Patna High Court
Dr.Raj Kishore Prasad vs The Patna University & Ors on 10 November, 2014
Author: R.M. Doshit
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1106 of 2011
In
Civil Writ Jurisdiction Case No. 1843 of 2011
With
Interlocutory Application No. 5239 of 2011
And
Interlocutory Application No.2252 of 2012
In
Letters Patent Appeal No.1106 of 2011
======================================================
Dr. Raj Kishore Prasad, son of Sri Jageshwar Rai, Mohanpur, Permanent resident of Village- Mohanpur, P.O. Goraul, Distt. Vaishali. At Present residing at Golghar Park Road, P.S. Gandhi Maidan P.O. G.P.O. District Patna.
.... .... Respondent No.4- Appellant/s Versus
1. The Patna University Patna through its Registrar.
2. The Vice Chancellor, Patna University, Patna.
3. The Registrar, Patna University Patna.
.... ..... Respondents-Respondents.
4. Dr. Rai Murari, son of late Rai Gopal Sharma, resident of Lali Bhawan Compound Neharu Nagar, P.S. Patliputra, District- Patna.
5. Dr. Madhurendra Nath Sinha, son of late Rajendra Nath Sinha, resident of 304 Indralok Apartment, New P.P. Colony, P.S. Patliputra District- Patna.
.... .... Petitioners-Respondent/s ====================================================== Appearance :
For the Appellant : Mr. Jitendra Singh, Sr. Advocate Mr. Satyabir Bharti, Advocate Mr. Ram Kumar Singh, Advocate For the Respondent Nos. 1-3 : Mr. Rajendra Kumar Giri, Advocate For the Respondent Nos.4 &5 : Mr. Vinod Kumar Kanth, Sr. Advocate Mr. Abhinav Shrivastava, Advocate ====================================================== Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 2/16 CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C. A. V. JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 10th November 2014 This Appeal under clause 10 of the Letters Patent is preferred by the respondent no.4 against the judgment and order dated 13th May 2011 passed by the learned single Judge in CWJC No.1843 of 2011.
The matter at dispute is the selection and appointment of the appellant-respondent no.4 as Principal in the Bihar National College, a constituent College of the Patna University.
Under advertisement no.3 of 2008 published on 18th October 2008 the Patna University invited applications from eligible candidates for appointment to the post of Principal in various colleges constituent to the Patna University in the Professor‟s Grade/ Reader‟s Grade, one of the constituent colleges being the Bihar National College. Since we are concerned with the appointment of the Principal in Bihar National College, we shall deal with the particulars relating to the Bihar National College (hereinafter referred to as "the College") alone. The requisites under the said advertisement read as under:-
"4. Bihar National College:
Qualifications:
Professor‟s Grade:- 1. Master degree in the Faculty of Social Sciences/ Humanities/ Science with at least 55% of Marks or its equivalent grade of B in the 7 point scale with letter grades O, A, B, C, Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 3/16 D, E & F.
2. Ph.D. in the Faculty of Social Sciences/ Humanities/Science or its equivalent qualification.
3. Total Experience of 15 (Fifteen) years teaching / research in University / Colleges and other Institution of Higher Education.
Reader‟s Grade : 1. Master degree in the Faculty of Social Sciences/ Humanities/ Science with at least 55% Marks or its equivalent grade of B in the 7 point scale with letter grades O, A, B, C, D, E, & F.
2. Ph.D. in the Faculty of Social Sciences / Humanities /Science or its equivalent qualification.
3. Total Experience of 10 (ten) years teaching / research in University/Colleges and other Institution of Higher Education."
It is apparent that the candidate possessing 15 years‟ experience in teaching or research in the University or College would be selected in the Professor‟s Grade. The candidate possessing the like experience for less than 15 years but of at least 10 years would be selected in the Reader‟s Grade. Pursuant to the said advertisement, the appellant and many others including the writ petitioners submitted their candidature. The applications were scrutinized by a Scrutiny Committee. After scrutiny, against the name of the appellant, the Scrutiny Committee made a remark that he was „Not Eligible‟. Nevertheless, the candidature of the appellant was considered by the Selection Committee. The Selection Committee found the appellant suitable for appointment as Principal. Accordingly, under the Notification dated 3rd June 2009 issued by the Patna University, the appellant was appointed as the Principal in the College. The appointment was confirmed by the University Syndicate on 11th June 2009. Notification to that effect was issued on 15th July 2009.
It is the aforesaid Notification dated 3rd June Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 4/16 2009 which was the subject matter of challenge in above CWJC No.1843 of 2011. The writ petitioners questioned the selection and appointment of the appellant on three fold grounds. According to the petitioners, the appellant was not eligible for appointment as Principal in the College since he did not possess the required qualification of Post Graduate or Doctorate in Social Sciences/ Humanities/ Science. The appellant was found to be ineligible by the Scrutiny Committee; the consideration of his candidature was, therefore, illegal and void ab- initio. The appellant did not possess the requisite teaching/research experience because for five years during the relevant period the appellant was a student in Nara Institute of Science and Technology (hereinafter referred to as "the Nara Institute") in Japan. The said period of five years spent in the Nara Institute cannot be treated as teaching/ research experience. If that period were excluded from the total experience, the appellant did not possess the requisite experience of ten years. The Selection Committee constituted by the Vice-Chancellor was not in consonance with the relevant Statutes. Therefore, also the selection of the appellant was vitiated. The reliance was placed on the judgment of this Court in the matter of Dr. (Mrs.) Annapurna Devi & Ors. Vs. The State of Bihar & Ors. [ 1997 (1) PLJR 965].
The petition was contested by the appellant as well as by the Patna University. According to the Patna University, the appellant did possess the requisite qualification and experience for appointment as Principal. The relevant statutes did not prohibit appointment of a Principal who possesses the qualification in "Electronics". The "Electronics" being the subject in Science, the appellant did possess the Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 5/16 required qualification in Science. The appellant was, therefore, eligible for appointment. The function of the Scrutiny Committee was purely ministerial. The remark made by the Scrutiny Committee in respect of the eligibility or lack of it of the appellant was not binding to the University. The Selection Committee duly constituted by the Vice-Chancellor had selected the appellant for appointment as Principal in the College. The subjective satisfaction of the Selection Committee based on objective materials cannot be questioned in a petition filed under Article 226 of the Constitution.
The appellant-respondent no.4 contested the writ petition. He filed counter affidavits and brought materials on record to convince the Court that he was eligible for appointment as Principal in the College. He also asserted that his tenure of five years in Nara Institute in Japan was not that of a student but was of a Research Scholar. The time spent as Research Scholar was part of the required experience. The appellant was, therefore, rightly held to be eligible for appointment as Principal in the College. He has also stressed that "Electronics" is part of the Physics and is being taught in the B. Sc. Course offered by the College. The appellant, therefore, could not have been non- suited for appointment as Principal in the College on the basis of his qualification in "Electronics".
The learned single Judge has heavily relied upon the aforesaid judgment in the matter of Dr. (Mrs.) Annapurna Devi. The learned single Judge has held that a Principal in a college must possess the qualification in the subject taught in such college. The "Electronics" not being taught in the College, the appellant was not eligible for appointment as Principal in the College. The learned single Judge has also held that the appellant Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 6/16 was not selected by a duly constituted committee. The Vice- Chancellor of the University had constituted the Selection Committee in violation of the Patna University Act, 1976 (hereinafter referred to as „the Act‟) and of the Statutes. The learned single Judge has held that the appellant was selected and appointed in illegal manner dehors the eligibility by a Selection Committee not constituted in a legal manner. As a necessary consequence, the learned single Judge has set aside the appointment of the appellant and has quashed the Notification dated 3rd June 2009. Therefore, this Appeal.
Before we advert to the rival contentions raised before us, we will first examine the relevant provisions in the Patna University Act, 1976 and in the Statutes. The Patna University Act, 1976 (Bihar Act 24 of 1976) has been enacted by the State of Bihar in supersession of the Patna University Act, 1961 and the amendments made and ordinances issued under the said Act. Clause (k) of Section 2 of the Act defines "Principal" to mean "the head of a college". Clause (r) thereof defines "teacher" to include "Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other persons imparting instruction in any department, or in any college or institute maintained by the University". Section 18 of the Act provides for the "Authorities of the University", the "Academic Council" being one of the authorities. Section 25 of the Act provides for constitution of the „Academic Council‟. Section 26 thereof provides for powers and duties of the Academic Council. Section 27 thereof provides for the "Faculties". It provides, inter alia, that "for being appointed Dean of the Faculty, it shall be necessary for the person concerned to be a teacher in the Faculty". The Act does not specifically make provision for appointment of a Principal of the constituent college. The relevant provisions are found in the "Service Statutes Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 7/16 of the University" framed with the approval of the Chancellor.
The relevant provisions are found in Statute 7 that provides for "Composition of the Selection Committee for the post of the Principal (Professor scale/Reader scale) for multiple subject faculty colleges:"
The said statute reads as under:
"7 (i) Composition of the Selection Committee for the post of the Principal (Professor scale/Reader scale) for multiple subject faculty colleges:
(a) Subject to the provisions contained in the Patna University Act, 1976 (as amended up-to-date) and the Bihar State Universities Act, 1976 (as amended up-to-date), all the three experts shall be in the rank of University Professor and out of that at least one shall be the Vice-Chancellor/Former Vice-Chancellor/ Director/ Principal of a constituent college.
The 3 (three) experts in the Selection Committee will be nominated by the Vice-Chancellor from a panel of not less than 10 (ten) experts approved by the Academic Council subject to the following conditions:
(i) All the three experts shall be from outside the University.
(ii) At least one expert should belong to SC/ST community.
(iii) At least two experts shall be from outside the State.
(b) Seniormost Head of the Deptt/seniormost Principal of constituent college of concerned University in the rank of University Professor."
Section 56 of the Act provides, inter alia, for selection of the teachers by the Bihar State University (Constituent Colleges) Service Commission. The said provision has since been amended. The Bihar State University (Constituent Colleges) Service Commission has now been replaced by a selection committee to be constituted by the Chancellor in accordance with the aforesaid Statute 7. Section 56 since its Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 8/16 amendment (substitution) by Bihar Act 22 of 2007 reads as under:
"56 (i)- Subject to the provisions of this Act and the statute made thereunder appointment to the post of teachers and officers (other than Vice Chancellor, Pro Vice Chancellor, Registrar and the Dean of faculty) of the University shall be made by the University on the recommendation of the Selection Committee consisting of the following members:-
(1) The Vice-Chancellor;
(2) One member to be nominated by the Chancellor. (3) One member to be nominated by the Government. (4) Three experts not connected with the University to be nominated by the Vice-Chancellor from a panel of not less than seven names approved by the Academic Council for each post, out of which at least one member should belong to scheduled caste/scheduled tribes and two shall be from outside the state.
(5) The head of the department of the discipline concerned.
(ii) The selection committee shall prepare a merit list for appointment of teachers and officers from amongst the eligible candidates and make recommendation for their appointment according to merit in conformity with the reservation roster prepared by the university in accordance with law relating to reservation in appointment in force in the state."
Thus the constitution of the selection committee is statutory in nature. The selection committee needs to comprise at least three experts nominated by the Vice- Chancellor from amongst the panel of seven experts approved by the Academic Council.
Learned counsel Mr. Jitendra Singh has appeared for the appellant. Mr. Jitendra Singh has taken us through the voluminous records and never ending pleadings in the writ petition and the Appeal. Mr. Jitendra Singh has relied upon Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 9/16 Section 56 of the Act and has submitted that the learned single Judge has committed a patent illegality in holding that the appellant had failed to produce any evidence of the nature of his work in the Nara Institute in Japan and whether he was a Research Scholar in the Nara Institute. He has further submitted that the writ petitioners being the candidates for selection and appointment as Principal in the College it was not open to the petitioners to challenge the constitution of the Selection Committee. In support thereof he has relied upon a judgment of the Hon‟ble Supreme Court in the matter of Dhananjay Malik and others Vs. State of Uttaranchal and others [(2008) 4 SCC 171].
Mr. Jitendra Singh has also submitted that it is wrong to say that the appellant did not possess the requisite qualification for appointment as Principal in the College. He has submitted that it is not in dispute that the appellant possesses the Master‟s and Ph. D qualifications in Electronics. The Electronics is but one of the subjects in Physics and the Physics is being taught to the Science students in the College. He has also submitted that the appellant‟s tenure in the Nara Institute in Japan as a Research Scholar cannot be ignored and those years cannot be wiped out of his career. The appellant has validly been selected and appointed as Principal in the College. He has relied upon the judgments of the Hon‟ble Supreme Court in the matters of Dalpat Abasaheb Solunke and others Vs. Dr. B. S. Mahajan and others [(1990) 1 SCC 305]; of Tariq Islam Vs. Aligarh Muslim University and others [(2001) 8 SCC 546]; of G. N. Nayak Vs. Goa University & others [(2002) 2 SCC 712]; of Rajbir Singh Dalal (Dr.) Vs. Chaudhary Devi Lal University, Sirsa and another [(2008) 9 SCC 284]; of B. C. Mylarappa Alias Dr. Chikkamylarappa Vs. Dr. R. Venkatasubbaiah and others [(2008) 14 SCC 306]; and of Basavaiah (Dr.) Vs. Dr. H. L. Ramesh & Ors. [ (2010) 8 SCC 372]. Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 10/16 Learned counsel Mr. Vinod Kumar Kanth has appeared for the respondents-writ petitioners. He has contested the Appeal. He has submitted that the appellant does not possess the required qualification in Science. He has acquired the qualifications in Electronics and not in Science as mentioned in the advertisement. Mr. Vinod Kumar Kanth also has taken us through the voluminous records. He has vehemently submitted that the appellant neither possesses required qualification nor required experience. The Scrutiny Committee had found him "Not Eligible" and the Selection Committee was not legally constituted. In support of his submission, he has relied upon the judgments of the Supreme Court in the matters of Dr. Triloki Nath Singh Vs. Dr. Bhagwan Din Misra and others [(1990 (4) SCC 510]; and G. N. Nayak Vs. Goa University & others [(2002) 2 SCC 712].
The writ petitioners have approached this Court in 2011, one and half years after the impugned Notification was issued on 3rd June 2009 and the appellant had taken over as the Principal in the College. The only challenge in the writ petition was that the appellant did not possess the requisite qualification in Science and that the Scrutiny Committee had found him "Not Eligible". It was Interlocutory Application No.2106 of 2011 under which the petitioners challenged the selection process being violative of the provisions contained in Section 56B of the Act. According to the petitioners, the Selection Committee was not constituted in accordance with the statute. The said Interlocutory Application came to be allowed on 17th March 2011. Although the amendment has not been carried out in the writ petition, as it is not the practice prevalent in the Patna High Court, we assume that the said amendment is part of the writ petition.
Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 11/16 In answer to the said amendment, the appellant took out Interlocutory Application No.2175 of 2011 for direction to the petitioners to implead all Principals selected by the concerned Selection Committee pursuant to the Advertisement No.3 of 2008. The said application was rejected by the Court. Thus, the challenge to the appointment of the appellant was two fold that he was found "Not Eligible" by the Scrutiny Committee and that he was selected by the Selection Committee which was not constituted in consonance with the relevant statute. As recorded herein above, the learned single Judge has set aside the selection and appointment of the appellant not only on the aforesaid two grounds, but also on the ground that the Nara Institute in Japan is not recognized by the Government of India; the appellant‟s tenure of five years as Research Scholar at Nara Institute cannot be counted as an experience for the purpose of requisite qualification under the Advertisement No.3 of 2008.
The appellant-respondent no.4 has produced innumerable documents in the writ petition as well as in the present Appeal to assert that the Nara Institute is a premiere national institute in Japan; that the appellant had secured admission in the Nara Institute sponsored by the Government of India; that the research work done by the appellant at Nara Institute and the qualification acquired from the Nara Institute cannot be ignored.
In the matter of Dalpat Abasaheb Solunke and others (supra), the Hon‟ble Supreme Court has categorically held that the matter of comparative merits of the candidates should be left to the duly constituted selection committee. The High Court went wrong and exceeded its jurisdiction in sitting in appeal over the decision of the selection committee and in setting it aside. Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 12/16 In the matter of Tariq Islam (supra), the Hon‟ble Supreme Court did not approve the High Court relying upon a book published as "Equivalence of Foreign Degrees" and in holding that the appellant (before the Supreme Court) lacked essential qualification for appointment as Lecturer.
In the matter of Dhananjay Malik and others (supra), the Hon‟ble Supreme Court has reiterated the well settled law that the writ petitioners who were the unsuccessful candidates at the selection process were estopped from challenging the selection process.
In the matter of Rajbir Singh Dalal (Dr.) (supra) a similar issue of eligibility came up before the Court. The question was whether the qualification of „Political Science‟ acquired by the appellant (before the Hon‟ble Court) was equivalent to the qualification in „Public Administration‟ mentioned in the advertisement. The Hon‟ble Court relying upon the line of judgments of the Hon‟ble Supreme Court and also ancient Mimansa held that the qualification in „Political Science‟ acquired by the said appellant was equivalent to the required „Public Administration‟.
In the matter of B. C. Mylarappa (supra), the Hon‟ble Court held that in absence of malafide alleged against the selection committee, the High Court ought not to have interfered with the selection made by the selection committee on the basis of assessment of relative merit. The High Court was not justified in drawing adverse inference against the selection committee.
In the Basavaiah (supra), once again the Hon‟ble Court reiterated that the Courts, in exercise of their power of judicial review, should not interfere with the selection made by Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 13/16 the expert committee.
In the matter of Dr. Troliki Nath Singh (supra), the question was that of appointment of Reader in "Linguistics". The expert committee constituted for selection comprised the experts in Hindi Language. On close scrutiny of the relevant statutes, the Hon‟ble Court held that the University had offered two separate and distinct courses, one in Linguistics and another in Hindi Language. The Linguistics being distinct and distinguished from Hindi language and literature, the expert should have comprised the expert in Linguistics and not in Hindi language.
In the matter of G. N. Nayak (supra), the Hon‟ble Court rejected the challenge on the ground of bias and upheld the appointment of the appellant as Professor of Marine Science in University of Goa.
In my opinion, the learned single Judge has fallen in manifest error. First; the learned single Judge has not taken into consideration the delay in challenge to the selection of the appellant. Although the appellant was selected and appointed as early as on 3rd June 2009; his appointment was approved by the University Syndicate on 10th June 2009 and the Notification was issued on 15th July 2009; the petitioners did not challenge the said selection and appointment for one and half years and allowed the appellant to take over as the Principal and function as such without demur. The petitioners thus allowed the matter to settle. The aforesaid delay has not been explained by the petitioners at all. The learned single Judge ought not to have entertained the challenge made after unexplained delay.
Second; the learned single Judge has erred in holding that the Nara Institute is not recognized and that the appellant did not acquire requisite experience of 10 years. I am Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 14/16 of the opinion that the academic matter should best be left for consideration by the University. The High Court is not competent to interfere in the academic matter in exercise of power conferred by Article 226 of the Constitution. That is the view of the Hon‟ble Supreme court in the matter of Tariq Islam (supra).
Third; the learned single Judge has also erred in holding that the appellant did not possess the qualification in Science as required. He was, therefore, not eligible for appointment as the Principal of the College. The word "Science" need not be given such a narrow meaning. "Science" is a general term and sweeps many a subjects in its folds. I am unable to hold that the "Electronics" is not a Science or is not Physics. The Patna University has brought sufficient materials on the record to establish that the Electronics is but part of the curriculum in Physics. The college does offer a course leading to a degree in Physics. Moreover, neither the Act nor the Statutes make specific distinction between "Science" and "Electronics".
Learned single Judge has erred in ruling out the higher qualification acquired by the appellant at Nara Institute. The learned single Judge has relied upon a book on equivalence of degrees published by the "Association of Indian Universities"
to hold that the qualification acquired by the appellant from Nara Institute is not recognized. Similar attempt of the High Court was deprecated and set aside by the Hon‟ble Supreme Court in the matter of Tariq Islam (supra).
Fourth; in my view, the learned single Judge has also erred in holding that once the Scrutiny Committee had held the appellant to be „Not Eligible‟, he could not have been selected by the Selection Committee. The minutes of the Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 15/16 Scrutiny Committee has been brought on record. Against the name of the appellant, the Scrutiny Committee has recorded "N.E". Similar remark is also found against some of the other applicants. It has not been brought on the record that the recommendation made by the Scrutiny Committee is binding to the University or the Selection Committee; nor has it been brought on the record that all other applicants who had been found „not eligible‟ (N.E.) by the Scrutiny Committee were not called for interview. In my opinion, the learned single Judge has given undue importance to the remark "N.E" noted by the Scrutiny Committee. Without further materials on the record, the appellant could not have been held to be ineligible on the basis of the remark "N.E." made by the Scrutiny Committee.
Fifth; the learned single Judge has imputed motives against the Vice Chancellor and the Selection Committee without any basis or specific allegations and in absence of the members of the Selection Committee before the Court. The concerned Vice-Chancellor has also not been personally impleaded in the writ petition. The learned single Judge has observed, "Obviously the Selection Committee was packed with outsiders with an object of tilting the result or balance favourably to the wish of the then Vice Chancellor." "Obviously the Selection Committee had its own Rule to go by irrespective of materials on record with regard to eligibility of the private respondent." These observations are not supported by materials on record and are not called for. The learned single Judge has also overlooked the basic principle that the writ petitioners who had also applied for appointment as Principal of the College, having appeared before the Selection Committee, could not have challenged the constitution of the Selection Committee; that too after more than Patna High Court LPA No.1106 of 2011 dt. 10-11-2014 16/16 one and half years.
No other contention is raised before us. The writ petition clearly appears to be an afterthought.
For the aforesaid reasons, the Appeal is allowed. The judgment and order dated 13th May 2011 passed by the learned single Judge in CWJC No.1843 of 2011 is set aside. CWJC No.1843 of 2011 is dismissed.
Interlocutory Applications stand disposed of. The parties will bear their own cost.
(R.M. Doshit, CJ)
Ashwani Kumar Singh, J. I agree.
(Ashwani Kumar Singh, J)
AFR
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Sunil/-