Bombay High Court
Nitin Deshpande vs Registrar, University Of Mumbai ... on 11 December, 2014
Bench: P.V. Hardas
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USJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 92 OF 2010
Vasant Ganu Patil of Thane,
Adult, Indian Inhabitant,
Residing at 14/b/11, Ground Floor,
Gopal Nagar, Bhiwandi,
Dis. Thane, Pin-421 302 .. Petitioner
Versus
1. The Chancellor,
University of Mumbai, having his office
at Raj Bhawan, Malabar Hill,
Mumbai - 400 036.
2. State of Maharashtra
through the Govt. Pleader, High Court,
(O.S.), having his office at PWD
High Court Compound,
Mumbai - 400 032.
3. University of Mumbai
having its office at Madam Cama
Road, Fort, Mumbai - 400 032.
4. The Registrar
University of Mumbai, having his
office at Madam Cama Road, Fort,
Mumbai - 400 032.
5. Dr. A.S. Kolaskar, the Vice Chancellor,
KIIT Unversity, AT & Post Kalinga
Institute of Industrial Technology,
Bhubaneshwar - 751 024.
6. Prof. P. Balaram
Director, Indian Institute of Sciences,
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Bangaluru - 560 012.
7. Shri J. S. Sahariya
Principal Secretary, Rehabilitation
Department, Mantralaya,
Mumbai - 400 032.
8. Dr. Rajan Welukar,
Of Mumbai now appointed at the
Vice Chancellor,
University of Mumbai,
Fort, Mumbai.
9. Dr. A. D. Sawant, aged 60 yrs.
Adult Indian Inhabitant, residing at
C/2, Gandhar, Khed Gully,
Off Sayani Road, Prabhadevi,
Mumbai - 400 023. .. Respondents
WITH
PUBLIC INTEREST LITIGATION NO. 96 OF 2010
Nitin Deshpande
Adult, Indian Inhabitant of Mumbai,
Resident of 1/C - 108, Adarsh Nagar,
Kolbad, Thane - 400 601. .. Petitioner
Versus
1. The Registrar
University of Mumbai, having his
office at Madam Cama Road, Fort,
Mumbai - 400 032.
2. University of Mumbai
having its office at Madam Cama
Road, Fort, Mumbai - 400 032.
3. The Chancellor,
University of Mumbai, having his office
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at Raj Bhawan, Malabar Hill,
Mumbai - 400 036.
4. State of Maharashtra
through Shri J. S. Sahariya
Principal Secretary, Rehabilitation and
Former Principal Secretary, Higher and
Technical Education Department,
Mantralaya, Mumbai - 400 032.
5. Dr. Rajan Welukar,
Vice Chancellor,
University of Mumbai,
Fort, Mumbai.
6.
Dr. A. D. Sawant, age 60 yrs.
Adult Indian Inhabitant, residing at
C/2, Gandhar, Khed Gully,
Off Sayani Road, Prabhadevi,
Mumbai - 400 025. .. Respondents
Mr. Pankaj Kowli a/w Ms. Saira Mirzankar i/by Sunil & Com. For petitioner
in PIL No. 92 of 2010.
Mr. J. Shekhar a/w Harsh Gursahani i/by J. Shekhar and Co. for petitioner
in PIL No. 96 of 2010.
Mr. Hemant Dharmadhikari a/w Ms. Lata S. Phadke for petitioner in WP
No. 1901 of 2010 and for respondent no. 9 in PIL No. 92 of 2010 and for
respondent no.6 in PIL No. 96 of 2010.
Mr. R. A. Dada, Senior Counsel a/w Sagar Talekar i/by Sagar Talekar for
respondent no.8 in PIL No. 92 of 2010 and for respondent nos.3, 4 and 5
in PIL No. 96 of 2010.
Mr. R. A. Rodriques for University of Mumbai.
Mr. D. J. Khambatta, Advocate General with Mr. M. D. Naik, AGP for
respondent nos.1, 2, 5, 6 and 7 in PIL No. 92 of 2010, for respondent nos.3
and 4 in PIL No. 96 of 2010
CORAM: P. V. HARDAS &
SMT. ANUJA PRABHUDESSAI, JJ.
Reserved On : 13th OCTOBER, 2014
Pronounced On : 11th DECEMBER, 2014
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JUDGMENT [ Per Anuja Prabhudessai, J.] :
1. Upon a difference of opinion between the Division Bench of this
court, a reference under Clause 36 of Letters Patent has been made under
order dated 11.5.2012 . The points of difference formulated by the
referral Court are as follows :-
i) Whether in the facts and circumstances of this case, the decision
of the Search committee to include the name of the respondent no.8
in the list of eligible candidates for the Office of Vice Chancellor of
the University of Mumbai suffers from any non application of mind
vis-a-vis condition no.3 when the Search Committee had recorded in
the minutes of its meeting held on 12.6.2012 that the committee
reviewed each and every application and prepared a list of 20
candidates (including respondent no.8) having all qualifications as
mentioned in the statutory order dated 27.5.2009 issued by the
Government of Maharashtra under Section 12(3A)(d) of the
Maharashtra Universities Act, 1994.
ii) If the answer to the above question is in the affirmative,
whether in the facts and circumstances of this case, this court should
exercise its discretionary jurisdiction to direct the search committee
to reconsider the question of eligibility of the respondent no.8 for
the office of the Vice Chancellor vis-a-vis condition no.3 in part A of
the Schedule to the above statutory order dated 27.5.2009.
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2. The brief introductory facts leading to this reference are
as under:
The post of Vice Chancellor of the University of Mumbai
fell vacant on 28.9.2009. In view of the challenge to the Search
Committee constituted in January 2010, the Chancellor (respondent
no.1) reconstituted the Search Committee for recommending the
names of the suitable persons for appointment of Vice Chancellor of
University of Mumbai. The Chairman of the Search Committee issued
an advertisement which was published in the newspapers dated
31.3.2010, inviting applications/nominations for the post of Vice
Chancellor. In response to the said advertisement, 94 applications
were received. The Search Committee shortlisted 20 candidates and
recommended names of the five candidates for appointment as Vice
Chancellor of the University of Mumbai, and forwarded the list of the
five candidates to the Chancellor.
3. The Chancellor, after having interaction with the said five
candidates, selected the respondent no.8 for the post of Vice
Chancellor of Mumbai University for a term of five years. The
selection was followed by the order dated 7.7.2010 whereby the
Chancellor (R-1) appointed the respondent no.8 Rajan Welukar as
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the Vice Chancellor of the University of Mumbai for a term of five
years.
4. By these petitions under Article 226 of the Constitution
of India, the petitioners challenged the order 7.7,2010 of the
respondent no.1, Chancellor, University of Mumbai, appointing the
respondent no,8 Dr. Rajan Welukar as a Vice Chancellor of the
University of Mumbai for a term of five years. The petitioners have
challenged the appointment of the respondent no.8 Dr. Rajan
Welukar as a Vice Chancellor, essentially on the ground that the
respondent no.8 did not possess the requisite "Essential
Qualification and Experience" as set out in part A of the order
dated 27.5.2009 issued by the State Government, which reads as
under :-
PART 'A'
(1) Earned Directorate in any discipline and good academic
record.
(2) Experience in the field of Higher Education of at least 15
years in teaching and research in a university/well-
established institution or repute and/or at the
undergraduate and post graduate level.
(3) Minimum of five research publications in peer-
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reviewed/referred international research journals after
Ph.D. and/or published quality books in a recognized
discipline, referenced for study in higher education at the
National/International level.
(4) At least 16 years of administrative experience in the field
of Higher Education not below the rank of professor and
Head of Department in a University/Principal (in
Professor's Grade) of a Senior College/Head of a
national/international institution of Advanced learning.
(5) Execution of at least one major research project.
(6) Experience of working with international bodies or
international exposure through participation in workshop,
seminars or conferences held outside the country.
(7) Experience of organizing events such as workshops,
seminars, conference at an international level within the
country in the field of higher education.
(8) Demonstrated experience in leadership.
5. The said petitions were heard by the Division Bench of this
court presided over by the learned the Chief Justice and learned Justice
Godbole, (as he then was). The Division Bench refuted the challenge
based on the contention that the respondent no.8 did not have five years of
administrative experience in the field of Higher Education as required by
clause (4) of the Schedule Part 'A'. The Division Bench also dispelled the
contentions of the petitioners that the respondent no.8 did not execute at
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least one major research project as required under clause (5) of the said
schedule. The Division Bench concurred on the finding that the respondent
no.8 had minimum experience of 15 years in teaching and research in a
university/we-established institution or repute and/or at the
undergraduate and post graduate level as required under clause (2),
though the bench differed on the reasons for arriving at the said
conclusion.
6.
There was however total difference of opinion as regards the
reasons as well as the conclusion arrived as regards fulfillment of the
criterion under clause (3), which required Minimum of five research
publications in peer-reviewed/referred international research journals after
Ph.D. and/or published quality books in a recognized discipline, referenced
for study in higher education at the National/International level.
7. The petitioners contended that the respondent no.8 did not meet the
requirement of minimum 5 post Ph.D. publications under clause 5. Based
on the affidavit of Professor Dr. Neeraj Hatekar, Professor of Econometrics
in Mumbai University, the petitioners urged that the so called research
publications included by the respondent no. 8 in his bio-data were
problems meant for under graduate students and not research
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publications. .
8. While dispelling the said contention, the learned Chief Justice
took a view that,
a) Though the respondent no.8 had mentioned 12 publica-
tions in the bio-data, which included some publications
prior to award of Ph.D as well as those which were not
yet published, the respondent no.8 had to his credit 5
publications post Ph.D.
b) The appointment cannot be set aside merely because the
Respondent no.8 had included all his research publica-
tions in his bio data.
Merely because, for the purpose of eligibility, only post
Ph.D. research articles were to be considered, it did not
wipe out the fact that he had done research before the
Ph.D. degree as well. The fact that respondent no.8 had
submitted research articles for publication and the said
articles were yet to be published, did not make them
irrelevant as even if the impugned order were to be inter-
fered with and fresh selection were to be made, the arti-
cles of respondent No.8 submitted for publication by
April, 2010 as mentioned in bio-data, might by now have
been published.
c) The Selection Committee which is a body of Experts and
academicians, had reviewed each and every application
received in response to the advertisement and prepared
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the list of 20 candidates having essential qualifications for
appointment to the post of Vice-Chancellor.
d) the petitioners have not made any allegations of mala
fides against the chairman and members of the Search
Committee, two of which were experts of international re-
pute.
e) Courts have a very limited role in the academic matters
particularly when no mala-fides have been levelled
against the experts who had constituted the Selection
Board and that it would normally be prudent, wholesome
and safe to leave the decision of academic matters to the
academicians and experts.
f) The statutory order conferred power under such commit-
tee to relax any condition in case of deserving candidates
and the procedure adopted by such committee cannot be
termed as "grave and manifest illegalities".
g) The Chancellor who has discretion to appoint an eminent
academician or an administrator of high caliber, found re-
spondent no.8 to be most suitable amongst all panelists.
The learned Chief Justice was, therefore, of the view that
the petitions are liable to be dismissed.
9. While the learned Justice Godbole held that,
a) Out of 12 publications referred to in the Resume, only 5
were post Ph.D publications which could have been
considered for scrutiny.
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b) The Committee has apparently taken the claim of the
Respondent No. 8 regarding Research Publications at face
value.
c) It is a case of an error of fact touching the merits of the
decision visa-a-vis the decision making process and would
therefore satisfy the test of permissibility of judicial
review.
d) There is no material to show that the Search Committee
was conscious of the fact that atleast 7 out of 12 items of
publications had to be excluded.
c)
Merely because the minutes of the subsequent meeting of
the Search Committee dated 12/6/2010 mention that the
Committee reviewed each and every application and
prepared the list of candidates having essential
qualifications; in the face of such a glaring defect in the
decision making process, it will be very unsafe to assume
that the members of the Committee were conscious of the
fact that 7 publications had to be excluded.
e) There was a material procedural irregularity in the first
step of the decision making process itself. This is also a
case of exercise of power by non-application of mind to
relevant facts and exercise on the basis of facts which do
not exist and/or are patently erroneous. The case
therefore satisfies the test of permissibility of judicial
review.
f) There is no material to show that the Committee had
reached a conscious decision to exercise the power of
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relaxation but in fact, the material on record shows
substantial degree of non-application of mind or
assumption of existence of facts which do not exists and
are erroneous.
g) Though the Chancellor is the appointing authority, it was
difficult to hold that the Chancellor could exercise the
powers of relaxation, which is essentially the prerogative
to the Committee.
h) Further, that there is no material to show that the
Chancellor was made aware or conscious of factual aspect
that 7 out of 12 publications had to be excluded at the
threshold.
i) The decision makers have exercised their power by non-
application of minds to relevant facts and statutory
provisions, which cannot be termed as a mere irregularity
in decision making process.
j) Since the court lacks the academic expertise, it would be
wise, safe and prudent to direct the members of the
Search Committee to decide whether the remaining 5
publications satisfy the requirement of clause 3 of part A.
10. Since the Division Bench was divided in opinion on fulfillment
of the criterion under clause 3 and the relief to be granted, vide order
dated 9th August 2011 , the petitions were referred to the third learned
Judge of the Court for considering the above-referred points.
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Accordingly, the learned third Judge of this Court heard the petitions on
the above referred two points and vide judgment dated 22.2.2012
answered the said two points as under:
. R.E. Q.1. :- I am unable at this stage to state that the decision of
such committee or the Chancellor of the University of Bombay suffers
from any non application of mind vis-a-vis condition no.3. The answer to
this question must await their response as to which of the 12 publications
submitted by the respondent no.8 they took into consideration while
considering the 8th respondents eligibility and appointment.
. R.E. Q.2.:- If the answer to the question no.1 is in the affirmative,
the answer to the question no.2 must be answered in the affirmative.
11. Subsequently, the petitions were placed before the Division Bench
presided over by the Chief Justice. The Division Bench, vide order dated
11.5.2012, held that the third learned Judge in his oral judgment dated
22.2.2012 had not given clear opinion whether the view taken by the
Chief Justice is correct or the view taken by Justice G.S. Godbole is
correct. Hence, the said two questions formulated in reference order
dated 09.8.2011, were referred to the division bench this Court.
Accordingly, these petitions have been placed before us to answer the two
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questions formulated in the order of reference dated 09.8.2011.
12. The petitioners in P.I.L. No.92 of 2010 took out Notice of
Motion No.250 of 2012 inter alia seeking to recall the order of reference
dated 11.05.2012. The said notice of motion was dismissed by order
dated 25.04.2013 and the petitions were placed before this Court to
answer the two points referred to in the reference order dated 09.8.2011.
13.
During the pendency of the reference, the petitioners moved
Chamber Summons No.20 of 2014 for amendment to the petition and
sought to raise additional grounds of challenge to the appointment of the
respondent no.8. By praecipe dated 21/02/201 filed before the Bench
presided over by the Chief Justice, the petitioners sought clarification
whether the reference Court was competent to hear the application for
amendment. By order dated 26.02.2014, the Division Bench presided over
by the Chief Justice, without expressing any opinion on maintainability of
chamber summons, ordered to place the chamber summons before the
reference bench stating that it is for division bench hearing the reference
to express its opinion. Accordingly, the parties were heard in the matter
and vide order dated 18/03/2014 the chamber summons was allowed and
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the petitioner was permitted to amend the petition as per the proposed
amendment disclosed in the schedule appended to the Chamber
Summons.
14. The respondents filed their additional affidavits-in-reply to the
amended pleadings. On completion of the pleadings, the matter was
extensively argued by Mr. J. Shekhar, learned counsel for the petitioner in
PIL No. 96 of 2010, Mr. Kowli, learned counsel for petitioner in PIL No. 92
of 2010 and Mr. R. A. Dada, learned Senior Counsel for respondent no.8
in PIL No. 92 of 2010 and for respondent nos.3, 4 and 5 in PIL No.96 of
2010, learned Advocate General Mr. D.J. Khambatta for respondent nos.1,
2, 5, 6 and 7 in PIL No.92 of 2010 and for respondent nos.3 and 4 in PIL
No.96 of 2010 and Mr. Dharmadhikari, learned counsel for respondent
no.9 in PIL No. 92 of 2010 and for respondent no.6 in PIL No. 96 of 2010.
15. The petitioners having amended the petition raised several
grounds of challenge, which traverse beyond the points of reference. Mr.
Dada, learned Senior Counsel and learned Advocate General Mr.
Khambatta, have questioned the jurisdiction of this bench to hear the
petitions de novo and to express opinion on the points raised in the
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amended petitions. Hence, before adverting to the arguments advanced on
the points of reference, it would be appropriate to consider these
preliminary objections.
16. Learned Advocate General Mr. Khambatta has submitted that
reference made under Clause 36 of the Letters Patent is restricted to the
points to which the two learned Judges of this court had differed in the
judgment, which points have been set out in order of reference dated
9/8/2011. The fact that amendments were allowed by this court does not
expand the jurisdiction of this court to traverse beyond the points of
reference and that this court has no jurisdiction to enhance the scope of
the reference under Clause 36 of the Letters Patent.
17. Carrying forward these submissions, learned Senior Counsel Mr.
Dada relied upon the decisions of the Full Bench of the Gujarat High Court
in the case of Shushila Kesarbhai and ors. vs. Bai Lilavati and ors. [AIR
1975 Gujarat 39], S.G.P. Committee vs. M.P. Dass Chela (dead) by L.Rs.
[AIR 1998 SC 1978], Amalgamated Coalfields Ltd. Calcutta and ors. vs.
State of Madhya Pradesh and anr. [AIR 1967 Madhya Pradesh 56], Royal
Calcutta Turf Club through Acting Secretary, D.J. Leckie vs. Lala Kishan
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Chand Manchanda [AIR (30) 1943 Lahore 84] and Rajesh Kumar
Aggarwal and ors. vs. K. K. Modi and ors. [AIR 2006 SC 1647].
18. Per contra, Learned counsels for the petitioners have urged
that by order dated 26-2-2014 on the precipe preferred by the petitioners
in PIL 92/2010, the original bench, after having considered that the issues
raised in the Chamber Summons no 20 of 2014 were beyond the scope of
reference, allowed the Chamber Summons to be heard by this bench. It is
urged that the order dated 26.2.2014 has removed the restrictions and
clarified that the issues raised in the Chamber Summons, which are
beyond the scope of referral order, can be heard by this bench. It is further
urged that having allowed the Chamber Summons vide order dated
18.3.2014, this bench has expanded the scope of the reference and this
bench is therefore competent to hear all the issues raised in the amended
petition even in the absence of such clarification.
19. Learned counsels on behalf of the petitioners have further
submitted that since the third judge has not expressed his opinion on the
points referred vide order dated 9.8.2011 and in view of the fact that
Clause 36 of the Letters Patent does not provide for any remedy to such
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situation, this bench can exercise its inherent jurisdiction under section
151 of C.P.C. and hear the matter de novo, without restricting itself to the
points of reference so formulated. Reliance is placed upon the decisions in
Income Tax Officer, Company Circle II(1), Madras and ors. vs. Vice
president, Income Tax Appellate Tribunal, Madras and ors. [1985 (155)
ITR 310 (Mad.), Commissioner of Income tax, Jalandhar vs. M/s. Bhai
Shamsher Singh and Sons [1989 TAX. L.R. 1001].
20.
It is urged that in the Public Interest Litigation, the jurisdiction
cannot be restricted only to the points referred and cannot be subjected to
the technicalities and the endeavour should be to meet the ends of justice
and should be interpreted expansively. In support of this contention, Mr.
Kowli has relied upon the decisions in the case of Babu and ors. vs. The
State of Uttar Pradesh [AIR 1965 SC 1467], State of Andhra Pradesh vs.
P.T. Appaiah and anr. [AIR 1981 SC 365], Tanviben Pankajkumar Divetia
vs. State of Gujarat [(1997) 7 SCC 156], Sajjan Singh and ors. vs. State of
M.P. [(1999) 1 SCC 315] and Radha Mohan Singh Alias Lal Saheb and
ors. vs. State of UP [(2006) 2 SCC 450].
21. We have given our anxious consideration to the submissions
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canvassed before us. Undisputed resume of the admitted facts would
indicate that the petitioners had challenged the appointment of the
respondent no.8 as a vice chancellor on the ground that he lacked the
essential qualifications and experience stipulated under clause 2, 4, and 5
of Part A. Difference in opinion between the judges of the referral court as
regards fulfillment of the criterion under clause 3 led to the reference to
the third judge. Since the third Judge did not agree with the opinion of
either of the judges of the referral bench, by order dated 11-5-2012,
reference was made to this bench to express opinion on the same two
points which were earlier referred to the third judge vide order dated 9 th
August, 2011.
22. During the pendency of the reference, the petitioners
amended the pleadings and raised the additional grounds of challenge viz.
1. That the application of the respondent no.8 was not
submitted in time.
2. The search committee had accepted the said application in
biased, malafidely and arbitrary exercise of power in favour of
respondent no.8.
3. The respondent no.8 did not have actual teaching
experience of 15 years and did not fulfill essential
qualifications as required under Clause 2 of Part A.
4. The respondent no.8 did not have good academic record
and thus did not fulfill the requirement under clause 1 of part
A.
5. The respondent no.8 did not hold the rank of Professor as
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required under Clause 4 of Part A.
23. It is pertinent to note that the grounds at serial number nos. 3
and 4 above were already raised in the main petition and were answered
by the referral Bench without there being any difference in opinion, while
the grounds at serial number nos. 1 to 3 are raised in this reference for the
first time. None of the grounds raised in the amended petition are covered
by the reference and this raises a pivotal question as regards the scope and
jurisdiction of the Court deciding the reference under clause 36 of the
Letters Patent to consider the grounds not covered by the order of
reference. It would, therefore, be apposite to refer to clause 36, which
reads as under :-
"36. Single Judges and Division Courts:- and We do hereby
declare that any function, which is hereby directed to be
performed by the said High Court of Judicature at Bombay in
the exercise of its original or appellate jurisdiction, may be
performed by any Judge or any Division Court thereof,
appointed or constituted for such purpose, in pursuance of
section One hundred and eight of the Government of India Act,
1915, and if such Division court is composed of two or more
Judges, and the Judges are divided in opinion as to the
decision to be given on any point, such point shall be decided
according to the opinion of the majority of the Judges, if there
shall be a majority, but if the Judges should be equally divided
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they shall state the point upon which they differ and the case
shall then be heard upon that point by one or more of the other
Judges and the point shall be decided according to opinion of
the majority of the Judges who have heard the case including
those who first heard it.
24. The plain reading of Clause 36 of Letters Patent clearly
indicates that when the Division Court composed of two or more
Judges, are divided in opinion, as to the decision is to be given on any
point, such point is to be decided according to the opinion of the
majority of the Judges, if there is a majority. However, if the Judges
are equally divided, in case like the present, they are required to state
their point of difference and the Judge or Judges to whom the
reference is ultimately made are required state their opinion on the
point. The said points would then be decided in accordance with the
opinion of the majority of the judges who have heard the case,
including those who first heard it.
25. It, therefore, follows that the Judges hearing the
reference under clause 36 are required to express their opinion upon
the points of difference formulated by the referral Judges and not on
the points, which were not raised or were raised and dealt with by
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the referral Judges. This proposition has been clearly articulated by
the full bench of Lahore High Court in Royal Calcutta Turf Club
through Acting Secretary D.J. Leckie vs. Lala Kishan Chand
Manchanda [AIR (30) 1943 Lahore 84] as under:-
".....Even if the jurisdiction of the referee Judge is, therefore,
confined to a decision of the point or points of difference it must
follow that the jurisdiction for deciding the whole appeal must
remain with the referring Bench. But I would go further. It
appears to be doubtful whether even the referee Judge has
jurisdiction to decide the point of difference. The clause says that
the appeal shall be heard upon that point by the referee Bench
and the point shall be decided according to the opinion. It does
not specifically lay down that the point shall be decided by the
referee Judge, as the Legislature could very easily have stated if it
had been the intention to transfer jurisdiction for deciding the
point, from the Division Bench seized of the case, to the referee
Judge. It appears to me, therefore, that the jurisdiction for the
decision not only of the appeal as a whole, but also of the point of
difference, remains with the referring Bench; and all that the
clause lays down is a method by which in the case of a difference
of opinion, the difficulty is to be resolved. On this view, it would
be the duty of the referee Judge to express an opinion on the point
or points of difference and to return the case with his opinion to
the Division Bench seized of the case which must pronounce the
final judgment, according to the method provided by cl. 26."
26. This is an Authority of the proposition that the jurisdiction of
the judges deciding the reference is restricted to expressing an opinion on
the point of difference and the jurisdiction for deciding all the points,
including the points of difference vests with the referral bench. These
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principles have been reiterated in the case of Amalgamated Coalfields
Ltd. Calcutta and ors. vs. State of Madhya Pradesh and anr. [AIR 1967
Madhya Pradesh 56].
27. The petitioners have relied upon the decisions in the case of
Income Tax officer, Company Circle II(1), Madras vs. Vice President, ITAT and
1985 (155) ITR 310 and The Commissioner of Income Tax, Jalandar Vs.
M/s. Bhai Shamsher Singh and Sons (1989) TAX L.R. 1001, in support of
their contention that this bench has jurisdiction to hear the petition de
novo. In the case of Income Tax Officer, Company Circle II(1) (Supra),
pursuant to the difference of opinion between two members of the Income
tax tribunal a reference was made to the third member under Section
255(4) of the I.T. Act, 1961. The third Member had remitted the matter to
the two members for fresh consideration. While quashing the order of the
third member it was held that the third Member, who is functioning under
Section 255(4) of the Act cannot act as an appellate authority over the two
members of the Tribunal. It was held that the third member does not have
such a power to direct the two Members of the Tribunal who had differed
on the point referred to him to decide on a particular point or act in a
particular manner.
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28. Similarly, in the case of Commissioner of Income Tax, Jalandar
(Supra), it was held that Section 255(4) of the I.T. Act provides that if the
member have bench have difference of opinion on any point, the case shall
be referred to the President of the Appellate Tribunal for hearing on such
point by one or more or other members of the Appellate Tribunal and such
point shall be decided according to the majority of the members of the
Appellate Tribunal who have head the case, including those who first
heard it. Since on the facts of the case, the point of difference was left
undecided and there was no majority decision, the case was sent back to
the Tribunal for decision of the appeal afresh in accordance with law and
returned the referred question on answer.
29. In the present case, the petitioners had not challenged the
order of the third Judge. On the contrary, the petitioners in P.I.L. No.92 of
2010 took out a Notice of Motion No.250 of 2012 inter alia seeking recall
of the order of reference dated 11.05.2012. Referring to the judgment of
the Madras High Court in Writ Petition Nos. 905, 3138 and 5152 of 1978
in the case of Income Tax Officer, Company Circle II(1) (Supra) as well as
to Clause 36 of the Letters Patent, the referral court concluded that
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the above Clause of the Letters Patent clearly permits reference to one or
more Judges and the points referred have to be ultimately decided
according to the opinion of the majority of the Judges who have heard the
case, including those who first heard it. By the said order, therefore,
ultimately, the Notice of Motion was dismissed and the original Bench
presided over by the Chief Justice directed that these PILs would again be
placed before another Division Bench for considering the two questions
formulated in the order dated 09/08/2011. The petitioners have not
challenged this order, therefore, at the threshold we may state that it
would not now be open for the petitioners to challenge the maintainability
of the reference under Clause 36 of letters patent and or to urge for de
novo hearing by invoking provisions of Section 151 of C.P.C or by raising
the veil of public interest litigation.
30. Furthermore, the ratio of these judgments does not in any manner
support the proposition that the reference Court is competent to hear the
matter de novo. On the contrary, it holds that the jurisdiction of the
reference Court is confined to the opinion on the point of difference and
the final decision would be as per the opinion rendered by the majority.
31.
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31. In the same way we have no hesitation in holding that the
reliance on the decisions in Babu and ors. vs. The State of Uttar
Pradesh [AIR 1965 SC 1467] and State of Andhra Pradesh vs. P.T.
Appaiah and Anr. [AIR 1981 SC 365]., Tanviben Pankajkumar Divetia
Vs. State of Gujarat [(1997) 7 SCC 156], Sajjan Singh and ors. vs.
State of M.P. [(1999) 1 SCC 315] and Radha Mohan Singh Alias Lal
Saheb and ors. vs. State of UP [(2006) 2 SCC 450] is totally misplaced.
The reason being, in Babu and ors and State of Andhra Pradesh
(supra), the Apex Court, while interpreting the provisions of
Section 429 of Cr.P.C.1898, held that this section contemplates that
it is for the third Judge to decide on what points he shall hear the
arguments, if any, and that postulates that he is completely free in
resolving the difference as he thinks fit. Similar principles have
been laid down by the Apex Court in Tanviben Pankajkumar
Divetia, Sajjan Singh and ors. and Radha Mohan Singh Alias Lal
Saheb and ors. (Supra), while interpreting the scope of Section 392
of the Cr.P.C., 1973. Suffice it to say that unlike Clause 36 of
Letters Patent, the Judge hearing the appeal under Section 392
of Cr. P. C. is not required to express his opinion on the points
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of difference, but is required to examine the whole case independently
give a final decision in the matter. Clearly therefore, the aforesaid
decisions do not support the proposition canvassed by the leaned Counsel
for the petitioners and would not be applicable to the facts of the present
case.
32. The result of the above discussion can, therefore, be summed
up as : -
(i) Clause 36 of the Letters Patent provides for a mechanism to
resolve the difference of opinion between the Judges of the referring
Court.
(ii) The differing judges are required to formulate points of
difference.
(iii) the Judges to whom the reference is made can only express
their opinion on the points so formulated
(iii) the jurisdiction of deciding the points as per the majority
opinion vests with the referral bench.
33. The next question, which would fall for consideration is
whether the scope of the reference stands expanded in view of the order
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dated 26th February, 2014 passed by the referral bench and further order
dated 18th March, 2014 passed by this Bench in Chamber Summons No.20
of 2014 permitting the petitioners to amend the petition and raise
additional grounds of challenge as disclosed in the schedule appended to
the Chamber Summons.
34. Undisputedly, the petitioners had filed a praecipe before the
referral bench and sought clarification as regards the jurisdiction of the
reference court to decide the chamber summons. The said praecipe was
disposed of vide order dated 26.02.2014, wherein the referral bench
headed by the Chief Justice after reproducing the two questions of
reference, held that "It is now for the division bench hearing the reference to
express their opinion. Learned Counsel for the petitioner in PIL No.92 of
2010 states that petitioner has filed some chamber summons. Chamber
Summons shall also be placed before the Division Bench hearing the Reference
and we may not be treated to have expressed any opinion on the question of
maintainability of the chamber summons."
35. A bare reading of the aforesaid order clearly indicates that the
referral bench had neither expanded the scope of the reference nor had
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expressed any opinion on the question of maintainability of the chamber
summons, but had only ordered to place the chamber summons before this
bench. In the light of this fact, we are unable to accept the contention of
the learned Counsel for the petitioners that the referral bench has
expanded the scope of the reference as to encompass the additional
grounds raised in the amended petition.
36. The petitioners have next sought to contend that the order of
reference has merged with order dated 25.4.2013 of the referral bench
and order dated 18.3.2014 allowing the chamber summons for
amendment of the petition. Needless to state that the doctrine of merger
does not apply to the decisions of co-ordinate courts or benches but
postulates merger of subordinate forum's decision in the decision of the
appellate or revisional forum modifying, reversing or affirming such
decision. This is a well-established principle of law laid down by the Apex
court in Kunhayammed and ors. versus State of Kerala (2006) 6 Supreme
Court 359.
37. We are also unable to accept the contention of the petitioners
that the scope of the reference stands expanded by virtue of order dated
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18.3.2014. Suffice it to say that the reference court has no jurisdiction to
enhance the scope of reference. Furthermore, while deciding the
application for amendment the court does not adjudicate into the merits of
the amendment sought to be incorporated. Reference may be made to the
judgment of the Supreme Court in Rajesh Kumar Aggarwal and Ors. vs. K.
K. Modi and ors. [AIR 2006 SC 1647]. Hence, the fact that the petitioners
were permitted to amend the petition would not imply that the reference
court has enhanced the scope of the reference, which exercise would
otherwise be contrary to the provisions of clause 36 of letters patent.
38. We are thus of a view that the scope of the reference under
Clause 36 of the Letters Patent is restricted to the points of reference
formulated in order dated 9th August, 2011. The grounds raised in the
amended petition are not covered by the reference hence it is not within
our jurisdiction to consider the arguments or express our opinion and
adjudicate on the said grounds. We, therefore, do not make any reference
to the submissions advanced before us by the learned counsels for the
petitioners in respect of the new points which have been raised by virtue
of the amendment as well as the points which had been urged and
considered by the referral court. We cannot but restrict our opinion to the
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points of reference, which is mainly restricted to the fulfillment of criterion
prescribed under Clause 3 of Part A.
39. The crux of the question before us is whether the decision of
the selection committee to include the name of the Respondent no. 8 in
the list of eligible candidates for the office of Vice-Chancellor suffered from
non-application of mind vis-à-vis Clause 3 of Part A, which reads as under:
"Minimum of five research publications in peer/reviewed/referred
international research journal after Ph.D and/or published quality books in
a recognised discipline, referenced for study in higher education at the
National/International level."
40. The petitioners have alleged that seven out of twelve
publications listed by the respondent no. 8 in his bio data did not fulfill the
criteria of post Ph.D publication, as required under clause 3 of Part A. It is
urged that the three out of remaining five publications are not research
publications but are problems and hence, do not meet the requirement of
clause 3. The petitioners have urged that the publications listed in the
bio-data are not published in peer/reviewed/referred international
research journal, which is one of the essential qualifications stipulated
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under Clause 3 of Part A. Thus according to the petitioners the Respondent
no.8 was not qualified to be appointed as a vice chancellor.
41. Learned Counsels for the petitioners have argued that the
Selection Committee cannot be considered as experts in academic field.
They have further submitted that the petition raises a challenge to the
decision making process, which on the face of it is erroneous and reflects
non-application of mind and such decision making process qualifies test of
judicial review. The learned Counsel for the petitioners have relied upon
the following decisions :-
1.Tata Cellular Vs. Union of India, (1994)6 SCC 651,
2.S.R. Bommai Vs. Union of India, (1994)3 SCC 1,
3. Rajesh Awasthi Vs. Nandalal Jaiswal, (2013)1 SCC 501,
4. Food Corporation of India & Ors. Vs. Sarat Chandra Goswami, CDJ
2014, SC 455,
5. Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo & Ors.
(2014) 1 SCC 161,
6. Jose Sebastian Vs. State of Kerala, CDJ 2013 Ker 457 and
7. K.V. Jeyaraj & Anr. Vs. The Chancellor of Universities and Ors. CDJ
2014, MHC 2054.
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42. The learned Advocate General Mr. Khambatta and the learned
Sr. Counsel Shir. Rafiq Dada have submitted that the Search Committee is
an expert body which on scrutinizing each and every application has
arrived at the satisfaction that the respondent no.8 was the most suitable
and eligible candidate amongst the other panelists. It is urged that the
Court cannot sit in appeal over the decision of experts in academic field. In
support of this contention, learned Sr. Counsel Shri. Rafiq Dada and
learned A.G. have relied upon the following decisions:-
1. Basavaiah (Dr.) Vs. Dr. H.L. Ramesh & Ors. (2010) 8 SC 372,
2.Sajeesh Babu K. Vs. N.K. Santhosh & Ors. AIR 2013, S 141,
3.Transport and Dock Workers Union & Ors. Vs. Mumbai Port Trust &
Anr. (2011)2 SCC 575,
4. The University of Mysore & Ors. Vs. C.D. Govinda Rao & Anr. AIR
1965 SC 491,
5. The Chancellor Vs. Dr. Bijayanand Kar,(1994)1 SCC 169,
6. M.V. Timmaiah & Ors. Vs. UPSC, (2008) 2 SCC 119,
7. R.S. Dass Vs. Union of India, AIR 1987 SC 593,
8. National Institute of Mental Health Vs. Dr. K. Kalyana Raman AIR
1992 SC 1806,
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9. UPSC Vs. Hiranyalal Dev, AIR 1983 SC 1069,
10. B.C. Mylarappa Vs. Dr. R. Venkatasubbaiah, (2008)14 SCC 306
and 11.Utkal University Vs. Dr. Narsinghcharan Sarangi, 1999(2) SCC
193.
43. Before we advert to the submissions on the scope of the
judicial review, it would be appropriate to refer to the aforesaid legal
authorities relied upon by the respective parties.
44. While considering the scope of judicial review in contractual /
administrative matters, the Apex Court in the case of Tata Cellular (Supra)
has held that "judicial review is concerned with reviewing not the merit of
the decision in support of which the application for judicial review is
made, but the decision making process itself. The duty of the Court is to
confine itself to the question of legality. Its concern should be;
(i) Whether a decision making authority exceeded its powers? (ii)
committed an error of law (iii) committed a breach of the rules of natural
justice (iv) Reached a decision which no reasonable tribunal would have
reached or, (v) Abused its powers. Therefore, it is not for the Court to
determine whether a particular policy or particular decision taken in the
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fulfillment of that policy is fair. It is only concerned with the manner with
the manner in which those decisions have been taken. The extent of duty
to act fairly will vary from case to case. Shortly put, the grounds upon
which an administrative action is subject to control by judicial review can
be classified as under. (i) Illegality : this means the decision maker must
understand correctly the law that regulates his decision making power and
must give effect to it. (ii) irrationality, namely Wednesbury
unreasonableness (iii) procedural impropriety. The above are only the
broad grounds but does not rule out addition of further grounds in course
of time... in all these cases the test is to be adopted is that the Court
should, "consider whether something has gone wrong of a nature and
degree which requires its intervention."
45. S.R. Bommai (Supra), which though a land mark judgment on
the provisions of Article 356 of the Constitution of India, may not strictly
be applicable to the facts of the present case.
46. In the case of Rajesh Awasthy (Supra), the selection of the
appellant as the Chairperson of UP State Electricity Regulatory
Commission was challenged by filing a writ of quo-warranto for non-
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compliance with Section 85(5) of the Electricity Act, 2003 which required
the Selection Committee to arrive at a satisfaction before recommending
any person for appointment as a Chairperson of the State Government.
The Apex Court has held that non-compliance with statutory powers
renders decision making process vulnerable warranting interference by
Court.
47. In the case of Food Corporation of India & Ors. Vs. Sarat
Chandra Goswami, CDJ 2014, SC 455, while interpreting Regulation 60
of the Food Corporation of India (Staff) Regulations, 1971, the Apex Court
held that "once it is held that there has to be formation of opinion and
such an opinion is assailable in a legal forum, we are of the view that the
said opinion has to be founded on certain objective criteria. It must reflect
some reason. It can neither be capricious or fanciful but demonstrative of
application of mind. Therefore, it has to be in writing. It may be on the
file and may not be required to be communicated to the employee but
when it is subject to assail and, eventually, subject to judicial review, the
competent authority of the Corporation is required to satisfy the Court that
the opinion was formed on certain parameters indicating that there was no
necessity to hold an inquiry."
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48. In the case of Central Electricity Supply Utility of Odisha
(Supra) the Apex Court while throwing light on the duty of the Court
while dealing with a writ of quo warranto has held that "it is clear as noon
day that the jurisdiction of the High Court while issuing a writ of quo
warranto is a limited one and can only be issued when the person holding
the public office lacks the eligibility criteria or when the appointment is
contrary to the statutory rules. That apart, the concept of locus standi
which is strictly applicable to service jurisprudence for the purpose of
canvassing the legality or correctness of the action should not be allowed
to have any entry, for such allowance is likely to exceed the limits of quo
warranto which is impermissible. The basis purpose of a writ of quo
warranto is to confer jurisdiction on the constitutional courts to see that a
public office is not held by usurper without any legal authority."
49. In the case of University of Mysore (AIR 1965 SC 491), the
Constitution Bench has laid down as under:-
"Boards of appointments are nominated by the universities and when
recommendations made by them and the appointments following on
them, are challenged before courts, normally the courts should be
slow to interfere with the opinions expressed by the experts. There is
no allegation about malafides against the experts who constituted the
present board; and so, we think, it would normally be wise and safe
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for the to leave the decisions of academic matters to experts who are
more familiar with the problems they face then the courts generally
can be".
50. These principles have been reiterated and reaffirmed by the
Apex Court in Basavaiah (Dr.) Vs. Dr. H.L. Ramesh & Ors.(Supra) wherein
it is held that: "it is the settled position that the Courts have to show
deference and consideration to the recommendation of an expert
committee consisting of distinguished experts in the field. In the
academic matters, the Courts have a very limited role particularly when
no malafides have been alleged against the experts constituting the
selection committee. It would normally be prudent, wholesome and safe
for the courts to leave the decisions to the academicians and experts. As a
matter of principle, the courts should never make an endeavour to sit in
appeal over the decisions of the experts. The courts must realize and
appreciate its constraints and limitations in academic matters."
51. In B.C. Mylarappa the Apex Court has reiterated that "this
court has repeatedly held that the decisions of the academic authorities
should not ordinarily be interfered with by the courts. Whether a
candidate fulfills the requisite qualifications or not is a matter which
should be entirely left to be decided by the academic bodies and the
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concerned selection committees, which invariably consist of experts on the
subjects relevant to the selection."
52. In M.V. Thimayyaa (Supra), the Apex Court has held that "The
allegation of mala fide is very easy to be leveled and it is very difficult to
substantiate it, specially in the matter of selection or whoever is involved
in the decision making process. People are prone to make such allegations
but the courts owe a duty to scrutinize the allegation meticulously because
the person who is making the allegation of animus does sometimes mala
fide due to his non-selection. He has a vested interest. Therefore, unless
the allegations are substantiated beyond doubt, till that time the court
cannot draw its conclusion."
53. In the case of Transport and Dock Workers (Supra), the Apex
Court has held that "Excessive interference by the judiciary in the
functions of the executive is not proper. In several decisions, we have held
that there must be judicial restraint in such matters." It was further held
that Judges must maintain judicial self-restraint while exercising the
powers of judicial review of administrative of judicial decisions.
Adjudication must be done within the system of historically validated
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restraints and conscious minimization of the Judges' preferences. The
Court must not embarrass the administrative authorities and must realize
that administrative authorities have expertise in the filed of administration
while the Court does not. In the administrative matters the Court should,
therefore, ordinarily defer to the judgment of the administrators unless the
decision is clearly violative of some statutes or is shocking arbitrary.
54. The Chancellor Vs. Dr. Bijayanand Kar (Supra), the Apex
Court has emphasized that the decisions of the academic authorities
should not ordinarily be interfered with by the Courts. Whether a
candidate fulfills the requisite qualification or not is a matter, which
should be entirely left to be decided by the academic bodies and the
concern selection committees which invariably consists on the experts of
subjects relevant to the selection.
55. In the case of R.S. Dass (Supra), National Institution of Mental
Health (supra), and Union Public Service (supra), the Apex Court has held
that the principles of natural justice do not require an administrative
authority or a selection committee or an examiner to record reasons for
the selection or non-selection of a person. In the absence of the statutory
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provision, the administrative authority is under no legal obligation to
record reason in support of its decision. It is held that the function of the
Selection Committee is neither judicial nor adjudicatory. It is purely
administrative.
56. In Utkal university the Apex Court has held that allegations of
bias must be carefully examined before any selection can be set aside. In
the first place, it is the joint responsibility of the entire selection committee
to select a candidate who is suitable for the post. When experts are
appointed to the committee for selection, the selection is not to be lightly
set aside unless there is adequate material which would indicate a strong
likelihood of bias or show that any member of selection committee had a
direct personal interest n appointing any particular candidate."
57. The parameters of the judicial review are therefore well
defined and it is well settled that the court cannot sit in appeal over the
decision taken by the experts in academic field or interfere with the
decision on specious grounds of malafides or bias. Nonetheless, the
judicial restraint does not confer unfettered and unbridled powers on the
selection committee to act arbitrarily or illegally in total violations of the
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Act or statutory rules. In such situations, it is within the jurisdiction of the
court to scrutinize the decision-making process and test the decision on
the touch stone of illegality, irrationality or procedural impropriety. The
decision making process of the selection committee in selecting and
recommending the appointment of respondent no.8 as Vice-Chancellor is
required to be judged in the light of these well-settled principles.
58. In the curriculum vitae submitted in response to the
advertisement, the respondent no.8 Vice-Chancellor had cited following
publications/articles/research papers :-
1. Wimbledon results re-analysed: A Probabilistic Model, Teaching
Statistics, June 1990, Vol.12, Issue 2 from UK
2. Mathematical identity : The American Mathematical monthly, Oct.
2003, Vol. 110, No.8 from USA.
3. A Coin tossing experiment and nineteen distributions, Teaching
Statistics, 2005, Vol. 28 Issue 2 from UK (Related to my Ph.D.
4. Expansion by Inclusion-Exclusion, The American Mathematical
Monthly, May, 2005, Vol. 112, Nos. 5 from USA.
5. A result on Fibonacci numbers, Mathematical Gazette, Nov. 2005,
Vol. 9, No.5/6 from USA.
6. Problem on Lucas number, School of Science and Mathematics, Jan.
2009, Vol. 109 (1) from Israel.
7. Redefining Distance Learning, Journal of Distance Education,
University of Jammu, 2002, Vol. IX, No.1 from India.
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8. A result on Fibonacci numbers, pi-mu-epsilon, fall 2009 from USA.
9. Fibonacci numbers, submitted for publication in Fibonacci Quarterly,
a research journal published in the USA.
10. Satellite-based education in YCMOU, submitted for publication
to the Australian Journal "Distance Education".
11. Presently working on a paper tentatively titled, 'Innovative
reforms in student assessment in Higher Education'.
12. A waiting type model and associated results, submitted for
publication in The Mathematical Gazette."
59.
It is pertinent to note that Clause 3 of Part A requires five post
Ph.D publications in peer/reviewed/referred international research
journal. We may at the very outset observe that the respondent no. 8 was
awarded Ph.D on 15.9.2004 whereas the publications at serial nos. 1, 2,
and 7 were published prior to award of Ph.D while those at serial number
9 to 12 were merely submitted for publication. It is well settled that
eligibility requirements must be fulfilled on or before the last date for
submission of application as may be specified in the advertisement willing
applications for the post, unless of course, some other date is specified in
the advertisement itself. Consequently, as on the date specified in the
advertisement out of 12 publications, seven publications did not meet the
requirement stipulated under Clause 3 of Part A of the Statutory Order
dated 27/5/2009, which fact is also accepted by the respondent no.8 -
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Vice-Chancellor in his affidavit-in-sur-rejoinder. These seven items were,
therefore, required to be discarded at the threshold.
60. The minutes of meeting held on 12.6.2010 however indicate
that the selection committee had shortlisted 20 candidates including the
respondent no.8, who had allegedly fulfilled the essential qualifications.
The names and other essential qualifications of these candidates were
recorded in Annexure B, which is stated to have been prepared by the
Nodal Officer. Annexure B, which contains entries with respect to the
respondent no. 8, refers to 12 publications, which fact ex-facie gives an
indication that the said seven items were not discarded but were in fact
considered by the selection committee.
61. It is also pertinent to note that Section 12 (3) of the
Maharashtra Universities Act as substituted by Maharashtra Act No. XIV of
2009 requires the Committee to recommend the panel not less than five
suitable persons for the consideration of the Chancellor for being
appointed as the Vice-Chancellor. The rule also requires the committee to
submit a detailed write up on suitability of each person included in the
panel. In the present case, in the write up on respondent no.8, which is
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annexed to the minutes of meeting held on 2 nd July, 2010, the committee
had merely recorded that "Dr. Rajan Welukar is a trained statistics expert
with his Ph.D. in that area and several publications even though he is
young (born 1959) he has very good experience as a teacher and
administrator...." The said write up does not disclose whether the term
'several publications' referred to all twelve publications mentioned in the
resume of respondent no.8 or whether it referred to only those five post
post Ph.D. Publications. The said write up, does not indicate that the
Search Committee was conscious of the fact that seven publications at Sr.
Nos. 1, 2, 7 and 9 to 12 did not meet the requirement stipulated in Clause
3 of Part A. The write up also does not indicate whether the Search
Committee had considered whether the remaining five publications meet
the minimum eligibility criteria.
62. True, the Search Committee does not discharge any
adjudicatory functions and, therefore, there may not be any statutory
requirement to record reasons for its decision. However, this does not
mean that their decision should not be based on reason. The circumstance
that there is no statutory requirement to record reason, does not confer
upon the Search Committee any immunity from applications of mind to all
relevant considerations and exclude irrelevant consideration. The fact that
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the Committee is required to give a detailed write up is itself an indication
that there has to be some contemporaneous material to indicate that there
was proper application of mind and cogent reasons in support of decision
arrived at, particularly as the Search Committee was entrusted with the
function of examining whether the candidates aspiring to be appointed to
a high ranking post in the academic field fulfilled the minimum eligibility
criteria and further recommend the names of the eminent academicians to
the Chancellor for being appointed as Vice-Chancellor.
63. In the instant case, there is no material on record to indicate
that the Selection Committee had in fact applied its mind and considered
whether the 7 publications were to be discarded and whether the
remaining 5 publications fulfilled the minimum eligibility criteria
stipulated in Clause 3 of Part A. Interestingly, even in the additional
affidavit of the Search Committee as well as at the conclusion of the
arguments, the learned A.G. representing the Search Committee
(respondent nos. 5 to 7) was unable to specify as to which of these
publications out of 12 publications fulfilled the criteria laid down in Clause
3 and were considered by the Search Committee while assessing the
eligibility of the respondent no.8 for the post of Vice-Chancellor.
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64. Besides, there is no material to indicate that the Search
Committee had taken a conscious decision to relax or to recommend
relaxation of requirement under Clause 3 of Part A, either on the ground
that respondent no.8 was an eminent academician or administrator or for
any other reason. Furthermore, there does not appear to be any provision
entitling the Chancellor to relax any of the essential eligibility
requirements set out in Part A. Thus, we are of the view that although the
minutes of meeting state that the Search Committee had reviewed each
and every application, there is nothing to suggest that the Selection
Committee had applied its mind vis-à-vis Condition set out in Clause 3 of
Part A.
65. These facts lead to an inevitable conclusion that the Selection
Committee had abdicated its functions by accepting the claim of
respondent no.8 as disclosed in his resume at the face value or relying
almost entirely upon the notings / Annexure-B prepared by the Nodal
Officer, without independently ascertaining whether the publications listed
in the resume fulfilled the requirement of clause 3 of Part A and
consequently whether the respondent no.8 possessed the minimum
requisite eligibility criteria. This in our considered view is an error
touching the decision making process.
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66. Whiles we accept that in the exercise of powers of judicial
review, we are normally not concerned with the merits of the decision, but
where the decision making process is vitiated by non application of mind,
or where authorities have abdicated their function by independently
ascertaining whether respondent no. 8 fulfilled the prescribed qualification
with regard to publication stipulated under Clause 3, powers of judicial
review would have to be exercised.
67. Relying upon the affidavit of Dr. Neeraj Hatekar, Professor of
Econometrics in Mumbai University, the petitioners have contended that
the publications at Sr. No.3 relates to Ph.D. and same is not based on Post
Ph.D. Research. Hence, the said publication does not meet the
requirement of Clause 3 of Part A. The petitioners have further urged
that the publications at Sr. Nos. 4, 5, 6 and 8 are not research publications
in peer review journals but are problems which do not qualify as research
publications. The petitioners have also disputed that the respondent no.8
has co-authored the solutions to the problem no.11033 along with Mr.
Richard Strong. The petitioners have claimed that as per the policy of
the publisher i.e. Mathematical Association of America, the solution was to
be sent along with proposed problem. The petitioners claim that the
jt-pil-92-96 & wp-1901-10-os--f.doc
problem was published in 2003, therefore, the solution was obviously
given in 2003, itself i.e. prior to Ph.D. The petitioners have further
contended that the problem on lucas number appearing at Sr. no.7 and
result of Fibonacci number at Sr. no.8 are the same, except for change of
alphabet "L" to alphabet "F". The petitioners, therefore, claim that the
remaining 5 publications do not fulfill the criteria of Clause 3 of Part A.
68. Though in vain, the learned Counsels for the petitioners and
the respondents have tried to highlight the difference between publication
of problems and research publication, Mathematical Journals and Peer
reviewed Journals and have further sought to explain to us the intricacies
and complexities of the 'problems' and 'solutions'. However, we with our
limited ability and expertise in the academic field are unable to answer the
points raised by the petitioners and decide whether the said 5 publications
at Sr. Nos. 3, 4, 5, 6 & 8, meet the requirements stipulated by Clause 3 of
Part A. In our view, it is within the domain of the Selection Committee,
an expert body in academic field, to assess and review these publications
and determine whether these publications meet the requirement of Clause
3 of Part A.
jt-pil-92-96 & wp-1901-10-os--f.doc
69. In the facts and circumstances of this case, in our considered
view, the decision of the Search Committee to include the name of
respondent no.8 in the list of eligible candidates in the office of the Vice
Chancellor of the University of Bombay suffered from non-application of
mind vis-à-vis condition 3 of Part A.
70. In our view, this Court should exercise its extraordinary
discretionary jurisdiction to direct the search committee to reconsider the
question of eligibility of respondent no.8 in the office of Vice Chancellor
vis-à-vis condition 3 of Part A of the Schedule to the above Statutory order
dated 27.05.2009.
71. We, therefore, answer the reference in the affirmative, in
respect of the two points referred to us. With these findings, we direct the
Registry to place the matter before the Original Bench presided over by the
Chief Justice, for passing further orders.
(ANUJA PRABHUDESSAI, J.) ( P. V. HARDAS, J.)
