Haridas Namdeorao Rawankar And ... vs Punjabrao Krishi Vidyapeeth And ...
2004 Latest Caselaw 1007 Bom

JUDGMENT

A.P. Deshpande, J.

1. This writ petition is filed by six petitioners who were aspirants for selection to the post of Associate Professor in Agriculture Chemistry. The respondent No. 1 University under its advertisement dated 30th July, 1990, inter-alia, advertised three posts of Associate Professor in agriculture Chemistry. Out of the said three posts, one post was reserved for scheduled caste category, one for scheduled tribe category and one was an open post. All the petitioners, who are six in number, were to compete for open post. It is not in dispute that the petitioners were eligible and qualified for being appointed in the post of Associate Professor in Agriculture Chemistry. Section 58 of the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Act, 1983 (hereinafter referred to as the "Act") lays down that no person shall be appointed by the University as a member of the academic staff, except on the recommendation of the Selection Committee constituted for that purpose in accordance with the provisions of the Statutes made in that behalf. Statute 74 of the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990 provides that all appointments of the members of academic staff shall be made by the Vice-Chancel lor strictly on merit and no person shall be appointed by the Vice-Chancellor as a member of the academic staff except on the recommendation of the Selection Committee constituted under Section 58 (2) of the Act and Statute 75. Statute 75 provides for composition of Selection Committee for selecting the candidates. The Selection Committee comprises of (i) Vice-Chancellor; (ii) one Director of University by rotation; (iii) Member of Executive Council representing Indian Council of Agriculture Research; (iv) One Dean of University by rotation; and (v) Three outside Experts to be nominated by the Vice-Chancellor, who have special knowledge of the subject for which the academic staff member is to be selected. Clause (2) of Statute 75 lays down the quorum and it provides that not less than four members shall form a quorum of whom at least two shall be outsiders having special knowledge of the subject for which the academic staff member is to be selected.

2. Learned counsel for the petitioners has submitted that the very meeting of the Selection Committee wherein the respondent No. 2 came to be selected was not properly constituted for making selection to the post of Associate Professor in Agriculture Chemistry and in the absence of quorum, in law, there was no meeting of the Selection Committee, it is brought to our notice that the meeting of the Selection Committee was attended by only three persons which included Dr. P. W. Amin, Vice-Chancellor, Dr. R. R. Sinha, Director of Extension and one outside expert member, viz. Dr. S. B. Deshpande, Senior Scientist, National Bureau of Soil Survey and Land Used Planning. The other two outside expert members were not present in the meeting of the Selection Committee held on 16th November, 1990. It is contended that on this count alone, the selection made by the said Committee stands vitiated.

3. This factual position is not in dispute. The Return filed by the University assigns reasons for the non-attendance of two outside expert members when the Selection Committee met. With a view to justify the selection made by the Selection Committee, it is stated in paragraph 10 of the Return that all the relevant record including the bio-data of the applicants who appeared for interview, which was placed before the Selection Committee, was sent to Dr. Verma for his remarks in the matter of selection of the candidates interviewed by the Selection Committee in his absence on 16-11-1990. It is stated that Dr. Verma, on going through all the relevant record in the matter, has accorded his consent to the recommendation made by the Selection Committee in order of merit.

4. The question that falls for consideration is, whether the requirement in regard to the quorum at the meeting of the Selection Committee provided by clause (2) of Statute 75 is mandatory and if yes whether the defect could be cured by having the selection ratified or assented by the absentee member.

5. Having regard to the Scheme of appointment of academic staff contained in the Act and the Statute, it is only when a candidate is selected by the Selection Committee, he could be appointed. In the matter of appointment, it is the primacy of the Selection Committee. The only persons who can evaluate the merit of the candidate, are three outside experts as provide by clause l(v), for the reason that the said members have special knowledge of the subject. Having regard to the importance of participation of the outside experts having special knowledge of the subject, clause (2) of Statute 75 lays down thus :

"(2) Not less than four members shall form a quorum of whom at least two shall be outsiders having special knowledge of the subject for which the academic staff member is selected."

Reading of clause (2) thus makes it evident that in regard to quorum, the presence of at least two outside experts having special knowledge of the subject is insisted upon. The intention behind framing clause (2) is in furtherance of the object sought to be achieved viz. Selection of the best candidate by evolution of merit by the experts in the subject having special knowledge, in this view of the matter, we have no doubt in our mind that clause (2) of Statute 75 is mandatory and the same cannot be diluted for any reason whatsoever and the compliance thereof needs to be insisted upon.

6. The next question then is, as to whether the method adopted by the respondent No. 1 University by sending relevant records to Dr. Verma and seeking his approval and ratification to the selection of candidates made by the Selection Committee could validate the selection. When the requisite number of members of the Selection Committee, as laid down by Statute 75 (2) assemble, there is a meeting of mind and it is only when this process of meeting of mind takes place, a decision in regard to selection has to be reached. When members of Selection Committee meet, there are exchange of views and effective deliberation is possible. What is expected in the process of selection is reaching of conclusion in regard to relative merit of competing candidates in the meeting. The meeting postulates meeting of mind. The system adopted by the respondent- university in seeking ratification/approval/assent of the absentee member cannot be a substitute for the selection as envisaged by Statute 75. The system adopted by the University cannot at all validate the proceedings of the Selection Committee and the said defect in regard to want of quorum cannot be cured.

7. Learned counsel for the petitioners in this regard has relied upon the judgment of Apex Court in State of Andhra Pradesh and Anr. v. Dr. Mohanjit Singh and anr, 1988 (Supp.) SCC 562. In the facts of the said case, the question that fell for consideration of the Apex Court was similar to the one arising in the present petition i.e. As to whether can a valid selection be made by the body constituted, when there is no quorum. In the said case, the Director of Higher Education who was to man the Selection Committee was absent. At a later point of time, he ratified the proceedings of the Selection Committee and in the said context, the Apex Court has observed thus -

"Ratification by the District Education Officer at a later point of time cannot validate the proceedings of the selection committee as there was no quorum and in its absence, the committee was not entitled to transact business. The government order makes it clear that the selection committee is intended to function as a body. In case all the members were present at the selection there would have been scope for exchange of views when the candidates appeared and the selection would have been in terms of the scheme. Once a decision is taken and the absentee member is called upon to ratify the conclusion already reached, it becomes a very different type of activity. We are, therefore, not prepared to accept the decision of the Administrative Tribunal on principle that the subsequent ratification constituted valid selection".

This observation of the Apex Court clinches the issue and it has to be held that the selection of respondent No. 2 was not made by the validly constituted Selection Committee. But this finding by itself is not the end of the matter for the reason that all the petitioners have retired from service. So also, respondent No. 2 who was selected in the post of Associate Professor, has retired from service. We are not inclined to disturb the situation which has prevailed till retirement of all the petitioners and the respondent No. 2. Ordinarily, we would not have gone into the issue raised in the present petition as to some extent, it is rendered academic, but the learned counsel appearing for the petitioners has brought to our notice the glaring illegalities committed by the University and it is submitted that the University continues to make selection in the same manner indicated here in above which needs to be corrected. Having regard to the said object in mind, we have considered the questions raised. What is to be noted is that all the six petitioners were competing only for one post of Associate Professor from open category and as such, it is possible to be canvassed that one of them has been prejudiced because of the faulty selection made by the illegally constituted Selection Committee. The said person, in the submission of the learned counsel for petitioners, would be, petitioner No. 2.

8. It will not be out of place to state that the petitioner No. 2 was selected as number '1' candidate in the waiting list just down below the respondent No. 2 viz. selected candidate. During the pendency of writ petition, the petitioner No. 2 came to be promoted to the post of Associate Professor and thereafter retired from service on 31-12-2002. In the changed situation, learned counsel for the petitioners state that the petitioner No. 2 be granted deemed date of promotion in the post of Associate Professor with effect from the date on which the respondent No. 2 was appointed.

9. An objection is raised by the respondents, based on the judgment of the Apex Court in Madanlal and on v. State of J. and K. and Ors., that the petitioners have taken a chance by participating in the process of selection and after they came to be rejected in the said process, the present petition has been filed. The learned counsel for the respondents state that the petitioners would be estopped from challenging the process of selection on the ground that the Selection Committee did not validly meet on 16-11-1990 for want of quorum. The learned counsel for respondents placed reliance on the observations made in Madanlal's case (supra) and to be precise, below reproduced portion from paragraphs 9 and 10 thereof:-

"....The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."

"Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful...."

10. A judgment of this Court in the case of Ku. Sonali Ramkrishna Bayani v. State of Maharashtra and ors, 2003(5) Mh.LJ. 738 = 2004 (2) All MR 457, following the ratio laid down in Madanlal's case (supra) has also been brought to our notice. Per contra, learned counsel appearing for petitioners contend that the Apex Court in a subsequent judgment, which is rendered by three learned Judges, in Raj Kumar and ors v. Shakti Raj and ors, has laid down a test for entertaining the challenge by a candidate who has participated in the selection process and the same is 'whether the selection is hit by a glaring illegality'. Reliance is placed on the following observations to distinguish the law laid down in Madanlal's case, made in paragraph 16 of the judgment:-

"...... The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J. and K. and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case......"

11. Applying the ratio laid down in Raj Kumar's case distinguishing the law laid down in Madanlal's case, to the facts of the present petition, the following position emerges :-

(a) the petitioners cannot be said to have taken a calculated chance in participating in the process of selection/interview for the reason that the petitioners were not aware of the defect or illegality, about absence of quorum at the meeting, which they discovered when interviews were held. The fact of absence of two outside experts in the subject, having special knowledge, could be known to the petitioners when they appeared at interview.

(b) The petitioners objected to the selection process/interview, by making representation before their rejection/non-selection and selection of respondent No. 2. The interview was held on 16-11-1990, the representations were made on 26-2-1991 and 11-7-1991 whereas the appointment order was issued to respondent No. 2 on 31-8-1991.

(c) The process of selection/interview is bad in law as it suffers from 'glaring illegality', because of absence of quorum, committed by the University which per se vitiates the selection process.

In our opinion, challenge to the selection of respondent No. 2 is very much open to be raised by the petitioners.

12. In the result, we partly allow the petition. We grant the petitioner No. 2 deemed date of promotion in the post of Associate Professor in Agriculture Chemistry and the said date shall be the date on which the respondent No. 2 was granted promotion, in this view of the matter, the petitioner No. 2 shall be held to be entitled to get all incidental and ancillary benefits flowing from grant of deemed date. We make it clear that we are not disturbing the selection of the respondent No. 2 made by the Selection Committee and his selection shall be deemed to be lawful and validly made. Rule is made absolute in the above terms with no order as to costs.