Allahabad High Court
Dr. Rachana Kaushal vs Union Of India And 5 Others on 21 January, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - A No. - 25093 of 2018 Petitioner :- Dr. Rachana Kaushal Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Shailendra,Shailendra Srivastava Counsel for Respondent :- A.S.G.I.,Abrar Ahmad,Neeraj Tripathi,Shashank Shekhar Singh Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner is an Associate Professor in the department of Political Science at Aligarh Muslim University, Aligarh (hereinafter referred to as 'the University'). She has approached this Court with the grievance that University has acted arbitrarily in denying her a fair treatment while considering her claim for promotion to the post of Professor under the Career Advancement Scheme (hereinafter referred to as 'CAS'). It is alleged that proceedings of selection have been interpolated and she has been selectively discriminated.
2. The writ petition, as was originally instituted, sought following reliefs:-
"a. To issue a writ order of direction in the nature of certiorari calling for the records of the case and quashing the impugned selection proceedings dated 10.2.2017 and also quashed the approval of selection dated 15.3.2017 as done by the Vice Chancellor of the University in favour of Respondent No. 6 (Annexure - 3 and 6 to the writ petition) respectively in reference to post of Professor, Department of Political Science, Aligarh Muslim University, Aligarh.
b. To, issue a writ order or direction in the nature of mandamus directing the respondent University authorities particularly, the Vice Chancellor of the University to take a final decision in the matter in reference to representation of the petitioner dated 19.5.2018 relying upon finding recorded by the fact finding committee report dated 23.4.2018, particularly para -3 in favour of petitioner. The decision may be taken within the stipulated period as fixed by this Hon'ble Court.
c. To, issue a writ order or direction in the nature of mandamus directing the respondent university authorities particularly Vice Chancellor of the University to decide another representation of the petitioner dated 30.12.2017 against the incorrect valuation of API score of Respondent No. 6 and also in reference to certificate of vocational training. The certificate of guided research and marks given in referent to M.Phil to Respondent No. 6 which was beyond the date of eligibility. The respondent authority may decide the issue and reduced the 20 marks given illegally to respondent no. 6, resulting that Respondent No. 6 not even eligible to be appointed as Professor. The representation of the petitioner may be decided within the stipulated period as fixed by this Hon'ble Court.
d. To, issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case filed by the petitioner before this Hon'ble Court.
e. To award the cost of this petition of the petitioner.
f. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the impugned order dated 7.12.2018 passed by the Vice Chancellor of the University and communicated by the Registrar of the University (Annexure -1 to the affidavit)."
3. At the stage of initial hearing in the writ petition, following orders were passed on 28.11.2018:-
"Petitioner has approached this Court with the grievance that she is being harassed and victimised in the matter relating to grant of benefit under the Career Advancement Scheme for promotion to the post of Professor.
It appears that the Committee constituted to examine the issue considered petitioner?s claim also. The minutes of the meeting is annexed at page-63 of the Writ Petition, which clearly contains a cutting in the award of marks to the petitioner. It is highlighted that on account of cutting the marks of petitioner have been reduced from 65 to 49, so as to deny her claim. The cutting in award of marks is also not signed by all members.
Upon a complaint made by the petitioner a committee was constituted to look into her complaint, which too found substance in the petitioner's grievance. However, the Vice-Chancellor of the University is yet to take a decision in the matter.
When the matter is taken up today, Sri S.S. Singh, learned counsel appearing for the University has placed a letter received from the Ministry of Human Resources Development dated 19.6.2018, which reads as under:-
"Sir, I am directed to refer to this Ministry's letter of even number dated 01.05.2018 and reminder dated 29.05.2018 (copy enclosed) seeking a copy of the report of the Fact Finding Committee constituted by the VC, AMU on 25.10.2017 to look into the complaints cited in the above subject.
2. The report of the aforementioned Committee alongwith comments of the University thereon is still awaited from the University.
3. I am to again request that the requisite information maybe provided to the Ministry immediately".
A reply has also been sent by the Registrar of the University on 28.7.2018, which reads as under:-
"This has reference to your letter dated 19.6.2018 and clarification dated 23.6.2018 submitted by the aforementioned fact finding committee is being sent herewith for your perusal".
On behalf of the University it is submitted that because the matter is pending before the Central Government as such the University has not been able to take a final decision upon petitioner's complaint.
The defence set up by the University is not liable to be accepted inasmuch as the letter of the Central Government only directs the University to look into the grievance of the petitioner and the communication cannot be construed as putting any fetters on the power of the University to redress the wrong which appears to have been caused to her. The University has merely sent a clarification to the Ministry and the records remain available with it to take an appropriate decision in the matter.
Let this matter appear, once again, as fresh on 10.12.2018.
Learned counsel for the University may obtain instructions in the matter and the decision of the Vice-Chancellor in the matter relating to petitioner's grievance shall be placed before this Court by the next date fixed."
4. The writ petition thereafter was adjourned to enable the counsel for the University to obtain appropriate instructions. In between a fresh decision has been taken by the Vice Chancellor, which got communicated to the petitioner through the letter of Registrar of University dated 7.12.2018. The writ petition consequently has been amended and a prayer has been added to quash the communication dated 7.12.2018 also.
5. Affidavits have been exchanged and with the consent of learned counsel for parties the writ petition is taken up for final disposal, at the admission stage itself.
6. I have heard Sri Shailendra for the petitioner and Sri Shashi Nandan, learned Senior Counsel assisted by Sri Shashank Shekhar Singh for the respondent University. Sri Abrar Ahmad has been heard on behalf of Union of India.
7. Petitioner was initially appointed to the post of Assistant Professor in the department of Political Science of the University on 11.4.1998. She was promoted to the post of Reader by an order dated 21.8.2015. The benefit of the promoted post was given to her w.e.f. 11.4.2007 i.e. the date of her eligibility. By a subsequent order dated 29.8.2015, the petitioner has been given promotion on the post of Associate Professor w.e.f. 11.4.2010. Facts narrated in that regard, in paragraphs 7 to 9 of the writ petition, are not denied in the counter affidavit.
8. Petitioner claims that she became eligible for being considered for promotion to the post of Professor under the CAS on 15.1.2014, having acquired the required API score of 120. Her application was examined by the Scrutiny Committee, duly constituted, and she was declared successful. According to petitioner the selection committee met on 10.2.2017 for examining claim of promotion under CAS. Apart from petitioner the claim of Dr. Upendra Chaudhary, Dr. Farhana Kausar (respondent no. 6 of the writ petition) and Quazi Jamshed were also considered on 10.2.2017 by the selection committee. The selection committee recommended the name of respondent no. 6 for the post of Professor under CAS. Petitioner alleges that she was not informed of the outcome of her candidature.
9. An office order was thereafter issued on 15th March, 2017 stating that recommendation of selection committee has been approved by the Vice Chancellor and consequently respondent no. 6 has been promoted as Professor under CAS. Petitioner represented her grievance before the Vice Chancellor on 22.2.2017 as also before the Visitor. According to petitioner the only objection raised against her candidature was that she had not successfully supervised three Ph.Ds. and as such her claim was not considered. Petitioner has annexed an e-mail received from one Professor Sri A.R. Bijapur, who was a member of the selection committee, as per which the Vice Chancellor was adamant that in the absence of supervising three Ph.D. scholars, it would be impermissible for the petitioner to be considered for the post of Professor under the CAS. In her representation also the petitioner states that this cannot be a ground for non-consideration of her claim. Petitioner also appears to have represented her grievance before the University Grants Commission.
10. Alongwith the counter affidavit, an office memo dated 25th October, 2017 has been brought on record which refers to constitution of a two member fact finding committee by the Vice Chancellor to examine contentions made by the petitioner vide her representation dated 14.10.2017. The fact finding committee consisted of Professor Naima Khatoon Gulrez, the then Principal of Women's College as its Chairman while another Professor namely Sri Brij Bhushan Singh was the other Member. This Committee has submitted its report which is on record.
11. The two member committee has taken note of petitioner's representation and following aspects raised by the petitioner have been noticed:-
"(a). For not having guided three Ph.D theses.
(b). Reduction of her performance marks in the selection committee through tampering.
(c). The distribution of marks as per API score adopted for assessment in selection committee i.e. 50 points for research contribution and 30 points for teaching activity is not justified."
12. In Paragraph 1 of the report it is recorded that successfully supervising/guiding three Ph.D. Scholar is not the sole criteria, nor is an essential requirement for grant of promotion to the post of Professor under CAS. It has opined that other laid down criteria based on API score and interview performance have been taken note by the selection committee.
13. Having noticed the academic contribution of petitioner as well as her credentials on other parameters, the Committee opined as under:-
"Thus her API score should be enhanced from 127.5 to 147.5 which is 20 points more than Dr. Farahana Kousar. More over Dr. Rachana Koushal is given 12 marks each in assessment of domain knowledge with teaching practices and interview performance, which are higher than the promoted candidate. In view of this, Dr. Rachana Koushal stands eligible for promotion as Professor."
14. Aforesaid report of two member committee has been submitted to the Vice Chancellor of the University on 23rd April, 2018. The Vice Chancellor appears to have examined the report and following deficiencies were noticed in it:-
"a) The point of consideration before the fact finding committee is to look into the allegation and contention of Dr. Rachna Kaushal, Associate Professor, Department of Political Science, not to determine her eligibility for the post of Professor, as mentioned twice on page 3 of the report. She was already eligible that's why she was called to be present before the Selection Committee Board.
b) Para 1 and 2 and conclusion of para 3 (page 2 and 3 of the report) are contrary to each other and this requires similarity.
c) No specific findings have been given on the allegation and contention of Dr. Rachna Kaushal."
15. A direction, therefore, was issued to the two member committee to resubmit its report within twenty days. The two member committee, accordingly, responded to the letter dated 6.6.2018 by stating as under:-
"Kindly refer to your letter No. D/DE/3356 dated 06.06.2018 regarding the fact finding report dated 23.04.2018 submitted to the Vice Chancellor.
It is to submit that there is no contradiction in para no. 1 and 2 of page 2 with conclusive para no. 3 of page 3 as these are two different issues.
In para no. 1 of page 2 on her allegation regarding her promotion being denied on grounds of her not having supervised three Ph.D, the fact finding Committee after examining the various documents had concluded on the basis of noting of the then VC that this was not the sole criteria of promotion under CAS to the post of Professor.
In para no. 2 of page of on her allegation regarding cutting of marks, the fact finding committee after examinations submitted that there is cutting in marks given in research contribution and interview category duly signed by then VC, however there is no cutting in total of marks for all three categories, which shows that the cuttings were with the approval of entire board.
Whereas in para no. 3 of page 3 it is observed by the fact finding committee that in selection committee as Dr. Rachana Kaushal got highest marks in assessment of domain knowledge with teaching practice and interview performance of all the three candidates, she too was eligible for promotion on grounds of her having the highest API also.
It is further to submit that all allegations and contentions of Dr. Rachana Kaushal had been thoroughly examined and specific findings regarding all her allegations and contentions have been given in para no. 4, 5, 6, 7 and 8 of the submitted report."
16. The Registrar in its communication dated 7.12.2018 records that Vice Chancellor has accepted the two member report on grounds specified therein. Clause 4 of this order is relevant and is reproduced hereinafter:-
"4. The Committee in its report has clearly stated that although there is cutting in the sheet but has been initiated by the Vice-Chancellor (Chairman of the selection committee). The committee also categorically stated that since there is no cutting in the total marks in the last column, it indicates that total marks were put on the sheet and thereafter all members signed on the sheet.
Further, the recommendation sheet has only one name and all the members have signed on it. Had marks been cut afterwards, there would have been more name on the recommendation sheet."
17. The order dated 7.12.2018 ultimately holds that as appointment of respondent no. 6 has already been approved by the Executive Council, and she has been appointed, as such the claim of petitioner cannot be considered particularly as there is no recommendation by General Selection Committee for her promotion. This order is the last order under challenge.
18. The two member fact finding committee upon assessment of petitioner's credentials has found her API score to be 147.5 instead of 127.5, adjudged by the selection committee.
19. Learned counsel for the petitioner submits that action of University in undervaluing petitioner's API score and thereafter scoring of higher marks awarded to the petitioner in such a manner so as to bring it below the minimum 50% marks, is an act of malice apparent on face of the record, and therefore, is violative of Article 14 of the Constitution of India. Submission is that petitioner has been selectively discriminated and though she has scored much higher marks, yet on same material the selection committee has taken a different view, which violates the spirit and provisions of the UGC Regulations. The facts have been highlighted to demonstrate that a fair treatment has been denied to the petitioner and her academic excellence has been deliberately undervalued so as to deny her consideration for promotion.
20. Though respondent no. 6 has been impleaded in the writ petition and facts have been averred to submit that she was actually ineligible for promotion as her API score was below 120, but at the same time of hearing, learned counsel for the petitioner has stated that petitioner does not intend to challenge promotion of respondent no. 6 as Professor, and that the challenge to the selection proceedings are confined to the extent it denies consideration to petitioner's claim for the post of Professor.
21. On behalf of the respondents it is contended that the selection committee has examined petitioner's claim in accordance with law, and the allegation of selective discrimination or malice is unfounded. It is also submitted that cuttings in the award of marks to petitioner was a collective decision of the selection committee, and that as there is no cutting in the grand total as such petitioner's allegation that marks were interpolated is also not correct. Submission is that petitioner's claim would be ripe for a fresh consideration upon expiry of an year, as per the Regulations of 2010.
22. 'Co-ordination and determination of standards in institutions for Higher Education' is a legislative entry occurring at Item 66 of Union List in the Seventh Schedule to the Constitution of India. The Parliament has, in exercise of aforesaid power, enacted the University Grants Commission Act, 1956. In exercise of power under Section 26(1) of the Act of 1956, statutory regulations have been framed for regulating minimum qualification for appointment of teachers and other academic staff in Universities and measures for the maintenance of standards in Higher Education (hereinafter referred to as 'the Regulations of 2010'). Selection of teachers including grant of promotion under Career Advancement Scheme is regulated by the Regulations of 2010. Clause 6.0.0 of the Regulations of 2010 specifies the selection procedure. As per Clause 6.0.1, the selection procedure has to be transparent, objective and credible methodology is to be followed for analyzing the merits and credentials of the applicants based on weightages given to the performance of candidates. Clause 6.0.1 and 6.0.2, are reproduced hereinafter:-
"6.0.1 The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system proforma, based on the Academic Performance Indicators (API) as provided in this Regulations in Tables I to IX of Appendix III.
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 class room 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.
6.0.2 The Universities shall adopt these Regulations for selection committees and selection procedures through their respective statutory bodies incorporating the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS) at 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. An indicative PBAS template proforma for direct recruitment and for Career Advancement Schemes (CAS) based on API based PBAS shall also be sent separately by the UGC to the universities. The universities may adopt the template proforma or may devise their own self-assessment cum performance appraisal forms for teachers in strict adherence to the API criteria based PBAS prescribed in these Regulations."
23. Clause 6.0.7 requires selection to the post of Professor and is thus reproduced hereinafter:-
"6.0.7. The process of selection of Professor shall involve inviting the bio-data with duly filled Performance Based Appraisal System (PBAS) proforma developed by the respective universities based on the API criteria based PBAS set out in this Regulation and reprints of five major publications of the candidates.
Provided that such publications submitted by the candidate shall have been published subsequent to the period from which the teacher was placed in the Assistant Professor stage-II.
Provided further that such publications shall be provided to the subject experts for assessment before the interview and the evaluation of the publications by the experts shall be factored into the weightage scores while finalizing the outcome of selection."
24. Clause 6.0.9 determines the scoring system for Principal. The criteria is to be similar to that of a directly recruited college Professor. Clause 6.0.9 is extracted hereinafter:-
"6.0.9 The Academic Performance Indicator (API) scoring system in the process of selection of Principal shall also involve the following:
a. Assessment of aptitude for teaching, research and administration;
b. Ability to communicate clearly and effectively;
c. Ability to plan, analyze and discuss curriculum development, research problems and college development/administration;
d. Ability to deliver lecture programmes to be assessed by requiring the candidate to participate in a group discussion or exposure to a class room situation by a lecture; and e. Analysis of the merits and credentials of the candidates on the basis of the Performance Based Appraisal System (PBAS) proforma developed by the affiliating University based on these Regulations."
25. Clause 6.2.0 stipulates that minimum norms of selection committee and selection procedure as well as API score requirement for above cadres, either through direct recruitment or through CAS, shall be similar. The UGC Regulations exhaustively prescribe norms for assessment of cadre for the purposes of grant of benefit under CAS. Clause 6.3.2 provides for minimum eligibility and is reproduced hereinafter:-
"6.3.2 Candidates who do not fulfill the minimum score requirement under the API Scoring System proposed in the Regulations as per Tables II(a and b) of Appendix III or those who obtain less than 50% in the expert assessment of the selection process will have to be re-assessed only after a minimum period of one year. The date of promotion shall be the date on which he/she has successfully got re-assessed."
26. Petitioner's application made for grant of benefit for the post of Professor under CAS was examined and the scrutiny committee certified that petitioner has scored above 120 marks. The petitioner, therefore, was found eligible for being considered under CAS for the post of Professor by the selection committee.
27. The proceedings of selection committee have been brought on record by the petitioner and also by the University in its counter affidavit. The Vice Chancellor alongwith eight other members constituted the selection committee. The weightage of marks given to three candidates on three different parameters alongwith recommendation is extracted hereinafter:-
"Weightage Marks Distribution for Promotion of Associate Professor (Stage-4) to Professor (Stage-5) under CAS (New Cases), Dept. of Political Science Sl. No. Name of the Candidates Contribution to research (50) Assessment of Domain Knowledge and Teaching practices (30) Interview Performance (20) Total (100) Recommended/Not Recommended
1. Dr. Upendra Chaudhary 20 12 10 42 NOT RECOMMENDED
2. Dr. Farhana Kausar 35 10 10 55 RECOMMENDED
3. Dr. Rachna Kaushal 38 25 12 15 12 49 NOT RECOMMENDED"
28. The recommendation made by the selection committee is duly signed by all nine members and only respondent no. 6 has been approved for appointment to the post of Professor. The report of selection committee is Annexure 4 to the counter affidavit.
29. Selection under Career Advancement Scheme (CAS) to the post of Professor has to be made in accordance with the UGC Regulations, 2010. The regulations contemplate a selection procedure which is transparent, objective and the analysis of merits and credentials of applicants are based on credible methodology. The weightage to performance of candidate in different parameters is based on a scoring system proforma based on the Academic Performance Indicator (API). The procedure specified in the UGC Regulations, 2010 are to be followed for both direct recruitment and CAS promotion. The Universities are expected to adopt these regulations for selection committee by virtue of Clause 6.0.2, by incorporating API based Performance Based Appraisal System (PBAS) at the University level. The PBAS contemplates that proforma for Career Advancement Scheme is required to be adopted by the University and the liberty is also given to the University to device their own self-assessment-cum-performance appraisal forms for teachers in strict adherence to the API criteria based PBAS, prescribed in the Regulations of 2010. The process of selection for Professor starts with submission of Bio Data by the Associate Professor with duly filled PBAS proforma developed by the respective University on the API criteria based PBAS set out in the regulations and reprints of five major publications of the candidates. Such publication has to be subsequent to the teacher being placed in Assistant Professor stage-II. The publications are provided to subject experts for assessment before the Interview and the evaluation of publication of experts is required to be factored into the weightage scores while finalizing the outcome of selection. Clause 6.2.0 specifically contemplates that minimum norms of selection committee and selection procedure both for CAS and direct recruitment shall be similar. The emphasis in categorical terms, as per UGC Regulations, is on following a fair and transparent selection based on objective criteria on the basis of Academic Performance Indicator (API) and Performance Based Appraisal System (PBAS).
30. So far as petitioner's claim is concerned, it is admitted to the University that her API score was above 120 and she was entitled to face selection committee. The records reveal that though petitioner's API score was treated as 127.5 but the fact finding committee found petitioner's entitlement to be 147.5, which was 20 points higher than the score of respondent no.6. The fact finding committee constituted by the Vice Chancellor has clearly recorded such fact in para 3 of its report. While submitting its clarification in response to the queries raised by Vice Chancellor, two member committee has reiterated that petitioner got highest marks in assessment of domain knowledge with teaching practice and interview performance amongst the three candidates, and that she was eligible for promotion on grounds of having the highest API score. The Registrar in his order dated 7th December, 2018 has recorded that the report of fact finding committee has been accepted by the Vice Chancellor subject to comments made therein. In substance, the report has been subjected to Clause 4, which has already been extracted above.
31. The statutory regulations which govern the grant of selection under CAS is based on objective considerations specified in the regulations itself. The materials relied upon to determine merit of a candidate for the purpose of API evaluation is the same as is available to the selection committee. The only distinguishing feature would be the performance of a candidate at the time of interview. On this aspect also, it is found that petitioner has been awarded 12 marks out of 20, which is highest.
32. Learned counsel for the parties have argued at length on the aspect relating to cuttings made in the award of marks to petitioner. The attempt on part of the respondents has been to suggest that such cutting was a collective wisdom of selection committee, and that it was not a unilateral act of Vice Chancellor. Attempt is also made to submit that as there is no interpolation in the final marks awarded and the ultimate recommendation of selection committee is duly signed by all members and contains no correction, therefore, not much importance needs to be attached to it.
33. Sri Shashi Nandan, learned Senior Counsel for the respondent University further submits that the collective wisdom of selection committee is not liable to be reappraised by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, particularly when no mala fide is attributed to a specific individual, and none has otherwise been impleaded as a party in personal capacity. Reliance is placed upon observations of the Apex Court in para 15 of the judgment in Union Public Service Commission Vs. M. Sathiya Priya and others, AIR 2018 SC 2790. Paras 15, 16 and 19 of the judgment are reproduced:-
"15. The Selection Committee consists of experts in the field. It is presided over by the Chairman or a Member of the UPSC and is duly represented by the officers of the Central Government and the State Government who have expertise in the matter. In our considered opinion, when a High Level Committee or an expert body has considered the merit of each of the candidates, assessed the grading and considered their cases for promotion, it is not open to the CAT and the High Court to sit over the assessment made by the Selection Committee as an appellate authority. The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the Courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the Court to hear the matters before it treating them as 28 appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body, i.e., the Selection Committee. The Courts have very limited scope of judicial review in such matters.
We are conscious of the fact that the expert body's opinion may not deserve acceptance in all circumstances and hence it may not be proper to say that the expert body's opinion is not subject to judicial review in all circumstances. In our constitutional scheme, the decision of the Selection Committee/Board of Appointment cannot be said to be final and absolute. Any other view will have a very dangerous consequence and one must remind oneself of the famous words of Lord Acton "Power tends to corrupt, and absolute power corrupts absolutely". The aforementioned principle has to be kept in mind while deciding such cases. However, in the matter on hand, it is abundantly clear from the affidavit filed by the UPSC that the Selection Committee which is nothing but an expert body had carefully examined and scrutinised the experience, Annual Confidential Reports and other relevant factors which were required to be considered before selecting the eligible candidates for the IPS. The Selection Committee had in fact scrutinised the merits and demerits of each candidate taking into consideration the various factors as required, and its recommendations were sent to the UPSC. It is the settled legal position that the Courts have to show deference and consideration to the recommendations of an Expert Committee consisting of members with expertise in the field, if malice or arbitrariness in the Committee's decision is not forthcoming. The doctrine of fairness, evolved in administrative law, was not supposed to convert tribunals and courts into appellate authorities over the decision of experts. The constraints - selfimposed, undoubtedly - of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless.
16. No doubt, the Selection Committee may be guided by the classification adopted by the State Government but, for good reasons, the Selection Committee may evolve its own classification which may be at variance with the grading given in the Annual Confidential Reports. As has been held by this Court in the case of UPSC vs. K. Rajaiah and others (2005) 10 SCC 30 15, the power to classify as "Outstanding", "Very Good", "Good" and "Unfit" is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State authorities in the Annual Confidential Reports is not binding on the Selection Committee. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of grading at variance with that of the State Government, reasons be recorded. But having regard to the nature of the function and the power confined to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision. It is relevant to note that no allegations of malice or bias are made by the first respondent at any stage of the proceedings against the Selection Committee or the UPSC.
This Court has repeatedly observed and concluded that 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 or an umpire to examine the recommendations of the Selection Committee like a Court of Appeal. This discretion has been given to the Selection Committee only, and the courts rarely sits as a Court of Appeal to examine the selection of a candidate; nor is it the business of the Court to examine each candidate and record its opinion. Since the Selection Committee constituted by the UPSC is manned by experts in the field, we have to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness.
X X X X X
19. In the matter on hand, we find that neither the decision nor the decision making process was actuated with malice, and no grave mistake was committed by the Selection Committee leading to arbitrariness. We find that it is not a case of pick and choose, but the selection has been made rationally. The applicant respondent no.1 was duly considered by the Selection Committee. However, on an overall assessment of her service records, her name was not included in the select list due to the statutory limit of its size and as officers with higher grading were available for inclusion in the select list as per the provisions of Regulation 5(5) of the Regulations."
34. So far as legal proposition canvassed on behalf of respondents is concerned, the same is well too settled. The scope of judicial review is extremely limited in such matters, and unless the action is shown to be actuated by bias, mala fide or arbitrariness, it would not admit of interference by this Court. It is on this yardstick that facts of the present case would require examination.
35. Under the statutory regulations of 2010, which are binding upon the University, the consideration for selection in CAS has to be based on transparent, objective and credible methodology of analysis of the merits and credentials of applicants based on weightage given to the performance of a candidate in different relevant dimensions on a scoring system proforma based on API as prescribed in Table 1 to 9 of Appendix 3 to the Regulations. The API score of a candidate is based upon candidate's credentials quantified on relevant material and same material exists for consideration before the selection committee as well. It is not that selection committee is bound to award same marks as are assessed while evaluating API score but the material being same for assessment a drastically different opinion would ordinarily not be countenanced. No specific shortcoming as per the parameters stipulated in the regulations has been pointed out, so far as petitioner's claim is concerned.
36. It is in this background that materials placed on record before the Court needs evaluation. The recommendation of the fact finding committee, which has not been reversed by the Vice Chancellor clearly shows that petitioner's API score ought to be 147.5 instead of 127.5. There is no reason why petitioner's assessment by the selection committee was not in consonance with her entitlement as per the API score. The Vice Chancellor's comment noticed in the order dated 7th December, 2018 merely states that respondent no.6 fulfills mandatory requirement of 120 points and is having in actual 127.5 points, but there is no denial or adverse observation regarding the finding that petitioner's API score was 147.5. An obvious question that therefore arises is as to why petitioner was assessed by the selection committee on API score which was much below her entitlement.
37. It may be noticed that in the marks awarded there are two cuttings so far as petitioner is concerned. In the 'contribution to research' head, petitioner was initially given 38 marks which was cut off and then substituted with 25 marks. None has signed on this cutting. Similarly for the Interview performance petitioner was initially given 15 marks which has been scored off and then substituted with 12 marks. The second cutting has the initials of Vice Chancellor. However, in the column containing total marks the petitioner's score is shown as 49 and she has not been recommended. In the column containing total marks or in the recommendation part there is no cutting. The effect of this cutting in the scoring sheet is that petitioner's score has been brought down from 65 to 49 which is short by one mark from the marks required for selection. For such reason petitioner gets disqualified.
38. No reasons have been disclosed in the counter affidavit for the higher marks initially awarded to the petitioner in the scoring sheet to be subsequently reduced. The cutting is signed at one place by the Vice Chancellor whereas none has countersigned the other cutting. The unexplained reduction in marks appears to have been done with the sole intent of disqualifying the petitioner.
39. What prevailed with the selection committee in initially awarding 65 marks to the petitioner and then reducing it to 49 is not known. The endeavour made in the counter affidavit is only to state that it was a collective decision of the selection committee and that all members had unanimously agreed to award 49 marks to the petitioner and thereby hold her ineligible. Even if the contention of respondent is taken at its face value, yet, the reason for the sudden turnaround in the assessment of petitioner's candidature by the selection committee remains shrouded in mystery.
40. It would be relevant at this stage to refer to an observation of the Apex Court in para 8 in National Institute of Mental Health and Neuro Sciences Vs. K. Kalyana Raman, AIR 1992 SC 1806:-
"8. .... 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. ......."
41. In R.S. Dass Vs. Union of India, AIR 1987 SC 593, the Hon'ble Supreme Court observed as under in para 28:-
"28. The selection committee and the Commission both include persons having requisite knowledge, experience and expertise to assess the service records and ability to adjudge the suitability of officers. In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrarily. Where power is vested in high authority there is a presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations, in arbitrary manner the courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power."
(emphasis supplied)
42. Despite a specific challenge made in this writ petition to the conduct of selection proceedings, on the ground of lack of fairness and arbitrariness, the respondents have failed to disclose any reason which compelled the selection committee to change its assessment of petitioner's academic credentials drastically.
43. In the instant matter after considering the same factors as were considered by the fact finding authority which had resolved to award 147.5 API marks to the petitioner, the selection committee has taken a completely divergent view. Though this would not proprio vigore, lead to the conclusion that the assessment made suffers from arbitrariness, but when the findings of the selection committee is gauged in light of the interpolations of marks awarded to the petitioner, for which no sufficient reason has been given in the counter affidavit, the totality of the facts and circumstances suggest that the findings of selection committee suffers from irrationality as well as arbitrariness. At this stage, it is apposite to highlight the test of irrationality laid down by the Hon'ble Supreme Court in Tata Cellular Vs. Union of India, (1994) 6 SCC 651, where the Hon'ble Supreme Court observed that:-
"....... It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld."
The extent of interference in such matters is succinctly highlighted by the Hon'ble Supreme Court in Union of India Vs. S.P. Nayyar, (2014) 14 SCC 370, which reads as under:-
"11. It is settled that the High Court under Article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. If the assessment made by the DPC is perverse or is not based on record or proper record has not been considered by the DPC, it is always open to the High Court under Article 226 of the Constitution to remit the matter back to the DPC for recommendation, but the High Court cannot assess the merit on its own, on perusal of the service record of one or the other employee."
44. The inescapable conclusion in light of the discussions made on the analysis of materials placed is that action of University in holding the petitioner ineligible for promotion under CAS to the post of Professor is not fair and transparent. Impugned action is, therefore, found to be irrational, arbitrary and unsustainable. The proceedings of selection dated 10th February, 2017, as well as its approval by the Vice Chancellor on 15th March, 2017, as also the subsequent communication of Registrar dated 7th December, 2018 are quashed to the extent petitioner's claim for promotion to the post of Professor under CAS is rejected by the University. The University is directed to reconsider the petitioner's claim for promotion under CAS, strictly in accordance with the provisions of the UGC Regulations, 2010, within a period of two months from the date of presentation of certified copy of this order. Writ petition, accordingly, stands allowed. There shall, however, be no order as to costs.
Order Date :- 21.1.2019 Ranjeet Sahu/Anil (Ashwani Kumar Mishra, J.)