Uttarakhand High Court
Dr Smt Vineeta Chauhan vs State Of Uttarakhand And Others on 7 November, 2017
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 35 of 2015
Dr. Smt. Vineeta Chauhan. ............ Petitioner
Versus
State of Uttarakhand & others. .............. Respondents
Mr. Tapan Singh, Advocate for the petitioner.
Ms. Sonia Chawla, Advocate, holding brief of Mr. Paresh Tripathi, Advocate for
respondent No. 2 / University.
Mr. Munish Bhardwaj, Advocate for respondent No. 3.
Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. Ashish Sinha, Advocate for
respondent No. 4.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
Dated: 7th November, 2017 K.M. JOSEPH, C.J. (Oral) Petitioner and the fourth respondent vied for selection for the post of Assistant Professor in Political Science. In the select list, which is prepared, petitioner is placed below the fourth respondent and the fourth respondent has been appointed. Feeling aggrieved, petitioner has sought a direction to produce the entire record of selection in regard to the said post. Further, petitioner has also sought to quash the appointment of the fourth respondent. A fair selection must be conducted is another relief sought. Finally, an inquiry is sought into the illegal appointment by respondent Nos. 2 & 3.
2. We have heard Mr. Tapan Singh, learned counsel appearing for the petitioner; Mr. Arvind Vashistha, learned Senior Counsel appearing for the fourth respondent; Ms. Sonia Chawla, learned counsel appearing on behalf of the University; and Mr. Munish Bhardwaj, learned counsel appearing on behalf of the third respondent / Management.
23. Mr. Tapan Singh, learned counsel for the petitioner, would draw our attention to a Chart (page no. 18), which shows the Academic Performance Indicator (wrongly written as All Round Performance Indicator) ('API' in short). It is his case that 16 candidates were found eligible for the post of Assistant Professor, Political Science. The Committee has prepared the API of all the candidates. Since we are only concerned with the petitioner and the fourth respondent, the marks which they have obtained, alone, are relevant and we refer to the same as under:
S. Name Father / BA MA M. Ph.D. SLET Tech. Publi- Total Remarks N. Husband Phil NET / Exp. shed JRF Work
4. Vineeta Satya Pal 61.1 60.16 - 17 NET 7 20 8 80 No ISSN Chauhan Singh 12 No. on some papers 15 Nibha Vinod 64.4 68.78 - Purs- NET 7 1 year - 39 Gold Rathi Kumar 12 16 uing 2 Medalist mon-
ths
4. Placing reliance on this, it is pointed out that the petitioner secured 80 marks; whereas, the fourth respondent secured only 39 marks. Therefore, considering the API score, learned counsel would fault the selection or call it flawed. According to the petitioner, she has secured first division in the 10th standard, first division in the 12th standard, first division in BA, first division in B.Ed. and has passed the NET and has also got Ph.D. The fourth respondent, on the other hand, was only doing her Ph.D. course, as is evident from the marks obtained. Learned counsel would further contend in paragraph 15 of the writ petition as follows:
"15. That the respondent no. 4 in whose comparison the petitioner is more meritorious and the respondent no. 4, who do not deserves to be appointed, she has been given appointment. It is submitted that the respondent no. 4, who is pursuing her Ph.D. in the guidance of Dr. M.M. Semwal, he was the member of selection committee. Thus an undue advantage has been extended to the respondent no. 4 in giving appointment by the selection committee.
Copy of letter dated 10.11.2014 containing names of members of interview panel is being filed herewith and marked as annexure no. 3 to this writ petition."3
5. Mr. Tapan Singh would also rely on the said paragraph to contend that the selection of the fourth respondent is, therefore, vitiated.
6. The stand taken, on the other hand, by the respondents would appear to be different. They have joined issue with the petitioner in regard to API being decisive. Their stand is that API is only meant for short-listing and it is the performance in the interview with reference to proclaimed criteria that is crucial. The proceedings of the selection committee have been produced and it is stated that the selection committee has recommended five candidates for two posts in the following order:
1. Dr. Radha Ojha
2. Dr. Rakhi Singh
3. Ms. Nibha Rathi (respondent No. 4)
4. Dr. Deepa Sharma
5. Dr. Vineeta Chauhan (petitioner)
7. It is, in fact, pointed out by Ms. Sonia Chawla, learned counsel appearing for the University, that the petitioner has not impleaded Dr. Radha Ojha, Dr. Rakhi Singh or Dr. Deepa Sharma, all of whom figured above the petitioner (Mr. Tapan Singh immediately points out that, about them, petitioner has no complain because they have secured equal API marks).
8. In the counter affidavit filed on behalf of the third respondent / Management, it is stated in paragraph 10 as follows:
"10. That averments of paragraph 13, 14, 15, 16, 17, 18, 19 and 20 are wrong and denied. These are repetition of the averments already replied by the answering respondent and are irrelevant for deciding the controversy. The Petitioner cannot challenge constitution of selection committee after facing the selection process. It is further submitted that the selection committee was constituted in accordance with rule 4 and selection committee examined merit of each student. The guideline relating granting API marks i.e. Academic Performance Indicator is being filed herewith and marked as Annexure No. CA-3 to this affidavit."
9. Annexure No. CA-3 filed along with the counter affidavit filed on behalf of the third respondent reads as follows:
"University Grants Commission Bahadur Shah Zafar Marg New Delhi - 110 002 F.No. 1-2/2009(EC/PS) August, 2014 Corrigendum In continuation of Gazette Notification of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010 dated 13th June, 2013, the University Grants Commission hereby makes the following correction due to typographical error in point No. 2 as under:-
2. The clause 6.1.0 of the Annexure of University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter to be called "The Principal Regulations") shall stand amended and be substituted by the following clause:-
6.1.0 The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system proforma, based on the Academic Performance Indicators (API) as provided in this Regulations in Tables I to IX of Appendix III.
Instead of above be read as under:-
2. The clause 6.0.1 of the Annexure of University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter to be called "The Principal Regulations") shall stand amended and be substituted by the following clause:-
6.0.1 The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system proforma, based on the Academic Performance Indicators (API) as provided in this Regulations in Tables I to IX of Appendix III.5
Instead of clause 6.1.0 it may be read as 6.0.1 (Dr. (Mrs.) Pankaj Mittal) Joint Secretary APPENDIX - III TABLE - II(c) Minimum Scores for APIs for direct recruitment of teachers in university departments / Colleges, Librarian / Physical Education cadres in Universities / Colleges, and weightages in Selection Committees to be considered along with other specified eligibility qualifications stipulated in the Regulation.
Assistant Professor / Associate Professor /
equivalent cadres Professor / equivalent cadres
(Stage 1) equivalent cadres (Stage 5)
(Stage 4)
Minimum Minimum Qualification Consolidated API Consolidated API
API Scores as stipulated in these score requirement score requirement
regulations of 300 points of 400 points
from category III from category III
of APIs of APIs
Selection a) Academic record a) Academic e) Academic
Committee and Research Background Background
criteria / Performance (50%) (20%) (20%)
weightages b) Assessment of b) Research f) Research
(Total Domain Knowledge performance performance
Weightages and Teaching Skills based on API based on API
= 100) (30%) score and quality score and quality
c) Interview of publications of publications
performance (20%) (40%) (40%)
c) Assessment of g) Assessment of
Domain Domain
Knowledge and Knowledge and
Teaching Skills Teaching Skills
(20%) (20%)
d) Interview Interview
performance performance
(20%) (20%)
Note: For universities / colleges for which Sixth PRC Awards (vide Appendix 2) are applicable, Stages 1, 4 and 5 correspond to scales with AGP of Rs. 6000, 9000 and 10000 respectively."
10. It is true that the petitioner has secured higher API. According to the respondents, a complaint is being made that the fourth respondent's API is higher than 39 and it is shown as 46; but, it is still lower than that obtained by the petitioner. But the question is, whether selection is to be made on the basis of API.
611. From the document, which we have adverted to, since we are dealing in this case with selection to the post of Assistant Professor, we must notice that there is no minimum API prescribed for the post of Assistant Professor. There is no case for the petitioner that the fourth respondent does not have the requisite qualification. The fourth respondent, in fact, has secured higher marks than the petitioner in Graduation and Post Graduation. In the remarks column produced by the petitioner herself, it is written that the fourth respondent is a gold medalist. The definite stand of the learned counsel for the University is that, when tested with API at the level of interview in regard to domain knowledge, it was found that the petitioner did not fare as well as the fourth respondent. In other words, when it came to selection as per the announced criterion, the fourth respondent performed better than the petitioner. It is on the said basis that, in the merit list prepared by the selection committee, the names have been arranged in the order which we have already referred to and the petitioner figured below four others including the fourth respondent.
12. We are also in agreement with the respondents that higher API scored by the petitioner cannot be the basis for impugning the selection of the fourth respondent, which was, in turn, done by the experts.
13. Our attention was drawn to a Bench decision of this Court in Kiran Sood vs. Secretary, MKP (PG) College Society and others, reported in 2016 (1) UD 201.
14. It is settled law that selection by experts must ordinarily not be interfered with by courts. Unless it is clearly illegal or mala fide, a selection made by the experts will remain immune from judicial interference. There is no case of illegality apart from the case based on API, which we find unacceptable. There is no specific case of mala fide as such pleaded.
715. The only surviving question is the impact of the Guide of the fourth respondent participating in the selection process, which is subject matter of paragraph 15 of the writ petition. No doubt, the answer to the same is to be found in the counter affidavit filed on behalf of the University as follows:
"8. That the contents of para no. 15 of the writ petition are wrong misconceived and are denied, it is submitted that the petitioner has leveled allegations against one of the member of the selection committee, without impleading him as the respondent either in official capacity or in the personal capacity, and, thus, the writ petition is liable to be dismissed on this count alone."
16. No doubt, we notice that the person against whom the allegation is made as such is not made a party. Further, more importantly, we notice the statement of law, which is contained in the judgment of the Apex Court in Dalpat Abasaheb Solunke and others vs. Dr. B.S. Mahajan and others, reported in (1990) 1 SCC 305. Paragraph 13 of the said judgment reads as follows:
"13. The fourth and the last ground given by the High Court to set aside the appointment of the appellant in CA No. 3507/89 is that the fourth and the fifth respondents to the Writ Petition were guides of the appellant when he was doing his M.Sc. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the Faculty in question, it is one of their duties to guide the students. In fact, very often the experts on the selection Committees have to be drawn from the teaching faculty and most of them have to interview candidates who were at one or the other time their students. That cannot disqualify them from being the members of the Selection Committees. In fact, as stated by the 4th respondent in his affidavit before the High Court, even the 2nd respondent, the aggrieved candidate was also his student. Curiously enough the High Court has discarded the said fact by observing that in point of time, the appellant was closer to the 4th respondent as a student since the appellant was his student at a later date. It is not necessary to comment further on this reasoning."8
17. In the light of this, we would think that the said ground also cannot hold good.
18. We, accordingly, find no merit in the writ petition. It will stand dismissed without any order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C. J.)
07.11.2017 07.11.2017
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