Delhi High Court
Governing Body Of Hindu College vs Dr Ratan Lal & Ors on 24 April, 2019
Author: S. Muralidhar
Bench: S.Muralidhar, I.S.Mehta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 3rd April, 2019
Pronounced on: 24th April, 2019
+ LPA 727/2018 & CM APPL.54024/2018 (for stay)
GOVERNING BODY OF HINDU COLLEGE .... Appellant
Through: Mr. P.V. Kapur, Senior Advocate
with Mr. Lalit Bhasin, Ms. Ratna
Dwivedi Dhingra, Ms. Chandni
Sadana, Mr. Ajay Pratap Singh, Mr.
Sidhant Kumar, Mr. V.K. Nagkath,
Ms. Kaveri Gupta, Mr. Rajiv Sharma,
Mr. Kunal Sharma and Mr. Jitender
Panchal, Advocates.
Versus
DR RATAN LAL & ORS ..... Respondents
Through: Mr.Aditya Kumar Choudhary,
Mr.Arjun D Singh, Mr.Amit Pratap
Shaunak and Mr.Gurmehar Vaan
Singh, Advocates for R-1.
Mr. Amit Bansal, Advocate for R-2.
Mr. Neeraj, Advocate with Mr. Sahaj
Garg, Advocate for UOI.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA
JUDGMENT
Dr. S. Muralidhar, J.:
1. This is an appeal by the Governing Body ('GB') of Hindu College (hereafter „College‟) against a judgment dated 27th November, 2018 passed LPA 727/2018 Page 1 of 28 by the learned Single Judge allowing WP (C) No. 8865 of 2018 filed by Respondent No.1 and inter-alia requiring the GB to undertake a fresh exercise for appointing the Principal of the College.
Background facts
2. The background facts are that the University of Delhi (Respondent No.2) (hereafter „University‟) informed the College by a letter dated 22nd March, 2017 of the procedure and guidelines for appointment of Principal of the College through the Centralised Online Registration Portal. In terms of the said procedure, online applications received through the portal were to be scrutinised by „a Pre-Screening Committee‟ („PSC‟) constituted by University. All the applications in a soft copy along with the pre-screened data would thereafter be sent to the College.
3. The GB of the College was to thereafter constitute a Screening Committee comprising of:
(i) The Chairman of the GB of the College (who would be the Chairperson of the Screening Committee);
(ii) 2 members of the GB of which at least one should be a University representative nominated by the Chairman of the GB of the College.
4. If any of the candidates belonged to SC/ ST/OBC/Minority/ Women/ Person with Disability, and the Screening Committee did not have a member belonging to those categories, then the Screening Committee was to additionally have an Academician, representing the above categories, to be nominated by the Appellant. It was specified that at least 3 members shall LPA 727/2018 Page 2 of 28 form a quorum as far as the Screening Committee was concerned.
5. After the above exercise was completed by the Screening Committee the College was to form a Selection Committee which comprised the following:
(i) Chairperson of the GB of the College
(ii) Two members of the GB to be nominated by the Chairperson of whom one is to be an expert in academic administration.
(iii) One nominee of the Vice-Chancellor "who shall be a Higher Education Expert.
(iv) Three experts consisting of the Principal of a College, a Professor and an accomplished educationist not below the rank of a Professor. These were also to be nominated by the GB.
(v) An Academician representing SC/ST/OBC/Minority/Women/Persons with disability, if any, of the candidates representing these categories is an Applicant.
This member of the Selection Committee was to be nominated by the Vice-Chancellor, if any of the members of the Selection Committee did not belonged to that category.
6. The College issued an advertisement on 10th October, 2017 inviting applications for the post of Principal. Pursuant to the said advertisement, 22 persons including Respondent No.1 applied on 10th November 2017 on the online portal. The 22 applications were scrutinized by the PSC constituted in terms of the Rules prescribed by the University Grants Commission (UGC) (Respondent No.4) and adopted by the University (Respondent No. 2). The PSC compiled the data and sent the date to the Chairman of the College by a letter dated 12th/19th December, 2017.
LPA 727/2018 Page 3 of 287. The said applications were to be screened on the basis of Academic Performance Indicator ("API") Score. Since the application is made online, the candidate fills up details in a kind of self-assessment. The computer programme itself generates the API Score. As per the UGC guidelines, for Category II i.e. Professional Development and Category III i.e. Research and Academic Contributions, the consolidated API score required is 400. This is the minimum that a candidate must secure to become eligible for the interview. These API scores are based on an applicant‟s self assessment which in turn was to be based on verifiable records. This was to be finalised by the Screening Committee.
8. The API score as claimed by Respondent No.1 was 496, but the PSC reduced it to 95 as explained in the following tabular form:
Category API Score API Score as awarded by
claimed by the PSC
Respondent No.1
II Professional Development, Co- 45 45
curricular and Extension Activities
III (A- Research Papers published in 200 0
journals
III (B) Publications other than journal 200 50
articles
III (E) (i) Fellowship and 5 0
Honour/Awards (Honour/Awards)
III (E) (ii) Invited Lectures 46 0
TOTAL 496 95
LPA 727/2018 Page 4 of 28
9. The Screening Committee met on 13th January, 2018 and examined the applications of the 22 candidates and their API scores, as compiled by the PSC. The Appellant issued a notification on 15th January, 2018 appending two lists. List 1 contained the names of 10 candidates who were eligible for interview and list 2 of the 15 candidates not found eligible. The name of Respondent No.1 figured in list 2.
10. By a letter dated 19th January, 2018 under the Right to Information Act, 2005 (RTI Act) Respondent No.1 sought information concerning the evaluation of his application, from the Public Information Officer (PIO) of the University. By a reply dated 5th February, 2018 the University informed him that the said application had been transferred to the PIO of the College since the information was not held by the University. However, by a reply dated 27th February, 2018 the Principal of the College informed Respondent No.1 that the information sought by him was not available even with the Principal himself. Respondent No.1 then preferred a first appeal to the Appellate Authority. After failing in the appeal, he then filed a second appeal before the Central Information Commission (CIC).
11. The second meeting of the Screening Committee was held on 14 th June, 2018. After considering the representations of candidates in response to the two lists released earlier on the website, the Screening Committee added two names to the list of eligible candidates. As far as Respondent No.1 is concerned, the Screening Committee increased his API score to 128 after considering his representation. However, since this was still well below 400, he did not figure in the final list of 12 eligible candidates that was notified LPA 727/2018 Page 5 of 28 by the Appellant by letter dated 18th June, 2018.
12. On 2nd July 2018, Respondent No.1 submitted a representation for the Vice-Chancellor of the University alleging unfair treatment by the Appellant in the matter of selection for the post of Principal. By an e-mail dated 23rd August, 2018 the Appellant informed Respondent No.1 that the Screening Committee, after reviewing his application, gave him an API score of 128 which still did not make him eligible to be called for interview.
13. The Selection Committee of the Appellant interviewed the 12 candidates on 25th August, 2018 and short listed two. After the interviews of the two were concluded on 25th October, 2018, the University issued a letter dated 26th October, 2018 approving the appointment of Respondent No.5 as Principal.
Writ petition of Respondent No.1
14. Without waiting for the outcome of the appeal filed by him before the CIC, Respondent No.1 filed WP (C) No. 8865 of 2018 before in this Court inter-alia seeking directions to the Appellant to reveal the API scores of all candidates. Respondent No.1 filed an additional affidavit in the said writ petition detailing the grounds for the rejection of his application. The Appellant also filed an affidavit in response thereto. The learned Single Jude on 25th October, 2018 passed an interim order that till further orders the Respondents should not finalise the name/selection for the post of Principal.
15. The writ petition was finally heard on 1 and 2nd November, 2018 and LPA 727/2018 Page 6 of 28 orders were reserved by the learned Single Judge.
Impugned order of the Single Judge
16. By the impugned judgment dated 27th November, 2018 the learned Single Judge concluded that from the documents produced by the Appellant it was not clear "what is the criteria to award API marks and which rules and regulations are followed". It was further held that there was no justification in not awarding the API points to the Respondent No.1 "in the category of Research Project, Consultancy Project, Project Outcome, Research Guidance, Fellowship and E-learning modules".
17. The learned Single Judge noted that that the complete record of the selection process was not produced and the papers that were produced did not provide the complete information. The learned Single Judge also commented on the unreasonable delay on the part of the PIO to disclose the complete information and concluded that Respondent No.1 had established that "the procedure which was followed for short listing is not a clear transparent case of favouritism towards the present Officiating Principal, Hindu College and that the whole process is just an eye wash when in reality, Respondent No.6 seems to be pre- decided candidate who secured 405 API score." The learned Single Judge concluded that an undue advantage had been given to Respondent No.6 resulting in violation of the Respondent No. 1‟s fundamental right under Article 14 of the Constitution.
18. The learned Single Judge interpreted Clause (3) of the guidelines which required, in certain circumstances, the inclusion of an Academician in the LPA 727/2018 Page 7 of 28 Screening and Selection Committees to be mandatory. Thus, since Respondent No.1 belonged to the SC, and there was no member belonging to that category in the Selection Committee, its constitution was against the guidelines. As a result the learned Single Judge quashed the entire selection process and issued the following directions:
"(a) To assess the candidates a fresh and select the best candidate available as per rules, procedures and guidelines etc. applicable.
(b) The assessment shall be made afresh by the Screening Committee, however, any of previous member shall not be part of the Screening Committee.
(c) Since the petitioner belongs to Scheduled Caste category, in the Selection Committee the representative of said category shall be ensured."
Submissions on behalf of the Appellant
19. Mr. P. V. Kapur, learned Senior counsel for the Appellant submitted as under:
(i) The allegations of favouritism against Respondent No.1 were baseless since the screening of the eligible candidates had been undertaken strictly in terms of the guidelines issued by the University.
(ii) The selection to the post of Principal comprised: (i) Examination of applications by the PSC (ii) The Screening Committee which finalised a list of eligible candidates (ii) Selection by the Selection Committee. Thereafter, the appointment was by the Apex Selection Committee of the University. At every stage the Committees comprised experts chosen independently and only one of the members was the Chairman of the GB of the Appellant.LPA 727/2018 Page 8 of 28
Therefore, it was not possible for the Appellant to influence the outcome of the deliberations and favour a particular candidate.
(iii) The allegations of mala fide against one or more members of the Committees at every stage had to be specific. Merely because Respondent No.5 herein, the Officiating Principal was one of the candidates, did not prove the mala fides of the Appellant.
(iv) Despite Respondent No.1 being debarred from holding any administrative post till 2020, Respondent No.5 gave a No Objection Certificate (NOC) to the Respondent No.1 to apply for the post of Principal. This also showed that there was no mala fide qua the Respondent No.1.
(v) The non-furnishing of information to Respondent No.1 under the RTI Act was not on account of any omission on the part of the Appellant or Respondent No.5.
(vi) The learned Single Judge misconstrued para 3 of the guidelines which required an academician to represent the SC/ ST/ OBC/ Minority/ Women/Persons with disability, if any, of the candidates representing those categories was an applicant and, if any of the members of the Screening Committee did not belong to that category. It was sufficient that one belonging to any of the above categories was part of the Screening/Selection Committee. Such member did not have to belong to the same category to which the candidate belonged.
LPA 727/2018 Page 9 of 28(vii) The fact remained that Respondent No.1 failed to secure the requisite API score of 400. His initial API score of 95 was increased to 128 by the Screening Committee but this was still below the benchmark. The application form of Respondent No.1 was full of discrepancies which explained the extreme variation in the API scores given by him and by the PSC.
(viii) The learned Single Judge proceeded on the basis that the selection was only between Respondent No.1 and Respondent No.5 whereas 12 candidates out of 22 were found eligible for the interview. There were certain other candidates also whose API scores were revised and did not make it to the stage of interview. Therefore, it was not as if Respondent No.1 was singled out for a differential treatment.
(ix) In exercising its jurisdiction under Article 226 of the Constitution this Court is not expected to sit an appeal over the decision of the Selection Committee. The experts comprising the Selection Committee had applied their minds and determined the best candidate for the post of Principal. With Respondent No.1 clearly not being eligible, he could have no grievance about the selection of Respondent No. 5 or any other person to the post of Principal. Reliance is placed on the decisions in Uttar Pradesh Public Service Commission, through its Chairman v. Rahul Singh (2018) 7 SCC 254, Sanchit Bansal v. Joint Admission Board (2012) 1 SCC 157, Basavaiah (Dr.) v. Dr. H.L.Ramesh (2010) 8 SCC 372, Dalpat Abasaheb Solunke v. Dr. B.S.Mahajan (1990) 1 SCC 305, Union of India v. Ibrahim Uddin (2012) 8 SCC 148, The University of Mysore v. Govinda Rao AIR LPA 727/2018 Page 10 of 28 1965 SC 491 & Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna (2004) 6 SCC 714.
Submissions on behalf of Respondent No.1
20. Mr. Aditya Kumar Choudhary, learned counsel for Respondent No.1 on the other hand defended the impugned judgment of the learned Single Judge. He first submitted that the relevant information necessary for understanding the basis on which the API of the Petitioner was scored from over 400 to just 95, was not made available despite the best efforts of the Respondent No.1. He submitted that if a proper score is given to the research articles and papers authored by Respondent No.1, it would be clear that the reduction in the API was totally arbitrarily.
21. Mr. Choudhary next submitted that the whole exercise was already pre- decided with a view to favouring Respondent No.5 herein who ultimately got selected. Her publications were school books viz., ISC Practical Chemistry for Classes XI and XII of which she was not even a sole author and yet she was given 50 API points. The said publication had nothing to do with college students.
22. While he did not join issue on the limited scope of the jurisdiction of the writ Court under Article 226 of the Constitution in interfering with decisions of a Selection Committee, Mr. Choudhary submitted that this was a case of mala fides and there is a deliberate attempt to keep out Respondent No.1. He referred to the finding of the learned Single Judge that "Because most basic information was denied on the pretext of LPA 727/2018 Page 11 of 28 "information not in possession of college", which is untrue on the face of it, as the information sought was the same which needed to be filed by the applicants in their online application form for the post of Principal."
23. Mr. Choudhary submitted that the impugned judgment had been delivered on „equitable grounds‟ and that the learned Single Judge had exercised the power of judicial review to order to do „substantial justice‟. He referred to the finding in the impugned judgment that Respondent No.1 had "established that the procedure which was followed for shortlisting is not a clear transparent case of favouritism towards the present Officiating Principal, Hindu College and that the whole process is just an eye wash when in reality, respondent No. 6 seems to be pre-decided candidate who secured 405 API Score."
24. Mr. Choudhary pointed out that since Respondent No.1 had been knocked out at the pre-interview stage, the improper constitution of the Selection and Apex Committees was not relevant as far as he was concerned. He attacked the composition of the Screening Committee as being „hand-picked‟ by the Chairman of the Appellant. He submitted that in terms of Para 3 of the guidelines/procedure, it was mandatory for the Screening Committee to have a representative of the „SC/ST/OBC /Minority /Women /Persons with disability‟. He submitted that the woman academic was in fact not an expert. He suggested that she was in fact „a close relative of the present advisor of the Governing Body‟ who had been nominated as such by the Chairman of the Appellant. When asked specifically whether this allegation was averred in the writ petition, Mr. Choudhary answered in the negative and stated that it came to his knowledge only recently.
LPA 727/2018 Page 12 of 2825. Mr. Choudhary relied on the decisions in Ivy C.D.A Conceicao v. State of Goa (2017) 3 SCC 619, T. M. A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 and M. Nagaraj v. Union of India (2006) 8 SCC 212 to urge that the High Court in exercise of its power of judicial review is entitled to examine the fairness of the selection process. Relying on the decisions in Mohd. Altaf v. U.P. Public Service Commission (2008) 14 SCC 144 and Union Public Service Commission v. N. Sugathan ILR (2012) II Del 9, he submitted that the failure to disclose the relevant information that would enable Respondent No.1 to demonstrate the arbitrariness in his API scores being reduced, was itself arbitrary and illegal.
Analysis and reasons
26. The above submissions have been considered. To begin with it may be useful to recapitulate the settled legal position explained long ago in The University of Mysore v. C.D. Govinda Rao (supra) by the Constitution Bench of the Supreme Court that normally 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. The Court further observed 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.
27. In Dr. J.P. Kulshrestha v. Chancellor, Allahabad University (1980) 3 SCC 418, the Supreme Court observed:
"17. Rulings of this Court were cited before us to hammer home LPA 727/2018 Page 13 of 28 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 that courts should hesitate to dislodge decisions of academic bodies."
28. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (1984) 4 SCC 27, the Supreme Court held:
"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."
29. In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan (supra), the Supreme Court observed:
"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 LPA 727/2018 Page 14 of 28 called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
30. The legal position explained above was reiterated in Basavaiah (Dr.) v. Dr. H.L.Ramesh (supra).
31. It is necessary to note at the outset that at each level of the four stage selection process in the instant case, there is a Committee constituted to ensure elimination of arbitrariness in the selection of candidates. First there is the PSC followed by the Screening Committee, then the Selection Committee and finally the Apex Committee. The constitution of each of these Committees is such that it is not possible for each of the member to have any particular interest in a candidate. In fact it is not even the allegation of the Respondent No.1 that the entire PSC and the entire Screening Committee was biased against him. It is not disputed that the Principal is not a member in any of the Committees and has no role in the above stages. The possibility of each of the members of the Committees being influenced to give a decision in a particular way is neither feasible nor factually possible.
32. The principal grievance of respondent No.1 was regarding the reduction of his API score to 95 by the PSC and then to 128 by the Screening Committee, thus rendering him ineligible to be called for the interview by the Selection Committee. The benchmark of an API score of 400 is only for determining the eligibility of the candidates to appear at the next stage in the selection process i.e. to appear in the interviews. The API score as filled in LPA 727/2018 Page 15 of 28 by the candidate in the application form is a kind of self assessment. On that basis, an algorithm is run by the computer and an API score is generated. This is reviewed by the PSC and the revised API with the requisite information is placed before the Screening Committee. The task of preparation of the list of candidates eligible to be called for interview is of the Screening Committee. This list is then examined by the Selection Committee which interviews the short-listed candidates and gives its recommendation which is then placed before an Apex Committee.
33. With so many levels of scrutiny there are in-built checks and balances to minimise arbitrariness in the selection process. Any error by the PSC can get corrected by the Screening Committee, since it manually examines the papers and reviews the scores as determined by the PSC. This explains how the API score of Respondent No.1 was revised from 95 to 128 by the Screening Committee. If, as alleged by Respondent No.1 the Screening Committee was „hand-picked‟ in order to eliminate him from the race, it need not have revised his API score upwards at all. It is a different matter that despite the upward revision, Respondent No.1 did not make the cut since it was still below the benchmark of 400.
34. This Court has carefully perused the PSC‟s deliberations followed by that of the Screening Committee. Respondent No.1 was not being singled out by the PSC for the reduction of his API score to 95. This downward revision took place for other candidates as well. The type of publication and the impact it had were taken into consideration. In the case of one candidate the API score was revised downwards from 1618 claimed by him to 360 and LPA 727/2018 Page 16 of 28 this was maintained by the Screening Committee. In respect of another, it was revised from 1387.50 claimed by the candidate to just 115, and then revised to 202 by the Screening Committee. In the case of a third candidate it was revised by the PSC from 702.5 to 74.5 and after review by the Screening Committee to 535. Thus, in the cases of five candidates other than Respondent No.1 the API scores were revised downwards by the PSC and then again revised by the Screening Committee.
35. As explained in several decisions of the Supreme Court, it was not for the High Court exercising its writ jurisdiction to sit in appeal over the deliberations of an expert Committee, particularly in academic matters. The scope of the proceedings before the writ Court is to review the procedure adopted in the selection and to ensure that it was not arbitrary. The ultimate decision as to who is best suited to be appointed has to be left to the wisdom of the Committees concerned.
36. The Court cannot substitute itself for the Committees and decide who is the best among the candidates for the post. At the same time, the Court has to be careful in ensuring that only relevant materials have been considered and extraneous materials/considerations kept out by the concerned Committee. Further, that the evaluation of such material is based on an objective criteria. This is also the ratio of the decisions cited by learned counsel for Respondent No.1. On these broad legal propositions, there can be no quarrel.
37. In the present case, the API scores were allocated on the basis, LPA 727/2018 Page 17 of 28 guidelines issued by the UGC and adopted by the Screening Committee. For research papers published in refereed journals, the maximum score permissible was 25 per publication. However, this has to be in terms of the criteria as spelt out in the guidelines appended to the application form. The Note appended to the application form itself explained it as under:
"Note:
* Wherever relevant to any specific discipline, the API score for paper in refereed journal would be augmented as follows; (i) paper with impact factor less than 1- by 5points (ii) papers with impact factor between 1and 2 by 10 points; (iii) papers with impact factor between 2 and 5 by 15 points; (iv) papers with impact factor between 5 and 10 by 20 points and (v) papers with impact factor above 10 by 25 points. The API for joint publications shall be calculated in the following manner: Of the total score for the relevant category of publication by the concerned teacher, the First and Principal/corresponding author/supervisor/mentor would share equally 70% of the total points and the remaining 30%'would be shared equally by all other authors."
38. Further, there were guidelines regarding the type of publication as under:
"*** The level of publisher shall be decided on the following principle and the applicant in required to ensure adherence to the same while claiming API score for the respective publication:
A) (i) International Publication: A Book published by the applicant from a publisher in a country other than India.
(ii) International Publication: A Book published by the applicant from a publisher having a Registered Office in India and also at least in one other country.LPA 727/2018 Page 18 of 28
B) National Publication: Book published by the applicant from a publisher having Registered Office in at least two distinct cities of India.
C) Local Publication: A book published by the applicant from a publisher having registered office only in one city in India."
39. It was further clarified that "In case of any dispute with regard to screening of the applications, the decisions of the College shall be final." The impact factor varied from one journal to another. Although learned counsel for Respondent No.1 sought to question the basis for allocation of marks to the published articles of Respondent No.1 by first the PSC and then the Screening Committee, the Court is not equipped to assess the relative merits of such published articles. Nor is it competent to decide the „impact factor‟ of such publications. What this should be is best left to the PSC and thereafter to the Screening Committee. They are best equipped to apply the above objective criteria and award the appropriate API scores.
40. The Appellant has explained that the application form of Respondent No.1 was full of discrepancies and he could not be given the API scores as claimed by him. It is pointed out that:
"For instance, in category 5.1 (IIIA) at internal page 3 of the Application of Respondent no.l at Sr. no.2, Respondent No.l has named a journal and in the subsequent column where the pages of journal had to be given, he has filled 00 and for which the score against it is 25 whereas the score should be Zero as no journal can be of 00 pages. Similarly, at page 4 of 9 of the Application of Respondent No.l, at Sr. no.4,5 and 6 in category 5.2(IIIA), books were not published at the time of application and were published in 2018 only at the time of the representation filed by Respondent no.l. It is further pertinent to LPA 727/2018 Page 19 of 28 note that under the said category, the Respondent no.l has himself stated "No Impact Factor".
41. As rightly pointed out by Mr. Kapur appearing for the Appellant, Respondent No.1 himself had not claimed any API points for "Research project, consultancy project, Project outcome, Research guidance, Fellowship and E-learning modules." Therefore, there was no illegality committed in not awarding points for these.
42. Mr. Choudhary was at pains to point out that the selection of Respondent No.5 was illegal. In particular, he questioned the award of a total API score of 405 to Respondent No.5. At the same time in his written submissions Mr. Choudhary has contended that "Respondent No.1 is not for a moment claiming that he should be appointed as Principal" but that his grievance is that "he has been wrongfully declared to be ineligible to even participate in the interview." He submits that if the entire process is asked to be repeated "no prejudice would be caused to anyone" and that if Respondent No.5 "is actually eligible, she can be appointed again."
43. The above submission proceeds on the mistaken basis that the contest for the post was only between Respondents 1 and 5. There were in fact 12 in the fray at the stage of interview by the Selection Committee. This apart, it is one thing for Respondent No.1 to show why he ought to have been short listed for interview by the Screening Committee and entirely a different matter to question the candidature of Respondent No.5. Given the prayers in the writ petition, he had to necessarily succeed in the former attempt. In LPA 727/2018 Page 20 of 28 other words, in order to succeed in his writ petition, it was essential for him to show that he had been wrongly excluded. The petition was not one seeking a writ of quo warranto questioning the selection of Respondent No.5.
44. Nevertheless, when the objection raised by Respondent No.1 qua Respondent No. 5 is closely examined, it is seen that 50 marks were given to Respondent No.5 for „research papers, book publications. against 61.50 claimed by Respondent No. 1, the PSC gave him 50 marks. It was pointed out by Mr. Kapur that the books published did not necessarily have to be for the college level. The marks given to Respondent No. 5 by the PSC were retained by the Screening Committee whereas in the case of the Respondent No.1 it was revised upholds from 95 to 128.
45. For the reasons already discussed, this Court is unable to accept the contention of Respondent No.1 that his being awarded an API score of 128 by the Screening Committee is vitiated by arbitrariness or malice. Respondent No.1 has failed to lay any factual or legal foundation for such a claim. If indeed the procedure followed is not shown to be vitiated by any illegality, it is pointless to require the exercise to be repeated. Doubtless, that such a direction would prejudice the interests of Respondent No.5 whose selection to the post, after a four stage process, is not shown to be illegal. The Court is, therefore, satisfied that no error was committed as far as the award of API scores of various candidates was concerned.
46. It is not the case of Respondent No.1 that the composition of the PSC LPA 727/2018 Page 21 of 28 and the Screening Committee were not consistent with the UGC guidelines. The Chairman of the Appellant was only one of the members of the PSC and the Screening Committee. It was not going to be possible for him to influence each of the other members of these Committees, who were themselves experts in their respective fields. In any event, apart from some vague allegations which remained unverified, and unsupported by credible material, Respondent No.1 has not been able to substantiate the plea of bias or a deliberate attempt by the PSC and the Screening Committee to keep him out of the race.
47. Para 3 (v) of the guidelines concerning composition of the Screening Committee requires the inclusion of "An Academician, representing SC/ST/OBC/Minority/ /Women/Persons with Disability to be nominated by the Chairman, Governing Body, if any of the candidates representing these categories is an applicant and if any of above members of the Screening Committee does not belong to that category." A careful reading of the above clause would reveal that where the candidate belongs to one of the mentioned categories, an academician belonging to one of the categories mentioned, has to be nominated in addition to the other members of the appointment committee in order to represent those interests.
48. The learned Single Judge erred in holding that the person so nominated has to belong to the very category to which the candidate belongs. For instance, if the Applicant is a person with disability of a particular kind, like for e.g., hearing impairment, it is not necessary that the said academician has to himself or herself be hearing impaired. Such an interpretation would LPA 727/2018 Page 22 of 28 make the provision unworkable. It is sufficient that the academician nominated belongs to anyone of the categories mentioned in clause 3. In the instant case, the above requirement stood satisfied. In other words, there was no error committed in the constitution of the Screening Committee. The Court is therefore unable to agree with the learned Single Judge even on this score.
49. The learned Single Judge has drawn an adverse inference regarding the withholding of the information regarding the selection process from Respondent No.1. As rightly pointed out by the Appellant, it was not in control and possession of the information sought by Respondent No.1. Before the learned Single Judge it was pointed out that the API scores of the eligible candidates were released to enable them to make representations. Further, according to the Appellant, whatever documents were sought by the learned Single Judge were in fact produced.
50. It is pointed out by the Appellant that on 2nd November, 2018 the Appellant had brought before the learned Single Judge the applications of all the candidates including Respondent No.5 which contained the details of the published research articles of every candidate. The details regarding API scores given to the candidates after screening were also produced. The Appellant, therefore refutes the observation in the impugned judgment that the relevant information concerning the award of API scores was withheld from the learned Single Judge. Factually, therefore, the decisions in Mohd. Altaf v. U.P. Public Service Commission (supra) and Union Public Service Commission v. N. Sugathan (supra) are distinguishable and unhelpful to LPA 727/2018 Page 23 of 28 Respondent No.1. It is entirely a different matter that the disclosure of such information was unhelpful in enabling the learned Single Judge to decide on the correctness of the API scores awarded by the Screening Committee. But, as explained in the decisions referred to above, this was a task best left to the Screening Committee.
51. One of the submissions of learned counsel for Respondent No.1 concerns mala fides. Here it is pointed out by Mr. Kapur that despite Respondent No.1 having been barred from holding any administrative post, consequent to disciplinary proceedings against him, an NOC was given to him for applying for the post of Principal that showed that there was no bias harboured against Respondent No.1 by the Appellant.
52. Learned counsel for Respondent No.1 was unable to dispute the fact that there was no specific averment in the writ petition alleging mala fides. The legal position in this regard is well settled. The pleadings have to be pointed and specific to enable it to be meaningfully met by the person against whom it is alleged. Further, the person making the allegation has to be clear whether what is being alleged is malice in law and/or malice in fact.
53. In West Bengal State Electricity Board v. Dilip Kumar Ray (2007) 14 SCC 568, the Supreme Court explained the two concepts thus:
"„Malice in law‟ simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts.LPA 727/2018 Page 24 of 28
Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.
Malice in fact or actual malice, relates to the actual state or condition of the mind of the person who did the act. Malice in fact is where the malice is not established by legal presumption or proof of certain facts, but is to be found from the evidence in the case."
54. In State of A.P. v. Goverdhanlal Pitti (2003) 4 SCC 739, the Supreme Court explained the two concepts thus:
"12. ... „Legal malice‟ or „malice in law‟ means „something done without lawful excuse‟. In other words, „it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others‟. (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989.)"
55. In Parbodh Sagar v. Punjab State Electricity Board (2000) 5 SCC 630, it was observed:
"Incidentally, be it noted that the expression 'malafide' is not a meaningless Jargon and it has its proper connotation. Malice or malafides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of malafides. Malafides, where it is alleged, depends upon its own facts and circumstances."
56. The difficulty in proving malice in fact was acknowledged in M. Sankaranarayanan IAS v. State of KarnatakaAIR 1993 SC 763 in the following observations:
"It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in LPA 727/2018 Page 25 of 28 an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture."
57. Likewise the inference as to malice in law is also not to be lightly drawn. It was explained in Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd., (2013) 1 SCC 524, by the Supreme Court that in a multi-layered decision making process, the threshold for striking down a decision on the basis that it is vitiated by malice in law is very high. The Supreme Court observed:
"We need hardly point out that in cases where the decision- making process is multi-layered, officers associated with the process are free and indeed expected to take views on various issues according to their individual perceptions. They may in doing so at times strike discordant notes, but that is but natural and indeed welcome for it is only by independent deliberation, that all possible facets of an issue are unfolded and addressed and a decision that is most appropriate under the circumstances shaped. If every step in the decision-making process is viewed with suspicion the integrity of the entire process shall be jeopardised. Officers taking views in the decision-making process will feel handicapped in expressing their opinions freely and frankly for fear of being seen to be doing so for mala fide reasons which would in turn affect public interest. Nothing in the instant case was done without a reasonable or probable cause which is the very essence of the doctrine of malice in law vitiating administrative actions."
58. In Purushottam Kumar Jha v. State of Jharkhand (2006) 9 SCC 458 the legal position as regards the pleadings necessary to prove malafides was explained thus:
"23. It is well settled that whenever allegations as to mala fides have been levelled, sufficient particulars and cogent materials LPA 727/2018 Page 26 of 28 making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In the absence of material particulars, the court is not expected to make "fishing"
inquiry into the matter. It is equally well established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is "very heavy". Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be "made than made out" and hence it is necessary for the courts to examine it with extreme care, caution and circumspection. It has been rightly described as "the last refuge of a losing litigant". (Vide Gulam Mustafa v. State of Maharashtra AIR 1977 SC 448; Ajit Kumar Nag v. GM (PJ), Indian Oil Corpn. Ltd.(2005) 7 SCC 764)"
59. In the present case, the pleadings concerning mala fides were non- existent. Even the allegation made during arguments in this appeal regarding the education expert in the Screening Committee being „a close relative‟ of an Advisor to the Appellant, is too vague and general to merit serious consideration particularly when it is not even pleaded in the writ petition. It was included in the written submissions of Respondent No.1 thus depriving the Appellant of an opportunity of effectively meeting it. Further, it is not shown how this has affected the decision of the multi-member Screening Committee. This Court is, therefore, of the considered view that there was no basis on which the learned Single Judge could have come to a conclusion as regards mala fides, either in law or in fact.
Conclusion
60. For the aforementioned reasons, the impugned judgment of the learned Single Judge is hereby set aside. The appeal is allowed in the above terms LPA 727/2018 Page 27 of 28 but in the circumstances with no order as to costs. The application is disposed of.
S. MURALIDHAR, J.
I.S. MEHTA, J.
APRIL 24, 2019 mw LPA 727/2018 Page 28 of 28