to such post, it is normally not for the courts to question such opinion, unless it has specialised knowledge of the subject."
4.8. Hon‟ble Apex Court in Para 3, 8, 21, 22, 25 to 28, 30, 31 & 38 of the Judgment in the case of Basavaiah (Dr.) has held as follows:-
"3. Dr. Basavaiah and Dr. D. Manjunath were qualified to be appointed as Readers in Sericulture?
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8. Dr. Manjunath was MSc and PhD in Zoology and also had teaching experience.
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21. Settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. The experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments Page 11 of 43 // 12 // were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture.
22. In University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491] The courts should be slow to interfere with the opinions expressed by the experts particularly in a case when there is no allegation of mala fides against the experts who had constituted the Selection Board. That it would normally be wise and safe for the courts to leave the decisions of academic matters to the experts who are more familiar with the problems they face than the courts generally can be.
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25. The Court observed as under: [M.C. Gupta (Dr.) case [(1979) 2 SCC 339: 1979 SCC (L&S) 168] 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.
26. In J.P. Kulshrestha (Dr.) v. Allahabad University [(1980) 3 SCC 418: 1980 SCC (L&S) 436] the Court observed that the court should not substitute its judgment for that of academicians: (SCC p. 426, para 17) "17. Rulings of this Court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence Page 12 of 43 // 13 // that courts should hesitate to dislodge decisions of academic bodies."
27. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [(1984) 4 SCC 27] the Court observed thus: (SCC pp. 56-57, para 29) "29. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them."
28. In Neelima Misra v. Harinder Kaur Paintal [(1990) 2 SCC 746:
1990 SCC (L&S) 395: (1990) 13 ATC 732] the Court further observed that the High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor had acted.
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30. In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan [(1990) 1 SCC 305: 1990 SCC (L&S) 80: (1991) 16 ATC 528] "12..... The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection, etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the Page 13 of 43 // 14 // selection so made and in setting it aside on the ground of the so-
called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
31. In Chancellor v. Dr. Bijayananda Kar [(1994) 1 SCC 169: 1994 SCC (L&S) 296: (1994) 26 ATC 570] the Court observed thus: (SCC pp. 174-75, para 9) "9.the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a candidate fulfils the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the Selection Committees concerned which invariably consist of experts on the subjects relevant to the selection."
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38. The courts have a very limited role particularly when no mala fides have been alleged against the experts constituting the Selection Committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realise and appreciate its constraints and limitations in academic matters."
4.9. Hon‟ble Apex Court in Para 3, 9 & 11 of the Judgment in the case of R. Dominic Sahaya Ranjan has held as follows:-
"3. Accordingly, the University Grants Commission has also clarified that the relevance of subject or inter-disciplinary nature of subject is required to be decided by the concerned University/Appointing Authority with the help of subject experts in the concerned/related Page 14 of 43 // 15 // field as per its requirement and UGC Regulations 2010 defines the same in Clause 4.4.0 of UGC Regulations 2010.
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9. In MANU/TN/3031/2013:2014 (3) CTC 433, Nadar Thanga Shubha Laxman A vs. The State of Tamil Nadu. "21... The equivalence committee has considered and approved the equivalent nature of the degree and certificate obtained by the candidates.
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11. Directed to award marks for the petitioner's qualification of Doctorate in Oceanography and for the teaching experience with the qualification of doctorate in Oceanography for 3 years (2010 to 2013) as per the prospectus for direct recruitment of Assistant Professors."
4.10. Hon‟ble Apex Court in Para 9 of the Judgment in the case of The Chancellor and Anr. has held as follows:-
"9. This Court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a candidate fulfils the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection. In the present case Dr Kar in his representation before the Chancellor specifically raised the issue that Dr Mohapatra did not possess the specialisation in the Philosophical Analysis of Values' as one of the qualifications. The representation was rejected by the Chancellor. We have no doubt that the Chancellor must have looked into the question of eligibility of Dr Mohapatra and got the same examined from the experts before rejecting the representation of Dr Kar."Page 15 of 43
// 16 // 4.11. Hon‟ble Apex Court in Para 12 of the Judgment in the case of Dalpat Absaheb Solunke and Others has held as follows:-
"12. It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
4.12. Hon‟ble Apex Court in Para 7 of the Judgment in the case of Tariq Islam has held as follows:-
"7. In University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491 :
(1964) 4 SCR 575] This Court stated that 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. Area of interference by courts would be limited to whether the appointment made by the academic body had contravened any statutory or binding rule and while doing so, the court should show due regard to the opinion expressed by the experts and on whose Page 16 of 43 // 17 // recommendations the academic body had acted and not to treat such expert body as a quasi-judicial tribunal, deciding disputes referred to it for decision."
5. To the stand taken by the University & Opp. Party No. 3, learned counsel appearing for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit. While reiterating the stand that in terms of the advertisement Opp. Party No. 3 does not have the required qualification i.e. Ph.D. in the relevant subject i.e. Horticulture, but taking into account the stand taken by the University that the selection committee since found Opp. Party No. 3 eligible and recommended her claim and accordingly she was appointed, it is contended that as found from Annexure-C, the selection committee while considering the claim of Opp. Party No. 3, treated her Ph.D. as Ph.D. in Horticulture.
5.1. It is contended that since as found from Annexure-6, Opp. Party No. 3 has done her Ph.D. in Botany, the Selection Committee could not have taken her Ph.D. in the subject Horticulture in the proceeding of the meeting vide Annexure-A and accordingly recommending her name vide Annexure-C. It is also contended that even though in the counter affidavit so filed by the University, the University has tried to take a plea that the word „concerned subject‟ has been Page 17 of 43 // 18 // substituted/replaced with the word „relevant subject‟, but the University has not shed any light with regard to the difference between the word „concerned subject‟ and „relevant subject‟.
5.2. It is also contended that in the notification issued by the ICAR on 21.03.2017 under Annexure-9, as against various disciplines while prescribing the eligibility/qualification, Masters degree in Botany while was prescribed in support of various disciplines, Master‟s Degree in Horticulture is similarly prescribed in respect of some other disciplines. So it is to be held that Master‟s Degree in Horticulture and Master‟s Degree in Botany are two different fields and it cannot be equated.
5.3. With regard to the stand taken by the University as well as Opp.
Party No. 3 that after participating in the selection process and on becoming unsuccessful, Petitioner is not permitted to challenge the selection and appointment of Opp. Party No. 3, learned counsel appearing for the Petitioner relied on a decision of the Hon‟ble Apex Court reported in (2019) 20 SCC 2017 (Dr. (Major) Meeta Sahai Vs. State of Bihar & Ors.). Hon‟ble Apex court in Para 19 of the said Judgment has held as follows:-
Page 18 of 43// 19 // "19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of "work experience" as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of the appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."
5.4. The stand taken by the University as well as Opp. Party No. 3 that since Opp. Party No. 3 has been recommended by the Selection Committee comprising of subject experts and accordingly it is not amenable to challenge, learned counsel for the Petitioner relied on a decision of the Hon‟ble Apex Court reported in (2014) 3 SCC 767 (Ganapath Singh Gangaram Singh Rajput Vs. Gulbarga University & Ors.). Hon‟ble Apex court in Para 21 & 22 of the said Judgment has held as follows:-
"21. As is evident from the advertisement, applications were invited for filling up various posts in different subjects including the post of Lecturer in MCA. The advertisement requires postgraduate degree in the "relevant subject". The relevant subject would, therefore, in the context of appointment to the post of Lecturer, mean postgraduate degree in MCA. In our opinion, for appointment to the post of Lecturer, Masters degree in Mathematics is not the relevant subject. The advertisement requires Masters degree in "relevant subject" and not "appropriate subject". In the present case, the Board of Page 19 of 43 // 20 // Appointment has not stated that postgraduate degree in Mathematics is the relevant subject for MCA but in sum and substance it is equivalent to a postgraduate degree in MCA for the reason that Mathematics is one of the subjects taught in MCA. This, in our opinion, was beyond the power of the Board of Appointment.
22. It shall not make any difference even if Mathematics is taught in the Masters of Computer Application course. The learned Single Judge, in our opinion, gravely erred in upholding the contention of Ganpat and the University that "relevant subject" would mean "such of those subjects as are offered in the MCA course". If Mathematics is taught in a postgraduate course in Commerce, a Masters degree in Commerce would not be relevant for appointment in Mathematics or for that matter in MCA. There may be a situation in which Masters degree in MCA is differently christened and such a degree may be considered relevant but it would be too much to say that a candidate having postgraduate degree in any of the subjects taught in MCA would make the holders of a Masters degree in those subjects as holder of Masters degree in Computer Application and, therefore, eligible for appointment."
5.5. Reliance was also placed on a decision of the Hon‟ble Apex Court in the case reported in 2001 (8) SCC 532 (Dr. Bhanu Prasad Panda Vs. Chancellor, Sambalpur University & Ors.). Hon‟ble Apex court in Para 1, 2, 4 & 5 of the said Judgment has held as follows:-
"1. This appeal filed against the order of a Division Bench of the Orissa High Court at Cuttack dated 25-2-1997, involves a challenge to the order sustaining in its turn the order passed by the Chancellor, Sambalpur University, annulling the appointment of the appellant to the post of Lecturer in Political Science, on the Page 20 of 43 // 21 // ground that he did not possess the minimum required academic qualification prescribed by the University Grants Commission.
2. The appellant was initially appointed as a Research Assistant in the postgraduate department of the respondent University and joined as such on 6-7-1979. In the course of his employment, he performed his duties for collection, compilation, tabulation and interpretation of data in addition to assisting the MPhil programme. On 30-11-1992, the University issued an advertisement inviting applications in the prescribed form for certain posts enumerated therein, of which Lecturer in Political Science was also one. Note 4 indicated that the details with regard to the nature of specialization, qualification required etc. for the different posts will be available along with the application form. The details so made available contained certain stipulations and so far as the posts of Lecturers are concerned, in the following terms:
"Lecturer.-- Arts, Sciences, Social Sciences, Commerce, Education, Physical Education, Foreign Languages and Law. Good academic record with at least 55 per cent marks or an equivalent grade of Master's degree level in the relevant subject from an Indian university or an equivalent degree from a foreign university.
Candidates, besides fulfilling the above qualification should have cleared the eligibility test for Lecturers conducted by the University Grants Commission, CSR at similar tests accredited by UGC. Exception from passing the Lecturers' eligibility test (GATE or Engineering graduates only) is only applicable to these candidates who have done PhD up to December 1992 or MPhil up to March 1991, provided such candidates have secured 55 per cent marks at the Master's level. Research Assistants of Sambalpur University having 2nd class Master's degree but have secured less than 55 per cent marks at the Master's degree level and have earned MPhil up to March 1991 or PhD up to December 1992 with certificates, marksheets, evidence of teaching/research experience, testimonials and other publications. Applications incomplete in any manner are liable to be summarily rejected.
(b) Candidates in service should route a copy of their applications through proper channel. No applicant will be interviewed unless his/her application has been duly submitted through his/her employer or he/she produces a „no-objection‟ certificate from his/her employer at the time of interview.
(c) All applications and correspondence are to be addressed to the undersigned by designation and not by name.
(d) The candidates are required to appear at an interview before the Selection Committee at their own expenses.
(e) Issue of this advertisement does not make it binding on the University to make appointment.
(f) Retired persons who have not attained the age of 65 years may also apply for the appointment on tenure basis.Page 21 of 43
// 22 //
(g) SC/ST candidates are required to obtain caste certificate from the District Magistrate/Collector to be eligible to apply. However, the consideration of their application is subject to the approval of UGC."
(emphasis supplied) As to the nature of posts, specialization etc. it has been stated as follows:
"Sl. Name of the deptt./college Name of post No. of Specialization No. posts * * *
17. Pol. Science & Pub. Admn." Lecturer One Open XXX XXX XXX
4. Heard, Shri Rakesh Dwivedi, Senior Advocate for the appellant, Shri P.N. Misra, Senior Advocate for the Chancellor and Shri A. Subba Rao for the University and Shri G.K. Banerjee for the University Grants Commission. The learned Senior Counsel for the appellant vehemently contended that the appellant was fully qualified and satisfied the norms prescribed, that the minimum prescribed marks were secured by him in the subject of Public Administration and this constitutes sufficient compliance and satisfaction of the academic qualification stipulated. It was also contended that the competent authority, well versed in academic matters, have found the appellant to be fully eligible and such a decision ought not to have been interfered with by the Chancellor and that the High Court was in error in not setting aside the order of termination of the services of the appellant. All the learned counsel appearing for the respondents, with equal vehemence attempted to demonstrate that the Chancellor was right in his decision and when the University Grants Commission also declined to grant relaxation, the services of the appellant had to be necessarily terminated for want of prescribed academic qualification on his part.
5. We have carefully considered the submissions of the learned counsel appearing on either side. The stipulation regarding the minimum academic qualification reads, "good academic record with at least 55 per cent marks or an equivalent grade of Master's degree level in the relevant subject from an Indian university or an equivalent degree from a foreign university".
Though the Department concerned for which the appointment is to be made is that of "Political Science and Public Administration", the appointment with which we are concerned, is of Lecturer in Political Science and not Public Administration and subject-matter wise they are different and not one and the same. It is not in controversy that the posts of Lecturers in Public Administration and in Political Science are distinct and separate and Page 22 of 43 // 23 // on selection the appellant could not have been appointed as Lecturer in Public Administration, be it in the Department of Political Science and Public Administration since the advertisement was specifically to fill up the vacancy in the post of Lecturer in Political Science. Merely because the Department is of Political Science and Public Administration -- the essential requirement of academic qualification of a particular standard and grade viz. 55%, in the "relevant subject" for which the post is advertised, cannot be rendered redundant or violated by ignoring the relevant subject and carried away by the name of the Department only which, in substance, encompasses two different disciplines. That merely depending upon the context he was being referred to or the post is referred to as being available in the Department of Political Science and Public Administration, is no justification to do away or dispense with the essential academic qualification in the relevant subject for which the post has been advertised. Consequently, Resolution No. 6.2 dated 18-2-1992 or extracts provided from the proceedings of the Board of Studies dated 2-3-1996 cannot be of any assistance to support the claim of the appellant. The rejection by UGC of the request of the Department in this case to relax the condition relating to 55% marks at post graduation level for Research Assistant having MPhil up to March 1991 or PhD up to December 1992, is to be the last word on the claim of the appellant and there could be no further controversy raised in this regard. In view of the above, no exception could be taken to the decision of the Chancellor and no challenge could be countenanced in this appeal against the well-merited decision of the High Court."
5.6. Similarly, reliance was also placed in a decision reported in (2007) 8 SCC 533 (Valsala Kumari Devi M. Vs. Director, Higher Secondary Education & Ors.). Hon‟ble Apex court in Para 12, 19, 21, 22 & 23 of the said decision has held as follows:-
"12. The subject relates to the appointment/selection for the post of higher secondary school teacher in History. Before considering the merits of the claim made by the appellant as well as by the fifth respondent, it is desirable Page 23 of 43 // 24 // to refer to the relevant government orders issued by the Government of Kerala. In GOMs No. 138/90/G.Edn. dated 27-6-1990, the General Education (HSE) Department issued a notification prescribing certain conditions for appointment of teachers for plus two higher secondary course. The relevant clauses of the government order are as follows:
"1.-3. * * *
4. The issues relating to the implementation of the plus two higher secondary course were examined in detail and discussions were held with representatives of all concerned. After careful consideration of all aspects of the matter the Government have decided to introduce the plus two course in selected schools in 1990-1991. The Government are pleased to issue the following further instructions in the matter:
(i)-(iv) * * * (v) The medium of instruction will be English. (vi)-(xii) * * *
Teachers.--The minimum qualifications for the higher secondary schools teachers will be a second class Master's degree in the subject concerned, with BEd for the time being till rules are framed for regular appointment. The teachers will be initially appointed on the basis of these qualifications. The selection will be subject to seniority and suitability. If sufficient number of qualified hands are not available for appointment as teachers, candidates may be recruited through the Employment Exchange.
5.-8. * * *"
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19. We are of the view that the Director has committed an illegality in upholding the selection of the fifth respondent for appointment to the post of HSST. Further the fifth respondent has been preferred to the appellant for the reason that his main subject in BA is History which is totally irrelevant for promotion to HSST from among HSAs. In G.O. dated 27-6-1990 the qualification prescribed is a second class Master's degree in the subject concerned with BEd. It is relevant to point out that the appellant and the fifth respondent have obtained MA degree from Mysore University and the fifth respondent took BEd with Social Studies. The other reason given by the Selection Committee for preferring the fifth respondent is that he has Page 24 of 43 // 25 // proficiency in English, Kannada and Malayalam whereas the appellant has proficiency in English and Malayalam.
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21. In such circumstances, we are of the view that it was improper on the part of the Selection Committee to make selection taking into account the qualifications which are not prescribed in the G.Os. and by giving weightage to such qualifications. The Selection Committee has also taken note of the suggestion of the Parents Teachers Association that persons having proficiency in Kannada should be preferred when there is no such condition in the government order. In other words, preference is to be given for proficiency in Kannada which is not a requisite qualification. In our view, ignoring the appellant who has been working as HSA in the very same school and selecting the fifth respondent by giving weightage for proficiency in Kannada which is not a condition prescribed in the relevant government orders by the Selection Committee cannot be sustained. It is based on extraneous/irrelevant considerations.
22. In our view, the learned Single Judge as well as the Division Bench of the High Court on the misconstruction of two G.Os. dated 27-6-1990 and 13-5-1998 prescribing qualifications and mode of selection, committed an error in upholding the selection of the fifth respondent when the appellant was fully qualified as well as senior to the fifth respondent as HSA.
23. Under these circumstances, we allow the appeal and set aside the order dated 22-6-2004 passed by the learned Single Judge of the High Court in WPs (C) Nos. 21069 of 2003 and 15674 of 2004 as well as the order dated 12-7-2004 passed by the Division Bench of the High Court in WA No. 1265 of 2004 confirming the selection of the fifth respondent as HSST. As a result of the above conclusion, we direct the authorities to issue appropriate order in favour of the appellant within a period of four weeks from the date of receipt of this judgment. No order as to costs."
5.7. Similarly, reliance was also placed in a decision reported in (2009) 4 SCC 555 (Mohd. Sohrab Khan Vs. Aligarh Muslim Page 25 of 43 // 26 // University & Ors.). Hon‟ble Apex Court in Para 5, 6, 10, 11, 17 & 23 to 31 of the said Judgment has held as follows:-
"5. In order to deal with the contentions raised in both the appeals, it would be necessary to deal herein with some of the relevant facts leading to the filing of the writ petition:
Aligarh Muslim University issued an advertisement through Advertisement No. 2 of 2004 dated 6-2-2004 whereby it called for applications for filling up about 79 posts in the University. One of the said posts which was advertised was the post of Lecturer in Chemistry in University Polytechnic, Aligarh Muslim University. Qualification that was laid down by the University as essential qualification was a first class Master's degree in the appropriate branch of teaching post in Humanities and Sciences. Both Mohd. Sohrab Khan as also Merajuddin Ahmad submitted their applications to be considered as against the aforesaid post which was advertised, namely, Lecturer in Chemistry. Mohd. Sohrab Khan had a first class Master's degree in Chemistry (Pure) whereas Merajuddin Ahmad was holding a first class Master's degree in Industrial Chemistry.
6. The University authority, however, called both of them for the interview. The Selection Committee which was constituted for the purpose of selecting the suitable candidate selected Merajuddin Ahmad on the ground that he would be more suitable to the aforesaid post as he holds a Master's degree in Industrial Chemistry which according to them would be best suited to teach the particular subject for the University Polytechnic, Aligarh Muslim University. The University Authority accepted the aforesaid recommendation of the Selection Committee and issued an order of appointment in favour of Merajuddin Ahmad. Mohd. Sohrab Khan, being aggrieved by the aforesaid order passed by Aligarh Muslim University filed a writ petition in the High Court of Allahabad.
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10. The contention that is raised on behalf of Merajuddin Ahmad is that the Selection Committee being constituted of experts on the subjects was the only competent authority to decide that the person holding Master's degree in Industrial Chemistry is best suited for teaching the subject for which advertisement was issued and the High Court acted illegally and without Page 26 of 43 // 27 // jurisdiction in interfering with the aforesaid opinion of the experts by substituting its own decision.
11. It was also submitted that the Master's degree in Industrial Chemistry is as good as Master's degree in Chemistry for the post for which the advertisement was issued and that a person having Master's degree in Industrial Chemistry was better suited for teaching the said subject.
XXX XXX XXX
17. We have gone through the aforesaid advertisement which was issued for filling up various posts and on scrutiny, we find that whenever and wherever the University desired to fill up a post at variance with the main subject, it is specifically notified and indicated in the said advertisement. For example, advertisement which finds place at Serial No. 59 was for filling up the post of Lecturer in Civil Engineering (Environmental Engg.) for University Polytechnic for which qualification which was necessary and essential was mentioned as first class Bachelor's degree in Environmental/Civil/Chemical/Petroleum/Biochemical Engineering/Architecture. Many more posts advertised in the said advertisement specifically indicate that whenever the University desired to have a post filled up in a particular branch of the Humanities and Science Department, it specifically indicated as such in the said advertisement. If it was necessary for the University to fill up the post from the stream of Industrial Chemistry, it would have so indicated in the advertisement itself for in subsequent years, we find specific advertisement has been issued by the same University for filling up the post of Lecturer in Industrial Chemistry by issuing an advertisement specifically in that regard. There is no doubt with regard to the fact that it is the University authority which knows best as to what is their requirement.
XXX XXX XXX
23. The post advertised was meant for a person belonging to Pure Chemistry Department for if it was otherwise, then it would have been so mentioned in the advertisement itself that a person holding a Master's degree in Industrial Chemistry should only apply or that a person holding such a degree could also apply along with other persons. It was not so mentioned in the advertisement and, therefore, except for Merajuddin Ahmad, no other degree-holder in Industrial Chemistry had applied for becoming a candidate as against the aforesaid post.
Page 27 of 43// 28 //
24. According to us, the Selection Committee as also the University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach and what essential qualification the person must possess to be suitable for making application for filling up the said post.
25. We are not disputing the fact that in the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process during its midstream. Merajuddin Ahmad did not possess a degree in Pure Chemistry and therefore, it was rightly held by the High Court that he did not possess the minimum qualification required for filling up the post of Lecturer in Chemistry, for Pure Chemistry and Industrial Chemistry are two different subjects.
26. The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Master's degree- holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post.
27. The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid down in the advertisement and at that stage held that a Master's degree-holder in Industrial Chemistry would be better suited for manning the said post without there being any specific advertisement in that regard. The very fact that the University is now manning the said post by having a person from the discipline of Pure Chemistry also leads to the conclusion that the said post at that stage when it was advertised was meant to be filled up by a person belonging to Pure Chemistry stream.
28. In A.P. Public Service Commission v. B. Swapna [(2005) 4 SCC 154 : 2005 SCC (L&S) 452] , at para 14 it was held by this Court that norms of Page 28 of 43 // 29 // selection cannot be altered after commencement of selection process and the rules regarding qualification for appointment, if amended, during continuation of the process of selection do not affect the same.
29. Further at para 15 of B. Swapna case% [(2005) 4 SCC 154 : 2005 SCC (L&S) 452] it was held that the power to relax the eligibility condition, if any, to the selection must be clearly spelt out and cannot be otherwise exercised. The said observations are extracted herein below: (SCC pp. 159- 60, paras 14-15) "14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka [(1990) 1 SCC 411 : 1990 SCC (L&S) 163 : (1990) 12 ATC 727] and Gopal Krushna Rath v. M.A.A. Baig [(1999) 1 SCC 544 : 1999 SCC (L&S) 325] .)
15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on the rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in Page 29 of 43 // 30 // contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised."
30. In Krushna Chandra Sahu (Dr.) v. State of Orissa [(1995) 6 SCC 1 :
1995 SCC (L&S) 1321 : (1995) 31 ATC 438] at SCC p. 13, para 34 it was held by this Court that "the Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication".
31. In Krushna Chandra Sahu (Dr.) case% [(1995) 6 SCC 1 : 1995 SCC (L&S) 1321 : (1995) 31 ATC 438] reference was made to the decision in P.K. Ramachandra Iyer v. Union of India% [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] , wherein at para 44 it was observed: (P.K. Ramachandra case% [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] , SCC pp. 180-81) "44. ... By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."
5.8. In the case reported in 1999 Supp. (3) SCC 168 (Rekha Chaturvedi (Smt) Vs. University of Rajasthan & Ors.), Hon‟ble Apex court in Para 11 of the said Judgment has held as follows:-
"11. However, for the reasons which follow, we are not inclined to set aside the selections in spite of the said illegality. The selected candidates have been working in the respective posts since February 1985. We are now in January 1993. Almost eight years have elapsed. There is also no record before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance. If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected. We, however, feel it necessary to emphasise and bring to the notice of the University that the illegal practices in the selection of candidates which have come to light and which seem to be followed usually at its end must Page 30 of 43 // 31 // stop forthwith. It is for this purpose that we lay down the following guidelines for the future selection process:
A. The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose. The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better than those who apply, can have a legitimate grievance since they are left out of consideration. C. When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.
D. The University/Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made.
E. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available."
5.9. Similarly, reliance was placed on a decision of the Hon‟ble Apex Court in the case of State of Odisha & Anr. Vs. Mamata Mohanty reported in 2011 (3) SCC 436. Hon‟ble Apex court in Para 23, 39 to 51 & 68 of the said Judgment has held as follows:-
"23. The Government of Orissa, Education and Youth Services Department Circular dated 27-11-1986 dealt with the subject, continuance Page 31 of 43 // 32 // of underqualified teachers in non-government colleges, eligibility to receive grant-in-aid from the Government. The relevant part reads as under:
"The decision of Utkal University communicated to the Government in their Letter No. A.13570/86 dated 20-8-1986 cannot be treated as a valid order of condonation of under qualification unless the concurrence of the University Grants Commission has been obtained. The universities which have made order of condonation after the Regulation concerned of UGC may refer the matter to UGC and secure their concurrence for condonation."
XXX XXX XXX
39. In Prit Singh (Dr.) v. S.K. Mangal [1993 Supp (1) SCC 714 : 1993 SCC (L&S) 246 : (1993) 23 ATC 783] this Court examined the case of a person who did not possess the requisite percentage of marks as per the statutory requirement and held that he cannot hold the post observing : (SCC pp. 718-19, paras 12-13) "12. ... It need not be pointed out that the sole object of prescribing qualification that the candidate must have a consistently good academic record with first or high second class Master's degree for appointment to the post of a Principal, is to select a most suitable person in order to maintain excellence and standard of teaching in the institution apart from administration. ... The appellant had not secured even second class marks in his Master of Arts Examination whereas the requirement was first or high second class (55%). The irresistible conclusion is that on the relevant date the appellant did not possess the requisite qualifications.
13. ... on the date of the appointment the appellant did not possess the requisite qualifications and as such his appointment had to be quashed."
(emphasis added)
40. In Pramod Kumar v. U.P. Secondary Education Services Commission [(2008) 7 SCC 153 : (2008) 2 SCC (L&S) 244 : AIR 2008 SC 1817] this Court examined the issue as to whether a person lacking eligibility can be appointed and if so, whether such irregularity/illegality can be cured/condoned. After considering the provisions of the U.P. Secondary Education Services Commission Rules, 1983 and the U.P. Intermediate Education Act, 1921, this Court came to a conclusion that lacking eligibility as per the rules/advertisement cannot be cured at any stage and making appointment of such a person tantamounts to an illegality Page 32 of 43 // 33 // and not an irregularity, and thus cannot be cured. A person lacking the eligibility cannot approach the court for the reason that he does not have a right which can be enforced through court.
41. This Court in Pramod Kumar [(2008) 7 SCC 153 : (2008) 2 SCC (L&S) 244 : AIR 2008 SC 1817] further held as under : (SCC p. 160, para
18) "18. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularised, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. [See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , National Fertilizers Ltd. v. Somvir Singh [(2006) 5 SCC 493 : 2006 SCC (L&S) 1152 : AIR 2006 SC 2319] and Post Master General v. Tutu Das (Dutta) [(2007) 5 SCC 317 : (2007) 2 SCC (L&S) 179] .]"
42. In J.P. Kulshrestha (Dr.) v. Allahabad University [(1980) 3 SCC 418 : 1980 SCC (L&S) 436 : AIR 1980 SC 2141] issue of relaxation of eligibility came up for consideration before this Court wherein it was held as under :
(SCC pp. 425-26, paras 15-16) "15. ... We regretfully but respectfully disagree with the Division Bench and uphold the sense of high second class attributed by the learned Single Judge. The midline takes us to 54% and although it is unpalatable to be mechanical and mathematical, we have to hold that those who have not secured above 54% marks cannot claim to have obtained a high second class and are ineligible.
16. ... We have earlier held that the power to relax, as the Ordinance now runs, insofar as high second class is concerned, does not exist.
Inevitably, the appointment of the 3 respondents violate the Ordinance and are, therefore, illegal."
(emphasis added)
43. In Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234] this Court again dealt with the power of relaxation of minimum qualifications as the statutory provisions applicable therein provided for relaxation, but to what extent and under what circumstances, such power could be exercised was not provided Page 33 of 43 // 34 // therein. Thus, this Court issued the following directions : (SCC p. 176, para
11) "A. The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose. ... C. When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.
D. The University/Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made. E. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available."
(emphasis added)
44. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 :
1984 SCC (L&S) 214 : AIR 1984 SC 541] this Court while dealing with the same issue, held that once it is established that there is no power to relax the essential qualifications, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.
45. In A.P. Public Service Commission v. B. Swapna [(2005) 4 SCC 154 : 2005 SCC (L&S) 452] this Court held that : (SCC p. 160, para 15) "15. Another aspect which this Court has highlighted is scope for relaxation of norms. ... Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated."
Page 34 of 43// 35 // (emphasis supplied)
46. This Court in Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy [(2006) 8 SCC 671 : (2007) 1 SCC (L&S) 23] held : (SCC p. 675, para
11) "11. ... The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age-limits. ... The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof."
(emphasis added)
47. In Food Corpn. of India v. Bhanu Lodh [(2005) 3 SCC 618 : 2005 SCC (L&S) 433 : AIR 2005 SC 2775] this Court held : (SCC p. 628, para
12) "12. ... Even assuming that there is a power of relaxation under the Regulations, ... the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases.... We do not think that they are intended as an „open sesame‟ for all and sundry. The wholesale go-by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of the Central Government under Section 6(2) of the Act."
48. In Bhanu Prasad Panda (Dr.) v. Sambalpur University [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] one of the questions raised has been as to whether a person not possessing the required eligibility of qualification i.e. 55% marks in Master's degree can be appointed in view of the fact that UGC refused to grant relaxation. On the issue of relaxation of eligibility, the Court held as under : (SCC p. 536, para 5) "5. ... the essential requirement of academic qualification of a particular standard and grade viz. 55%, in the „relevant subject‟ for which the post is advertised, cannot be rendered redundant or violated.... ... The rejection by UGC of the request of the Department in this case to relax the condition relating to 55% marks at postgraduation level ... is to be the last word on the claim of the appellant and there could be no further controversy raised in this regard."
(emphasis added) Page 35 of 43 // 36 //
49. In view of the above, this Court held that the appointment of the appellant therein has rightly been quashed as he did not possess the requisite eligibility of 55% marks in Master's course.
50. In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily. (See Union of India v. Dharam Pal [(2009) 4 SCC 170 : (2009) 1 SCC (L&S) 790] .) Such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statute. Such power can be exercised only to make such legislation effective so that the ultimate power will not become illusory, which otherwise would be contrary to the intent of the legislature. (Vide Matajog Dobey v. H.S. Bhari [AIR 1956 SC 44 : 1956 Cri LJ 140] and State of Karnataka v. Vishwabharathi House Building Coop. Society [(2003) 2 SCC 412] .)
51. More so, relaxation in this manner is tantamount to changing the selection criteria after initiation of selection process, which is not permissible at all. Rules of the game cannot be changed after the game is over. (Vide K. Manjusree v. State of A.P. [(2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841 : AIR 2008 SC 1470] and Ramesh Kumar v. High Court of Delhi [(2010) 3 SCC 104 : (2010) 1 SCC (L&S) 756 : AIR 2010 SC 3714] .) XXX XXX XXX
68. From the aforesaid discussion, the following picture emerges:
(i) The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on the noticeboard of the College. Some of these teachers did not face the interview test before the Selection Board. Once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage.Page 36 of 43
// 37 //
(ii) At the relevant time of appointment of the respondents/teachers there has been a requirement of possessing good second class i.e. 54% marks in Master's course and none of the said respondents had secured the said percentage.
(iii) Their appointments had been approved after a long, long time. In some cases after 10-12 years of their initial appointment by the statutory authority i.e. Director of Higher Education.
(iv) A candidate becomes eligible to apply for a post only if he fulfils the required minimum benchmark fixed by the rules/advertisement. Thus, none of the respondents could even submit the application what to talk of the appointments.
(v) The so-called relaxation by Utkal University was accorded by passing a routine order applicable to a large number of colleges, that too after a lapse of long period i.e. about a decade.
(vi) Fixation of eligibility falls within the exclusive domain of the executive and once it has been fixed by the State authorities under the 1974 Rules, the question of according relaxation by Utkal University could not arise and, therefore, the order of condonation, etc. is a nullity.
(vii) The relaxation has been granted only by Utkal University though Rule 2(i) of the 1974 Rules defined "University" means Utkal University, Berhampur University, Sambalpur University and Shri Jagannath Sanskrit Vishwa Vidyalaya.
(viii) Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. More so, it is violative of the fundamental rights enshrined under Articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks.
(ix) The exercise of condonation of deficiency had not been exercised by any university other than Utkal University.
(x) The post of the teachers i.e. the respondents is transferable to any college affiliated to any other university under the 1979 Rules.
(xi) The power to grant relaxation in eligibility had not been conferred upon any authority, either the university or the State. In the absence thereof, such power could not have been exercised.
(xii) This Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] has categorically held that a person cannot Page 37 of 43 // 38 // get the benefit of grant-in-aid unless he completes the deficiency of educational qualification. Further, this Court in Bhanu Prasad Panda (Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] upheld the termination of services of the appellant therein for not possessing 55% marks in Master's course.
(xiii) The aforesaid two judgments in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] and Bhanu Prasad Panda (Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] , could not be brought to the notice of either the High Court or this Court while dealing with the issue. Special leave petition in Kalidas Mohapatra [ SLPs (C) Nos. 14206- 09 of 2001 decided on 11-3-2002] has been dealt with without considering the requirement of law merely making the reference to Circular dated 6-11- 1990, which was not the first document ever issued in respect of eligibility. Thus, all the judgments and orders passed by the High Court as well as by this Court cited and relied upon by the respondents are held to be not of a binding nature. (Per incuriam)
(xiv) In case a person cannot get the benefit of grant-in-aid scheme unless he completes the deficiency of educational qualification, question of grant of UGC pay scale does not arise.
(xv) The cases had been entertained and relief had been granted by the High Court without considering the issue of delay and laches merely placing reliance upon earlier judgments obtained by diligent persons approaching the courts within a reasonable time. (xvi) The authority passed illegal orders in contravention of the constitutional provisions arbitrarily without any explanation whatsoever polluting the entire education system of the State, ignoring the purpose of grant-in-aid scheme itself that it has been so provided to maintain the standard of education.
(xvii) The High Court granted relief in some cases which had not even been asked for as in some cases the UGC pay scale had been granted with effect from 1-6-1984 i.e. the date prior to 1-1-1986 though the same relief could not have been granted. Thus, it clearly makes out a case of deciding a case without any application of mind.
(xviii) In some cases the UGC pay scale has been granted by the High Court prior to the date of according the benefit of grant-in-aid scheme to the teachers concerned which was not permissible in law in view of the law Page 38 of 43 // 39 // laid down by this Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] .
(xix) The grievance of the respondents that not upholding the orders passed by the High Court in their favour would amount to a hostile discrimination is not worth acceptance for the reason that Article 14 of the Constitution envisages only positive equality. (xx) Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.
(xxi) The submission on behalf of the respondents that government orders/circulars/letters have been complied with, therefore, no interference is called for, is preposterous for the simple reason that such orders/circulars/letters being violative of statutory provisions and constitutional mandate are just to be ignored in terms of the judgment of this Court in Ram Ganesh Tripathi [(1997) 1 SCC 621 : 1997 SCC (L&S) 186 : AIR 1997 SC 1446] ."
5.10. Making all these submissions learned counsel appearing for the Petitioner contended that since in terms of the advertisement Opp.
Party No. 3 does not have the required Ph.D. in the relevant subject i.e. Horticulture, selection and appointment of Opp. Party No. 3 as against the post of Senior Scientist (Horticulture) is not only illegal but also not sustainable in the eye of law and requires interference of this Court.
6. I have heard Mr. S. Rath, learned counsel appearing for the Petitioner, Mr. A. Tripathy, learned Addl. Govt. Advocate appearing for the State, Mr. S.C. Rath, learned counsel appearing for Opp. Party Nos. 1 & 2 and Mr. A. Mohanty, learned Sr. Counsel appearing on behalf of Opp. Party No. 3 along with Mr. S.S. Padhi, learned counsel.
Page 39 of 43// 40 // With due exchange of pleadings, the matter was heard at the stage of admission and disposed of by the present order.
7. The fact which is not disputed is that pursuant to the advertisement issued by the University under Annexure-2 on 26.09.2017, Petitioner and Opp. Party No. 3 made their applications as against the post of Senior Scientist (Horticulture). As provided under Para 5 of the said advertisement, a candidate for the post of Senior Scientist in any discipline is required to have +2 Bachelor‟s Degree with at least 55% mark, 2nd Class Master‟s Degree in the relevant subject with at least 55% mark, Ph.D. degree in the relevant subject along with experience and significant contribution to the research etc. It is not disputed that while Petitioner does have the required qualification along with Ph.D. in Horticulture, which is the relevant subject, but Opp. Party No. 3 though have the qualification as provided under Para 5(i)(ii), but she does not have the Ph.D. in the relevant subject. As found from Annexure-6, Opp. Party No. 3 does have the Ph.D. in the subject Botany.
7.1. Since as provided in the advertisement a candidate is required to have Ph.D. Degree in the relevant subject, taking into account the name of the post i.e. Senior Scientist (Horticulture), as per the Page 40 of 43 // 41 // considered view of this Court, a candidate should have Ph.D. Degree in the subject Horticulture.
7.2. The stand taken by the University as well as Opp. Party No. 3 that Botany being a Broader subject which includes Horticulture and accordingly, the Selection Committee, who were the subject experts found Opp. Party No. 3 more suitable in order of merit and accordingly recommended her claim vide Annexure-C pursuant to the proceeding of the meeting under Annexure-A to the counter affidavit filed by the University is not acceptable as the Selection Committee while considering the claim of Opp. party No. 3 as found from Annexure-A take her Ph.D. in the subject Horticulture.
7.3. Placing reliance on the decisions as cited by the learned counsel for the Petitioner in the case of Ganpath Singh Gangaram Singh Rajput, Dr. Bhanu Prasad Panda, Valsala Kumari Devi M., Mohd.
Shorab Khan as cited (supra), this Court is of the view that Petitioner having the Ph.D. in the relevant subject i.e. Horticulture, it cannot be equated with the Ph.D. of Opp. Party No. 3 in the subject Botany as being a concerned subject.
7.4. In view of the clear prescription in the advertisement that a candidate should have Ph.D. in the relevant subject, it is the view of Page 41 of 43 // 42 // this Court that Opp. Party No. 3 does not have that Ph.D. in terms of the advertisement. The stand taken by Opp. Party-University as well as Opp. Party No. 3 that after participating in the selection process and on becoming unsuccessful Petitioner is not permitted to challenge the selection and appointment of Opp. Party No. 3 is also not acceptable to this Court in view of the decision of the Hon‟ble Apex Court in the case of Dr. Meeta Sahai as cited (supra).
7.5. In view of the said decision, Petitioner has the locus to challenge the illegality committed in the selection process. Not only that in view of the decision in the case of Mamata Mohanty as cited (supra), since Opp. Party No. 3 lacks the eligibility in terms of the advertisement, it cannot be cured at any stage and making appointment of Opp. Party No. 3 tantamount to an illegality and not an irregularity. The stand taken by the University as well as Opp. Party No. 3 that decision taken by the Selection Committee who were the subject experts cannot be challenged in exercise of the extra ordinary jurisdiction of this Court is also not acceptable as the Selection Committee as found from Annexure-A has considered the application of Opp. Party No. 3 while taking her Ph.D. in the subject Horticulture.
Page 42 of 43// 43 // 7.6. In view of the aforesaid analysis, this Court is of the view that Opp. Party No. 3 was not eligible and entitled to make the application as against the post of Senior Scientist (Horticulture) in terms of the advertisement issued under Annexure-2. The Ph.D. acquired by her in the subject Botany cannot be equated as having the Ph.D. in the relevant subject. Therefore, this Court is inclined to interfere with the selection and appointment of Opp. Party No. 3 so made vide the impugned order dtd.28.02.2018 under Annexure-1. This Court accordingly is inclined to quash the said order and while quashing the same and taking into account the position of the Petitioner in the merit list so available under Annexure-C at Sl. 2, directs the University to provide appointment to the Petitioner as against the said post. This Court directs Opp. Party No. 2 to complete the entire exercise within a period of six (6) weeks from the date of receipt of this order.
8. The writ petition is disposed of accordingly with the aforesaid observation and direction.
(BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Orissa High Court, Cuttack Digitally Signed Dated the 11th March, 2025/Sneha Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Mar-2025 17:05:58 Page 43 of 43