THE HONBLE SRI JUSTICE DILIP B.BHOSALE AND THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT APPEAL Nos.233 of 2013 and batch
19-03-2015
Gowda Rajender & others Appellants.
Dr.M.Radha Krishna & others Respondents.
Counsel for Appellants :C.V.Mohan Reddy,
learned senior counsel.
Deepak Bhattacharjee
Counsel for Respondents:G.Vidya Sagar,
learned senior counsel
Ghanshyamdas Mandhani,
<GIST:
>HEAD NOTE:
? Cases referred :1) (1995) 3 SCC 486
2) (1979) 2 SCC 339
3) (1990) 2 SCC 746
4) AIR 1965 SC 491
5) (1992) 2 SCC 220
6) 1992 Supp(2) SCC 481
7) (2012) 12 SCC 106
8) 2009(5) SCC 515
9) (2011) 8 SCC 737
10) (1994) 1 SCC 169
11) (1984) 4 SCC 27
12) AIR 1981 SC 1777
13) (1993) 3 SCC 663
14) AIR 1987 SC 454
15) (1980) 3 SCC 418
16) 1991 Supp(1) SCC 313
17) 2008(4) SCC 273
18) 1984(2) SCC 631
19) 2005(9) SCC 49
20) (1975) 3 SCC 765
21) AIR 1968 SC.579
22) (1995) 2 UPLBEC 1137
23) AIR 1998 Punjab and Haryana 211
24) 1995 Supp (1) SCC 188
THE HONBLE SRI JUSTICE DILIP B.BHOSALE
AND
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT APPEAL NOS.233 to 235 OF 2011 & 1553 to 1555 of 2013 and
WA CROSS-OBJECTIONS (SR) No.112907 OF 2011
JUDGMENT: (per the Honble Sri Justice Dilip B.Bhosale)
These writ appeals under Clause 15 of Letters Patent are
directed against the common order dated 28-02-2011 passed in
W.P.Nos.12563, 15138 and 24732 of 2010. By this order, the
writ petitions were allowed, setting aside the selection and
appointment of Dr.Sravanthy and Dr.Gowda Rajender,
hereinafter referred to as Dr.Gowda, as Assistant Professors in
Zoology in the second respondent-Kakatiya University, Warangal
(for short the University).
2. W.P.Nos.12563 and 24732 of 2010 were filed by
Dr.Vinatha Naini, hereinafter referred to as Dr.Vinatha, and
Dr.Damayanthi respectively, challenging the selection and
appointment of Dr.Sravanthy to one such post under Open
Competition (Woman) category, while W.P.No.15138 of 2010
was filed by Dr.M.Radha Krishna, hereinafter referred to as
Dr.R.Krishna, assailing the selection and appointment of
Dr.Gowda to the other post reserved for Backward Classes
Group B category.
3. Dr.Vinatha in W.P.No.12563 of 2010 had challenged the
selection and appointment of Dr.Sravanthy on the ground of
bias. Dr.Damayanthi in W.P.No.24732 of 2010 sought
declaration that the selection and appointment of Dr.Sravanthy
is hit by personal bias and in the alternative challenged the
constitution of selection committee being illegal and violative of
Section 43 of the A.P. Universities Act, 1991 (for short the Act).
She also prayed for holding fresh interviews after constituting
new selection committee in accordance with law. Dr.R.Krishna in
W.P.No.15138 of 2010 sought declaration that the action of the
University in convening 87th meeting of the Executive Council on
30-04-2010, for seeking approval of the selection of Dr.Gowda,
was illegal and contrary to Section 18(6) of the Act. He further
prayed for setting aside the appointment of Dr.Gowda and an
enquiry into the alleged irregularities committed by the
University including the Executive Council appointing
Dr.Sravanthy and Dr.Gowda and prayed for re-notifying the
vacancies.
4. W.A.Nos.234 and 235 of 2011 are preferred by
Dr.Sravanthy, while W.A.No.233 of 2011 is preferred by
Dr.Gowda arising from the judgment, disposing of
W.P.Nos.12563, 24732 of 2010 and W.P.No.15138 of 2010
respectively. W.A.Nos.1553 to 1555 of 2013, preferred by the
University, are also against the very same judgment.
5. The University had issued the notification dated
31.12.2009 inviting applications from qualified candidates for
appointment to various posts of Assistant Professors, Professors
and Associate Professors in different faculties. In these appeals,
we are concerned only with two posts of Assistant Professors in
Zoology reserved for OC(W) and BC(B) categories. Initially, 25
aspirants had applied for these posts, out of which 22 were
found eligible. The selection committee, duly constituted under
the provisions of the Act, conducted interviews on 20-04-2010 of
the eligible candidates. Out of the 22 eligible candidates, 5 failed
to appear before the selection committee. The selection
committee interviewed the remaining 17 candidates and finally
recommended Dr.Sravanthy and Dr.Gowda for appointment to
these posts.
5.1 Thereafter, Executive Council of the University in its
meeting held on 30-04-2010 resolved to approve the
recommendation, and accordingly appointment orders were
issued by the University on 30-04-2010. Dr.Sravanthi and
Dr.Gowda joined the duty as Assistant Professors in Zoology on
01-05-2010.
5.2 In this backdrop, Dr.Vinatha, Dr.R.Krishna and
Dr.Damayanthi filed writ petitions under Article 226 of the
Constitution of India challenging their selection and
appointments. Though the grounds of challenge are virtually
common in respect of both the candidates, the selection and
appointment of Dr.Sravanthy was also challenged on the ground
of bias, she being a daughter of Dr.Ch.Sammaiah, the Chairman
of the Board of Studies in Zoology Department and member of
the Selection Committee, hereinafter referred to as
Dr.Sammaiah. In other words, Dr.Sammaiah allegedly misused
his office to get her selected and appointed to the post of
Assistant Professor.
6. The writ petitions were allowed by the common order
dated 28.02.2011, finding illegalities in evaluation of
comparative merit of the candidates by the selection
committee/lack of transparency due to non-maintenance of
record by selection committee, bias of the said committee in the
process of selection of Dr.Sravanthy, and holding their
appointments illegal owing to the lack of requisite quorum in the
Executive Council meeting held on 30-04-2010.
7. We have heard learned counsel for the parties at great
length and perused the entire materials placed before us
including the relevant Ordinance, Regulations and provisions of
the Act.
8. The questions that are raised and fall for our consideration
in the appeals are as under:-
1. Whether the appointments of Dr.Sravanthy and Dr.Gowda
as Assistant Professors in Zoology, made by the
University, based on their selection by the selection
committee, and approved by the Executive Council are
bad in law for want of non-compliance of the due
procedure contemplated by the relevant Ordinance II,
and being irrational and arbitrary in nature?
2. Whether the selection and the appointment of
Dr.Sravanthy as Assistant Professor in Zoology is liable to
be set aside on the ground of bias and/or mala fides; and
3. Whether the appointments of Dr.Sravanthy and Dr.Gowda
made, on the basis of approval of their selection, by the
Executive Council in its meeting held on 30-04-2010 is
illegal and deserves to be set aside for want of quorum?
9. Insofar as the first question is concerned, Sri C.V.Mohan
Reddy, learned Senior Counsel appearing for Dr.Sravanthy and
Dr.Gowda, at the outset, submitted that the procedure
contemplated by the relevant regulations, was scrupulously
followed by the selection committee. He submitted that marks
under various heads, like educational qualifications, teaching
experience, publications and performance at the interview were
awarded by the selection committee as a whole under these
heads and merely because separate assessment sheets were not
filled up by each of the members of the committee, and they
signed consolidated assessment sheet the selection would not
vitiate. According to Mr.Mohan Reddy, the learned Judge
overlooked the practice being followed over a period of time by
the selection committee for conducting interviews. He also
invited our attention to the marks awarded to each of the
candidates who were interviewed by the selection committee and
submitted that the selection committee had discretion to award
marks ranging from 1 to 5 for publications and not 5 marks as of
right for each publication. Similarly, based on the pattern of
allocation of marks printed on the assessment sheet, he
submitted that it was printed only by way of guideline and it was
left to the selection committee to award marks having regard to
quality/merit of each candidate, his publications and teaching
experience. He submitted that though the learned Judge
accepted the pattern of marks to be awarded to the candidates,
has not given any reason as to why such discretion is not vested
with the selection committee for allocation of marks under the
heads of teaching experience and publications, more so when
the teaching experience would differ and depend upon whether a
candidate taught to PG/UG students or worked as Contract
Lecturer or regular Lecturer.
9.1 Sri C.V.Mohan Reddy then invited our attention to the
Ordinance II of the University and submitted that the analysis
thereof made by the learned Judge was erroneous. According to
Sri Mohan Reddy, nowhere in the Ordinance II, it is mentioned
or mandated that the each member of the selection committee
has to express opinion about each candidate independently and
record reasons for preferring one over the other. He, therefore,
submitted that the composite assessment of the candidates was
sufficient and ought to have been accepted by the learned
Judge. He submitted that there is no practice of the Executive
Council to award separate marks by every member of the
selection committee. He then submitted that apart from the fact
that there is no practice of maintaining separate assessment
sheet by each member of the selection committee, it is not
mandated under the said Ordinance that selection committee
should maintain such record. He submitted that even if it is
assumed that such record is not there to support the decisions,
that cannot be a ground for setting aside the selection, since
such lapse would, at the most, amount to irregularity and not
illegality. The University and the selection committee over the
years have understood the Ordinance in this manner, and the
same should be given due weightage and even if the Court finds
the interpretation of the Ordinance placed by the University and
the selection committee is incorrect, the High Court should not
interfere with the selection process.
9.2 Sri C.V.Mohan Reddy also invited our attention to the
averments made in the writ petition and submitted that the
petitioners in the writ petitions did not allege mala fides against
the member/s of the committee who interviewed the candidates
and selected Dr.Sravanthy and Dr.Gowda, and in view thereof,
the learned Judge ought not to have found fault or doubted the
objectivity and impartiality of the selection committee in the
absence of any such allegation or material in support thereof.
We would make reference to the judgments relied upon by him,
in support of his submissions, in the course of judgment at
appropriate stages.
10. Sri Deepak Bhattacharjee, learned Standing Counsel for
the University, adopted the submissions advanced by Sri
C.V.Mohan Reddy and in addition thereto submitted that the
selection committee was constituted as per the guidelines issued
by the University Grants Commission(UGC) and as contemplated
by Section 43 of the Act. He submitted that Dr.Sammaiah had
recused himself to be a member of the selection committee as
provided for by the first proviso to Sub-section (1) of Section 43
of the Act. According to Sri Bhattacharjee, the learned Judge was
wrong in holding that Dr.Sammaiah influenced the committee for
selection of his daughter-Dr.Sravanthy. He also invited our
attention to the relevant averments in the counter filed by the
University and submitted that the scope of judicial review to
review the process of selection and award of marks etc., by the
members of the selection committee is limited and can be
exercised in rarest of rare cases where mala fides are attributed
against its members in case of educational institutions. Lastly, in
support of the averments advanced on behalf of Dr.Sravanthy,
he submitted that the selection committee followed the practice
which is prevalent over a period of time. He also placed reliance
upon judgments of the Supreme Court in support of his
contention to which we will make a reference little later.
11. On the other hand, Sri D.Prakash Reddy, the learned
Senior Counsel for Dr.Vinatha and Dr.Damayanthi invited our
attention to the observations made in the impugned judgment
and submitted that the learned single Judge had scrupulously
analyzed the irregularities/illegalities committed by the selection
committee in the procedure that was adopted and has rightly set
aside the selection and appointments of Dr.Sravanthy and
Dr.Gowda holding that evaluation of comparative merits of the
candidates by the selection committee was lacking transparency
due to non-maintenance of records and also on the ground of
personal bias. He invited our attention to the Ordinance II and
submitted that it clearly provides for separate assessment by all
members of the selection committee, in particular, the experts
and that the candidate cannot be selected if in the opinion of the
experts, he/she is below standard. The procedure contemplated
by the Ordinance II, he submitted, mandates individual
assessment by each member of the selection committee and
since it was not done and/or there was no record to show such
assessment, the learned Judge has rightly set aside the selection
of Dr.Sravanthy and Dr.Gowda. He submitted that the
procedure adopted and followed by the selection committee was
far from being fair and transparent apart from the fact that it
was not as contemplated by Ordinance II of the University. In
support of this contention, he invited our attention to educational
qualifications, teaching experience and number of publications of
each of the candidates and tried to demonstrate as to how the
allocation of marks by the selection committee under these
heads was irrational and arbitrary. In other words, he submitted
that the selection and appointment of Dr.Sravanthy and
Dr.Gowda to the posts of Assistant Professor in Zoology was
illegal being irrational and arbitrary and also suffers from
procedural impropriety. After inviting our attention to the
marking pattern that was adopted by the selection committee in
respect of teaching experience, publications and interview
performance, he lastly submitted that in the absence of the
record, it cannot be stated that the selection committee followed
the due procedure for allocation of marks to the candidates
interviewed by them. In any case, he submitted, it cannot be
stated that the procedure that was adopted and followed by the
selection committee was as prescribed in the Ordinance II.
11.1 Sri G.Vidyasagar, the learned Senior Counsel for
Dr.R.Krishna, submitted that Dr.Gowda was not entitled to 6
marks under the head U.G as he passed the Degree in
Compartment. Similarly, he submitted that he was also not
entitled for 2 marks under the head teaching experience since
his teaching experience was during the period when he was
pursuing Ph.D Course during 22-02-2001 to October-2006. He
submitted that regular Ph.D candidate was not permitted to be in
employment and, therefore, the selection committee ought not
to have awarded him any mark under the head teaching
experience from June-2002 to 2007. Insofar as publications are
concerned, Sri G.Vidyasagar submitted that the petitioner had
placed 15 publications on record for which the selection
committee ought to have awarded him 20 marks. Thus, he
submitted that in view of arbitrary allotment of marks resulted in
rejecting the candidature of Dr.R.Krishna who was more
meritorious and deserving than Dr.Gowda.
12. Before dealing with the submissions advanced by learned
counsel for the parties and addressing the first question, it would
be relevant to make a reference to the judgments relied upon by
them in support of their submissions and to the relevant
provisions of the Act and Ordinance II to which our attention was
specifically drawn.
12.1 In Madan Lal and Others Vs. State of J & K and
others( ) the Supreme Court while dealing with the submission,
as advanced in the present case that the selection committee
ought to have assigned separate marks for the different faculties
of the candidates concerned, namely, intelligence, general
knowledge etc., as laid down in the Rule and since that was not
done by the committee the entire viva voce test was vitiated,
observed that the selection committee has to keep in view over
all performance of the candidates at the oral interview and while
doing so their intelligence, general knowledge, personality,
aptitude and suitability have to be kept in the center. The Rule
merely lays down the object of assessing such candidates in the
viva voce examination. It is a general guideline given to the
selection committee. Therefore, it is not possible to agree with
the submission that the members of the selection committee
must separately assess and give marks on different listed topics,
faculty wise as per the said Rule. Then, the Supreme Court,
while dealing with the submission that tape recording of the
interview as required under Rule 19(1)(b) of the Jammu and
Kashmir Civil Services (Judicial) Recruitment Rules,1967 ought
to have been maintained and preserved by the selection
committee, rejected the contention that not maintaining and
preserving the tape recording would vitiate the viva voce test.
This judgment was also relied upon for the proposition that the
candidate having participated in the selection process cannot
turn around and challenge the selection contending that the
procedure laid down was not followed.
12.2 In DR.M.C.Gupta Vs. Dr.Arun Kumar Gupta( ) the
Supreme Court observed that 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 the technical
subjects, the Courts should be slow to interfere with the opinion
expressed by the experts unless there are allegations of mala
fides against them. It was further observed that 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. [also see
Basavaiah(Dr.) Vs. Dr.H.L.Ramesh-(2010) 8 SCC 372; University
of Mysore Vs. C.D.Govinda Rao-AIR 1965 SC 491 and Dalpat
Abasaheb Solunke Vs. Dr.B.S.Mahajan-AIR 1990 SC 434].
12.3 In Neelima Misra Vs. Harinder Kaur Paintal( ) the
Supreme Court after referring to its judgment in University of
Mysore Vs. C.D.Govinda Rao( ) observed that in the matter of
appointment in the academic field, the Court generally does not
interfere. It was further observed that 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.
12.4 In Bhushan Uttam Khare Vs. Dean, B.J.Medical
College and Others( ) the Supreme Court once again after
referring to its judgment in University of Mysore(supra)
observed that the Courts should be normally very slow to pass
orders in its jurisdiction because matters falling within the
jurisdiction of educational authorities should 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.
12.5 In National Institute of Mental Health and Neuro
Sciences Vs. Dr.K.Kalyana Raman and Others( ) the
Supreme Court observed that 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.Gowri Devi
as against other candidates. 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. [ Also see
B.C.Mylarappa Vs. Dr.R.Venkatasubbaiah(2008) 14 SCC 306 ].
12.6 In Sajeesh Babu K Vs. N.K.Santhosh( ) the Supreme
Court observed that in a matter of appointments/selection by an
expert committee consisting of qualified persons in the particular
field, normally the Courts should be slow to interfere with the
opinion expressed by the experts unless there is any allegation
of mala fides against experts who had constituted the selection
committee.
12.7 In K.A.Nagamani Vs. Indian Airlines and Others( )
the Supreme Court observed that the appellant having
participated in the selection process along with contesting
respondents without any demur or protest cannot be allowed to
turn around and question the very same process having failed to
qualify for the promotion.
12.8 In State of Tamil Nadu Vs. K.Shyam Sunder( ) the
Supreme Court observed that undoubtedly the Court lacks
expertise especially in disputes relating to policies of pure
academic educational matters. Therefore, generally it should
abide by the opinion of the expert body. It was further observed
that it would normally wise and safe for the Courts to leave such
decisions to experts who are more familiar with the problems
they face than the courts generally can be. [ see also Medical
Council of India Vs. Sarang and others-(2001) 8 SCC 427 ].
12.9 In The Chancellor Vs. Dr.Bijayananda Kar( ) the
Supreme Court observed that the decision 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 committees which invariably
consists of experts on the subjects relevant to selection.
12.10 In Maharashtra State Board of Secondary and
Higher Secondary Education and Another Vs. Paritosh
Bhupeshkumar Sheth and Others( ) the Supreme Court
observed that 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 departments controlling them. It will be wholly
wrong for the Court to make a pedantic and purely idealistic
approach to the problems of this nature, isolated from the actual
realities and grass root problems involved in the working of the
system and unmindful of the consequences which would
emanate if a purely idealistic view as opposed to a pragmatic
one were to be propounded. It is equally important that the
Court should also, as far as possible, avoid any decision or
interpretation of a statutory provision, rule or bye-law which
would bring about the result of rendering the system unworkable
in practice.
12.11 In Lila Dhar Vs. State of Rajasthan and
others( ) the Supreme Court while dealing with the challenge
and selection for the post of Munsifs under Rajasthan Judicial
Service Rules observed that it is for the interviewing body to
choose the appropriate method of marking at the selection to
each service. There cannot be any magic formulae in these
matters and Courts cannot sit in judgment over the method of
marking employed by interviewing bodies unless it is proven or
obvious that the method of marking was chosen with oblique
motive.
13. Thus, the law laid down by the Supreme Court in the
above judgments could be summarized as under:-
(i) The Courts should be slow in interfering with the
opinion expressed by a selection committee
consisting of experts in the field and leave the
decisions of academic matters to its members,
who are more familiar with the problems, they
face than the Courts generally can be, unless
there are allegations of mala fides against its
member/s;
(ii) The selection committee has to keep in view
over all performance of the candidates at the
oral interview and while doing so their
intelligence, general knowledge, personality
aptitude and suitability have to be kept in the
center. The Rule/Regulation/Ordinance laying
down the procedure to be adopted for the
selection process merely lay down the object of
assessing the candidates and they are to be
treated as Guidelines given to the selection
committee;
(iii) The Courts should normally be very slow to pass
orders in its extraordinary jurisdiction because
matters falling within the jurisdiction of the
educational authorities should be left to their
decision and interfere with them only when it
thinks that it must do so in the interest of
justice;
(iv) The function of the selection committee is
neither judicial nor adjudicatory and it is purely
administrative in nature;
(v) Unless it is provided in the Rules/Regulations/
Ordinances to record reasons for preferring one
candidate against the other, it is not mandatory
for the selection committee to do so;
(vi) The Courts should not 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 departments
controlling them;
(vii) There cannot be any magic formula in academic
matters, in particular selection and
appointments, and Courts cannot sit in
judgment over the method of marking employed
by selection committee unless it is proven or
obvious that the method of marking was chosen
with oblique motive; and
(viii) The decision of selection committee can be
interfered with on limited grounds, such as,
illegality or patent material irregularity in the
constitution of committee or its procedure
vitiating the selection or proved mala fides
affecting the selection.
14. We would also like to have a glance at the relevant
provisions of the Act and the Ordinance to which our attention
was drawn. Chapter IV in the Act provides for authorities of the
University. Section 18 of the Act provides for constitution of
Executive Council which was earlier known as Board of
Management. The Executive Council under this provision consists
of two categories of members. One, Class I-Ex-Officio Members,
and two, Class II-members. Class I members of the Executive
Council are as follows: i) the vice-Chancellor; ii) the Rector; iii)
the Secretary to government in Education Department or an
Officer in the Education Department nominated by the
Government; iv) the Secretary to Government in the Finance
and Planning (Finance Wing) Department or an officer in the
Finance and Planning (Finance Wing) Department nominated by
the Government; and v) the Director of Higher Education/the
Commissioner of Collegiate Education. Class II members consists
of nine members nominated by the Government of six different
categories as provided for in Clauses (i) to (vi) of this Section.
Sub-sections 2, 3, 4 and 5 of Section 18 may not be relevant for
our purpose, hence we are not making any specific reference
thereto. Sub-section (6) of Section 18 of the Act provides the
quorum for meeting of the Executive Council, which shall be
one-third of the total number of members or six persons,
whichever is less. One of the functions/duties of the Executive
Council under Section 19 of the Act is to consider
recommendation made by the selection committee and make
their appointments to the post for which they are selected.
14.1. Further, it is relevant to reproduce Section 43 of the Act
which read thus:-
43. Constitution of Selection Committee:- (1) There shall be
constituted a Selection Committee in regard to the appointment of professors,
readers and lecturers which shall consist of the following, namely,
(i) the Vice-Chancellor;
(ii) three experts from outside the University to be nominated
by the Vice -Chancellor from out of panel prepared every
year by the Board of Studies and approved by the Board
of Management of whom at least two shall be present in
the selection committee;
(iii) Chairman of the Board of Studies concerned;
(iv) Head of the Department;
Provided that no person shall participate in the meetings of the
selection committee for any appointment if he or his near relative is
candidate for that appointment;
Provided further that no teacher holding a post lower in rank than the
one to which appointment is to be made, shall be a member of selection
committee,
(2) The Registrar shall be the Secretary of the Selection
Committee.
(3) Provision shall be made in the Statutes in respect of such
matters as may be considered necessary and not provided for
in sub-sections (1) and (2) in order to ensure fair selections
(emphasis supplied)
14.2 In the present case, the University, as provided for under
Section 43 of the Act had constituted the selection committee
consisting of the following members:-
(a) Prof.N.Linga Murthy, Vice-Chancellor (Chairman)
(b) I. Subject Experts:-
(i) Prof.M.K.Durga Prasad, Vice Chancellor,
Krishna University, Machilipatnam
(ii) Prof.Ram Chander Mohan, Zoology Dept.,
Bangalore University, Bangalore, Karnataka.
(iii) Prof.R.S.Kulkarni, Zoology Dept.,
Gulbarga University, Gulbarga, Karnataka.
(c) Prof.S.S.V.N.Sharma, Dean Science
(d) Prof.N.Vijay Kumar, Head of the Dept. Zoology
(e) Prof.A.Sadanandam, Registrar, Kakatiya University
(Secretary)
(f) Dr.Noor Sehan N.Ganihar, UGC Observer.
(g) Prof. S.Indrakanth, OU, Hyderabad Chancellors
nominee
(h) Prof.N.Vijaya, KU, Economics Dept.,
Women representation (Special Invitee)
(i) Prof.Bannaiah Ailaiah, KU, Telugu Dept,
SC & ST Representation (Special Invitee)
14.3 From bare look at the constitution of the committee, it is
clear that three subject experts from three different Universities
were nominated as members by the Vice-Chancellor, obviously
from out of the panel prepared by the Board of Studies and
approved by the Board of Management i.e. Executive Council.
15. In order to appreciate the submissions of the learned
counsel for the parties in respect of the awarding of marks under
different heads, such as, teaching experience, publications and
interview performance and so also to appreciate whether the
findings recorded by the learned Judge on the first question are
sustainable, we would like to look into the procedure that was
followed by the selection committee.
15.1 Section 57 of the Act, while repealing the Kakatiya
University Act, 1976, the Statutes, Ordinances and Regulations
framed thereunder were saved, so far as they are not
inconsistent with the provisions of the Act. In other words such
Statutes, Ordinances and Regulations, so far as they are
consistent with the provisions of the Act, continue to be in force
and be deemed to have been made under the provisions of the
Act unless they were superseded or modified thereunder. In the
present case, we are concerned with the Ordinance No.II framed
by the Kakatiya University under Section 29(1) of the Kakatiya
University Act, 1976, which admittedly continues to be in force
by virtue of Section 57(k) of the Act. This Ordinance deals with
the procedure to be followed by the selection committee for
teaching posts. Relevant clauses of the Ordinance, to which our
attention was specifically drawn by learned counsel appearing for
both sides, read thus:-
7. All the members of the Selection Committee and the Heads
of the Departments shall interview the candidates and express
their opinions.
8. The experts shall state their opinion on the
qualifications, research experience and ability of the
candidates. Keeping in view the opinions of the experts, the
candidate shall be selected as per the opinion of the majority of
the members of the Selection Committee; and in the case of the
opinion being evenly divided, the opinion of the Vice-Chancellor be
the deciding factor.
9. The candidate shall not be selected if in the opinion of
the experts he or she is below standard.
10. The selection of a candidate by the Committee shall be
recommendatory in character and shall not be final until selection
is ratified or confirmed by the Syndicate, which shall have power to
reject the selection made by the Committee.
11. The proceedings of the Selection Committee
regarding each individual candidate shall be privileged and
confidential and they shall be kept in the custody of the
Registrar.
(emphasis supplied)
15.2 A bare look at the relevant paragraphs in Ordinance II
would show that all the members of the selection committee and
the Heads of the Departments shall interview the candidates and
express their opinion. It further provides that experts shall
state their opinion on the qualifications, research, experience
and ability of the candidates and keeping in view the opinion of
the experts, the candidates shall be selected as per the opinion
of the majority of the members of the selection committee, and
in case of the opinion being evenly divided, the opinion of the
Vice-Chancellor be the deciding factor. It further provides that a
candidate shall not be selected if in the opinion of the experts
he/she is below standard. The proceedings of the selection
committee regarding each individual candidate shall be
privileged and confidential and they shall be kept in the custody
of the Registrar. Thus, apart from the opinion of the members of
the selection committee, a weightage is given to the opinion of
the experts with further rider that the candidate cannot be
selected if in the opinion of the expert, he/she is below standard.
The selection of any candidate, de hors the procedure
contemplated by Ordinance II, therefore, would be illegal. It is
true, the Ordinance, though requires its (selection committee)
members/expert to express their opinion and prepare its
proceedings does not contemplate recording of reasons for
preferring one candidate against the other. The word
proceedings in paragraph 11 of the Ordinance II, however,
clearly means and would have to be read to mean the record
of the interviews conducted by the selection committee or of the
entire selection process. The record so created and maintained
also requires to be preserved being privileged and confidential by
the Registrar, the Secretary of the selection committee. Thus,
the submission that the Ordinance does not contemplate
maintenance of record deserves to be rejected outright. In our
opinion, the consolidated assessment sheet signed by all
members of the committee cannot be treated as record or
proceedings. It would at the most amount to declaring or
preparing final result of interviews by the selection committee.
15.3 The selection committee has a right to give its
independent, unbiased and considered opinion in respect of each
candidate appearing before it. The sanctity of the process of
selection in any case needs to be maintained and that it would
be a travesty of the selection process if the transparency in the
selection process is not exhibited/seen from the record
maintained by the selection committee. [See Dr. Bijayananda
Kar (supra)]. Similarly, as observed by the Supreme Court in
D.V.Bakshi Vs. Union of India( ) if the committee conducts
oral test, a heavy responsibility is cast on the members of the
committee to maintain proper record of the oral test in respect
of each candidate and marks must preferably be assigned under
each head considered to be relevant to evaluate the candidate.
16. The University claims that they produced the record (i.e.
the consolidated assessment sheet) pertaining to the subject
selection for perusal of the learned Judge in the course of
hearing of the writ petitions. After perusing the same, the
learned Judge recorded his impressions as under:-
.. The file reflects that a single consolidated
assessment sheet signed by all the members of the
Selection Committee is the only record of the
proceedings of the selection for both posts. Upon a
query from the Court, the learned standing counsel
submitted that there was no separate individual
assessment by each of the six members of the
Selection Committee. He further submitted that except
for this consolidated assessment sheet, there was no
other record of the deliberations of the Selection
Committee during the process of selection. He stated
that upon a group discussion, the members of the
Committee decided upon the marks to be allotted to each
candidate. No other record was maintained to indicate
as to how much time was spent with each of the
candidates and as to whether the allotment of marks
was done at a single time or after each candidate was
interviewed. The learned standing counsel stated that
under the UGC Regulations of 2000 there was no
necessity for the Selection Committee to maintain a
record or give reasons during the process of
selection.
(emphasis supplied)
16.1 It is not in dispute that UGC Regulations 2009 provide for
maintaining a record or give reasons for preferring one candidate
against the other. Whether UGC Regulations 2009, would apply
to the subject selection, is the question raised by
Dr.Damayanthi, which we will deal with little later. At this stage,
suffice it to say that the learned single Judge held that UGC
Regulations 2009 would apply only for qualifications prescribed
therein, and that UGC Regulations 2000 would prevail insofar as
subject selections are concerned.
16.2 Then, the learned Judge after considering the judgments
of the Supreme Court in Dr.Bijayananda Kar and
Dr.D.V.Bhakshi (supra) and after considering the Ordinance II
proceeded to observe thus:-
Thus, a written record was a must for discharging
the heavy responsibility resting upon the Selection
Committee when it based its selection on its deliberations
at the interview. There is however no record as to how the
Selection Committee went about awarding marks under the
heads where it exercised discretion such as publications and
teaching experience.
. This aspect becomes all the more relevant as
candidates with more teaching experience were awarded
lower marks as compared to those lesser teaching
experience. Further, teaching experience garnered
during pursuit of Ph.D. course was also considered by the
Committee, which as per the UGC Regulations of 2009
could not have been taken into account. This aspect is
mentioned under Clause 3.9.0 of the UGC Regulations of 2009
and being included in the Part dealing with qualifications, it
would be a condition which would have applicability as per the
Information Brochure appended to the Notification dated
31.12.2009. In the absence of the written record of the
selection proceedings in proof of objective and impartial
assessment of the comparative merits of competing candidates,
this Court must necessarily hold that the procedure
adopted was not only in violation of the prescribed
binding norms contained in Ordinance No.II but was also
far from being fair and transparent.
..
In any event, this Court is not equipped to deal with the
issue as to which of the publications of these contesting
candidates warranted better marks. This Court would then be
sitting in appeal and as stated supra, such exercise is not within
its province while undertaking judicial review under Article 226
of the Constitution.
.. There is however no indication that there was
any prior evaluation of such articles before the interviews
were conducted on 20.04.2010 by the Selection
Committee. The call letters issued to the candidates
reflect that they were required to produce reprints of
publications and books for verification before the
interview. This indicates that no prior exercise was
undertaken on the basis of the copies supplied by
candidates along with the application forms. In this
situation, when the Selection Committee, as per the counter of
the University, undertook an evaluation of the published articles
of each of the candidates during the interview itself on the basis
of various parameters, it was incumbent upon the
Committee to maintain a written record of such
evaluation so as to obviate any scope for arbitrary
exercise of such discretion. There is, as stated supra,
surprisingly no record whatsoever. Further, it is difficult to
believe that the Selection Committee would have had sufficient
time to undertake such an exercise during the interview as the
records placed before this Court show that some of the
candidates produced voluminous publications which could not
have been assessed during the brief time available to the
Selection Committee while interviewing such candidates.
..
.. There is no dispute that the Selection Committee
was bound to follow the marks allocation provided in the
assessment sheet in so far as the head educational
qualifications was concerned. The assessment sheet reads to
the effect that 10, 8, 6 and 4 marks respectively were to be
awarded for Distinction, I Division, II Division and Pass (UG
only). Dr.Gowda Rajender, as is evident from the consolidated
memorandum of marks issued by the Kakatiya University,
Warangal, in respect of his under graduate course in B.Sc. was
given a pass division owing to his having passed through
supplemental examinations. Once the marks memorandum
itself indicated that he was given a pass division, the Selection
Committee clearly ought not to have awarded him 6 marks
treating him as having passed B.Sc. in II Division. This is yet
another instance to indicate the lack of fair play in
action occasioned by the procedure adopted by the
Selection Committee in the present case.
(emphasis supplied)
17. In order to appreciate and consider whether the selection/
appointments of Dr.Sravanthy and Dr.Gowda are illegal being
irrational and arbitrary, and whether the procedure adopted &
followed for their selection was fair, transparent and credible, we
have carefully perused the final assessment sheet, application
forms of all 5 candidates and averments made on affidavits in
respect of the experience and the publications of each candidate.
We find ourselves in agreement with the observations made in
the impugned order by the learned Judge, in particular, as
quoted in Paragraphs 16 and 16.2 of this judgment, insofar as
fair play, transparency and procedural impropriety are
concerned, holding that the subject appointments are irrational
and arbitrary.
18. The selection committee was furnished with an assessment
sheet by the University dividing the marks under various heads,
like educational qualifications, teaching experience, publications
and performance at the interview. 40 marks are awarded for
educational qualifications, 10 marks for teaching experience, 20
marks for publications and 30 marks for performance, totaling to
100 marks. From perusal of the assessment sheet, it appears
that at the bottom, they provided the marks allocation in the
square/block under different heads. It states a candidate with
distinction would be entitled for 10 marks, I Division- 8 marks,
II Division6 marks, Pass -4 marks and 1 mark for each year of
experience and 5 marks for each publication. According to the
University, the allocation of marks as provided with the
assessment sheet was only by way of guideline, which is being
used by the Selection Committee all these years in respect of all
selections made by them. The marks to be awarded under
various heads as provided for at the bottom of the assessment
sheet are not statutory in nature and, therefore, the selection
committee in its wisdom has a discretion of awarding more or
less marks under every head mentioned therein. It is their case
that the selection committee, in respect of the subject selection,
had discretion to award marks ranging from 1 to 5 for
publications and more or less marks for each year of experience
depending upon the nature of experience, such as whether it
was contractual or regular etc.,
19. While criticizing the allocation of marks to Dr.Sravanthy
and Dr.Gowda, the focus of learned counsel for Dr.Vinatha,
Dr.Damayanthi and Dr.R.Krishna was more on the marks
allocation provided with the assessment sheet. Based on that,
it was submitted that allocation of marks was irrational and
arbitrary. The allocation of marks, for instance, would show
5 marks for each publication and the maximum marks under
this head provided were 20. There was no restriction on the
number of publications to be placed on record with the
application form or at the time of interview. It is true that the
interpretation placed by the learned counsel for Dr.Vinatha,
Dr.Damayanthi and Dr.R.Krishna on the marks allocation
provided in the assessment sheet is not sustainable for more
than one reason. Firstly, it is not the quantity but the quality of
publication is relevant. Secondly, merely because more number
of publications were placed on record, it cannot be stated that
the candidate was entitled for all 20 marks. It is for the experts
in the field to decide how much marks they were entitled for and
it would be wrong to state that 5 marks for each publication
ought to have been allotted. In other words, 20 marks ought to
have been allotted to all the petitioners in the present case.
These submissions deserve to be rejected outright and if we do
not do so that would amount to sitting in appeal over the marks
awarded by the selection committee. We would not like to
venture into that exercise.
20. However, we cannot turn our blind eye to other side of the
arguments. For instance, we would like to make reference to the
publications placed by Dr.Sravanthy and Dr.Damayanthi on
record for consideration of the selection committee to
understand the arguments and to know whether allocation of
marks under this head was fair, transparent and credible, or it
was arbitrary and irrational. Dr.Damayanthi placed her
publications on record at the time of interview. Undoubtedly, she
had failed to attach the publications to her application though it
was necessary as mentioned in the information brochure dated
31-12-2009. Still her publications/articles were taken on record.
All other candidates, it appears, had attached publications along
with their application forms. There is no indication that there was
any prior evaluation of the Articles before the interviews were
conducted on 20.04.2010 by the selection committee, in
particular by the experts. If the committee had maintained a
record of such evaluation so as to obviate any scope for arbitrary
exercise of such discretion that would have certainly helped to
understand and to know what were the considerations for
awarding marks under this head. However, there is absolutely no
record what-so-ever in respect thereof.
20.1 Dr.Damayanthi placed about 10 publications on record.
Out of which 6 were authored by her and in the remaining she
was co-author. Dr.Dramayanthi was awarded 8 out of 20 marks
for publications. Similarly, Dr.Sravanthy placed 3 publications on
record, all written by her along with 3-4 others including her
father Dr.Sammaiah. None of the Article/Paper was written by
Dr.Sravanthy as a principal author or sole author. She was,
however, given 15 out of 20 marks for her three publications by
the selection committee. That apart, there is absolutely nothing
on record to indicate as to when the publications/papers were
assessed by the members of the interview committee? Whether
the publications were circulated to the members before the
meetings? How long the selection committee interviewed each
of the candidates? Whether the committee had sufficient time to
assess the publications during the meetings? All these questions
assume importance in view of the fact that the Selection
Committee had only one meeting on 20-04-2010.
20.2 In this connection, it would be relevant to notice as to
how the Supreme Court in Ashok Kumar Yadav and others
Vs. State of Haryana and others( ) dealt with the similar
situation. In this case, the Supreme Court was dealing with the
ground of challenge that in comparison to the marks allocated to
the written examination, the proportion of the marks allocated to
the viva voce test was excessively high and that introduced an
irredeemable element of arbitrariness in the selection process so
as to offend Article 14 and 16 of the Constitution. In order to
appreciate this contention and to adjudicate its validity, the
Supreme Court considered the relative weight attached by the
relevant Rules to the written examination and the viva voce test
and then proceeded to consider merits of grounds of challenge.
20.3 The observations made by the Supreme Court in
Dr.J.P.Kulshrestha v. Chancellor, Allahabad University( )
are also relevant. The Supreme Court in this case observed that
the functional freedom allowed to academic bodies in such
matters would be subject to the basics of natural justice, fair
play in action, reasonableness in collecting decisional materials
and avoidance of arbitrariness and extraneous consideration and
otherwise keeping within the leading strings of the law. In our
opinion, if the selection committee, contravened Ordinance II or
does not follow the procedure laid down therein scrupulously,
which is binding upon it in making selection and recommending
selectees for appointment, this Court in exercise of its
extraordinary jurisdiction can interfere.
21. Thus, what is necessary for a selection committee, such as
one in the present case, is to ensure that the process of
selection in every case is fair, transparent and credible. The
Court while examining, whether the Committee exercised fair
play in action, reasonableness in collecting decisional materials
and avoidance of arbitrariness, should not sit in appeal over the
decision of the Selection Committee and to venture into an
examination of the marks awarded and the correctness thereof,
unless the Committee commits illegality in its procedure vitiating
the selection or mala fides are proved affecting the selection.
22. In the present case, having regard to the Ordinance II,
UGC Regulations-2000, the details furnished by each of the
candidates and the settled proposition of law, we are satisfied
that the selection committee did not follow the procedure, in
selecting Dr.Sravanthy and Dr.Gowda scrupulously. The UGC
Regulations of 2000, after specifying the details of the selection
committee under clauses 3.1.0 to 3.4.0, postulates that it may
be ensured that the process of selection in every case is fair,
transparent and credible and should involve assessment of
aptitude for teaching and research, ability to communicate
clearly and effectively, and ability to analyze and discuss. These
clauses of UGC Regulations read with Ordinance II framed by the
University under Section 29(1) of the Act, in our opinion,
mandate to maintain a record in respect of each of the
candidates interviewed by the selection committee. If the
Ordinance II and the Regulations of UGC are read to mean that
maintenance of the record by the selection committee is not
necessary, perhaps that will amount to giving go-by to the
established procedure to maintain transparency and fair play in
the selection process. For conducting an oral test, a heavy
responsibility is cast on the members of the selection committee,
in particular the experts, in order to ensure fair play and
transparency in the selection process. Members of the selection
committee are expected to maintain separate assessment, in
particular the experts, on whom more responsibility is cast by
Ordinance II. It is true that normally the Courts should be slow
to interfere with the opinions expressed by the experts and that
it would normally be wise and safe for the Courts to leave the
decision of the academic matters to the experts, but in the
present case we do not find any indication from the record that
the experts were given separate assessment sheets to be filled
up at the time of interview reflecting their opinion on the
qualifications, research, experience and suitability of the
candidates. In our opinion, the decision of the selection
committee, in the present case, deserves to be interfered with
being discriminatory, irrational, arbitrary and violative of the
rules/Ordinance framed by the University. It also deserves to be
interfered with for not following the due procedure and non
maintenance of record.
23. Next we would now like to consider the second ground of
challenge, whether selection of Dr.Sravanthy is hit by personal
bias. At the relevant time, Dr.Sammaiah, the father of
Dr.Sravanthy, was Chairman of the Board of Studies and by
virtue thereof, an Ex-Officio member of the selection committee.
Dr.Sammaiah, therefore, as provided for in the first proviso to
Sub-section(1) of Section 43 did not participate in the meetings
of the selection committee which interviewed the candidates
including his daughter-Dr.Sravanthy for the two posts of
Asst. Professors in Zoology.
24. Learned Judge after considering the submissions of learned
counsel for the parties on this question and after having perused
the records and judgments of the Supreme Court in Madhya
Pradesh Special Police Establishment v. State of Madhya Pradesh
(AIR 2005 SC 325; Dr.S.A.Hakeem vs. The NTR University of
Health Sciences (AIR 2001 AP 57); and Rattan Lal Sharma vs.
Managing Committee, Dr.Hari Ram (Co-Education) Higher
Secondary School (1993) 4 SCC 10 and State of West Bengal vs.
Shivananda Pathak [(1998) 5 SCC 513] observed thus:
The material placed before this Court by Dr.Vinatha Naini
along with her reply affidavit reveals that Dr.Ch.Sammaiah
was a member of the Selection Committee which undertook
interviews for effecting promotions under the Career
Advancement Scheme in Zoology during the forenoon of
20.04.2010. Significantly, all the members of the
Selection Committee which interviewed his daughter in
the afternoon session were his colleagues in the said
Section Committee. The possibility of influence being
wielded by Dr.Ch.Sammaiah upon the said members
during his interaction with them as a member of the
Selection Committee in the morning cannot therefore
be ruled out. The principle underlying the first proviso
to Section 43(1) of the Act of 1991 is that an employee
of the University who is interested in one of the
candidates should not have any exposure to the
members of the Selection Committee. That principle was
obviously given a go-by in the present case as
Dr.Ch.Sammaiah had more than ample opportunity to
interact with and influence the members of the Selection
Committee which interviewed his daughter for the post. As
pointed out by the Supreme Court, mere likelihood of bias
beyond a reasonable doubt would be sufficient to taint the
process and set it at naught.
(emphasis supplied)
25. In this backdrop, Sri C.V.Mohan Reddy, learned senior
counsel, submitted that Dr.Vinatha, Dr.Damayanthi and
Dr.R.Krishna after having participated in the interviews without
any demur to the constitution of the selection committee and
having failed in their attempts, cannot turn around and challenge
the selection and appointment of Dr.Sravanthy on the ground of
bias. He further submitted that the learned Judge while
eschewing the allegation of mala fides, examined the allegation
of bias, attaching importance to the participation of
Dr.Sammaiah, the father of Dr.Sravanthy, in the selection
process and observed that such a member should not have any
exposure to the other members of the selection committee. As a
matter of fact, he submitted, Dr.Sammaiah had recused himself
from being a member of the selection committee, and he did not
participate in its meetings for selection of candidates. Merely
because he was appointed by the Vice-Chancellor along with two
other members to scrutinize the application, that cannot be the
ground to hold that he participated in the selection process as
such. He then submitted, it was wrong to hold that there was
possibility of influence being wielded by Dr.Sammaiah upon its
members during interaction with them in the morning session
when he sat as a member of Selection Committee for some other
selections. In support, he placed reliance upon several
judgments of the Supreme Court to which we will make
reference little later. Sri Deepak Battacharjee, learned counsel
for the University, adopted the submissions made by Sri Mohan
Reddy.
26. Mr.D.Prakash Reddy, learned senior counsel, on the other
hand submitted that the learned Judge has rightly set aside the
selection and appointments on the ground of bias. He, however,
fairly submitted that no case for mala fides is either alleged in
the writ petitions or made out against the members of the
selection committee. In short, he conceded that no mala fides
are alleged against the members of the selection committee,
which ultimately interviewed the candidates. He submitted that
having regard to the relationship of Dr.Sammaiah and
Dr.Sravanthy, he should have kept himself away from the
selection process completely and his participation even for
scrutiny of the application forms of all candidates was wrong. He
submitted, in such a situation even likelihood of bias beyond a
reasonable doubt would be sufficient to taint the process of
selection.
27. In this connection, we would like to look into the following
judgments of the Supreme Court relied upon by learned counsel
for the parties in support of their case:
27.1 In Ashok Kumar Yadav (supra) the Supreme Court
observed that there can be no doubt if a selection committee is
constituted for the purpose of selecting candidates on merits and
one of the members of the selection committee is closely related
to a candidate appearing for the selection, it would not be
enough for such member merely to withdraw from participation
in the interview of the candidate related to him but he must
withdraw altogether from the entire selection process and ask
the authorities to nominate another member in his place on the
selection committee, because otherwise all selections made
would be vitiated on account of reasonable likelihood of bias
affecting the process of selection.
27.2 In Jaswant Singh Nerwal Vs. State of Punjab and
others( ) the Supreme Court held that it is not unusual for
candidates related to members of the Service Commission and
selection committees to seek employment. In such a situation,
the practice generally in vogue is for the member concerned to
excuse himself when the particular candidate is interviewed and
such a selection is beyond challenge, unless, of course,
mala fide. [ also see S.N.Nagarajan Vs. State of Mysore-AIR
1966 SC 1942 ].
27.3 In Pankaj Sarma Vs. State of J&K( ) the Supreme
Court while dealing with the allegation of bias, upheld the view
of the High Court that the question of disability could arise only
in case of participation at the stage of selection where the merit
of a candidate was to be adjudged. This observation was made
in the backdrop of the contentions advanced that a particular
member of the selection committee ought to have recused
himself from participating in the selection process.
27.4 In Javid Rasool Bhat Vs. State of J&K( ) the
Supreme Court observed that in the absence of mala fide, it
would not be a right to set aside selection merely because one of
the candidates happened to be related to a member of the
selection committee who had abstained from participating in the
interview of the candidate.
27.5 In Abraham Kuruvila Vs. S.C.T.Institute of Medical
Sciences and Technology and others ( ) the Supreme Court
while dealing with the allegation of bias against some of the
members of the selection committee observed that it is now well
settled principle of law that bias which would mean and imply
spite or ill will must be proved by raising requisite plea in this
behalf and by adducing cogent and sufficient evidence in support
thereof. In fact, bias is a state of mind and it shows
predisposition. Thus, general statements would not meet the
requirements of law.
28. There cannot be any doubt or debate that a son/daughter
has every right to participate in the selection process even if the
father of such a candidate is a member of the selection
committee. What is required is that such member of the Section
Committee should not participate or excuse himself when his
son/daughter is interviewed and keep himself away from the
selection process. We may not agree with the observations
made by the learned Judge while dealing with the allegations of
bias/mala fides that the possibility of influence being wielded by
Dr.Sammaiah, the father of Dr.Sravanthy, upon the said
members during his interaction with them as a member of the
selection committee in the morning session cannot, therefore, be
ruled out. Admittedly, Dr.Sammaiah did not participate in the
meetings of the selection committee for the subject
appointments when it interviewed the candidates. Merely
because he was one of the scrutinizers along with two other
members on the Committee nominated by the Vice Chancellor
for scrutiny of all the applications for the two posts in question
and the Committee certified that three of the candidates were
not eligible at the preliminary stage it cannot be stated that he
participated or played any role in actual selection process,
though it would have been better, had he kept himself away
even from the scrutiny of the applications.
29. The first proviso to Section 43(1) of the Act mandates that
such a member should not participate in the meetings of the
Selection Committee for any appointment if he or his near
relative is a candidate for that appointment. In the present
case, admittedly, Dr.Sammaiah recused himself from being a
member of the selection committee, which was to conduct
interview for the subject selection. In other words, he did not
participate in the selection of his daughter Dr.Sravanthy.
Moreover, there are no allegations of mala fides against the
members of the committee, who actually interviewed the
candidates for the subject posts. In this backdrop, the
submission of Sri D.Prakash Reddy, the learned Senior Counsel
that what is necessary to be seen is whether there was a real
likelihood of a bias or at least there was substantial possibility of
bias, in our opinion, deserves to be rejected outright. If such
view is taken that would only mean that Dr.Sravanthy should not
have participated in the selection process at all.
29.1 It is not unusual for the candidates related to members of
selection committees to seek appointments. In such a situation,
as observed by the Supreme Court in Jaswant Singh Nerwal
(supra) the practice generally in vogue is for the member
concerned to excuse himself when his near relative is
interviewed and selection of such relative is beyond challenge,
unless, of course, mala fide. While dealing with allegations of
bias, in our opinion, it would not be proper to set aside the
selection merely because one of the candidates happened to be
related to the members of the selection committee, who
admittedly abstained from participating in the interview of such
candidates. Mere allegation of bias against a member of the
selection committee is not sufficient. It must be proved by
raising the requisite plea in this behalf and by adducing cogent
and sufficient materials in support thereof. In the present case,
except allegations, we do not find any such materials on record
in support of the allegation of bias. We do not agree with the
submission that Dr.Sammaiah being a member of the selection
committee held meetings with the members of the selection
committee in connection with other selection in the morning on
the same day and, therefore, there was a possibility of the
influence being wielded on the other members of the Committee
for selecting his daughter Dr.Sravanthy. In the circumstances,
we answer the second question in the negative.
30. Insofar as the 3rd question is concerned, the basic
contention urged was that the Executive Council in its 87th
meeting held on 30-04-2010 lacked the requisite quorum as
provided under Sub-section (6) of Section 18 of the Act and,
therefore, approval of the recommendations made by the
Executive Council leading to the impugned appointment was
illegal and vitiated on this count.
31. Sri C.V.Mohan Reddy, the learned Senior Counsel for the
appellants submitted that the learned Judge while referring to
Sub-section (6) of Section 18 of the Act and in the light of
removal/termination of Class II members of the Executive
Council vide G.O.Ms.No.30, dated 09-04-2010 (for short
GO-30) overlooked the fact that by the very same GO-30 the
University was permitted to function with Ex-Officio Class I
members till reconstitution of the Executive Council. He
submitted that it was open for the Executive Council to function
with its Class I members in view of the GO-30 issued in exercise
of its powers under Section 56 of the Act, which empowers the
State Government to issue appropriate orders to remove the
difficulties, if any. He then submitted that the findings recorded
by the learned Judge in the impugned order to the effect that
approval of the selection by the Executive Council is not valid on
the ground of lack of quorum are based on misinterpretation of
statutory provisions. He submitted that even if there was no
quorum as contemplated under Sub-section (6) of Section 18 of
the Act, Section 32 of the Act states that no act or proceedings
of any authority or other body of the University shall be deemed
invalid by reason only of some defect in the constitution of the
Authority or body or by reason of the existence of a vacancy or
vacancies among members. He submitted that the provisions of
Section 32 were completely overlooked by the learned Judge
while dealing with the question of quorum.
32. Learned counsel for the University adopted the
submissions made by Sri C.V.Mohan Reddy, learned Senior
Counsel for the appellants and in addition thereto, submitted
that not only the recommendations to the posts of Assistant
Professors in Zoology were approved by the Executive Council,
but several other recommendations were approved by the very
same Executive Council, and that if after 4-5 years of their
appointments, the challenge as raised in the instant petitions, in
respect of 2 candidates i.e. Dr.Sravanthy and Dr.Gowda, is
upheld, that may cause grave hardship and irreparable loss to
several other appointees, who are not party to these
proceedings.
33. Sri D.Prakash Reddy, the learned Senior Counsel for
Dr.Damayanthi and Dr.Vinatha, on the other hand, invited our
attention to Section 56 of the Act and submitted that no
notification or GO-30 was issued under this provision and,
therefore, it cannot be stated that the Government in exercise of
its powers under this provision allowed the Executive Council to
function with the strength of 4 members of the Executive
Council, when the required quorum is either 1/3rd of total
number of members or 6 members, whichever is less. He
submitted that under any circumstances having regard to the
constitution of the Executive Council, 1/3rd of the total number of
members would never be less than 5 and since only 4 members
were available at the relevant time, they had no authority in law
to conduct the meetings. He submitted that even if it is assumed
that GO-30 was issued under the provisions of Section 56 of the
Act, it does not empower the Government to give go-by to the
provisions of law, in particular, Sub-section (6) of Section 18 of
the Act, allowing the Executive Council to hold meetings and
take all decisions without quorum. He submitted that it was not
difficult for the Government to make appointments of either all
or some of the Class II members or of the Rector to complete
the quorum and then allowed the Executive Council to hold its
meetings and take appropriate decisions. In short, he submitted
that Section 56 of the Act does not empower the Government
under the guise of removal of difficulties to allow the Executive
Council to hold meetings and take decisions without quorum
under Sub-section(6) of Section 18 of the Act.
33.1 Sri G.Vidyasagar, the learned Senior Counsel submitted
that the appointment of Dr.Gowda also deserves to be set aside
on the ground that it was approved in the meeting of the
Executive Council held on 30-04-2010 without quorum. In other
words, he submitted that there were only 4 Ex-Officio members
present in the meeting and, therefore, the decision of the
Executive council without quorum was in violation of Section
18(6) of the Act. Rest, he adopted the submissions made by Sri
D.Prakash Reddy, the learned Senior Counsel for Dr.Damayanthy
and Dr.Vinatha.
34. Sub-section (6) of Section 18 of the Act, as we have seen
earlier, provides for the quorum for a meeting of the Executive
Council. Under this provision, the quorum shall be 1/3rd of the
total number of members or 6 persons, whichever is less. As per
Sub-section(1) of Section 18 of the Act, the total number of
members as observed earlier under Class I and II put together
would be 14. Minimum quorum taking this figure into account
would be 4.66, being 1/3rd of 14, and would necessarily have to
be rounded off as 5. Thus, in any case, unless 5 members of
the Executive Council are present in every meeting, the meeting
of the Executive Council cannot be stated to be legal. In other
words, the Executive Committee cannot hold its meeting if its
five members are not present. It has come on record that 8
members nominated by the Government under Class II category
were removed/terminated under GO-30, and thereby the
Executive Council of the University was reduced to the members
specified under Class I alone. It is not in dispute that at the
relevant time the post of Rector, an Ex-Officio member of the
Executive Council as contemplated by Sub-section (1)(ii) of
Section 18 of the Act, was vacant and, therefore, there were
only 4 Class I members in the Executive Council after
09-04-2010. As observed earlier, it is mandatory to have
minimum quorum of 1/3rd of total number of persons or 6,
whichever is less, as contemplated by Sub-section (6) of Section
18 of the Act. As far as this factual matrix is concerned, none of
the learned counsel appearing for the parties raised any dispute.
In other words, admittedly the meeting of the Executive Council,
which approved the recommendations of the selection committee
and appointed Dr.Sravanthy and Dr.Gowda, was attended by
only 4 members.
35. In this backdrop, it would be relevant to reproduce GO-30
for better appreciation of the contentions urged on the basis
thereof. The relevant portion of the GO-30 dated 09.04.2010
reads thus:-
In the G.O. read above, Government have nominated certain
members to the Executive Council of the Kakatiya University,
Warangal under Class-II in Section 18 (1) of the Andhra Pradesh
Universities Act, 1991 (A.P.Act 4 of 1991)
2. The Government, after careful examination of the matter, have
decided to terminate the Executive Council Members of the Kakatiya
University, Warangal who were nominated under Class-II in the
Section 18 (1) of the Andhra Pradesh Universities Act, 1991.
3. During the intervening period, the Executive Council of Kakatiya
University, Warangal may function with the Ex-officio Members as
mentioned under Class-I in Section 18 (1) of the Andhra Pradesh
Universities Act, 1991 till the reconstitution of the Executive Council.
4. Accordingly, the following notification will be published in the
Andhra Pradesh Gazette:-
NOTIFICATION
In exercise of the powers conferred under sub-section (2) of section 18
of the Andhra Pradesh Universities Act, 1991 (Andhra Pradesh Act 4 of
1991), the Governor of Andhra Pradesh hereby terminate the
appointments of Members of the Executive Council of the Kakatiya
University, Warangal, who were nominated under Class.II of Section
18 (1) of the said Act.
36. Insofar as the submission that Section 32 of the Act
provides that no proceedings of any authority or other body of
the University shall be deemed invalid by reason only of some
defect in the constitution of the Authority or by reason of the
existence of a vacancy or vacancies among members deserves
to be rejected outright. Based on this provision, it was further
submitted that merely because there was no quorum as provided
for under Sub-section (6) of Section 18 of the Act for a meeting
of the Executive Council, the decision taken by the Executive
council in such a meeting would not render invalid or illegal. A
careful look at this provision would show that it does not even
indirectly speak of the quorum, but it provides for validating the
decisions taken by the Authorities of the University even if there
is some defect in the constitution of the Authority or if there is
existence of vacancy or vacancies among members. The
submission that in view of this provision, the authority such as
Executive Council can go ahead and hold a meeting even if there
is no quorum and carry out functions as contemplated by
Section 19 of the Act, in our opinion, must be rejected.
37. The submissions of learned counsel for the parties were
centered around Section 56 of the Act for quite sometime. It
would be advantageous to reproduce this Section for better
appreciation of the contentions urged. Section 56 reads thus:
Section 56. Power to remove difficulties:- If any difficulty arises
as to the constitution or reconstitution or appointment of any Authority
or officer of the University or otherwise in first giving effect to the
provisions of this Act, or at the time of establishing a new University,
the Government, as occasion may require, may, by order, do anything
which appears to them necessary for the purpose of removing the
difficulty.
38. The Supreme Court in Madeva Upendra Sinai and
Others Vs. Union of India and Others( ) had an occasion to
deal with the words any difficulty arise or removing the
difficulty. In Paragraph 40 of the report, it was observed thus:-
40. Now let us turn to clause (7) of the Regulation. It will be
seen that the power given by it is not uncontrolled or
unfettered. It is strictly circumscribed, and its use is
conditioned and restricted. The existence or arising of a
difficulty is the sine qua non for the exercise of the power. If
this condition precedent is not satisfied as an objective fact, the power
under this clause cannot be invoked at all. Again, the difficulty
contemplated by the clause must be a difficulty arising in
giving effect to the provisions of the Act and not a difficulty
arising aliunde, or an extraneous difficulty. Further, the Central
Government can exercise the power under the clause only to the
extent it is necessary for applying or giving effect to the Act, etc., and
no further. It may slightly tinker with the Act to round off angularities,
and smoothen the joints or remove minor obscurities to make it
workable, but it cannot change, disfigure or do violence to the
basic structure and primary features of the Act. In no case, can
it, under the guise of removing a difficulty, change the scheme and
essential provisions of the Act.
(emphasis supplied)
39. The similar phrase was dealt by the Supreme Court in
Straw Products Ltd., Vs. Income-tax Officer( ). The
Supreme Court in this judgment while was dealing with the
contention urged on behalf of the assessee that Section 6 of Act
67 of 1949 makes the arising of difficulty a condition of the
exercise of power to issue an order contemplated thereby and
since no difficulty in fact is proved to have arisen, the Central
Government had no power to issue the impugned order, in
paragraph 19 thereof observed thus:-
19.To sum up: the power conferred by Section 6 of Act 67 of
1949 is a power to remove a difficulty which arises in the application of
the Income-tax Act to the merged States: it can be exercised in the
manner consistent with the scheme and essential provisions of
the Act and for the purpose for which it is conferred. The
impugned Order which seeks in purported exercise of the power, to
remove a difficulty which had not arisen was, therefore, unauthorized.
(emphasis supplied)
40. A Full Bench of the High Court of Allahabad in Kumari
Radha Raizada Vs. Committee of Management, Vidyawati
Darbari Girls Inter College( ) while dealing with Section 32
of U.P. Secondary Education Services Commission and Selection
Board Act, 1981 in paragraph 14 observed thus:-
14. The analysis of the aforesaid decisions would show that the
provision like Section 33 of the Act, which provides that the State
Government for the purposes of removing any difficulty, by a notified
order, direct the provisions of the Act shall have effect subject to such
adaptation whether by modification, addition or omission as it may
deem necessary or expedient, is not uncontrolled or unfettered power.
In fact such power conferred upon the Government is restricted
and has, to be exercised in consonance with the essential
feature of the Act. It may be emphasized that such an order is
not permitted to violate the basic structure of the provisions of
the Act and further it could be only issued when there is real
difficulty arises in giving effect to the provisions of the Act.
(emphasis supplied)
41. We would not like to enter into a controversy whether
GO-30 was issued under Section 56 of the Act. We would like to
examine the contentions urged by learned counsel for the parties
on the assumption that GO-30 was issued under Section 56 of
the Act. Para-3 of GO-3 states that the Executive Council of the
University may function with the Ex-Officio Members as
mentioned under Clause (i) in Section 18(1) of the Act till the
reconstitution of the Executive Council. However, a close look at
the GO-30 would show that a notification was issued in exercise
of the powers conferred under Sub-section (1) of Section 18 of
the Act by the Governor of erstwhile State of Andhra Pradesh,
thereby terminating the Class-II members of the Executive
Council of the University. We have already seen the provisions
contained in Section 18 of the Act. Members of the Executive
Council are divided into two categories of members. One, Class-I
Ex-Officio members and two, Class-II categories of members.
Class-I category members are only 5 and, therefore, even if all
Class-II members are terminated, the Executive Council would
have 5 members, who can still hold meetings and take
decisions since they form quorum as contemplated by Section
18(6) of the Act.
41.1 We would also not like to enter into a controversy whether
the Government was conscious of the fact that the post of Rector
was vacant, who was one of the Ex-Officio member of the
Executive Council, and hence there were only 4 members
available when the G.O was issued. We would like to consider
the question whether the Government, in exercise of its powers
under Section 56 of the Act which empowers the Government to
remove difficulties, can, under the guise of removing
difficulties, go to the extent of allowing Executive Council to hold
its meetings with 4 members and take decisions such as the one,
impugned in these petitions.
41.2 Section 56 of the Act undoubtedly empowers the
Government to remove difficulties in respect of the constitution
or reconstitution or appointment of any Authority or Officer of
the University or otherwise in first giving effect to the provisions
of the Act or at the time of establishing a new University. The
Government under this provision may, by order, do anything
which appears to them necessary for the purpose of removing
the difficulty.
41.3 We would also not like to dissect this provision and to
make any comments as to whether the powers conferred under
this provision can be exercised only in first giving effect to the
provisions of the Act or at the time of establishing new
University. We would like to examine whether the Government
under the guise of removing difficulties can allow the Executive
Council to function without quorum.
41.4 At the outset, in our opinion, under any circumstances, the
Government cannot issue any notification or order inconsistent
with the scheme and essential provisions of the Act. It is well
settled that the power, such as the power conferred under
Section 56 of the Act, cannot be stated to be uncontrolled or
unfettered. If the power is held to be so, that would amount to
do violation to the provisions of the Act, such as sub-section (6)
of Section 18. The power can be exercised in the manner
consistent with the essential provisions of the Act. For
exercising the power conferred under Section 56 of the Act, the
existence or arising of a difficulty is a sine qua non for the
exercise of power. In other words, unless there exists a
difficulty, the power under this Clause cannot be invoked. The
language employed in this Section itself would show that under
the guise of removing difficulty the power cannot be exercised
in the manner inconsistent with the scheme or provisions of the
Act. It can be exercised only to the extent it is necessary for
applying or giving effect to the Act and to make it workable.
Under any circumstances, for making the Act workable, the
Government cannot change, disfigure or violates the basic
structure and primary feature of the Act. In short, in no case,
the Government can, under the guise of removing difficulty,
change the essential provisions of any Act, such as
sub-section (6) of Section 18 of the Act. In other words, by
issuing notification or order under Section 56, the Government
cannot be permitted to violate the basic structure of any
particular provision of the Act. The powers under Section 56 can
be exercised only when there is a real difficulty arising in giving
effect to the provisions of the Act. In the context of the present
case, in our opinion, removal of real difficulty would not mean
allowing the Executive Council to hold its meetings without
quorum. The submission of the learned Senior Counsel for the
appellants that the Government has power under Section 56 of
the Act to allow the Executive Council to hold its meetings and
take decisions in the absence of quorum, therefore, deserves to
be rejected. Thus, we answer the third question in the
affirmative.
42. That takes us to consider one more question raised by
Dr.Damayanthi in her Cross-objections in W.A.No.234 of 2011
and W.A.No.1553 of 2013. It was submitted by
Mr.Ghanshyamdas Mandhani, learned Advocate on record, for
Dr.Damayanthi that the learned Judge, based on clause (3) of
the Information Brochure appended to the Notification
No.2/2009, dated 31.12.2009, was wrong in holding that the
UGC (Minimum Qualifications for Appointments of Teachers and
other Academic Staff in University and Colleges and Measures for
Maintenance of Standards in Higher Education) Regulation-2009
(for short Regulation-2009) are applicable only to the extent of
qualifications prescribed therein. He submitted that Regulations-
2009 were adopted by the University in anticipation of their
enforcement in future and it was made so clear in the
notification No.2/2009. Similarly, even the State Government
vide G.O.Ms.No.14 dated 20.02.2010 (for short GO-14) had
adopted the said Regulations and, therefore, the procedure
followed by the selection committee in selecting Dr.Sravanthy
and Dr.Gowda as provided for under the UGC Regulations-2000
was wrong and illegal and deserves to be set aside on this
ground.
42.1 Insofar as the Notification dated 31.12.2009, with which
the subject selection process commenced, is concerned it was
made clear that UGC Regulations-2009 were adopted only for a
limited purpose, as reflected in clause (3) of the Information
Brochure i.e. for the qualifications prescribed therein. Similarly,
the GO-14 was issued on 20.02.2010 took note of the
recommendatory UGC Regulations-2009. Though the
Universities were directed to implement the same (GO-14)
within three months from the date of its issuance duly amending
their Statutes, Ordinances, etc., the direction was issued after
the subject selection process under Notification No.2 dated
31.12.2009 had commenced. In view thereof, the submissions
of Mr.Mandhani that the University and the Government had
adopted the Regulations-2009 by issuing Notification dated
03.12.2009 and the GO-14 must be rejected.
42.2 That apart, the UGC vide its letter dated 19.02.2010,
addressed to the University, had clarified that it may proceed
with the subject recruitment as per its Regulations-2000, as
amended from time to time, and that the New Regulations would
be required to be followed upon its publication/Notification in the
Gazette of India. The new Regulations-2009, in fact, were
Gazetted only on 28.06.2010 as the University Grants
Commission (Minimum Qualifications for Appointments of
Teachers and other Academic Staff in Universities and Colleges
and other Measures for the Maintenance of Standards in Higher
Education) Regulations, 2010. Thus, it is clear that the new
Regulations were Gazetted (28.06.2010) after the appointments
of Dr.Sravanthy and Dr.Gowda, who were appointed on
30.04.2010. In the result, the cross objections deserve to be
dismissed. We make it clear that we have not examined
whether the cross objections were maintainable.
43. We are informed that the selection committee has made
appointments of several persons on the basis of the
recommendations made by the Executive Council and all those
persons who were appointed by the very same Executive Council
are working since last about 3 to 4 years and if we hold that the
appointments of Dr.Sravanthy and Dr.Gowda are illegal for want
of quorum that would seriously jeopardize the interest of all such
appointments which were made by the Executive Council with its
four members. We, therefore, observe that it would be open to
the University, if they so desire and advised, and if the
circumstances so demand, to place all such recommendations of
the selection committee before the Executive Council afresh,
duly constituted as per the provisions of Section 18 of the Act,
and seek approval and confirmation of their appointments with
effect from the date on which they were appointed.
Per A.Ramalingeswara Rao, J
44. I have had the advantage of going through the draft
judgment circulated to me by my learned and experienced
brother, Sri Justice Dilip B. Bhosale. The judgement is in tune
with our discussions and this separate opinion of mine is
unnecessary but for the reasons given hereunder.
45. Inspite of concurrence of opinions, the liberty given to me
by my learned brother encouraged me to comment on the usual
refrain of the Counsel for the appellants in these cases that this
Court should lay off its hands in academic matters and also
supplement my views to that of my learned brother on the faulty
selection process.
46. At the outset, I feel that the University ought not to have
filed the appeals as a private litigant. The learned single judge,
as per the record, heard the arguments of the Counsel at length
and delivered a detailed and intelligible judgment. The University
should have accepted the same. If the private parties carried the
matter in appeal, it should have played a neutral role assisting
the Court. But, alas, it chose to file the appeals like a private
litigant. One can understand, a private party filing appeals out of
ego satisfaction or vindicating his/her stand. But Institutions
should take a conscientious stand after going through the
judgement of the courts and try to reduce unnecessary litigation.
In fact, the Government, vide G.O.Rt.No.82 dated 11-2-2011
constituted a committee to look into the irregularities committed
by the University and the Committee submitted its report on 23-
6-2011. Accordingly, the State Government issued orders for
setting aside the selections and taking up the process afresh.
However, it is submitted that the selected candidates in Botany
department challenged the said Government orders and got stay
of the same but there is no stay so far as Zoology department is
concerned.
47. Nowadays, many specialists including Scientists,
Academicians and Judicial Officers are holding administrative
positions, which require them to take decisions on administrative
side. Many of them may not be exposed to such exercise, but
their positions make them imperative to take decisions. Hence,
in the process, they should have rudimentary knowledge of
administrative principles governing such decisions. If they follow
the procedure, litigation can be curtailed to a large extent. The
action of the University brought the teachers who ought to have
held the books in the class rooms, to hold them in court rooms
to assist their Counsel.
48. The facts in the instant case cannot be brought under the
ambit of academic matters as urged by the Counsel of
appellants. We are concerned with the selection of Assistant
Professors in Zoology. That process is purely administrative and
is based on the provisions of the Andhra Pradesh Universities Act
and Ordinances framed by the University. In the matter of
selection of teaching and non-teaching staff, merely because the
decisions are taken by Academicians, it cannot be called as
academic matter. It is a total misconception of law. I am
supported in my view by the Division Bench of Punjab and
Haryana High Court in Pratibha Gupta v. State of Punjab( ),
wherein it was held as follows:
Before deciding whether or not the petitioners are
entitled to any relief, we deem it necessary to reiterate the
well established principle that the Courts should give due
respect to the opinion expressed by the academicians and
the decisions of the academic bodies on matters relating to
admissions, examinations and discipline in educational
institutions. However, this does not mean that the Courts
should worship such opinions and decisions blind folded
and refuse to discharge its constitutional obligations to
protect the fundamental, constitutional and legal rights of
the citizens. In the scheme of our Constitution the
argument that the decisions of academic bodies and
educational institutions should remain immune from the
power of judicial review vested in the Courts cannot be
accepted. What to say of such decisions, the power
exercisable by the President under Article 72 to grant or
not to grant pardon and the power exercised by the
Government to impose emergency under Article 356 do not
enjoy immunity from judicial review. In Kehar Singh V/s.
Union of India, (1989) 1 SCC 204 : (AIR 1989 SC 653)
and S. R. Bommai V/s. Union of India, (1994) 3 SCC 1 :
(AIR 1994 SC 1918), the Apex Court has recognised the
Courts power of judicial review even in these matters
though the grounds on which the orders passed in such
matters can be subjected to judicial scrutiny are extremely
limited and it is always desirable not to interfere with the
same unless it becomes imperative. It cannot also be
ignored that the decisions of educational institutions and
academic bodies, which are required to be taken in
accordance with the relevant statutes, at times affect the
students, teachers and employees and they are always
subject to constitutional limitations contained in Articles
14, 15, 16, 20 etc. Therefore, if the Court finds that such
decisions are violative of the statutory or constitutional
provisions, then it is the constitutional duty of the Court to
intervene and protect the rights of citizens.
49. It is vehemently urged by the learned Standing Counsel for
the University that the procedure of giving consolidated marks of
the candidates in a tabulated sheet in respect of each candidate
is in vogue for several years, not only in the University in issue,
but in all Universities in the State. The said sheet was signed by
all the Selection Committee members and that is the only record
made available to the court. This court is handicapped from
looking into the marks awarded by the experts, in the absence of
record. This is not what was laid down in Ordinance II of the
University and we have no doubt about it. But I have my own
reservations about the discretionary power of the members of
the Selection Committee in awarding marks for teaching
experience and publications in the absence of any criteria. The
notification does not indicate the required number of years of
teaching experience or publications required for making one
eligible nor the methodology for awarding marks under each
head. This gave raise to arbitrariness in awarding marks under
the said heads. In the absence of criteria, one has to take
quantitative data into consideration than indulging in qualitative
exercise (which does not appear to have been done by the
Selection Committee in this case in view of paucity of time).
50. We are also told that the appointees joined their posts on
1-5-2010, Dr.Damayanti retired from service in December, 2012
and Dr.R.Krishna was appointed in Osmania University on 6-9-
2013 and hence their Writ Petitions should be dismissed. It is
admitted that Dr.Vinatha Naini is still in service. These Writ
Appeals were filed in 2011 and we are concerned with selection
process of the Selection Committee. When the process is
vitiated, the selections should be made afresh. In this
connection, the observations of the Supreme Court in Gurdeep
Singh v. State of J & K( ), are apposite. In the said case,
when the appellant before the Supreme Court was denied
admission to the course leading to a Medical Degree for the year
1991-92 in the State of Jammu & Kashmir under sports
category, reversing the judgment of the High Court, the
Supreme Court commented as follows:
We are afraid, unduly lenient view of the courts
on the basis of human consideration in regard to such
excesses on the part of the authorities, has served to
create an impression that even where an advantage is
secured by stratagem and trickery, it could be rationalised
in courts of law. Courts do and should take human and
sympathetic view of matters. That is the very essence of
justice. But considerations of judicial policy also dictate
that a tendency of this kind where advantage gained by
illegal means is permitted to be retained will jeopardise the
purity of selection process itself; engender cynical
disrespect towards the judicial process and in the last
analysis embolden errant authorities and candidates into a
sense of complacency and impunity that gains achieved by
such wrongs could be retained by an appeal to the
sympathy of the court. Such instances reduce the
jurisdiction and discretion of courts into private
benevolence. This tendency should be stopped
51. The Writ Appeals as well as Cross-Objections are
accordingly dismissed. However, there shall be no order as to
costs.
_____________________
DILIP B. BHOSALE, J
_______________________
A.RAMALINGESWARA RAO, J
52. At this stage, Mr. N.Jayasurya, learned counsel for the
appellants in W.A.Nos.234 and 235 of 2011, prays for stay of
this judgment for a period of four weeks.
53. In view of the prayer, we asked Mr.Deepak Bhattcharjee,
learned counsel for the University as to how long they would
take to implement the impugned judgment, he states atleast
4-6 weeks. In view thereof, stay as prayed for need not be
granted.
_____________________
DILIP B. BHOSALE, J
_______________________
A.RAMALINGESWARA RAO, J
19-03- 2015
WRIT APPEAL Nos.233 of 2013 and batch
19-03-2015
Gowda Rajender & others Appellants.
Dr.M.Radha Krishna & others Respondents.
Counsel for Appellants :C.V.Mohan Reddy,
learned senior counsel.
Deepak Bhattacharjee
Counsel for Respondents:G.Vidya Sagar,
learned senior counsel
Ghanshyamdas Mandhani,
<GIST:
>HEAD NOTE:
? Cases referred :1) (1995) 3 SCC 486
2) (1979) 2 SCC 339
3) (1990) 2 SCC 746
4) AIR 1965 SC 491
5) (1992) 2 SCC 220
6) 1992 Supp(2) SCC 481
7) (2012) 12 SCC 106
8) 2009(5) SCC 515
9) (2011) 8 SCC 737
10) (1994) 1 SCC 169
11) (1984) 4 SCC 27
12) AIR 1981 SC 1777
13) (1993) 3 SCC 663
14) AIR 1987 SC 454
15) (1980) 3 SCC 418
16) 1991 Supp(1) SCC 313
17) 2008(4) SCC 273
18) 1984(2) SCC 631
19) 2005(9) SCC 49
20) (1975) 3 SCC 765
21) AIR 1968 SC.579
22) (1995) 2 UPLBEC 1137
23) AIR 1998 Punjab and Haryana 211
24) 1995 Supp (1) SCC 188
THE HONBLE SRI JUSTICE DILIP B.BHOSALE
AND
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT APPEAL NOS.233 to 235 OF 2011 & 1553 to 1555 of 2013 and
WA CROSS-OBJECTIONS (SR) No.112907 OF 2011
JUDGMENT: (per the Honble Sri Justice Dilip B.Bhosale)
These writ appeals under Clause 15 of Letters Patent are
directed against the common order dated 28-02-2011 passed in
W.P.Nos.12563, 15138 and 24732 of 2010. By this order, the
writ petitions were allowed, setting aside the selection and
appointment of Dr.Sravanthy and Dr.Gowda Rajender,
hereinafter referred to as Dr.Gowda, as Assistant Professors in
Zoology in the second respondent-Kakatiya University, Warangal
(for short the University).
2. W.P.Nos.12563 and 24732 of 2010 were filed by
Dr.Vinatha Naini, hereinafter referred to as Dr.Vinatha, and
Dr.Damayanthi respectively, challenging the selection and
appointment of Dr.Sravanthy to one such post under Open
Competition (Woman) category, while W.P.No.15138 of 2010
was filed by Dr.M.Radha Krishna, hereinafter referred to as
Dr.R.Krishna, assailing the selection and appointment of
Dr.Gowda to the other post reserved for Backward Classes
Group B category.
3. Dr.Vinatha in W.P.No.12563 of 2010 had challenged the
selection and appointment of Dr.Sravanthy on the ground of
bias. Dr.Damayanthi in W.P.No.24732 of 2010 sought
declaration that the selection and appointment of Dr.Sravanthy
is hit by personal bias and in the alternative challenged the
constitution of selection committee being illegal and violative of
Section 43 of the A.P. Universities Act, 1991 (for short the Act).
She also prayed for holding fresh interviews after constituting
new selection committee in accordance with law. Dr.R.Krishna in
W.P.No.15138 of 2010 sought declaration that the action of the
University in convening 87th meeting of the Executive Council on
30-04-2010, for seeking approval of the selection of Dr.Gowda,
was illegal and contrary to Section 18(6) of the Act. He further
prayed for setting aside the appointment of Dr.Gowda and an
enquiry into the alleged irregularities committed by the
University including the Executive Council appointing
Dr.Sravanthy and Dr.Gowda and prayed for re-notifying the
vacancies.
4. W.A.Nos.234 and 235 of 2011 are preferred by
Dr.Sravanthy, while W.A.No.233 of 2011 is preferred by
Dr.Gowda arising from the judgment, disposing of
W.P.Nos.12563, 24732 of 2010 and W.P.No.15138 of 2010
respectively. W.A.Nos.1553 to 1555 of 2013, preferred by the
University, are also against the very same judgment.
5. The University had issued the notification dated
31.12.2009 inviting applications from qualified candidates for
appointment to various posts of Assistant Professors, Professors
and Associate Professors in different faculties. In these appeals,
we are concerned only with two posts of Assistant Professors in
Zoology reserved for OC(W) and BC(B) categories. Initially, 25
aspirants had applied for these posts, out of which 22 were
found eligible. The selection committee, duly constituted under
the provisions of the Act, conducted interviews on 20-04-2010 of
the eligible candidates. Out of the 22 eligible candidates, 5 failed
to appear before the selection committee. The selection
committee interviewed the remaining 17 candidates and finally
recommended Dr.Sravanthy and Dr.Gowda for appointment to
these posts.
5.1 Thereafter, Executive Council of the University in its
meeting held on 30-04-2010 resolved to approve the
recommendation, and accordingly appointment orders were
issued by the University on 30-04-2010. Dr.Sravanthi and
Dr.Gowda joined the duty as Assistant Professors in Zoology on
01-05-2010.
5.2 In this backdrop, Dr.Vinatha, Dr.R.Krishna and
Dr.Damayanthi filed writ petitions under Article 226 of the
Constitution of India challenging their selection and
appointments. Though the grounds of challenge are virtually
common in respect of both the candidates, the selection and
appointment of Dr.Sravanthy was also challenged on the ground
of bias, she being a daughter of Dr.Ch.Sammaiah, the Chairman
of the Board of Studies in Zoology Department and member of
the Selection Committee, hereinafter referred to as
Dr.Sammaiah. In other words, Dr.Sammaiah allegedly misused
his office to get her selected and appointed to the post of
Assistant Professor.
6. The writ petitions were allowed by the common order
dated 28.02.2011, finding illegalities in evaluation of
comparative merit of the candidates by the selection
committee/lack of transparency due to non-maintenance of
record by selection committee, bias of the said committee in the
process of selection of Dr.Sravanthy, and holding their
appointments illegal owing to the lack of requisite quorum in the
Executive Council meeting held on 30-04-2010.
7. We have heard learned counsel for the parties at great
length and perused the entire materials placed before us
including the relevant Ordinance, Regulations and provisions of
the Act.
8. The questions that are raised and fall for our consideration
in the appeals are as under:-
1. Whether the appointments of Dr.Sravanthy and Dr.Gowda
as Assistant Professors in Zoology, made by the
University, based on their selection by the selection
committee, and approved by the Executive Council are
bad in law for want of non-compliance of the due
procedure contemplated by the relevant Ordinance II,
and being irrational and arbitrary in nature?
2. Whether the selection and the appointment of
Dr.Sravanthy as Assistant Professor in Zoology is liable to
be set aside on the ground of bias and/or mala fides; and
3. Whether the appointments of Dr.Sravanthy and Dr.Gowda
made, on the basis of approval of their selection, by the
Executive Council in its meeting held on 30-04-2010 is
illegal and deserves to be set aside for want of quorum?
9. Insofar as the first question is concerned, Sri C.V.Mohan
Reddy, learned Senior Counsel appearing for Dr.Sravanthy and
Dr.Gowda, at the outset, submitted that the procedure
contemplated by the relevant regulations, was scrupulously
followed by the selection committee. He submitted that marks
under various heads, like educational qualifications, teaching
experience, publications and performance at the interview were
awarded by the selection committee as a whole under these
heads and merely because separate assessment sheets were not
filled up by each of the members of the committee, and they
signed consolidated assessment sheet the selection would not
vitiate. According to Mr.Mohan Reddy, the learned Judge
overlooked the practice being followed over a period of time by
the selection committee for conducting interviews. He also
invited our attention to the marks awarded to each of the
candidates who were interviewed by the selection committee and
submitted that the selection committee had discretion to award
marks ranging from 1 to 5 for publications and not 5 marks as of
right for each publication. Similarly, based on the pattern of
allocation of marks printed on the assessment sheet, he
submitted that it was printed only by way of guideline and it was
left to the selection committee to award marks having regard to
quality/merit of each candidate, his publications and teaching
experience. He submitted that though the learned Judge
accepted the pattern of marks to be awarded to the candidates,
has not given any reason as to why such discretion is not vested
with the selection committee for allocation of marks under the
heads of teaching experience and publications, more so when
the teaching experience would differ and depend upon whether a
candidate taught to PG/UG students or worked as Contract
Lecturer or regular Lecturer.
9.1 Sri C.V.Mohan Reddy then invited our attention to the
Ordinance II of the University and submitted that the analysis
thereof made by the learned Judge was erroneous. According to
Sri Mohan Reddy, nowhere in the Ordinance II, it is mentioned
or mandated that the each member of the selection committee
has to express opinion about each candidate independently and
record reasons for preferring one over the other. He, therefore,
submitted that the composite assessment of the candidates was
sufficient and ought to have been accepted by the learned
Judge. He submitted that there is no practice of the Executive
Council to award separate marks by every member of the
selection committee. He then submitted that apart from the fact
that there is no practice of maintaining separate assessment
sheet by each member of the selection committee, it is not
mandated under the said Ordinance that selection committee
should maintain such record. He submitted that even if it is
assumed that such record is not there to support the decisions,
that cannot be a ground for setting aside the selection, since
such lapse would, at the most, amount to irregularity and not
illegality. The University and the selection committee over the
years have understood the Ordinance in this manner, and the
same should be given due weightage and even if the Court finds
the interpretation of the Ordinance placed by the University and
the selection committee is incorrect, the High Court should not
interfere with the selection process.
9.2 Sri C.V.Mohan Reddy also invited our attention to the
averments made in the writ petition and submitted that the
petitioners in the writ petitions did not allege mala fides against
the member/s of the committee who interviewed the candidates
and selected Dr.Sravanthy and Dr.Gowda, and in view thereof,
the learned Judge ought not to have found fault or doubted the
objectivity and impartiality of the selection committee in the
absence of any such allegation or material in support thereof.
We would make reference to the judgments relied upon by him,
in support of his submissions, in the course of judgment at
appropriate stages.
10. Sri Deepak Bhattacharjee, learned Standing Counsel for
the University, adopted the submissions advanced by Sri
C.V.Mohan Reddy and in addition thereto submitted that the
selection committee was constituted as per the guidelines issued
by the University Grants Commission(UGC) and as contemplated
by Section 43 of the Act. He submitted that Dr.Sammaiah had
recused himself to be a member of the selection committee as
provided for by the first proviso to Sub-section (1) of Section 43
of the Act. According to Sri Bhattacharjee, the learned Judge was
wrong in holding that Dr.Sammaiah influenced the committee for
selection of his daughter-Dr.Sravanthy. He also invited our
attention to the relevant averments in the counter filed by the
University and submitted that the scope of judicial review to
review the process of selection and award of marks etc., by the
members of the selection committee is limited and can be
exercised in rarest of rare cases where mala fides are attributed
against its members in case of educational institutions. Lastly, in
support of the averments advanced on behalf of Dr.Sravanthy,
he submitted that the selection committee followed the practice
which is prevalent over a period of time. He also placed reliance
upon judgments of the Supreme Court in support of his
contention to which we will make a reference little later.
11. On the other hand, Sri D.Prakash Reddy, the learned
Senior Counsel for Dr.Vinatha and Dr.Damayanthi invited our
attention to the observations made in the impugned judgment
and submitted that the learned single Judge had scrupulously
analyzed the irregularities/illegalities committed by the selection
committee in the procedure that was adopted and has rightly set
aside the selection and appointments of Dr.Sravanthy and
Dr.Gowda holding that evaluation of comparative merits of the
candidates by the selection committee was lacking transparency
due to non-maintenance of records and also on the ground of
personal bias. He invited our attention to the Ordinance II and
submitted that it clearly provides for separate assessment by all
members of the selection committee, in particular, the experts
and that the candidate cannot be selected if in the opinion of the
experts, he/she is below standard. The procedure contemplated
by the Ordinance II, he submitted, mandates individual
assessment by each member of the selection committee and
since it was not done and/or there was no record to show such
assessment, the learned Judge has rightly set aside the selection
of Dr.Sravanthy and Dr.Gowda. He submitted that the
procedure adopted and followed by the selection committee was
far from being fair and transparent apart from the fact that it
was not as contemplated by Ordinance II of the University. In
support of this contention, he invited our attention to educational
qualifications, teaching experience and number of publications of
each of the candidates and tried to demonstrate as to how the
allocation of marks by the selection committee under these
heads was irrational and arbitrary. In other words, he submitted
that the selection and appointment of Dr.Sravanthy and
Dr.Gowda to the posts of Assistant Professor in Zoology was
illegal being irrational and arbitrary and also suffers from
procedural impropriety. After inviting our attention to the
marking pattern that was adopted by the selection committee in
respect of teaching experience, publications and interview
performance, he lastly submitted that in the absence of the
record, it cannot be stated that the selection committee followed
the due procedure for allocation of marks to the candidates
interviewed by them. In any case, he submitted, it cannot be
stated that the procedure that was adopted and followed by the
selection committee was as prescribed in the Ordinance II.
11.1 Sri G.Vidyasagar, the learned Senior Counsel for
Dr.R.Krishna, submitted that Dr.Gowda was not entitled to 6
marks under the head U.G as he passed the Degree in
Compartment. Similarly, he submitted that he was also not
entitled for 2 marks under the head teaching experience since
his teaching experience was during the period when he was
pursuing Ph.D Course during 22-02-2001 to October-2006. He
submitted that regular Ph.D candidate was not permitted to be in
employment and, therefore, the selection committee ought not
to have awarded him any mark under the head teaching
experience from June-2002 to 2007. Insofar as publications are
concerned, Sri G.Vidyasagar submitted that the petitioner had
placed 15 publications on record for which the selection
committee ought to have awarded him 20 marks. Thus, he
submitted that in view of arbitrary allotment of marks resulted in
rejecting the candidature of Dr.R.Krishna who was more
meritorious and deserving than Dr.Gowda.
12. Before dealing with the submissions advanced by learned
counsel for the parties and addressing the first question, it would
be relevant to make a reference to the judgments relied upon by
them in support of their submissions and to the relevant
provisions of the Act and Ordinance II to which our attention was
specifically drawn.
12.1 In Madan Lal and Others Vs. State of J & K and
others( ) the Supreme Court while dealing with the submission,
as advanced in the present case that the selection committee
ought to have assigned separate marks for the different faculties
of the candidates concerned, namely, intelligence, general
knowledge etc., as laid down in the Rule and since that was not
done by the committee the entire viva voce test was vitiated,
observed that the selection committee has to keep in view over
all performance of the candidates at the oral interview and while
doing so their intelligence, general knowledge, personality,
aptitude and suitability have to be kept in the center. The Rule
merely lays down the object of assessing such candidates in the
viva voce examination. It is a general guideline given to the
selection committee. Therefore, it is not possible to agree with
the submission that the members of the selection committee
must separately assess and give marks on different listed topics,
faculty wise as per the said Rule. Then, the Supreme Court,
while dealing with the submission that tape recording of the
interview as required under Rule 19(1)(b) of the Jammu and
Kashmir Civil Services (Judicial) Recruitment Rules,1967 ought
to have been maintained and preserved by the selection
committee, rejected the contention that not maintaining and
preserving the tape recording would vitiate the viva voce test.
This judgment was also relied upon for the proposition that the
candidate having participated in the selection process cannot
turn around and challenge the selection contending that the
procedure laid down was not followed.
12.2 In DR.M.C.Gupta Vs. Dr.Arun Kumar Gupta( ) the
Supreme Court observed that 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 the technical
subjects, the Courts should be slow to interfere with the opinion
expressed by the experts unless there are allegations of mala
fides against them. It was further observed that 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. [also see
Basavaiah(Dr.) Vs. Dr.H.L.Ramesh-(2010) 8 SCC 372; University
of Mysore Vs. C.D.Govinda Rao-AIR 1965 SC 491 and Dalpat
Abasaheb Solunke Vs. Dr.B.S.Mahajan-AIR 1990 SC 434].
12.3 In Neelima Misra Vs. Harinder Kaur Paintal( ) the
Supreme Court after referring to its judgment in University of
Mysore Vs. C.D.Govinda Rao( ) observed that in the matter of
appointment in the academic field, the Court generally does not
interfere. It was further observed that 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.
12.4 In Bhushan Uttam Khare Vs. Dean, B.J.Medical
College and Others( ) the Supreme Court once again after
referring to its judgment in University of Mysore(supra)
observed that the Courts should be normally very slow to pass
orders in its jurisdiction because matters falling within the
jurisdiction of educational authorities should 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.
12.5 In National Institute of Mental Health and Neuro
Sciences Vs. Dr.K.Kalyana Raman and Others( ) the
Supreme Court observed that 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.Gowri Devi
as against other candidates. 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. [ Also see
B.C.Mylarappa Vs. Dr.R.Venkatasubbaiah(2008) 14 SCC 306 ].
12.6 In Sajeesh Babu K Vs. N.K.Santhosh( ) the Supreme
Court observed that in a matter of appointments/selection by an
expert committee consisting of qualified persons in the particular
field, normally the Courts should be slow to interfere with the
opinion expressed by the experts unless there is any allegation
of mala fides against experts who had constituted the selection
committee.
12.7 In K.A.Nagamani Vs. Indian Airlines and Others( )
the Supreme Court observed that the appellant having
participated in the selection process along with contesting
respondents without any demur or protest cannot be allowed to
turn around and question the very same process having failed to
qualify for the promotion.
12.8 In State of Tamil Nadu Vs. K.Shyam Sunder( ) the
Supreme Court observed that undoubtedly the Court lacks
expertise especially in disputes relating to policies of pure
academic educational matters. Therefore, generally it should
abide by the opinion of the expert body. It was further observed
that it would normally wise and safe for the Courts to leave such
decisions to experts who are more familiar with the problems
they face than the courts generally can be. [ see also Medical
Council of India Vs. Sarang and others-(2001) 8 SCC 427 ].
12.9 In The Chancellor Vs. Dr.Bijayananda Kar( ) the
Supreme Court observed that the decision 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 committees which invariably
consists of experts on the subjects relevant to selection.
12.10 In Maharashtra State Board of Secondary and
Higher Secondary Education and Another Vs. Paritosh
Bhupeshkumar Sheth and Others( ) the Supreme Court
observed that 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 departments controlling them. It will be wholly
wrong for the Court to make a pedantic and purely idealistic
approach to the problems of this nature, isolated from the actual
realities and grass root problems involved in the working of the
system and unmindful of the consequences which would
emanate if a purely idealistic view as opposed to a pragmatic
one were to be propounded. It is equally important that the
Court should also, as far as possible, avoid any decision or
interpretation of a statutory provision, rule or bye-law which
would bring about the result of rendering the system unworkable
in practice.
12.11 In Lila Dhar Vs. State of Rajasthan and
others( ) the Supreme Court while dealing with the challenge
and selection for the post of Munsifs under Rajasthan Judicial
Service Rules observed that it is for the interviewing body to
choose the appropriate method of marking at the selection to
each service. There cannot be any magic formulae in these
matters and Courts cannot sit in judgment over the method of
marking employed by interviewing bodies unless it is proven or
obvious that the method of marking was chosen with oblique
motive.
13. Thus, the law laid down by the Supreme Court in the
above judgments could be summarized as under:-
(i) The Courts should be slow in interfering with the
opinion expressed by a selection committee
consisting of experts in the field and leave the
decisions of academic matters to its members,
who are more familiar with the problems, they
face than the Courts generally can be, unless
there are allegations of mala fides against its
member/s;
(ii) The selection committee has to keep in view
over all performance of the candidates at the
oral interview and while doing so their
intelligence, general knowledge, personality
aptitude and suitability have to be kept in the
center. The Rule/Regulation/Ordinance laying
down the procedure to be adopted for the
selection process merely lay down the object of
assessing the candidates and they are to be
treated as Guidelines given to the selection
committee;
(iii) The Courts should normally be very slow to pass
orders in its extraordinary jurisdiction because
matters falling within the jurisdiction of the
educational authorities should be left to their
decision and interfere with them only when it
thinks that it must do so in the interest of
justice;
(iv) The function of the selection committee is
neither judicial nor adjudicatory and it is purely
administrative in nature;
(v) Unless it is provided in the Rules/Regulations/
Ordinances to record reasons for preferring one
candidate against the other, it is not mandatory
for the selection committee to do so;
(vi) The Courts should not 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 departments
controlling them;
(vii) There cannot be any magic formula in academic
matters, in particular selection and
appointments, and Courts cannot sit in
judgment over the method of marking employed
by selection committee unless it is proven or
obvious that the method of marking was chosen
with oblique motive; and
(viii) The decision of selection committee can be
interfered with on limited grounds, such as,
illegality or patent material irregularity in the
constitution of committee or its procedure
vitiating the selection or proved mala fides
affecting the selection.
14. We would also like to have a glance at the relevant
provisions of the Act and the Ordinance to which our attention
was drawn. Chapter IV in the Act provides for authorities of the
University. Section 18 of the Act provides for constitution of
Executive Council which was earlier known as Board of
Management. The Executive Council under this provision consists
of two categories of members. One, Class I-Ex-Officio Members,
and two, Class II-members. Class I members of the Executive
Council are as follows: i) the vice-Chancellor; ii) the Rector; iii)
the Secretary to government in Education Department or an
Officer in the Education Department nominated by the
Government; iv) the Secretary to Government in the Finance
and Planning (Finance Wing) Department or an officer in the
Finance and Planning (Finance Wing) Department nominated by
the Government; and v) the Director of Higher Education/the
Commissioner of Collegiate Education. Class II members consists
of nine members nominated by the Government of six different
categories as provided for in Clauses (i) to (vi) of this Section.
Sub-sections 2, 3, 4 and 5 of Section 18 may not be relevant for
our purpose, hence we are not making any specific reference
thereto. Sub-section (6) of Section 18 of the Act provides the
quorum for meeting of the Executive Council, which shall be
one-third of the total number of members or six persons,
whichever is less. One of the functions/duties of the Executive
Council under Section 19 of the Act is to consider
recommendation made by the selection committee and make
their appointments to the post for which they are selected.
14.1. Further, it is relevant to reproduce Section 43 of the Act
which read thus:-
43. Constitution of Selection Committee:- (1) There shall be
constituted a Selection Committee in regard to the appointment of professors,
readers and lecturers which shall consist of the following, namely,
(i) the Vice-Chancellor;
(ii) three experts from outside the University to be nominated
by the Vice -Chancellor from out of panel prepared every
year by the Board of Studies and approved by the Board
of Management of whom at least two shall be present in
the selection committee;
(iii) Chairman of the Board of Studies concerned;
(iv) Head of the Department;
Provided that no person shall participate in the meetings of the
selection committee for any appointment if he or his near relative is
candidate for that appointment;
Provided further that no teacher holding a post lower in rank than the
one to which appointment is to be made, shall be a member of selection
committee,
(2) The Registrar shall be the Secretary of the Selection
Committee.
(3) Provision shall be made in the Statutes in respect of such
matters as may be considered necessary and not provided for
in sub-sections (1) and (2) in order to ensure fair selections
(emphasis supplied)
14.2 In the present case, the University, as provided for under
Section 43 of the Act had constituted the selection committee
consisting of the following members:-
(a) Prof.N.Linga Murthy, Vice-Chancellor (Chairman)
(b) I. Subject Experts:-
(i) Prof.M.K.Durga Prasad, Vice Chancellor,
Krishna University, Machilipatnam
(ii) Prof.Ram Chander Mohan, Zoology Dept.,
Bangalore University, Bangalore, Karnataka.
(iii) Prof.R.S.Kulkarni, Zoology Dept.,
Gulbarga University, Gulbarga, Karnataka.
(c) Prof.S.S.V.N.Sharma, Dean Science
(d) Prof.N.Vijay Kumar, Head of the Dept. Zoology
(e) Prof.A.Sadanandam, Registrar, Kakatiya University
(Secretary)
(f) Dr.Noor Sehan N.Ganihar, UGC Observer.
(g) Prof. S.Indrakanth, OU, Hyderabad Chancellors
nominee
(h) Prof.N.Vijaya, KU, Economics Dept.,
Women representation (Special Invitee)
(i) Prof.Bannaiah Ailaiah, KU, Telugu Dept,
SC & ST Representation (Special Invitee)
14.3 From bare look at the constitution of the committee, it is
clear that three subject experts from three different Universities
were nominated as members by the Vice-Chancellor, obviously
from out of the panel prepared by the Board of Studies and
approved by the Board of Management i.e. Executive Council.
15. In order to appreciate the submissions of the learned
counsel for the parties in respect of the awarding of marks under
different heads, such as, teaching experience, publications and
interview performance and so also to appreciate whether the
findings recorded by the learned Judge on the first question are
sustainable, we would like to look into the procedure that was
followed by the selection committee.
15.1 Section 57 of the Act, while repealing the Kakatiya
University Act, 1976, the Statutes, Ordinances and Regulations
framed thereunder were saved, so far as they are not
inconsistent with the provisions of the Act. In other words such
Statutes, Ordinances and Regulations, so far as they are
consistent with the provisions of the Act, continue to be in force
and be deemed to have been made under the provisions of the
Act unless they were superseded or modified thereunder. In the
present case, we are concerned with the Ordinance No.II framed
by the Kakatiya University under Section 29(1) of the Kakatiya
University Act, 1976, which admittedly continues to be in force
by virtue of Section 57(k) of the Act. This Ordinance deals with
the procedure to be followed by the selection committee for
teaching posts. Relevant clauses of the Ordinance, to which our
attention was specifically drawn by learned counsel appearing for
both sides, read thus:-
7. All the members of the Selection Committee and the Heads
of the Departments shall interview the candidates and express
their opinions.
8. The experts shall state their opinion on the
qualifications, research experience and ability of the
candidates. Keeping in view the opinions of the experts, the
candidate shall be selected as per the opinion of the majority of
the members of the Selection Committee; and in the case of the
opinion being evenly divided, the opinion of the Vice-Chancellor be
the deciding factor.
9. The candidate shall not be selected if in the opinion of
the experts he or she is below standard.
10. The selection of a candidate by the Committee shall be
recommendatory in character and shall not be final until selection
is ratified or confirmed by the Syndicate, which shall have power to
reject the selection made by the Committee.
11. The proceedings of the Selection Committee
regarding each individual candidate shall be privileged and
confidential and they shall be kept in the custody of the
Registrar.
(emphasis supplied)
15.2 A bare look at the relevant paragraphs in Ordinance II
would show that all the members of the selection committee and
the Heads of the Departments shall interview the candidates and
express their opinion. It further provides that experts shall
state their opinion on the qualifications, research, experience
and ability of the candidates and keeping in view the opinion of
the experts, the candidates shall be selected as per the opinion
of the majority of the members of the selection committee, and
in case of the opinion being evenly divided, the opinion of the
Vice-Chancellor be the deciding factor. It further provides that a
candidate shall not be selected if in the opinion of the experts
he/she is below standard. The proceedings of the selection
committee regarding each individual candidate shall be
privileged and confidential and they shall be kept in the custody
of the Registrar. Thus, apart from the opinion of the members of
the selection committee, a weightage is given to the opinion of
the experts with further rider that the candidate cannot be
selected if in the opinion of the expert, he/she is below standard.
The selection of any candidate, de hors the procedure
contemplated by Ordinance II, therefore, would be illegal. It is
true, the Ordinance, though requires its (selection committee)
members/expert to express their opinion and prepare its
proceedings does not contemplate recording of reasons for
preferring one candidate against the other. The word
proceedings in paragraph 11 of the Ordinance II, however,
clearly means and would have to be read to mean the record
of the interviews conducted by the selection committee or of the
entire selection process. The record so created and maintained
also requires to be preserved being privileged and confidential by
the Registrar, the Secretary of the selection committee. Thus,
the submission that the Ordinance does not contemplate
maintenance of record deserves to be rejected outright. In our
opinion, the consolidated assessment sheet signed by all
members of the committee cannot be treated as record or
proceedings. It would at the most amount to declaring or
preparing final result of interviews by the selection committee.
15.3 The selection committee has a right to give its
independent, unbiased and considered opinion in respect of each
candidate appearing before it. The sanctity of the process of
selection in any case needs to be maintained and that it would
be a travesty of the selection process if the transparency in the
selection process is not exhibited/seen from the record
maintained by the selection committee. [See Dr. Bijayananda
Kar (supra)]. Similarly, as observed by the Supreme Court in
D.V.Bakshi Vs. Union of India( ) if the committee conducts
oral test, a heavy responsibility is cast on the members of the
committee to maintain proper record of the oral test in respect
of each candidate and marks must preferably be assigned under
each head considered to be relevant to evaluate the candidate.
16. The University claims that they produced the record (i.e.
the consolidated assessment sheet) pertaining to the subject
selection for perusal of the learned Judge in the course of
hearing of the writ petitions. After perusing the same, the
learned Judge recorded his impressions as under:-
.. The file reflects that a single consolidated
assessment sheet signed by all the members of the
Selection Committee is the only record of the
proceedings of the selection for both posts. Upon a
query from the Court, the learned standing counsel
submitted that there was no separate individual
assessment by each of the six members of the
Selection Committee. He further submitted that except
for this consolidated assessment sheet, there was no
other record of the deliberations of the Selection
Committee during the process of selection. He stated
that upon a group discussion, the members of the
Committee decided upon the marks to be allotted to each
candidate. No other record was maintained to indicate
as to how much time was spent with each of the
candidates and as to whether the allotment of marks
was done at a single time or after each candidate was
interviewed. The learned standing counsel stated that
under the UGC Regulations of 2000 there was no
necessity for the Selection Committee to maintain a
record or give reasons during the process of
selection.
(emphasis supplied)
16.1 It is not in dispute that UGC Regulations 2009 provide for
maintaining a record or give reasons for preferring one candidate
against the other. Whether UGC Regulations 2009, would apply
to the subject selection, is the question raised by
Dr.Damayanthi, which we will deal with little later. At this stage,
suffice it to say that the learned single Judge held that UGC
Regulations 2009 would apply only for qualifications prescribed
therein, and that UGC Regulations 2000 would prevail insofar as
subject selections are concerned.
16.2 Then, the learned Judge after considering the judgments
of the Supreme Court in Dr.Bijayananda Kar and
Dr.D.V.Bhakshi (supra) and after considering the Ordinance II
proceeded to observe thus:-
Thus, a written record was a must for discharging
the heavy responsibility resting upon the Selection
Committee when it based its selection on its deliberations
at the interview. There is however no record as to how the
Selection Committee went about awarding marks under the
heads where it exercised discretion such as publications and
teaching experience.
. This aspect becomes all the more relevant as
candidates with more teaching experience were awarded
lower marks as compared to those lesser teaching
experience. Further, teaching experience garnered
during pursuit of Ph.D. course was also considered by the
Committee, which as per the UGC Regulations of 2009
could not have been taken into account. This aspect is
mentioned under Clause 3.9.0 of the UGC Regulations of 2009
and being included in the Part dealing with qualifications, it
would be a condition which would have applicability as per the
Information Brochure appended to the Notification dated
31.12.2009. In the absence of the written record of the
selection proceedings in proof of objective and impartial
assessment of the comparative merits of competing candidates,
this Court must necessarily hold that the procedure
adopted was not only in violation of the prescribed
binding norms contained in Ordinance No.II but was also
far from being fair and transparent.
..
In any event, this Court is not equipped to deal with the
issue as to which of the publications of these contesting
candidates warranted better marks. This Court would then be
sitting in appeal and as stated supra, such exercise is not within
its province while undertaking judicial review under Article 226
of the Constitution.
.. There is however no indication that there was
any prior evaluation of such articles before the interviews
were conducted on 20.04.2010 by the Selection
Committee. The call letters issued to the candidates
reflect that they were required to produce reprints of
publications and books for verification before the
interview. This indicates that no prior exercise was
undertaken on the basis of the copies supplied by
candidates along with the application forms. In this
situation, when the Selection Committee, as per the counter of
the University, undertook an evaluation of the published articles
of each of the candidates during the interview itself on the basis
of various parameters, it was incumbent upon the
Committee to maintain a written record of such
evaluation so as to obviate any scope for arbitrary
exercise of such discretion. There is, as stated supra,
surprisingly no record whatsoever. Further, it is difficult to
believe that the Selection Committee would have had sufficient
time to undertake such an exercise during the interview as the
records placed before this Court show that some of the
candidates produced voluminous publications which could not
have been assessed during the brief time available to the
Selection Committee while interviewing such candidates.
..
.. There is no dispute that the Selection Committee
was bound to follow the marks allocation provided in the
assessment sheet in so far as the head educational
qualifications was concerned. The assessment sheet reads to
the effect that 10, 8, 6 and 4 marks respectively were to be
awarded for Distinction, I Division, II Division and Pass (UG
only). Dr.Gowda Rajender, as is evident from the consolidated
memorandum of marks issued by the Kakatiya University,
Warangal, in respect of his under graduate course in B.Sc. was
given a pass division owing to his having passed through
supplemental examinations. Once the marks memorandum
itself indicated that he was given a pass division, the Selection
Committee clearly ought not to have awarded him 6 marks
treating him as having passed B.Sc. in II Division. This is yet
another instance to indicate the lack of fair play in
action occasioned by the procedure adopted by the
Selection Committee in the present case.
(emphasis supplied)
17. In order to appreciate and consider whether the selection/
appointments of Dr.Sravanthy and Dr.Gowda are illegal being
irrational and arbitrary, and whether the procedure adopted &
followed for their selection was fair, transparent and credible, we
have carefully perused the final assessment sheet, application
forms of all 5 candidates and averments made on affidavits in
respect of the experience and the publications of each candidate.
We find ourselves in agreement with the observations made in
the impugned order by the learned Judge, in particular, as
quoted in Paragraphs 16 and 16.2 of this judgment, insofar as
fair play, transparency and procedural impropriety are
concerned, holding that the subject appointments are irrational
and arbitrary.
18. The selection committee was furnished with an assessment
sheet by the University dividing the marks under various heads,
like educational qualifications, teaching experience, publications
and performance at the interview. 40 marks are awarded for
educational qualifications, 10 marks for teaching experience, 20
marks for publications and 30 marks for performance, totaling to
100 marks. From perusal of the assessment sheet, it appears
that at the bottom, they provided the marks allocation in the
square/block under different heads. It states a candidate with
distinction would be entitled for 10 marks, I Division- 8 marks,
II Division6 marks, Pass -4 marks and 1 mark for each year of
experience and 5 marks for each publication. According to the
University, the allocation of marks as provided with the
assessment sheet was only by way of guideline, which is being
used by the Selection Committee all these years in respect of all
selections made by them. The marks to be awarded under
various heads as provided for at the bottom of the assessment
sheet are not statutory in nature and, therefore, the selection
committee in its wisdom has a discretion of awarding more or
less marks under every head mentioned therein. It is their case
that the selection committee, in respect of the subject selection,
had discretion to award marks ranging from 1 to 5 for
publications and more or less marks for each year of experience
depending upon the nature of experience, such as whether it
was contractual or regular etc.,
19. While criticizing the allocation of marks to Dr.Sravanthy
and Dr.Gowda, the focus of learned counsel for Dr.Vinatha,
Dr.Damayanthi and Dr.R.Krishna was more on the marks
allocation provided with the assessment sheet. Based on that,
it was submitted that allocation of marks was irrational and
arbitrary. The allocation of marks, for instance, would show
5 marks for each publication and the maximum marks under
this head provided were 20. There was no restriction on the
number of publications to be placed on record with the
application form or at the time of interview. It is true that the
interpretation placed by the learned counsel for Dr.Vinatha,
Dr.Damayanthi and Dr.R.Krishna on the marks allocation
provided in the assessment sheet is not sustainable for more
than one reason. Firstly, it is not the quantity but the quality of
publication is relevant. Secondly, merely because more number
of publications were placed on record, it cannot be stated that
the candidate was entitled for all 20 marks. It is for the experts
in the field to decide how much marks they were entitled for and
it would be wrong to state that 5 marks for each publication
ought to have been allotted. In other words, 20 marks ought to
have been allotted to all the petitioners in the present case.
These submissions deserve to be rejected outright and if we do
not do so that would amount to sitting in appeal over the marks
awarded by the selection committee. We would not like to
venture into that exercise.
20. However, we cannot turn our blind eye to other side of the
arguments. For instance, we would like to make reference to the
publications placed by Dr.Sravanthy and Dr.Damayanthi on
record for consideration of the selection committee to
understand the arguments and to know whether allocation of
marks under this head was fair, transparent and credible, or it
was arbitrary and irrational. Dr.Damayanthi placed her
publications on record at the time of interview. Undoubtedly, she
had failed to attach the publications to her application though it
was necessary as mentioned in the information brochure dated
31-12-2009. Still her publications/articles were taken on record.
All other candidates, it appears, had attached publications along
with their application forms. There is no indication that there was
any prior evaluation of the Articles before the interviews were
conducted on 20.04.2010 by the selection committee, in
particular by the experts. If the committee had maintained a
record of such evaluation so as to obviate any scope for arbitrary
exercise of such discretion that would have certainly helped to
understand and to know what were the considerations for
awarding marks under this head. However, there is absolutely no
record what-so-ever in respect thereof.
20.1 Dr.Damayanthi placed about 10 publications on record.
Out of which 6 were authored by her and in the remaining she
was co-author. Dr.Dramayanthi was awarded 8 out of 20 marks
for publications. Similarly, Dr.Sravanthy placed 3 publications on
record, all written by her along with 3-4 others including her
father Dr.Sammaiah. None of the Article/Paper was written by
Dr.Sravanthy as a principal author or sole author. She was,
however, given 15 out of 20 marks for her three publications by
the selection committee. That apart, there is absolutely nothing
on record to indicate as to when the publications/papers were
assessed by the members of the interview committee? Whether
the publications were circulated to the members before the
meetings? How long the selection committee interviewed each
of the candidates? Whether the committee had sufficient time to
assess the publications during the meetings? All these questions
assume importance in view of the fact that the Selection
Committee had only one meeting on 20-04-2010.
20.2 In this connection, it would be relevant to notice as to
how the Supreme Court in Ashok Kumar Yadav and others
Vs. State of Haryana and others( ) dealt with the similar
situation. In this case, the Supreme Court was dealing with the
ground of challenge that in comparison to the marks allocated to
the written examination, the proportion of the marks allocated to
the viva voce test was excessively high and that introduced an
irredeemable element of arbitrariness in the selection process so
as to offend Article 14 and 16 of the Constitution. In order to
appreciate this contention and to adjudicate its validity, the
Supreme Court considered the relative weight attached by the
relevant Rules to the written examination and the viva voce test
and then proceeded to consider merits of grounds of challenge.
20.3 The observations made by the Supreme Court in
Dr.J.P.Kulshrestha v. Chancellor, Allahabad University( )
are also relevant. The Supreme Court in this case observed that
the functional freedom allowed to academic bodies in such
matters would be subject to the basics of natural justice, fair
play in action, reasonableness in collecting decisional materials
and avoidance of arbitrariness and extraneous consideration and
otherwise keeping within the leading strings of the law. In our
opinion, if the selection committee, contravened Ordinance II or
does not follow the procedure laid down therein scrupulously,
which is binding upon it in making selection and recommending
selectees for appointment, this Court in exercise of its
extraordinary jurisdiction can interfere.
21. Thus, what is necessary for a selection committee, such as
one in the present case, is to ensure that the process of
selection in every case is fair, transparent and credible. The
Court while examining, whether the Committee exercised fair
play in action, reasonableness in collecting decisional materials
and avoidance of arbitrariness, should not sit in appeal over the
decision of the Selection Committee and to venture into an
examination of the marks awarded and the correctness thereof,
unless the Committee commits illegality in its procedure vitiating
the selection or mala fides are proved affecting the selection.
22. In the present case, having regard to the Ordinance II,
UGC Regulations-2000, the details furnished by each of the
candidates and the settled proposition of law, we are satisfied
that the selection committee did not follow the procedure, in
selecting Dr.Sravanthy and Dr.Gowda scrupulously. The UGC
Regulations of 2000, after specifying the details of the selection
committee under clauses 3.1.0 to 3.4.0, postulates that it may
be ensured that the process of selection in every case is fair,
transparent and credible and should involve assessment of
aptitude for teaching and research, ability to communicate
clearly and effectively, and ability to analyze and discuss. These
clauses of UGC Regulations read with Ordinance II framed by the
University under Section 29(1) of the Act, in our opinion,
mandate to maintain a record in respect of each of the
candidates interviewed by the selection committee. If the
Ordinance II and the Regulations of UGC are read to mean that
maintenance of the record by the selection committee is not
necessary, perhaps that will amount to giving go-by to the
established procedure to maintain transparency and fair play in
the selection process. For conducting an oral test, a heavy
responsibility is cast on the members of the selection committee,
in particular the experts, in order to ensure fair play and
transparency in the selection process. Members of the selection
committee are expected to maintain separate assessment, in
particular the experts, on whom more responsibility is cast by
Ordinance II. It is true that normally the Courts should be slow
to interfere with the opinions expressed by the experts and that
it would normally be wise and safe for the Courts to leave the
decision of the academic matters to the experts, but in the
present case we do not find any indication from the record that
the experts were given separate assessment sheets to be filled
up at the time of interview reflecting their opinion on the
qualifications, research, experience and suitability of the
candidates. In our opinion, the decision of the selection
committee, in the present case, deserves to be interfered with
being discriminatory, irrational, arbitrary and violative of the
rules/Ordinance framed by the University. It also deserves to be
interfered with for not following the due procedure and non
maintenance of record.
23. Next we would now like to consider the second ground of
challenge, whether selection of Dr.Sravanthy is hit by personal
bias. At the relevant time, Dr.Sammaiah, the father of
Dr.Sravanthy, was Chairman of the Board of Studies and by
virtue thereof, an Ex-Officio member of the selection committee.
Dr.Sammaiah, therefore, as provided for in the first proviso to
Sub-section(1) of Section 43 did not participate in the meetings
of the selection committee which interviewed the candidates
including his daughter-Dr.Sravanthy for the two posts of
Asst. Professors in Zoology.
24. Learned Judge after considering the submissions of learned
counsel for the parties on this question and after having perused
the records and judgments of the Supreme Court in Madhya
Pradesh Special Police Establishment v. State of Madhya Pradesh
(AIR 2005 SC 325; Dr.S.A.Hakeem vs. The NTR University of
Health Sciences (AIR 2001 AP 57); and Rattan Lal Sharma vs.
Managing Committee, Dr.Hari Ram (Co-Education) Higher
Secondary School (1993) 4 SCC 10 and State of West Bengal vs.
Shivananda Pathak [(1998) 5 SCC 513] observed thus:
The material placed before this Court by Dr.Vinatha Naini
along with her reply affidavit reveals that Dr.Ch.Sammaiah
was a member of the Selection Committee which undertook
interviews for effecting promotions under the Career
Advancement Scheme in Zoology during the forenoon of
20.04.2010. Significantly, all the members of the
Selection Committee which interviewed his daughter in
the afternoon session were his colleagues in the said
Section Committee. The possibility of influence being
wielded by Dr.Ch.Sammaiah upon the said members
during his interaction with them as a member of the
Selection Committee in the morning cannot therefore
be ruled out. The principle underlying the first proviso
to Section 43(1) of the Act of 1991 is that an employee
of the University who is interested in one of the
candidates should not have any exposure to the
members of the Selection Committee. That principle was
obviously given a go-by in the present case as
Dr.Ch.Sammaiah had more than ample opportunity to
interact with and influence the members of the Selection
Committee which interviewed his daughter for the post. As
pointed out by the Supreme Court, mere likelihood of bias
beyond a reasonable doubt would be sufficient to taint the
process and set it at naught.
(emphasis supplied)
25. In this backdrop, Sri C.V.Mohan Reddy, learned senior
counsel, submitted that Dr.Vinatha, Dr.Damayanthi and
Dr.R.Krishna after having participated in the interviews without
any demur to the constitution of the selection committee and
having failed in their attempts, cannot turn around and challenge
the selection and appointment of Dr.Sravanthy on the ground of
bias. He further submitted that the learned Judge while
eschewing the allegation of mala fides, examined the allegation
of bias, attaching importance to the participation of
Dr.Sammaiah, the father of Dr.Sravanthy, in the selection
process and observed that such a member should not have any
exposure to the other members of the selection committee. As a
matter of fact, he submitted, Dr.Sammaiah had recused himself
from being a member of the selection committee, and he did not
participate in its meetings for selection of candidates. Merely
because he was appointed by the Vice-Chancellor along with two
other members to scrutinize the application, that cannot be the
ground to hold that he participated in the selection process as
such. He then submitted, it was wrong to hold that there was
possibility of influence being wielded by Dr.Sammaiah upon its
members during interaction with them in the morning session
when he sat as a member of Selection Committee for some other
selections. In support, he placed reliance upon several
judgments of the Supreme Court to which we will make
reference little later. Sri Deepak Battacharjee, learned counsel
for the University, adopted the submissions made by Sri Mohan
Reddy.
26. Mr.D.Prakash Reddy, learned senior counsel, on the other
hand submitted that the learned Judge has rightly set aside the
selection and appointments on the ground of bias. He, however,
fairly submitted that no case for mala fides is either alleged in
the writ petitions or made out against the members of the
selection committee. In short, he conceded that no mala fides
are alleged against the members of the selection committee,
which ultimately interviewed the candidates. He submitted that
having regard to the relationship of Dr.Sammaiah and
Dr.Sravanthy, he should have kept himself away from the
selection process completely and his participation even for
scrutiny of the application forms of all candidates was wrong. He
submitted, in such a situation even likelihood of bias beyond a
reasonable doubt would be sufficient to taint the process of
selection.
27. In this connection, we would like to look into the following
judgments of the Supreme Court relied upon by learned counsel
for the parties in support of their case:
27.1 In Ashok Kumar Yadav (supra) the Supreme Court
observed that there can be no doubt if a selection committee is
constituted for the purpose of selecting candidates on merits and
one of the members of the selection committee is closely related
to a candidate appearing for the selection, it would not be
enough for such member merely to withdraw from participation
in the interview of the candidate related to him but he must
withdraw altogether from the entire selection process and ask
the authorities to nominate another member in his place on the
selection committee, because otherwise all selections made
would be vitiated on account of reasonable likelihood of bias
affecting the process of selection.
27.2 In Jaswant Singh Nerwal Vs. State of Punjab and
others( ) the Supreme Court held that it is not unusual for
candidates related to members of the Service Commission and
selection committees to seek employment. In such a situation,
the practice generally in vogue is for the member concerned to
excuse himself when the particular candidate is interviewed and
such a selection is beyond challenge, unless, of course,
mala fide. [ also see S.N.Nagarajan Vs. State of Mysore-AIR
1966 SC 1942 ].
27.3 In Pankaj Sarma Vs. State of J&K( ) the Supreme
Court while dealing with the allegation of bias, upheld the view
of the High Court that the question of disability could arise only
in case of participation at the stage of selection where the merit
of a candidate was to be adjudged. This observation was made
in the backdrop of the contentions advanced that a particular
member of the selection committee ought to have recused
himself from participating in the selection process.
27.4 In Javid Rasool Bhat Vs. State of J&K( ) the
Supreme Court observed that in the absence of mala fide, it
would not be a right to set aside selection merely because one of
the candidates happened to be related to a member of the
selection committee who had abstained from participating in the
interview of the candidate.
27.5 In Abraham Kuruvila Vs. S.C.T.Institute of Medical
Sciences and Technology and others ( ) the Supreme Court
while dealing with the allegation of bias against some of the
members of the selection committee observed that it is now well
settled principle of law that bias which would mean and imply
spite or ill will must be proved by raising requisite plea in this
behalf and by adducing cogent and sufficient evidence in support
thereof. In fact, bias is a state of mind and it shows
predisposition. Thus, general statements would not meet the
requirements of law.
28. There cannot be any doubt or debate that a son/daughter
has every right to participate in the selection process even if the
father of such a candidate is a member of the selection
committee. What is required is that such member of the Section
Committee should not participate or excuse himself when his
son/daughter is interviewed and keep himself away from the
selection process. We may not agree with the observations
made by the learned Judge while dealing with the allegations of
bias/mala fides that the possibility of influence being wielded by
Dr.Sammaiah, the father of Dr.Sravanthy, upon the said
members during his interaction with them as a member of the
selection committee in the morning session cannot, therefore, be
ruled out. Admittedly, Dr.Sammaiah did not participate in the
meetings of the selection committee for the subject
appointments when it interviewed the candidates. Merely
because he was one of the scrutinizers along with two other
members on the Committee nominated by the Vice Chancellor
for scrutiny of all the applications for the two posts in question
and the Committee certified that three of the candidates were
not eligible at the preliminary stage it cannot be stated that he
participated or played any role in actual selection process,
though it would have been better, had he kept himself away
even from the scrutiny of the applications.
29. The first proviso to Section 43(1) of the Act mandates that
such a member should not participate in the meetings of the
Selection Committee for any appointment if he or his near
relative is a candidate for that appointment. In the present
case, admittedly, Dr.Sammaiah recused himself from being a
member of the selection committee, which was to conduct
interview for the subject selection. In other words, he did not
participate in the selection of his daughter Dr.Sravanthy.
Moreover, there are no allegations of mala fides against the
members of the committee, who actually interviewed the
candidates for the subject posts. In this backdrop, the
submission of Sri D.Prakash Reddy, the learned Senior Counsel
that what is necessary to be seen is whether there was a real
likelihood of a bias or at least there was substantial possibility of
bias, in our opinion, deserves to be rejected outright. If such
view is taken that would only mean that Dr.Sravanthy should not
have participated in the selection process at all.
29.1 It is not unusual for the candidates related to members of
selection committees to seek appointments. In such a situation,
as observed by the Supreme Court in Jaswant Singh Nerwal
(supra) the practice generally in vogue is for the member
concerned to excuse himself when his near relative is
interviewed and selection of such relative is beyond challenge,
unless, of course, mala fide. While dealing with allegations of
bias, in our opinion, it would not be proper to set aside the
selection merely because one of the candidates happened to be
related to the members of the selection committee, who
admittedly abstained from participating in the interview of such
candidates. Mere allegation of bias against a member of the
selection committee is not sufficient. It must be proved by
raising the requisite plea in this behalf and by adducing cogent
and sufficient materials in support thereof. In the present case,
except allegations, we do not find any such materials on record
in support of the allegation of bias. We do not agree with the
submission that Dr.Sammaiah being a member of the selection
committee held meetings with the members of the selection
committee in connection with other selection in the morning on
the same day and, therefore, there was a possibility of the
influence being wielded on the other members of the Committee
for selecting his daughter Dr.Sravanthy. In the circumstances,
we answer the second question in the negative.
30. Insofar as the 3rd question is concerned, the basic
contention urged was that the Executive Council in its 87th
meeting held on 30-04-2010 lacked the requisite quorum as
provided under Sub-section (6) of Section 18 of the Act and,
therefore, approval of the recommendations made by the
Executive Council leading to the impugned appointment was
illegal and vitiated on this count.
31. Sri C.V.Mohan Reddy, the learned Senior Counsel for the
appellants submitted that the learned Judge while referring to
Sub-section (6) of Section 18 of the Act and in the light of
removal/termination of Class II members of the Executive
Council vide G.O.Ms.No.30, dated 09-04-2010 (for short
GO-30) overlooked the fact that by the very same GO-30 the
University was permitted to function with Ex-Officio Class I
members till reconstitution of the Executive Council. He
submitted that it was open for the Executive Council to function
with its Class I members in view of the GO-30 issued in exercise
of its powers under Section 56 of the Act, which empowers the
State Government to issue appropriate orders to remove the
difficulties, if any. He then submitted that the findings recorded
by the learned Judge in the impugned order to the effect that
approval of the selection by the Executive Council is not valid on
the ground of lack of quorum are based on misinterpretation of
statutory provisions. He submitted that even if there was no
quorum as contemplated under Sub-section (6) of Section 18 of
the Act, Section 32 of the Act states that no act or proceedings
of any authority or other body of the University shall be deemed
invalid by reason only of some defect in the constitution of the
Authority or body or by reason of the existence of a vacancy or
vacancies among members. He submitted that the provisions of
Section 32 were completely overlooked by the learned Judge
while dealing with the question of quorum.
32. Learned counsel for the University adopted the
submissions made by Sri C.V.Mohan Reddy, learned Senior
Counsel for the appellants and in addition thereto, submitted
that not only the recommendations to the posts of Assistant
Professors in Zoology were approved by the Executive Council,
but several other recommendations were approved by the very
same Executive Council, and that if after 4-5 years of their
appointments, the challenge as raised in the instant petitions, in
respect of 2 candidates i.e. Dr.Sravanthy and Dr.Gowda, is
upheld, that may cause grave hardship and irreparable loss to
several other appointees, who are not party to these
proceedings.
33. Sri D.Prakash Reddy, the learned Senior Counsel for
Dr.Damayanthi and Dr.Vinatha, on the other hand, invited our
attention to Section 56 of the Act and submitted that no
notification or GO-30 was issued under this provision and,
therefore, it cannot be stated that the Government in exercise of
its powers under this provision allowed the Executive Council to
function with the strength of 4 members of the Executive
Council, when the required quorum is either 1/3rd of total
number of members or 6 members, whichever is less. He
submitted that under any circumstances having regard to the
constitution of the Executive Council, 1/3rd of the total number of
members would never be less than 5 and since only 4 members
were available at the relevant time, they had no authority in law
to conduct the meetings. He submitted that even if it is assumed
that GO-30 was issued under the provisions of Section 56 of the
Act, it does not empower the Government to give go-by to the
provisions of law, in particular, Sub-section (6) of Section 18 of
the Act, allowing the Executive Council to hold meetings and
take all decisions without quorum. He submitted that it was not
difficult for the Government to make appointments of either all
or some of the Class II members or of the Rector to complete
the quorum and then allowed the Executive Council to hold its
meetings and take appropriate decisions. In short, he submitted
that Section 56 of the Act does not empower the Government
under the guise of removal of difficulties to allow the Executive
Council to hold meetings and take decisions without quorum
under Sub-section(6) of Section 18 of the Act.
33.1 Sri G.Vidyasagar, the learned Senior Counsel submitted
that the appointment of Dr.Gowda also deserves to be set aside
on the ground that it was approved in the meeting of the
Executive Council held on 30-04-2010 without quorum. In other
words, he submitted that there were only 4 Ex-Officio members
present in the meeting and, therefore, the decision of the
Executive council without quorum was in violation of Section
18(6) of the Act. Rest, he adopted the submissions made by Sri
D.Prakash Reddy, the learned Senior Counsel for Dr.Damayanthy
and Dr.Vinatha.
34. Sub-section (6) of Section 18 of the Act, as we have seen
earlier, provides for the quorum for a meeting of the Executive
Council. Under this provision, the quorum shall be 1/3rd of the
total number of members or 6 persons, whichever is less. As per
Sub-section(1) of Section 18 of the Act, the total number of
members as observed earlier under Class I and II put together
would be 14. Minimum quorum taking this figure into account
would be 4.66, being 1/3rd of 14, and would necessarily have to
be rounded off as 5. Thus, in any case, unless 5 members of
the Executive Council are present in every meeting, the meeting
of the Executive Council cannot be stated to be legal. In other
words, the Executive Committee cannot hold its meeting if its
five members are not present. It has come on record that 8
members nominated by the Government under Class II category
were removed/terminated under GO-30, and thereby the
Executive Council of the University was reduced to the members
specified under Class I alone. It is not in dispute that at the
relevant time the post of Rector, an Ex-Officio member of the
Executive Council as contemplated by Sub-section (1)(ii) of
Section 18 of the Act, was vacant and, therefore, there were
only 4 Class I members in the Executive Council after
09-04-2010. As observed earlier, it is mandatory to have
minimum quorum of 1/3rd of total number of persons or 6,
whichever is less, as contemplated by Sub-section (6) of Section
18 of the Act. As far as this factual matrix is concerned, none of
the learned counsel appearing for the parties raised any dispute.
In other words, admittedly the meeting of the Executive Council,
which approved the recommendations of the selection committee
and appointed Dr.Sravanthy and Dr.Gowda, was attended by
only 4 members.
35. In this backdrop, it would be relevant to reproduce GO-30
for better appreciation of the contentions urged on the basis
thereof. The relevant portion of the GO-30 dated 09.04.2010
reads thus:-
In the G.O. read above, Government have nominated certain
members to the Executive Council of the Kakatiya University,
Warangal under Class-II in Section 18 (1) of the Andhra Pradesh
Universities Act, 1991 (A.P.Act 4 of 1991)
2. The Government, after careful examination of the matter, have
decided to terminate the Executive Council Members of the Kakatiya
University, Warangal who were nominated under Class-II in the
Section 18 (1) of the Andhra Pradesh Universities Act, 1991.
3. During the intervening period, the Executive Council of Kakatiya
University, Warangal may function with the Ex-officio Members as
mentioned under Class-I in Section 18 (1) of the Andhra Pradesh
Universities Act, 1991 till the reconstitution of the Executive Council.
4. Accordingly, the following notification will be published in the
Andhra Pradesh Gazette:-
NOTIFICATION
In exercise of the powers conferred under sub-section (2) of section 18
of the Andhra Pradesh Universities Act, 1991 (Andhra Pradesh Act 4 of
1991), the Governor of Andhra Pradesh hereby terminate the
appointments of Members of the Executive Council of the Kakatiya
University, Warangal, who were nominated under Class.II of Section
18 (1) of the said Act.
36. Insofar as the submission that Section 32 of the Act
provides that no proceedings of any authority or other body of
the University shall be deemed invalid by reason only of some
defect in the constitution of the Authority or by reason of the
existence of a vacancy or vacancies among members deserves
to be rejected outright. Based on this provision, it was further
submitted that merely because there was no quorum as provided
for under Sub-section (6) of Section 18 of the Act for a meeting
of the Executive Council, the decision taken by the Executive
council in such a meeting would not render invalid or illegal. A
careful look at this provision would show that it does not even
indirectly speak of the quorum, but it provides for validating the
decisions taken by the Authorities of the University even if there
is some defect in the constitution of the Authority or if there is
existence of vacancy or vacancies among members. The
submission that in view of this provision, the authority such as
Executive Council can go ahead and hold a meeting even if there
is no quorum and carry out functions as contemplated by
Section 19 of the Act, in our opinion, must be rejected.
37. The submissions of learned counsel for the parties were
centered around Section 56 of the Act for quite sometime. It
would be advantageous to reproduce this Section for better
appreciation of the contentions urged. Section 56 reads thus:
Section 56. Power to remove difficulties:- If any difficulty arises
as to the constitution or reconstitution or appointment of any Authority
or officer of the University or otherwise in first giving effect to the
provisions of this Act, or at the time of establishing a new University,
the Government, as occasion may require, may, by order, do anything
which appears to them necessary for the purpose of removing the
difficulty.
38. The Supreme Court in Madeva Upendra Sinai and
Others Vs. Union of India and Others( ) had an occasion to
deal with the words any difficulty arise or removing the
difficulty. In Paragraph 40 of the report, it was observed thus:-
40. Now let us turn to clause (7) of the Regulation. It will be
seen that the power given by it is not uncontrolled or
unfettered. It is strictly circumscribed, and its use is
conditioned and restricted. The existence or arising of a
difficulty is the sine qua non for the exercise of the power. If
this condition precedent is not satisfied as an objective fact, the power
under this clause cannot be invoked at all. Again, the difficulty
contemplated by the clause must be a difficulty arising in
giving effect to the provisions of the Act and not a difficulty
arising aliunde, or an extraneous difficulty. Further, the Central
Government can exercise the power under the clause only to the
extent it is necessary for applying or giving effect to the Act, etc., and
no further. It may slightly tinker with the Act to round off angularities,
and smoothen the joints or remove minor obscurities to make it
workable, but it cannot change, disfigure or do violence to the
basic structure and primary features of the Act. In no case, can
it, under the guise of removing a difficulty, change the scheme and
essential provisions of the Act.
(emphasis supplied)
39. The similar phrase was dealt by the Supreme Court in
Straw Products Ltd., Vs. Income-tax Officer( ). The
Supreme Court in this judgment while was dealing with the
contention urged on behalf of the assessee that Section 6 of Act
67 of 1949 makes the arising of difficulty a condition of the
exercise of power to issue an order contemplated thereby and
since no difficulty in fact is proved to have arisen, the Central
Government had no power to issue the impugned order, in
paragraph 19 thereof observed thus:-
19.To sum up: the power conferred by Section 6 of Act 67 of
1949 is a power to remove a difficulty which arises in the application of
the Income-tax Act to the merged States: it can be exercised in the
manner consistent with the scheme and essential provisions of
the Act and for the purpose for which it is conferred. The
impugned Order which seeks in purported exercise of the power, to
remove a difficulty which had not arisen was, therefore, unauthorized.
(emphasis supplied)
40. A Full Bench of the High Court of Allahabad in Kumari
Radha Raizada Vs. Committee of Management, Vidyawati
Darbari Girls Inter College( ) while dealing with Section 32
of U.P. Secondary Education Services Commission and Selection
Board Act, 1981 in paragraph 14 observed thus:-
14. The analysis of the aforesaid decisions would show that the
provision like Section 33 of the Act, which provides that the State
Government for the purposes of removing any difficulty, by a notified
order, direct the provisions of the Act shall have effect subject to such
adaptation whether by modification, addition or omission as it may
deem necessary or expedient, is not uncontrolled or unfettered power.
In fact such power conferred upon the Government is restricted
and has, to be exercised in consonance with the essential
feature of the Act. It may be emphasized that such an order is
not permitted to violate the basic structure of the provisions of
the Act and further it could be only issued when there is real
difficulty arises in giving effect to the provisions of the Act.
(emphasis supplied)
41. We would not like to enter into a controversy whether
GO-30 was issued under Section 56 of the Act. We would like to
examine the contentions urged by learned counsel for the parties
on the assumption that GO-30 was issued under Section 56 of
the Act. Para-3 of GO-3 states that the Executive Council of the
University may function with the Ex-Officio Members as
mentioned under Clause (i) in Section 18(1) of the Act till the
reconstitution of the Executive Council. However, a close look at
the GO-30 would show that a notification was issued in exercise
of the powers conferred under Sub-section (1) of Section 18 of
the Act by the Governor of erstwhile State of Andhra Pradesh,
thereby terminating the Class-II members of the Executive
Council of the University. We have already seen the provisions
contained in Section 18 of the Act. Members of the Executive
Council are divided into two categories of members. One, Class-I
Ex-Officio members and two, Class-II categories of members.
Class-I category members are only 5 and, therefore, even if all
Class-II members are terminated, the Executive Council would
have 5 members, who can still hold meetings and take
decisions since they form quorum as contemplated by Section
18(6) of the Act.
41.1 We would also not like to enter into a controversy whether
the Government was conscious of the fact that the post of Rector
was vacant, who was one of the Ex-Officio member of the
Executive Council, and hence there were only 4 members
available when the G.O was issued. We would like to consider
the question whether the Government, in exercise of its powers
under Section 56 of the Act which empowers the Government to
remove difficulties, can, under the guise of removing
difficulties, go to the extent of allowing Executive Council to hold
its meetings with 4 members and take decisions such as the one,
impugned in these petitions.
41.2 Section 56 of the Act undoubtedly empowers the
Government to remove difficulties in respect of the constitution
or reconstitution or appointment of any Authority or Officer of
the University or otherwise in first giving effect to the provisions
of the Act or at the time of establishing a new University. The
Government under this provision may, by order, do anything
which appears to them necessary for the purpose of removing
the difficulty.
41.3 We would also not like to dissect this provision and to
make any comments as to whether the powers conferred under
this provision can be exercised only in first giving effect to the
provisions of the Act or at the time of establishing new
University. We would like to examine whether the Government
under the guise of removing difficulties can allow the Executive
Council to function without quorum.
41.4 At the outset, in our opinion, under any circumstances, the
Government cannot issue any notification or order inconsistent
with the scheme and essential provisions of the Act. It is well
settled that the power, such as the power conferred under
Section 56 of the Act, cannot be stated to be uncontrolled or
unfettered. If the power is held to be so, that would amount to
do violation to the provisions of the Act, such as sub-section (6)
of Section 18. The power can be exercised in the manner
consistent with the essential provisions of the Act. For
exercising the power conferred under Section 56 of the Act, the
existence or arising of a difficulty is a sine qua non for the
exercise of power. In other words, unless there exists a
difficulty, the power under this Clause cannot be invoked. The
language employed in this Section itself would show that under
the guise of removing difficulty the power cannot be exercised
in the manner inconsistent with the scheme or provisions of the
Act. It can be exercised only to the extent it is necessary for
applying or giving effect to the Act and to make it workable.
Under any circumstances, for making the Act workable, the
Government cannot change, disfigure or violates the basic
structure and primary feature of the Act. In short, in no case,
the Government can, under the guise of removing difficulty,
change the essential provisions of any Act, such as
sub-section (6) of Section 18 of the Act. In other words, by
issuing notification or order under Section 56, the Government
cannot be permitted to violate the basic structure of any
particular provision of the Act. The powers under Section 56 can
be exercised only when there is a real difficulty arising in giving
effect to the provisions of the Act. In the context of the present
case, in our opinion, removal of real difficulty would not mean
allowing the Executive Council to hold its meetings without
quorum. The submission of the learned Senior Counsel for the
appellants that the Government has power under Section 56 of
the Act to allow the Executive Council to hold its meetings and
take decisions in the absence of quorum, therefore, deserves to
be rejected. Thus, we answer the third question in the
affirmative.
42. That takes us to consider one more question raised by
Dr.Damayanthi in her Cross-objections in W.A.No.234 of 2011
and W.A.No.1553 of 2013. It was submitted by
Mr.Ghanshyamdas Mandhani, learned Advocate on record, for
Dr.Damayanthi that the learned Judge, based on clause (3) of
the Information Brochure appended to the Notification
No.2/2009, dated 31.12.2009, was wrong in holding that the
UGC (Minimum Qualifications for Appointments of Teachers and
other Academic Staff in University and Colleges and Measures for
Maintenance of Standards in Higher Education) Regulation-2009
(for short Regulation-2009) are applicable only to the extent of
qualifications prescribed therein. He submitted that Regulations-
2009 were adopted by the University in anticipation of their
enforcement in future and it was made so clear in the
notification No.2/2009. Similarly, even the State Government
vide G.O.Ms.No.14 dated 20.02.2010 (for short GO-14) had
adopted the said Regulations and, therefore, the procedure
followed by the selection committee in selecting Dr.Sravanthy
and Dr.Gowda as provided for under the UGC Regulations-2000
was wrong and illegal and deserves to be set aside on this
ground.
42.1 Insofar as the Notification dated 31.12.2009, with which
the subject selection process commenced, is concerned it was
made clear that UGC Regulations-2009 were adopted only for a
limited purpose, as reflected in clause (3) of the Information
Brochure i.e. for the qualifications prescribed therein. Similarly,
the GO-14 was issued on 20.02.2010 took note of the
recommendatory UGC Regulations-2009. Though the
Universities were directed to implement the same (GO-14)
within three months from the date of its issuance duly amending
their Statutes, Ordinances, etc., the direction was issued after
the subject selection process under Notification No.2 dated
31.12.2009 had commenced. In view thereof, the submissions
of Mr.Mandhani that the University and the Government had
adopted the Regulations-2009 by issuing Notification dated
03.12.2009 and the GO-14 must be rejected.
42.2 That apart, the UGC vide its letter dated 19.02.2010,
addressed to the University, had clarified that it may proceed
with the subject recruitment as per its Regulations-2000, as
amended from time to time, and that the New Regulations would
be required to be followed upon its publication/Notification in the
Gazette of India. The new Regulations-2009, in fact, were
Gazetted only on 28.06.2010 as the University Grants
Commission (Minimum Qualifications for Appointments of
Teachers and other Academic Staff in Universities and Colleges
and other Measures for the Maintenance of Standards in Higher
Education) Regulations, 2010. Thus, it is clear that the new
Regulations were Gazetted (28.06.2010) after the appointments
of Dr.Sravanthy and Dr.Gowda, who were appointed on
30.04.2010. In the result, the cross objections deserve to be
dismissed. We make it clear that we have not examined
whether the cross objections were maintainable.
43. We are informed that the selection committee has made
appointments of several persons on the basis of the
recommendations made by the Executive Council and all those
persons who were appointed by the very same Executive Council
are working since last about 3 to 4 years and if we hold that the
appointments of Dr.Sravanthy and Dr.Gowda are illegal for want
of quorum that would seriously jeopardize the interest of all such
appointments which were made by the Executive Council with its
four members. We, therefore, observe that it would be open to
the University, if they so desire and advised, and if the
circumstances so demand, to place all such recommendations of
the selection committee before the Executive Council afresh,
duly constituted as per the provisions of Section 18 of the Act,
and seek approval and confirmation of their appointments with
effect from the date on which they were appointed.
Per A.Ramalingeswara Rao, J
44. I have had the advantage of going through the draft
judgment circulated to me by my learned and experienced
brother, Sri Justice Dilip B. Bhosale. The judgement is in tune
with our discussions and this separate opinion of mine is
unnecessary but for the reasons given hereunder.
45. Inspite of concurrence of opinions, the liberty given to me
by my learned brother encouraged me to comment on the usual
refrain of the Counsel for the appellants in these cases that this
Court should lay off its hands in academic matters and also
supplement my views to that of my learned brother on the faulty
selection process.
46. At the outset, I feel that the University ought not to have
filed the appeals as a private litigant. The learned single judge,
as per the record, heard the arguments of the Counsel at length
and delivered a detailed and intelligible judgment. The University
should have accepted the same. If the private parties carried the
matter in appeal, it should have played a neutral role assisting
the Court. But, alas, it chose to file the appeals like a private
litigant. One can understand, a private party filing appeals out of
ego satisfaction or vindicating his/her stand. But Institutions
should take a conscientious stand after going through the
judgement of the courts and try to reduce unnecessary litigation.
In fact, the Government, vide G.O.Rt.No.82 dated 11-2-2011
constituted a committee to look into the irregularities committed
by the University and the Committee submitted its report on 23-
6-2011. Accordingly, the State Government issued orders for
setting aside the selections and taking up the process afresh.
However, it is submitted that the selected candidates in Botany
department challenged the said Government orders and got stay
of the same but there is no stay so far as Zoology department is
concerned.
47. Nowadays, many specialists including Scientists,
Academicians and Judicial Officers are holding administrative
positions, which require them to take decisions on administrative
side. Many of them may not be exposed to such exercise, but
their positions make them imperative to take decisions. Hence,
in the process, they should have rudimentary knowledge of
administrative principles governing such decisions. If they follow
the procedure, litigation can be curtailed to a large extent. The
action of the University brought the teachers who ought to have
held the books in the class rooms, to hold them in court rooms
to assist their Counsel.
48. The facts in the instant case cannot be brought under the
ambit of academic matters as urged by the Counsel of
appellants. We are concerned with the selection of Assistant
Professors in Zoology. That process is purely administrative and
is based on the provisions of the Andhra Pradesh Universities Act
and Ordinances framed by the University. In the matter of
selection of teaching and non-teaching staff, merely because the
decisions are taken by Academicians, it cannot be called as
academic matter. It is a total misconception of law. I am
supported in my view by the Division Bench of Punjab and
Haryana High Court in Pratibha Gupta v. State of Punjab( ),
wherein it was held as follows:
Before deciding whether or not the petitioners are
entitled to any relief, we deem it necessary to reiterate the
well established principle that the Courts should give due
respect to the opinion expressed by the academicians and
the decisions of the academic bodies on matters relating to
admissions, examinations and discipline in educational
institutions. However, this does not mean that the Courts
should worship such opinions and decisions blind folded
and refuse to discharge its constitutional obligations to
protect the fundamental, constitutional and legal rights of
the citizens. In the scheme of our Constitution the
argument that the decisions of academic bodies and
educational institutions should remain immune from the
power of judicial review vested in the Courts cannot be
accepted. What to say of such decisions, the power
exercisable by the President under Article 72 to grant or
not to grant pardon and the power exercised by the
Government to impose emergency under Article 356 do not
enjoy immunity from judicial review. In Kehar Singh V/s.
Union of India, (1989) 1 SCC 204 : (AIR 1989 SC 653)
and S. R. Bommai V/s. Union of India, (1994) 3 SCC 1 :
(AIR 1994 SC 1918), the Apex Court has recognised the
Courts power of judicial review even in these matters
though the grounds on which the orders passed in such
matters can be subjected to judicial scrutiny are extremely
limited and it is always desirable not to interfere with the
same unless it becomes imperative. It cannot also be
ignored that the decisions of educational institutions and
academic bodies, which are required to be taken in
accordance with the relevant statutes, at times affect the
students, teachers and employees and they are always
subject to constitutional limitations contained in Articles
14, 15, 16, 20 etc. Therefore, if the Court finds that such
decisions are violative of the statutory or constitutional
provisions, then it is the constitutional duty of the Court to
intervene and protect the rights of citizens.
49. It is vehemently urged by the learned Standing Counsel for
the University that the procedure of giving consolidated marks of
the candidates in a tabulated sheet in respect of each candidate
is in vogue for several years, not only in the University in issue,
but in all Universities in the State. The said sheet was signed by
all the Selection Committee members and that is the only record
made available to the court. This court is handicapped from
looking into the marks awarded by the experts, in the absence of
record. This is not what was laid down in Ordinance II of the
University and we have no doubt about it. But I have my own
reservations about the discretionary power of the members of
the Selection Committee in awarding marks for teaching
experience and publications in the absence of any criteria. The
notification does not indicate the required number of years of
teaching experience or publications required for making one
eligible nor the methodology for awarding marks under each
head. This gave raise to arbitrariness in awarding marks under
the said heads. In the absence of criteria, one has to take
quantitative data into consideration than indulging in qualitative
exercise (which does not appear to have been done by the
Selection Committee in this case in view of paucity of time).
50. We are also told that the appointees joined their posts on
1-5-2010, Dr.Damayanti retired from service in December, 2012
and Dr.R.Krishna was appointed in Osmania University on 6-9-
2013 and hence their Writ Petitions should be dismissed. It is
admitted that Dr.Vinatha Naini is still in service. These Writ
Appeals were filed in 2011 and we are concerned with selection
process of the Selection Committee. When the process is
vitiated, the selections should be made afresh. In this
connection, the observations of the Supreme Court in Gurdeep
Singh v. State of J & K( ), are apposite. In the said case,
when the appellant before the Supreme Court was denied
admission to the course leading to a Medical Degree for the year
1991-92 in the State of Jammu & Kashmir under sports
category, reversing the judgment of the High Court, the
Supreme Court commented as follows:
We are afraid, unduly lenient view of the courts
on the basis of human consideration in regard to such
excesses on the part of the authorities, has served to
create an impression that even where an advantage is
secured by stratagem and trickery, it could be rationalised
in courts of law. Courts do and should take human and
sympathetic view of matters. That is the very essence of
justice. But considerations of judicial policy also dictate
that a tendency of this kind where advantage gained by
illegal means is permitted to be retained will jeopardise the
purity of selection process itself; engender cynical
disrespect towards the judicial process and in the last
analysis embolden errant authorities and candidates into a
sense of complacency and impunity that gains achieved by
such wrongs could be retained by an appeal to the
sympathy of the court. Such instances reduce the
jurisdiction and discretion of courts into private
benevolence. This tendency should be stopped
51. The Writ Appeals as well as Cross-Objections are
accordingly dismissed. However, there shall be no order as to
costs.
_____________________
DILIP B. BHOSALE, J
_______________________
A.RAMALINGESWARA RAO, J
52. At this stage, Mr. N.Jayasurya, learned counsel for the
appellants in W.A.Nos.234 and 235 of 2011, prays for stay of
this judgment for a period of four weeks.
53. In view of the prayer, we asked Mr.Deepak Bhattcharjee,
learned counsel for the University as to how long they would
take to implement the impugned judgment, he states atleast
4-6 weeks. In view thereof, stay as prayed for need not be
granted.
_____________________
DILIP B. BHOSALE, J
_______________________
A.RAMALINGESWARA RAO, J
19-03- 2015
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