Delhi High Court
Mohammad Javed Malik vs Jamia Millia Islamia & Ors. on 21 February, 2022
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 31st January, 2022
Pronounced on: 21st February, 2022
+ W.P.(C) 1798/2022 & CM APPL.No.5163/2022
MOHAMMAD JAVED MALIK ..... Petitioner
Through: Mr.M.Sarwar and Mr.Iram
Peerzada, Advocates.
versus
JAMIA MILLIA ISLAMIA & ORS. ..... Respondents
Through: Mr.Chetan Sharma, ASG with
Mr.Fuzail Ahmad Ayyubi,
standing counsel, Mr.Pritish
Sabhrawal, ASC for JMI,
Ms.Akanksha Rai and Mr.Sanjeet
Kumar, Mr.Vinay Yadav,
Mr.Sahaj Garg, Mr. Amit Gupta,
Mr.Rishav Dubey, Advocates for
JMI/UOI.
Mr.Apoorv Kurup and Ms.Nidhi
Mittal, Advocates for R-6/UGC.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Through Video Conferencing)
1. The This petition is filed with following prayers :
A. Calling the entire official records from Respondent No.1
pertaining to the impugned appointment of Dr. Nazim
Hussain Al-Jafri (Respondent No. 4) as a Professor in the
Department of History & Culture, Jamia Millia Islamia, New
Delhi;
B. Issue an appropriate writ, order, direction and /or
declaration in the nature of quo warranto declaring the
impugned appointment of Dr. Nazim Hussain Al-Jafri
(Respondent No. 4) in flagrant violation and total non-
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compliance of Statute-25 of the Jamia Millia Islamia Act,
1988 read with Clauses 3.1, 3.2, 4.0, 4.1(III) of the UGC
(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, 2018, besides being violative of
Ordinance-15 (XV) of JMI Act, 1988 read with Article 14
and 16 of the Constitution of India, 1950, and also ultra
vires to Section-11 (3) read with Statute-14(2)(II) of JMI Act,
1988 illegal, arbitrary, void ab initio and non est in law.
2. The petitioner seeks to challenge the entire decision making
process culminating into the impugned selection and appointment of
respondent No. 4 as a Professor in the Department of History & Culture,
Jamia Millia Islamia - respondent/University being in flagrant
violation/contravention and total non-compliance of the Statute-25 of the
Jamia Millia Islamia Act, 1988 read with clauses 3.1, 3.2, 4.0, 4.1 (III) of
the UGC (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, 2018,
besides being violative of Ordinance-15 (XV) of JMI Act, 1988 read with
Atticle 14 and 16 of the Constitution of India and also ultra vires to
Section-11(3) read with Statute-14(2)(II) of the JMI Act, 1988, as the
same is a colorable exercise of power, being illegal, arbitrary, void ab
initio.
3. It is alleged on 01.06.2021 the respondent/university issued an
advertisement bearing Adv. No.05/2021-22, inviting applications in
various departments of the University for the direct and open post of
Professor, Associate Professor and Assistant Professor, laying down the
eligibility criteria and qualifications desired from applicants, for which
applications were received from various candidates and the last date of
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receipt of applications was 30.06.2021, including that of the post of
professor in the Department of History & Culture, JMI.
4. Pursuant to the aforesaid advertisement dated 01.06.2021, many
applications were received for the post of Professor in the Department of
History and Culture, Jamia Millia Islamia and for which Screening
Committee shortlisted some candidates for the interview.
5. On 24.12.2021 after interviewing all the candidates shortlisted by
the Screening Committee, the duly constituted Selection Committee
found none candidate suitable to be appointed to the post of Professor
and thus the respondent/University had no option but to abort the entire
process on the basis of the findings of the Selection Committee:
6. It is alleged on 20.01.2022 the Vice Chancellor of the
respondent/University unilaterally appointed respondent no.4 to post of
Professor in Department of History and Culture by invoking Section
11(3) of the Jamia Millia Islamia Act.
7. On 21.01.2022 a press release was issued by the Public Relations
Officer, Jamia Millia lslamia - respondent/University stating the
Executive Council has approved the appointment of respondent no.4 as
Professor in the Department of History & Culture of the
respondent/University.
8. The learned counsel for the petitioner alleges that he needs a Writ
of Quo Warranto which power can be exercised on satisfaction of four
conditions viz. a) the office must be created under Statute; b) the office
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must be of substantive character; c) it is enjoined with the duties of pubic
nature and d) it is upserved by some person.
9. The grievance of the petitioner is without following the procedure
the respondent no.4 has been appointed as a Professor. It is stated he
neither applied for the post of the Professor nor had gone to the screening
and interviewing the selection committee, yet the Vice Chancellor of the
University has arbitrarily appointed him as a Professor. Reference was
made to following rules as under:
"Section 11. (1)-(2) xxxxxxx.
(3) The Shaikh-ul-Jamia (Vice-Chancellor) may, if he is of
opinion that immediate action is necessary on any matter,
exercise any power conferred on any authority of the
University by or under this Act and shall report to such
authority the action taken by him on such matter. provided
that if the authority concerned is of opinion that such action
ought not to have been taken, it may refer the matter to the
Visitor whose decision thereon shall be final: Provided
further that any person in the service of the University who is
aggrieved by the action taken by the Shaikh-ul-Jamia (Vice-
Chancellor) under this sub-section shall have the right to
appeal against such action to the Majlis-i-Muntazimah
(Executive Council) within three months from the date on
which decision on such action is communicated to him and
thereupon the Majlis-i-Muntazimah (Executive Council) may
confirm, modify or reverse the action taken by the Shaikh-ul-
Jamia (Vice-Chancellor).
Statute 25(8) Selection Committee
Notwithstanding anything contained in the foregoing
clauses, the Majlis-i-Muntazimah (Executive Council) may
invite a person of high academic distinction and professional
attainment to accept a post of Professor in the University, on
such terms and conditions as it deems fit, and on the person
agreeing to do so, appoint him to the post."
10. It was argued that it was incumbent upon Executive Council to
invite a person of high academic distinction and professional attainment
in a transparent manner keeping in view the framework of Article 16 of
the Constitution of India because it was performing a statutory duty and
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public function. There is no dispute with regard to the fact Dr.Nazim
Hussain Al-Jafri/respondent No.4 was sent any invitation by the
Executive Council. It is a case of the respondent university that the Vice-
Chancellor straightaway invoked Section 11(3) of the JMI Act, 1988; the
appointment of Dr.Nazim Hussain Al-Jafri/respondent No.4 was a matter
of grave urgency which cannot brook any delay and thus exercise the
power under Clause 8 of Statute 25 of the JMI Act, 1988. Whilst the
power of the Vice- Chancellor to use emergency powers in innumerable
and unspelt circumstances cannot and ought not to be circumscribed,
having regard to harmonious reading of Section 11(3) and Clause 8 of
Statute 25 of the JMI Act, 1988 and keeping the larger interest of
academic freedom and autonomy, is a complete abuse of power conferred
upon the Executive Council by virtue of Statute 25 of the JMI Act, 1988
as the Vice-Chancellor herself is not an expert in the field of Ancient
History. In this context reliance is placed on order passed by this Court in
LPA 390/2021 titled as Atul Sood vs. Jawaharlal Nehru University
through Registrar & Anr. wherein it was contended the power of
appointment of Chairperson of Centres/Special Centres is expressly
conferred on the Executive Council and since the exercise of power by
respondent No.2 was in the eyes of law, null and void; the Executive
Council could not have approved i.e., ratified the appointments made by
respondent No.2. The appellant was aggrieved by the fact that the learned
Single Judge of this Court via the impugned order has declined to grant
stay qua the appointment of 9 professors who were appointed as
Chairpersons of various Centres / Special Centres of the Jawaharlal
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Nehru University. However, the Division Bench allowed the appeal in
this case.
11. It is further argued submitted the incumbent Registrar and Member
/ Secretary of the Executive Council who participated in its meeting held
on 21.01.2022 and came to be appointed as a Professor of Ancient
History in the Department of History & Culture is not a person of high
academic distinction and professional attainment as the same is evident
from the fact that he started his career from the post of Lower Division
Clerk (LDC), and thereafter as Upper Division Clerk (UDC), Section
Officer (SO), Assistant Registrar (AR), Deputy Registrar (DR) at Aligarh
Muslim University, Aligarh and thereafter as Controller of Examinations
in the respondent/University. There is nothing which can be considered
as academic distinction as what is required by Clause 8 of Statute 25 of
the JMI Act, 1988, a person of high academic distinction and
professional attainment and thus the UGC Regulations, 2018 came with
an alternative qualification as contained in Clauses 4.0, 4.1(III) and
alternative eligibility criteria:
"B. An outstanding professional, having a Ph.D. degree in
the relevant/allied/applied disciplines, from any academic
institutions (not included in A above) / industry, who has
made significant contribution to the knowledge in the
concerned/allied/relevant discipline, supported by
documentary evidence provided he/she has ten years‟
experience."
12. It is argued Dr.Nazim Hussain Al-Jafri/respondent No. 4 does not
possess a single day teaching and / or research experience in the field of
history, be it modern or ancient history. Therefore, Clause 8 of Statute 25
of the JMI Act, 1988 need to be read in conjunction with Clauses 4.0,
4.1(III) and Eligibility Criteria: "B" and same has to be supported by
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documentary evidence provided s/he has 10 years experience, which has
to be considered independently and objectively by a duly constituted
Selection Committee in terms of Statute 25 read with Ordinance 15(XV)
which utmost provides an exception under S.No.12 that a highly
meritorious candidate can be considered by the Selection Committee in
absentia.
13. Heard.
14. Admittedly, Jamia Millia Islamia/ respondent University is a Central
University established in the year 1920 and was accorded the said status by a
Special Act of Parliament (Act No. 58 of 1988) known as „The Jamia Millia
Islamia Act, 1988‟.
15. Admittedly the petitioner is an alumnus of Faculty of Law, Jamia Millia
Islamia, in this petition is challenging the appointment of the respondent No. 4
on the post of Professor in the Department of History & Culture by seeking a
Writ in the nature of Quo Warranto.
16. As the facts go the respondent/University issued an advertisement dated
01.06.2021, inviting applications for the post of Professor in the Department of
History & Culture. However, no candidate was found suitable in the selection
process and no appointments were made against the said post.
17. The petitioner is setting up a case by interrelating the advertisement
dated 01.06.2021 and the appointment of respondent No. 4 whereas there is no
interrelation between the advertisement dated 01.06.2021 and the appointment
of respondent No. 4 on the post of Professor. Admittedly the appointment of
the respondent No. 4 is altogether a different act/event.
18. As per Section 11(3) of JMI Act, the Shaikh-ul-Jamia (Vice-Chancellor)
may, if he is of opinion that immediate action is necessary on any matter,
exercise any power conferred on any authority of the University by or under
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this Act and shall report to such authority the action taken by him on such
matter.
19. The Vice-Chancellor in the exercise of powers vested under Section
11(3) acted on behalf of the Executive Council (EC) and appointed respondent
No. 4 as Professor in terms of Statue 25(8) of the Act, which is as under:
"Notwithstanding anything contained in the foregoing
clauses, the Majlis-i-Muntazimah (Executive Council) may
invite a person of high academic distinction and professional
attainment to accept a post of Professor in the University, on
such terms and conditions as it deems fit, and on the person
agreeing to do so, appoint him to the post."
20. The decision of the Vice-Chancellor as mandated in Section 11(3) was
placed before the Executive Council (EC) for their approval. The EC in its
meeting dated 21.01.2022 approved the appointment of respondent No.4 to the
post of Professor and thereafter the respondent No.4 joined his duties.
21. Though the appointment of the respondent No. 4 is in terms of Statue 25
(3), the ground as taken by the petitioner alleging the respondent No.4 does not
fulfill the eligibility criteria will not sustain. The respondent No. 4 apart from
holding a Ph.D. in Ancient Indian History and Archeology, has also published
more than 10 national and international research papers and has also published
5 books.
22. It is stated, the respondent No. 4 has more than 35 years of vast
experience in University administration and he has also been given the
assignment to act as VC at Khwaja Moinuddin (State) on several occasions. He
has served in different universities in following capacities.
" Educational Qualifications:
1. Ph.D. 1999, A.M.U., Aligarh Title: Geography of Proto-Historic
Cultures in India.
2. M.Phil. 1991, A.M.U., Aligarh Title: Copper Bronze Age in Upper
Gangetic Valley
3. M. A. in History, in 1983, with 1st Division, and 3rd position,
A.M.U, Aligarh.
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4. P.G. Diploma in Computer Application, 2002, A.M.U., Aligarh.
Present Position:
1. Professor in the Department of History & Culture
2. Assigned additional responsibilities of Registrar, Jamia Millia
Islamia under Statute 5 (3) of JMI
Experiences of University Administration:
1. Registrar, Joint Registrar & Deputy Registrar at AMU, Aligarh
(Central University)
2. Project-Officer, Adult and Continuing Education, A.M.U., Aligarh.
3. Registrar and Controller of Examination, Khwaja Moinuddin
Chishti Literature, University, Lucknow (State University).
4. Registrar and Controller of Examination, Indira Gandhi National
Tribal University, Amarkantak (M.P.) (Central University).
5. Registrar and Controller of Examinations, Jamia Millia Islamia,
New Delhi- 110025. (Central University)
6. Coordinator &Assistant Coordinator (Part-time)at Indira Gandhi
National Open University Study Centre, Aligarh.
Academia:
Published Books:
1. Geography of "Proto-Historic Cultures in India", Published by
Writers Choice, New Delhi, 2018.
2. "History of Proto-Vedic Human Civilization", Published by Indu
Book Services, New Delhi, 2015.
3. "Critical Review of the History of Human Civilization and Vedic
Period", published by Lambert Publisher Germany, 2014.
4. "Polytheism in Proto-Vedic Africa" published by Indu Book
Services Private Limited.
5. Copper Bronze age in upper gangetic Valley published by
Academic Publishers New Delhi-2022
Published Research Papers:
1. Revisiting Ochre Colored Pottery Culture in India with Special
Reference to Southern Region Culture in Ateet: A Journal of
History and Archaeology, No. 1 / Vol. VI / Jan.-June. 2017.
2. Proto-Historic Culture of India Revisiting Ochre Colored Pottery
Culture in Journal Global Values, Vol. VIll No. 2, 2017.
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3. Cultural Change in Funerary Practices from Harappan to Post
Harappan Phases in Proto-Historic India in Ateet: A Journal of
History and Archaeology, No. 1 & 2 / Vol. V / Jan.-Dec. 2016.
4. An Archaeological Study of Historical Monuments at Nuh
(Haryana), India in Ateet: A Journal of History and Archaeology,
No. 1 & 2 / Vol. V / Jan.-Dec. 2016.
5. A Study of Medieval Monuments in Art Historical Perspective in
Ateet: A Journal of History and Archaeology, No. 1 & 2 / Vol. V /
Jan.- Dec. 2016.
6. Technology of the Chalcolithic Cultures, Proceedings of the
Indian History Congress (615) session, Kolkata, 2000.
7. From Harappa to Cemetery- H: Fifty years after the wheeler
Hypothesis in Proceedings of the Indian History Congress,
Diamond Jubilee (60'*) session, Calicut, 1999.
8. Territory Artifacts Assemblage and Culture- A study of Painted
Grey Ware in Proceedings of the Indian History Congress, 59th
session, Patiala, 1998.
9. Population Education - Its meaning and concept, in National
Journal 'Teacher Today' Vol. 32, NO.4, April -June 1990, Bikaner.
10.Desh Ka Vikas Eyvam Saksharta, Prodh Shiksha, New Delhi,
June, 1987.
11.Prospects of Adult Education in Science & Technology - A Study
in Rural Development in International Journal Rural System, Vol.
IV, No.4, 1986, Banaras).
12.Early Colonisation of the Gangetic Valley and their Chronology
Context-Ateet; No. 1&2, Vol. VIII/ Jan.-Dec., 2019. ISSN 2249-
1252.
Conferences attended:
International
1. 8th World Archaeological Congress, Kyoto, Japan, August 28 -
September 02, 2016.Presentation: Development on Indian
indigenous land of Nuh (Haryana) India.
2. 7th World Archaeological Congress, Dead Sea, Jordan, January
13-18, 2013.Presentation: Burial evidences indicative of cultural
changes in 'Proto- Historic' India lasting the early 'Iron Age'.
3. 13th International meeting of University Administrators, Helsinki,
19-23 August, 2001.Presentation: Entrepreneurship and
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Commercialization in Higher Education in Third World; Case of
India.
4. 12'' International meeting of University Administrators, Edinburg,
U.K., 5-9 September, 1999. Presentation: Incentive and
Monitoring in Higher Education- The Indian Experience.
National
1. 62nd Session of the Indian History Congress held at Bhopal, 28-30
January, 2001 Presentation: Contextualizing OP Culture.
2. 61st Session of the Indian History Congress, held at Kolkata, 2001.
Presentation: Technology of the Chalcolithic Cultures.
3. 60th Session of the Indian History Congress, held at Calicut, 1999.
Presentation: From Harappa to Cemetery H: Fifty years after the
Wheeler Hypothesis.
4. 59th Session of Indian History of Congress held at Patiala, 28-30
December, 1998. Presentation: Territory, Artefact Assemblage
and Culture- A study of Painted Grey Ware.
5. Population Education organized by Delhi University, Delhi, 15-16
May 1990.Presentation: Population Education through Jan
Sikshan Nilayam.
6. Role of Youth in Promoting National Literacy Mission Organized
by Vishwa Yuvak Kendra, New Delhi, 18-19 September, 1989.
Presentation: Educational Needs of a Harijan Basti- A case study
of the localities around the campus of Aligarh Muslim University,
Aligarh.
7. Legal Literacy through Universities / Colleges organized by
University of Poona, 13-15 October, 1985.
Training / Courses Attended:
1. Muslim University, Aligarh at Integral University, Lucknow (U.P.)
from 16.01.2016 to 17.01.2016.
2. Attended "Management Development Program" organized by
Jamia Millia Islamia Attended Short Term Course on "Academic
Leadership" organized by MHRD, Govt. of India, UGC Human
Resource Development Centre, Aligarh in Collaboration with
University Grants Commission, New Delhi from 06.04.1993 to
30.04.1993.
3. Attended Second "Management Development Program on
Management System" organized by the Department of Business
Administration, Aligarh Muslim University, Aligarh, November 2-
19, 1992.
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4. Attending training / orientation course for key level functionaries
organized by the Indian Adult Education, Association, New Delhi,
17-22 December, 1987.
23. The petitioner claims the appointment of respondent No. 4 is irregular
and illegal as it is violative of Articles 14 and 16 and it is undisputed that the
person to be appointed as a professor must be an eminent scholar or
outstanding professional who has made a significant contribution to the
concerned/allied/relevant discipline, supported by documentary evidence. It is
submitted apart from the above-mentioned laurels that the respondent No. 4
possess academic/research score and after assessing his profile, his score was
calculated to be '188.4' which is a considerably good score; whereas the
minimum requirement as notified by the UGC to become a professor is 120
points.
24. Moreover, even otherwise, the UGC regulations namely "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 2018"specifically state under 4.1.(III)(B) "An
outstanding professional, having a Ph.D. degree in the relevant/allied/applied
disciplines, from any academic institutions (not included in A above) /
industry, who has made significant contribution to the knowledge in the
concerned/allied/relevant discipline, supported by documentary evidence
provided he/she has ten years‟ experience".
25. A conjoint reading of Statute 25(8) and Section 11(3) of the Act makes
it abundantly clear the VC can act on behalf of the EC and if the authority (EC)
is of opinion that such action ought not to have been taken, it may refer the
matter to the visitor whose decision thereon shall be final. Moreover, the
Section also provide if any person in the service of the University who is
aggrieved by the action taken by the VC under this sub-section 11(3) shall have
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the right to appeal against such action to the EC within three months from the
date on which decision on such action is communicated to him and thereupon
EC may confirm, modify or reverse the action taken by the VC.
26. The petitioner referred to 'Atul Sood v. JNU & Anr.‟ LPA 390/2021
where the appeal was directed against an interlocutory order dated 28.09.2021,
passed by the learned single judge in W.P.(C) No.1879/2021 declining to grant
·stay qua the appointment of nine professors, who were appointed as
Chairpersons of various Centers/Special Centers by the VC in terms of Statute
4(5) of the Statutes of the University. However, the cited case differs from the
present case in hand on the point that present is a case of appointment of
Professor whereas in the case of JNU the VC therein appointed professors as
chairpersons under clause 18 (2) (c) (I) of JNU Statute. While in the present
case, the VC invoked Clause 11(3) read with Statute 25 (8), which empowers
her to take the decision on behalf of the EC and the same was ratified by the
EC for appointment of Respondent No. 4 as Professor. Moreso, the petitioner
in the case of JNU, Mr.Atul Sood was himself an employee of JNU and he was
aggrieved by the action of the University. However, the petitioner in the
present case is not an aggrieved person or an Employee or has any relation or
connection with JMI.
27. Further the respondent has shown instances wherein several
appointments have been made mutatis mutandis to the post of Professor across
Universities in the Country including JMI viz,
a) Dr. Sandeep Banerjee who was the secretary of the UGC (IAS officer)
was appointed as a professor in the exercise of powers under section
11(3) read with Statute 25 (8) in Jamia Millia Islamia;
b) Dr. Ajay K. Mehra who was a reader in Political Science, Shaheed
Bhagat Singh College, was appointed as a professor in the exercise of
powers under section 11(3) read with Statute 25 (8) in Jamia Millia
Islamia; and
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c) Dr. Mirza Mohammad Sufyan Beg, who was appointed as a professor in
the exercise of powers under section 11(3) read with Statute 25 (8) in
Jamia Millia Islamia.
28. Similar circumstances can be seen in Aligarh Muslim University
and Maulana Azad National Urdu University.
29. In view of the above there is no case made out for the issuance of
notice to the respondent, thus, the petition is accordingly dismissed.
Pending application(s), if any, also stand disposed of.
YOGESH KHANNA, J.
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