Allahabad High Court
Gitanjali Pandey vs Union Of India And 4 Others on 20 May, 2022
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Reserved On:- 17.05.2022
Delivered On:- 20.05.2022
Case :- WRIT - A No. - 7114 of 2022
Petitioner :- Gitanjali Pandey
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- P.K. Upadhyay,Rahul Kumar Pandey
Counsel for Respondent :- A.S.G.I.,Kshitij Shailendra
Hon'ble Siddharth, J.
1. Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri P.K. Upadhyay, learned counsels for the petitioner; Sri Kshitij Shailendra, learned counsel for the Allahabad University and Sri Dhananjay Awasthi, learned counsel for University Grants Commission.
2. This writ petition has been filed praying for direction to the Allahabad University to grant marks on teaching experience of the petitioner of discharging duty as Lecturer in department of Sanskrit in P.G. College affiliated to Deen Dayal Upadhyay, Gorakhpur University on contractual basis after following statutory criteria. Further prayer has been made to permit the petitioner to participate in interview for the post of Assistant Professor, department of Sanskrit scheduled to be held from 17.05.2022 to 22.05.2022 in the Allahabad University in pursuance of Advertisement No. 01 of 2021.
3. The petitioner claims that the University is proceeding with the recruitment process in accordance with UGC regulations 2018. Short listing of candidates for interview is to be done as per Apendix II, Table 3-A of the aforesaid regulations subject to fulfilment all essential eligibility criteria, as mentioned, for direct recruitment for the post of Assistant Professor. The petitioner is possessing essential academic qualifications as per the regulations. Table 3-A of UGC regulations 2018 provides for two marks for one year each of teaching experience and maximum 10 marks are to be granted for teaching experience. There is no rider that teaching experience of particular nature shall only be considered for granting two marks per year. The petitioner has been getting appointments after passing rigours of statutory provisions of UGC Regulations, 2018 and has imparted teaching in P.G. College affiliated to Deen Dayal Upadhyay, Gorakhpur University.
4. Learned counsel for the University, Sri Kshitij Shailendra, has stated that no counter affidavit can be filed on behalf of University on account of the insistence of the counsels for the petitioner to permit the petitioner to participate in on going interview for the post in dispute, which is not in accordance with the Regulations.
5. Learned Senior counsel for the petitioner has submitted that the controversy in the present case is regarding providing marks for work done as a teacher. Regulation 6 provides for performance of candidates on grading system proforma based on Appendix - II, Table - 1, 2, 3-A, 4 and 5. The experience as mentioned in Regulations is different for the purpose of counting of past services for direct recruitment and promotion under Career Advancement Scheme (CAS) as give in Rule 10, though counting of past services for direct recruitment does not relate with respect to the experience as provided in Regulation 6. Regulation 6 provides for grading for the purpose of short listing in which experience is one of a component for providing certain marks for screening purposes and not for the counting of the services. The petitioner was appointed in the self finance scheme wherein; (a) petitioner had a qualification as provided by UGC (b) petitioner was selected as per procedure provided by the Government Order dated 13.03.2020; (c) Government order has been issued by the State Government under the State Universities Act read with the direction given by the UGC; (d) Payment to the teachers are being given out of total fee realized in which 70% is used for disbursing the salary of the staff. Therefore, as per concurrence of the UGC as well as State of U.P., petitioner has been appointed as a Lecturer in self finance scheme in duly recognized institution by the State of U.P in college affiliated to the University which is also duly recognized under the provision of University Grants Commission, therefore, appointment of the petitioner is absolutely as per rule of UGC, therefore, his experience of working in the self finance scheme should have been considered by the screening committee. The relevant judgments of counting the services rendered by the petitioner in self finance scheme, either for intermediate or for the Degree Colleges, has been considered in the judgment reported in 2010 (5) ESC 3498 (All) and in 2013 Vol-4 UPLBEC 2330. Hence, the petitioner has wrongly been denied 10 marks against the experience and only 81 marks has been awarded and if 10 marks had been given then petitioner would have got 91 marks and the minimum cut off is 87.17 marks only. Therefore, petitioner is entitled to be called for interview.
6. Learned counsel for the University has submitted that the argument of learned Senior Counsel made on behalf of the petitioner are not in accordance with UGC Regulations, 2018. He has submitted that as per Regulation 6 the selection procedure is to be conducted in accordance with the Appendix II, Table 1, 2, 3-A, 3B, 4, 5 and 6 of the UGC regulations. As per regulation 10, the previous regular service for direct recruitment and promotion of teacher as Assistant Teacher is subject to regulation 10 (e) which provides that the previous appointment of such a candidate should not have been as guest lecturer for any duration. Appointment of the petitioner was as guest lecturer in Allahabad Degree College in the year 2001 and 2017-2018 and in Allahabad University in the year 2016-2017. Her experience also includes working as lecturer on contractual basis in Ishwar Sharan Degree College in the year 2020-2021 and in Imambada Girls Post Graduate College, Gorakhpur on contractual basis in the year 2004-2010.
7. He has further relied upon regulation 10(f)(.3) and has stated that any previous adhoc or temporary or contractual services by the candidates for direct recruitment would be counted towards his / her experience of teaching only if the incumbent was drawing total emoluments equal to monthly gross salary of a regularly appointed teacher as monthly gross salary. He has pointed out that the regulation 13 also which is to the same effect and provides that where the incumbent was appointed on contract his / her salary should not be less than monthly gross salary of a regularly appointed Assistant Professor.
8. The petitioner had claimed that she was drawing Rs. 50,000/- as salary while working as guest lecturer in Allahabad Degree College from 02.08.2021 to 15.12.2021; Rs. 25,000/- while working as lecturer in Ishwar Sharna Degree College from 12.09.2020 to 28.02.2021; Rs. 25,000/- while working as guest faculty in Allahabad Degree College from 01.09.2017 to 28.02.2018; Rs. 25,000/- while working as guest lecturer in Sanskrit department of Allahabad University from 05.08.2016 to 30.04.2017 and Rs. 5,000/- as monthly salary while working as Imambara Girls P.G. College Gorakhpur from 16.10.2001 to 31.10.2010. In the report of the expert committee for the purpose of short listing of the candidates for interview, no marks have been awarded to the petitioner by the screening committee for a teaching experience because of regulation 10(e) which provides that the experience of working as lecturer shall not be relevant and working as lecturer on contractual basis shall only be considered if the requirement of regulation 13 are fulfilled by the incumbent.
9. He has submitted that the recommendation of expert committee, in the absence of any allegation of malafide, cannot be challenged before the court. He has relied upon number of judgments which are as follows :-
1) Basavaiah (Dr.) vs. Dr. H.L. Ramesh and Others (2010) 8 SCC 372. 2) B.C. Mylarappa alias Dr. Chikkamylarappa vs. Dr. R. Venkatasubbaiah and others (2008) 14 SCC 306. 3) Dalpat Abasaheb Solunke vs. B.S. Mahajan, AIR 1990 Supreme Court 434. 4) Baidyanath Yadav vs. Aditya Narayan Roy and others, MANU / SC /1586 / 2019. 5) Ram Darash Yadav vs. State of U.P and others, MANU/UP/5319/2018 6) Ram Darash Yadav (Dr.) vs. State of U.P and others, MANU/SCOR/60031/2019 7) National Institute of Mental Health and Neuro Sciences vs. K. Kalyana Raman and others, MANU/SC/0342/1992.
10. After hearing the rival contentions, this court finds it relevant to refer to Regulation 6 (relevant part), 10 and 13 of the UGC Regulation 2018 which are as follows:-
" 6.0 SELECTION PROCEDURES:
I. 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 grading system Performa, based on the Appendix III,Tables 1, 2, 3 A, 3 B, 4 and 5.
In order to make the system more credible, universities may assess the ability for teaching and/or research aptitude through a seminar or lecture in a classroom situation or discussion on the capacity to use latest technology in teaching and research at the interview stage. These procedures can be followed for both direct recruitment and CAS promotions wherever selection committees are prescribed in these Regulations.
II. The Universities shall adopt these Regulations for selection committees and selection procedures through their respective statutory bodies incorporating Appendix III,Table 1, 2, 3 A, 3 B, 4 and 5at the institutional level for University Departments and their Constituent colleges/ affiliated colleges (Government/Government-aided/Autonomous/ Private Colleges) to be followed transparently in all the selection processes. The universities may devise their own self-assessment cum performance appraisal forms for teachers in strict adherence to the Appendix III,Table 1, 2, 3 A, 3 B, 4 and 5prescribed in these Regulations.
10.0 COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III Table 1 to 5 provided that:
(a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be.
(b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor.
(c) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be.
(d) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/ Concerned Institutions, for such appointments.
(e) The previous appointment was not as guest lecturer for any duration.
(f) The previous ad-hoc or Temporary or contractual service (by whatever nomenclature it may be called) shall be counted for direct recruitment and for promotion, provided that:
(i) the essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor, as the case may be
(ii) the incumbent was appointed on the recommendation of a duly constituted Selection Committee / Selection Committee constituted as per the rules of the respective university;
(iii) the incumbent was drawing total gross emoluments not less than the monthly gross salary of a regularly appointed Assistant Professor, Associate Professor and Professor, as the case may be; and
(g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause.
13.0 APPOINTMENTS ON CONTRACT BASIS The teachers should be appointed on contract basis only when it is absolutely necessary and when the student-teacher ratio does not satisfy the laid down norms. In any case, the number of such appointments should not exceed 10% of the total number of faculty positions in a College/University. The qualifications and selection procedure for appointing them should be the same as those applicable to a regularly appointed teacher. The fixed emoluments paid to such contract teachers should not be less than the monthly gross salary of a regularly appointed Assistant Professor. Such appointments should not be made initially for more than one academic session, and the performance of any such entrant teacher should be reviewed for academic performance before reappointing her/him on contract basis for another session. Such appointments on contract basis may also be resorted to when absolutely necessary to fill vacancies arising due to maternity leave, child-care leave, etc."
11. Learned Senior counsel for the petitioner has heavily and repeatedly relied upon the judgments of this court in the case of Dr. Deepak Bhatiya vs. State of U.P and others, 2010(5) ESC 3498 (All), the relevant paragraphs of the aforesaid judgment being paragraph nos. 2, 3, 7 and 8 are quoted hereinbelow :-
" 2. Petitioners had been working as full time teacher in institutions which are affiliated from the Central Board for Secondary Education, New Delhi, is recognised Intermediate Colleges which have been granted recognition under self-finance.T he petitioners have made applications for being.considered for the post of Principal available in various High School and Intermediate Institutions recognised by the Madhyamik Shiksha Parishad in terms of the advertisement published by U.P. Secondary Education Services Selection Board established under U.P. Act No. 5/1982. The application of the petitioners have not been considered by the Selection Board because the petitioners have been working in self financing institution and hey were not being giVing salary from the State exchequer.
3. Counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of Mohd. Altaf and others v: Public Service Commission and another, in C.A. No. 961-962 of 1999 as also upon the judgment of the Apex Court in Contempt Petition (c) No. 372/20O02 In G.A. No. 962/1999, Shamim Khanam v. K.B. Pandey and another, it is submitted that teachers working in self-financed institution cannot, as a class, be excluded from consideration. Relevant portion of the order of the Supreme Court relied upon by the petitioner is quoted herein below "Part time teachers would be excluded from consideration. However, it is made clear hat there cannot be a class of exclusion of teachers who are working in self-financed institutions. Any exclusion of a candidate on the basis that he or she is a part time teacher must be made only in individual cases after proper verification."
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7. So far as teachers working in recognized Intermediate Colleges having recognition under section 7A of the Intermediate Education Act are-concerned; this Court may notice that since 1986 all Intermediate and High Schools have been granted recognition under self finance only i.e., under Section 7A. The teachers are appointed for such institutions under Section 7AA read with Government order dated 16.4.2004. Although termed as part time hey in fact are required to work as full time, teachers. Therefore, their claim also cannot be excluded en masse.
8. This Court holds that the Commission has not justified in excluding such teachers who are working in self finance institutions en masse. The Board must scrutinize the application of the candidates concerned working in such self-financed recognized institutions and satisfy itself as to whether they are part time teachers or full part time teachers. All full time teachers appointed in accordance with rules applicable to such institution are within the zone of consideration and the Selection Board shall take appropriate action accordingly.
12. Second reliance has been placed on the judgment in the case of Dr. Madhulika Singh vs. State of U.P. and others, 2013 0 Supreme (All) 1440, which is as follows :-
" A perusal of the said appointment order indicates that the petitioner was appointed on a fixed honoraria basis after approval of the Vice Chancellor of the University. In such circumstances, the said appointment cannot be said to be an appointment either de-hors the rules or not in accordance with law so as to disentitle the petitioner to get the said period of experience counted for the purpose of selection.
The petitioner has described herself as a full time teacher supported by a certificate from the institution. Payment of a fixed honoraria is not necessarily an indicator of full time or part-time experience. Receipt of emoluments are not a substitute for experience.
A teacher getting a fixed salary at times is more devoted towards performance than those who have secured permanent berths. The experience of a teacher in a particular subject can be gauged by performance and the status of involvement in the institution. and not on some subjective assumption. However the genuineness of such experience. like in the present case, would also have to be assessed by the nature of engagement. In the present case the petitioner claims her status of a teacher in a degree college upon approval by the Vice Chancellor of a recognized University.
So far as her experience as a teacher in an Intermediate College is concerned, that experience has also to be examined in accordance with the modes of appointment in an unaided Inter College.
In both cases payment of honoraria cannot be the criteria of rejection of experience. Merely because a teacher has received lower emoluments, though working on an equivalent post, cannot be the ground to reject a candidature. The judgments referred to hereinabove have to be taken into account that relies on the Apex Court decision in the case of Mohd. Altaf and others Vs. U.P. Public Service Commission and another reported in 2008( 14) SCC 139; 2008 ( 14) SCC 144; 2008 ( 14) SCC 146and 2002 ( 93) FLR 1208."
13. A perusal of the aforesaid judgment in the case of Dr. Deepak Bhatiya (Supra) shows that it has nothing to do with application of regulation 10 and 13 of the UGC Regulation 2018 nor it has been pointed out how the provisions regarding the U.P. Intermediate Education Act, 1921 would be relevant for consideration of compliance of the requirements of UGC Regulations aforesaid.
14. The judgment in the case of Dr. Madhulika Singh (Supra) is also not relevant for deciding the present controversy. Since in that case a teacher appointed on fixed honorarium was held to be entitled for consideration for appointment by Porvanchal University, a State University. In this case also the application of UGC Regulations was not involved.
15. The judgments cited on behalf of University clearly proves that the court should show deference to recommendation of expert committee and should not sit over appeal on such decision.
16. In the case of Dr. Basavaiah (Supra) the Supreme Court disapproved the conduct of the High Court in sitting over appeal over the recommendations made by the expert committee in paragraph 25 to 37 which are as follows :-
" 25. The teaching experience of foreign teaching institutions can be taken into consideration if it is from the recognized and institution of repute. It cannot be said that the State University of New York at Buffalo, where appellant no.2 served as an Assistant Professor would not be an institution of repute. The experts aiding and advising the Commission must be quite aware of institutions in which the teaching experience was acquired by him and this one is a reputed University. According to the experts of the Selection Board, both the appellants had requisite qualification and were eligible for appointment. If they were selected by the Commission and appointed by the Government, no fault can be found in the same. The High Court interfered and set aside the selections made by the experts committee. This Court while setting aside the judgment of the High Court reminded the High Court that it would normally be prudent and safe for the courts to leave the decision of academic matters to experts. The Court observed as under:
"7. ....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 Dr. J. P. Kulshrestha & Others v. Chancellor, Allahabad University & Others (1980) 3 SCC 418, the court observed that the court should not substitute its judgment for that of academicians:
"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 that courts should hesitate to dislodge decisions of academic bodies. ... ... ..."
27. In Maharashtra State Board of Secondary and Higher Secondary Education & Another v. Paritosh Bhupeshkumar Sheth & Others (1984) 4 SCC 27, the court observed thus:
"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 & Others (1990) 2 SCC 746, the court relied on the judgment in University of Mysore (supra) and observed that in the matter of appointments in the academic field, the court generally does not interfere. 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.
29. In Bhushan Uttam Khare v. Dean, B.J. Medical College & Others (1992) 2 SCC 220, the court placed reliance on the Constitution Bench decision in University of Mysore (supra) and reiterated the same legal position and observed as under:
"8. ... the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice. ... ... ..."
30. In Dalpat Abasaheb Solunke & Others v. Dr. B.S. Mahajan & Others (1990) 1 SCC 305, the court in some what similar matter observed thus:
"... ... ...It is needless to emphasis 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."
31. In Chancellor & Another etc. v. Dr. Bijayananda Kar & Others (1994) 1 SCC 169, the court observed thus:
"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...."
32. In Chairman J&K State Board of Education v. Feyaz Ahmed Malik & Others(2000) 3 SCC 59, the court while stressing on the importance of the functions of the expert body observed that the expert body consisted of persons coming from different walks of life who were engaged in or interested in the field of education and had wide experience and were entrusted with the duty of maintaining higher standards of education. The decision of such an expert body should be given due weightage by courts.
33. In Dental Council of India v. Subharti K.K.B. Charitable Trust & Another (2001) 5 SCC 486, the court reminded the High Courts that the court's jurisdiction to interfere with the discretion exercised by the expert body is extremely limited.
34. In Medical Council of India v. Sarang & Others (2001) 8 SCC 427, the court again reiterated the legal principle that the court should not normally interfere or interpret the rules and should instead leave the matter to the experts in the field.
35. In B.C. Mylarappa alias Dr. Chikkamylarappa v. Dr. R. Venkatasubbaiah & Others (2008) 14 SCC 306, the court again reiterated legal principles and observed regarding importance of the recommendations made by the expert committees.
36. In Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa & Another (2008) 9 SCC 284, the court reminded that it is not appropriate for the Supreme Court to sit in appeal over the opinion of the experts.
37. In All India Council for Technical Education v. Surinder Kumar Dhawan & Others (2009) 11 SCC 726, again the legal position has been reiterated that it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."
17. Similarly in the case of B.C Mylarappa alias Dr. Chikkamylarappa (supra), the Apex Court disapproved the interference of the High Court in the decision of the expert committee in the absence of any malafide in paragraph nos. 21, 24, 26, 27, 28 and 29 which are as follows :-
" 21. Before we go into the two grounds, we may keep it on record that it was the stand of the University before the High Court as well that the appellant was duly qualified for appointment to the post of Professor. The learned Single Judge while allowing the writ petition of the respondents, however, reckoned the service of the appellant as Lecturer, but ignore to consider the experience of the appellant as Research Assistant. It cannot be disputed that these two experiences, namely, experience as Lecturer and experience as Research Assistant, if counted, the eligibility of the appellant for appointment to the post of Professor could not be questioned. In Dr. Kumar Bar Das (supra), this court in detail had considered this aspect of the matter and in the said decision, this Court observed that the opinion of experts in the Selection Committee must be taken to be that the appellant's teaching and Research experience satisfied the above conditions of 10 years as mentioned for appointment to the post of Professor. In that case, this Court at para 27 at page 462 observed as follows :
" 27. In our view, having regard to the high qualifications of the experts and the reasons furnished by the Syndicate as being the obvious basis of the experts' opinion, the Chancellor ought not to have interfered with the view of the experts. The expert's views are entitled to great weight as stated in University of Mysore's case."
In Para 28 of the said decision, this Court also observed :
"28. In our opinion, the Chancellor cannot normally interfere with the subjective assessment of merit of candidates made by an expert body unless mala fides or other collateral reasons are shown. In Neelima Misra case above-referred to, this Court observed, referring to the powers of the Chancellors in matters of appointment of Professors/Readers as being purely administrative and not quasi-judicial."
24. There is another aspect of this matter which is also relevant for proper decision of this appeal. We have already indicated earlier that the Board of Appointment was constituted with experts in this line by the University Authorities. They have considered not only the candidature of the appellant and his experience as a Lecturer and Research Assistant along with others came to hold that it was the appellant who was the candidate who could satisfy the conditions for appointment to the post of Professor. Such being the selection made by the expert body, it is difficult for us to accept the judgments of the High Court when we have failed to notice any mala fides attributed to the members of the expert body in selecting the appellant to the said post.
26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the Expert Body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made herein above, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction.
27. Again in M.V.Thimmaiah & Ors. vs. Union Public Service Commission & Ors. [2008 (2) SCC 119], this Court clearly held that in the absence of any mala fides attributed to the expert body, such plea is usually raised by an interested party (in this case the unsuccessful candidate) and, therefore, court should not draw any conclusion on the recommendation of the expert body unless allegations are substantiated beyond doubt. That apart, the challenge to the selection made by the expert body and approved by he University Authorities was made by the respondent Nos. 1 and 2 who were unsuccessful candidates and were not selected for appointment to the post of Professor in the Department of Sociology.
28. In National Institute of Mental Health & Neuro Sciences vs. Dr.K.Kalyana Raman & Ors. [1992 Supp (2) SCC 481], this Court considered in detail the role of an expert body in deciding the candidature for selection to a particular post. While doing so, this Court at Para 7 at P. 484 of the said decision observed as follows:
"7. ..... In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. The High Court in support of its reasoning has, however, referred to the decision of this Court in Union of India v. Mohan Lai Capoor. That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons for superseding a senior member in the State Civil service. The decision in Capoor case was rendered on 26 September, 1973. In June, 1977, Regulation 5(5) was amended deleting the requirement of recording reasons for the supersession of senior officers of the State Civil services. The Capoor case cannot, therefore, be construed as an authority for the proposition that there should be reason formulation for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R. S. Dass v. Union of India in which Capoor case was also distinguished."
Keeping this observation in our mind and considering the facts and circumstances of the present case, we find that there was no dispute in this case that the selection was made by the assessment of relative merit of rival candidates determined in the course of the interview of the candidates and after thoroughly verifying the experience and service of the respective candidates selected the appellant to the post of the Professor in the said Department.
29. It is not in dispute that there is no rule or regulation requiring the Board to record reasons. Therefore, in our view, the High Court was not justified in making the observation that from the resolution of the Board selecting the appellant for appointment, no reason was recorded by the Board. In our view, in the absence of any rule or regulation requiring the Board to record reasons and in the absence of mala fides attributed against the members of the Board, the selection made by the Board without recording reasons cannot be faulted with."
18. In the case of Dalpat Abasaheb Solunke vs. B.S. Mahajan, Apex Court held in the paragraph 9 that court cannot decide relative merits of candidates for selection as follows :-
" It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasis 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 malafides 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 juris diction."
19. In the case of Baidyanath Yadav vs. Aditya Narayan Roy and Ors., Apex Court held in the paragraph nos. 4.1, 4.2, 5.1, 5.3 and 9.2 that the High Court cannot direct the screening committee to recommend the name of any candidate to the U.P. Public Service Commission as follows:-
" 4.1 Learned Senior Counsel for the Appellant, Mr. Huzefa Ahmadi, argued that the High Court erred in giving weight to the serial order in which the names of the officers were placed before the State Screening Committee; non-disclosure of reasons by a selection committee does not vitiate their decision, unless required by rules or administrative instructions (relying on National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyana Raman, 1992 Supp (2) SCC 481, and Union Public Service Commission v. Arun Kumar Sharma, (2015) 12 SCC 600), which was not the case here; there was no direction by the departmental minister to keep Respondent No. 1's name at the top; and the direction for reconsideration of his name alone, rather than of all the recommended candidates, was beyond the jurisdiction of the High Court.
4.2 Learned Counsel for the State of Bihar, Mr. P. S. Patwalia, took us through the Indian Administrative Service (Appointment by Selection) Regulations, 1997 ("the 1997 Regulations"), and submitted that the departmental Selection Committee and the State Screening Committee had undertaken a fair and objective assessment of the service records under the Regulations. He also pointed out that in the absence of any allegation of mala fides or bias, it could not be held that there was any undue influence on the committee members. He ended by referring to the decision of this Court in Union Public Service Commission v. M. Sathiya Priya, (2018) 15 SCC 796, emphasising that the High Court could not have reassessed the findings of the committees on merit.
5.1 It is by now well-settled that the scope of such review is limited, and the Tribunal or Court cannot re-assess the merit of the individual candidates. As observed by a 2-Judge Bench of this Court in M.V. Thimmaiah v. UPSC, (2008) 2 SCC 119:
"21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion..."
5.3 It can be concluded from the above that it was not for the High Court to address questions of comparative merit of the candidates, and neither is it appropriate for us to do the same. All we may look into is whether there was any serious violation of statutory rules, or any bias, mala fides or arbitrariness in the entire selection process. To address this question, it is essential to revisit the process prescribed for the selection of non-SCS officers to the IAS.
9.2 Moreover, we find ourselves in disagreement with the conclusion of the High Court that the decision of the State Screening Committee was arbitrary for nondisclosure of reasons. A catena of decisions of this Court has established that even the principles of natural justice do not require a duly constituted selection committee to disclose the reasons for its decision, as long as no rule or regulation obliges it to do so. In this regard, we may refer to the decision of this Court in National Institute of Mental Health (supra), which has also been subsequently affirmed in several cases, including Union Public Service Commission v. Arun Kumar Sharma (supra). In National Institute of Mental Health (supra), the Court, following the decision in R.S. Dass v. Union of India, (1986) Supp SCC 617, observed as follows:
"7. ... In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative... Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass v. Union of India [1986 Supp SCC 617 : (1987) 2 ATC 628] in which Capoor Case [(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : (1974) 1 SCR 797] was also distinguished.
8. ... we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The ''fairness' or ''fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration..."
20. In the case of Ram Darash Yadav (Supra) Apex Court held in the paragraph nos. 34, 35 and 40 that teaching experience contemplates an experience in composite form which is to be performed by a teacher, where he is working as lecturer or in any other capacity as follows :-
" 34. Experience of a person working as a Lecturer in regular capacity or as part time or Guest Lecturer cannot be equated since it all differ in quality, quantity and various other aspects. A Lecturer regularly appointed is not supposed to only take lectures in the College but he has to perform various other duties also in the capacity of his appointment as Lecturer on regular basis. A part time Lecturer discharge duties for a smaller length of period in a day and a Guest Lecturer is required to take lectures in the classes and nothing more than that. The term "Teaching Experience" contemplates an experience in composite form which is to be performed by a Teacher whether he is working as Lecturer or in any other capacity.
35. In Tulsi Ram v. State of U. P., 1998 (3) ESC 1617, it has been held that teaching experience of part-time teachers would not make them eligible for appointment. Above decision has been followed by another Division Bench in Ayodhya Prasad vs. Public Service Commission and another, 2002(3) AWC 2468 as follows :-
40. As a Guest Lecturer, petitioner was required to attend assigned lectures. For each lecture prescribed amount was payable. As per G.O. dated 4.7.1998, Rs. 150/- per lecture was payable, subject to maximum payment of Rs. 3000/- per month. Meaning thereby, no person could have been engaged to deliver more than 20 lectures in a month. Petitioner actually delivered 1307 lectures in a period of about 6 years i.e. about 18 lectures per month were delivered by him. It is not pleaded anywhere in the entire writ petition that a Lecturer regularly appointed in a Medical College is supposed to deliver only 18 or 20 lectures in a month and not more than that. It is also not pleaded that teaching work of a regularly appointed "Lecturer" is confined only to deliver lecturers and nothing more than that. When experience is talked in terms of "period", it cannot be equated with certain number of Lectures rendered in certain period for the reason that such an interpretation if accepted, even if a Guest Lecturer may have delivered or engaged for delivering one or two lectures in a month but has continued so engaged for a length of time, he can also claim to have gained requisite "Teaching Experience". This interpretation would be clearly a travesty and mockery to the purpose of which requirement of "Teaching Experience" has been provided. When Rules contemplate "Teaching Experience" of a particular period, it means that experience must be in a post held for full time. Experience acquired by rendering requisite "Teaching work" which a regular teacher is required to perform. It cannot be equated with occasional or fortuitous engagement of a person to deliver lectures otherwise it would also amount to treating unequals as equal. Moreover, requirement under advertisement is consistent with requirement of such "experience" under Regulations, 2013. We are inclined to give an interpretation in favour of the qualification advertised and not as contemplated by petitioner. Hence it cannot be said that petitioner has been wrongly held ineligible for consideration for appointment to the post of Principle SHMC pursuant to advertisement under challenge."
21. In the case of Ram Darash Yadav (Dr.) (Supra) the special leave petition was dismissed by the Apex Court upholding the judgment of this court in Ram Darash Yadav (Dr.) vs. State of U.P. and Others passed by this court.
22. In the case of National Institute of Mental Health & Neuro Sciences (Supra) the Hon'ble Supreme Court held that the selection committee is not under obligation to record reasons for its decision and there is no role to this effect. Reliance has been placed on paragraph nos. 7 and 8 as follows:-
" 7. We will first consider the second point. In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. The High Court in support of its reasoning has, however, referred to the decision of this Court in Union of India v. Mohan Lai Capoor. That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons for superseding a senior member in the State Civil service. The decision in Capoor case was rendered on 26 September, 1973. In June, 1977, Regulation 5(5) was amended deleting the requirement of recording reasons for the supersession of senior officers of the State Civil services. The Capoor case cannot, therefore, be construed as an authority for the proposition that there should be reason formulated for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R. S. Dass v. Union of India in which Capoor case was also distinguished.
8. As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. The High Court however, observed, that Dr. Kalyana Raman did not receive a fair and reasonable consideration by the Selection Committee. The inference in this regard has been drawn by the High Court from the statement of objections dated 18 February, 1980 filed on behalf of the Selection Committee. It appears that the Selection Committee took the stand that Dr. Kalyana Raman did not satisfy the minimum requirement of experience and was not eligible for selection. The High Court went on to state that it was some what extraordinary for the Selection Committee after calling him for the interview and selecting him for the post by placing him second, should have stated that he did not satisfy the minimum qualifications prescribed for eligibility the High Court the stand taken by the Selection Committee raises serious doubts as to whether the deliberations of the Selection Committee were such as to inspire confidence and re-assurance as to the related equality and justness of an effective consideration of this case. It is true that selection of the petitioner and the stand taken by the Selection Committee before the High Court that he was not eligible at all are, indeed, antithetical and cannot co-exist. But the fact remains that the case of Dr. Kalyana Raman was considered and he was placed second in the panel of names. It is not shown that the selection was arbitrary or whimsical or the Selection Committee did not act fairly towards Dr. Kalyana Raman. The fact that he was placed second in the parcel, itself indicates that there was proper consideration of his case and he has been treated fairly. It should not be lost sight of that the Selection Committee consisted of experts in the subject for selection. They were men of high status and also of unquestionable impartiality. The Court should be slow to interfere with their opinion."
23. Finally, in the case of Dr. Ramesh Kumar Yadav and another vs. University of Allahabad and Others 2012 (4) ADJ 724 (DB), this court held that central government had no authority to disagree with the recommendation of UGC. Exemption granted by UGC to the candidates who were awarded P.hd degrees prior to the cut of date was in accordance with UGC guidelines prevailing at that time and central government had no right to direct otherwise.
24. After considering the rival submissions, this court finds that the petitioners have miserably failed to prove their case before this court by pointing out to any violation of any regulation of UGC wanting an interference by this court. None of the Regulations have been challenged when arguments have been advanced against the express Regulations of UGC. The petitioner's working as guest faculty was not relevant as per Regulation 10(e) and her contractual appointment was also not in accordance with Regulation 13 of the U.G.C. Regulation as clear from the submissions made on behalf of the learned counsel for the University. From the above consideration it is also clear that in the report of the expert committee the courts have very limited discretion to interfere. Where malafides are proved and violation of any regulation is proved the court may interfere but it cannot enter into roving and fishing inquiry on the basis of irrelevant considerations.
25. In view of the above, the writ petition fails and is accordingly, dismissed.
26. However, there shall be no order as to costs.
Order date:- 20.05.2022 Rohit