Mohammed Lateef Ahmed Taj ... vs The Registrar, Dr. Bam University ...
2017 Latest Caselaw 7008 Bom

                                                     Writ Petition No.1345/2006
                                        1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    BENCH AT AURANGABAD


                        WRIT PETITION NO.1345 OF 2006



 Dr. Mohamad Lateef Ahmed s/o
 Taj Mohammad, Age 56 years,
 Occu. Serving as Head of the
 Department of the Urdu,
 Government College of Arts and Science,
 Kille-ark, Aurangabad                   ...              PETITIONER

          VERSUS

 1.       The Registrar,
          Dr. Babasaheb Ambedkar Marathwada
          University, Aurangabad.

 2.       Dr. Mohamad Gayasuddin,
          Prof. of Urdu Department of Urdu,
          Dr. Babasaheb Ambedkar Marathwada
          University, Aurangabad.           ...           RESPONDENTS

                                .....
 Shri F.R. Tandale, Advocate for petitioner
 Shri S.S. Thombre, Advocate for respondent No.1.
 Shri A.S. Shelke, Advocate for respondent No.2.
                                .....


                               CORAM:       R.D. DHANUKA AND
                                            SUNIL K. KOTWAL, JJ.

                  Date of reserving judgment : 28th August, 2017
                  Date of pronouncing judgment : 12th September, 2017.


 JUDGMENT (PER SUNIL K. KOTWAL, J.)

1. This petition is directed to issue writ of mandamus, to

quash and set aside the appointment of respondent No.2 on the

post of Professor of Urdu, Department of Urdu, made by

Writ Petition No.1345/2006

respondent No.1 Dr. Babasaheb Ambedkar Marathwada

University, Aurangabad. Consequential relief is sought for

direction to call fresh interview by following proper procedure for

the post of Professor of Urdu.

2. Contention of the petitioner in brief is that, on

7/7/2004, the respondent No.1 had given the advertisement for

recruitment of the post of Professor of Urdu in the Department of

Urdu. Petitioner being qualified for that post, had applied for the

said post on 10/8/2004, through proper channel i.e. Director,

Higher Education, Maharashtra State, Pune, the then employer of

the petitioner, with requisite recommendation of the employer.

On 21/12/2005, interview of the petitioner for the post of

Professor of Urdu was held along with other candidates including

respondent No.2, who belongs to State of Bihar. As per the

advertisement, for the post of Professor of Urdu, the

specialization required was "Critical Theory/ Classical and Modern

Criticism, Classical and Modern Poetry or Comparative Literacy

Theory/ Linguistics/ Fiction and Non-Fiction".

3. It was the case of the petitioner that he had

specialization in "Critical Theory/ Classical and Modern Criticism/

Classical and Modern Poetry", however, at the time of interview,

the experts who were the members of Selection Committee,

Writ Petition No.1345/2006

intentionally asked questions to the petitioner on "Fiction and

Non-Fiction" so that petitioner would become unsuccessful

candidate. In the result, the respondent No.2 was appointed as

Professor of Urdu in the Department of Urdu by respondent No.1

though the petitioner was more qualified and experienced person

than the respondent No.2. Grievance of the petitioner is that, as

per rules, the Selection Committee shall comprise (1) Vice

Chancellor, (2) Dean, Faculty of Arts, (3) nominee of Joint

Director of Higher Education, (4) Head of the Department of Urdu

and three experts in the field of Urdu. The general policy of the

University was to appoint experts from nearby University.

However, the respondent No.1 appointed two experts from State

of Bihar and third expert from Delhi, namely :-

1. Dr. Naaz Quadri, Professor and Head of the Department of Urdu, B.A. Ambedkar, Bihar University, Muzaffarpur (Bihar), who was the direct teacher of respondent No.2 in this petition.

2. Dr. Anwar Saeed, Darbhanga College, Darbhanga, Bihar.

3. Dr. Shahed Hussain, Professor, Pandit Jawaharlal University, Delhi.

4. It is the case of the petitioner that, the respondent

No.2 is also from Bihar State and he was well acquainted with the

two appointed experts from Bihar. So also, Vice Chancellor Dr.

Writ Petition No.1345/2006

Kottapalle, who was the Chairman of the Interview Committee,

was previously working in Pune University and respondent No.2

was also working as Lecturer in Poona College and both of them

were knowing each other prior to date of finalizing the process of

filling up the post of Professor of Urdu in respondent No.1

University. As a result of the alleged favouritism, though the

petitioner was a better candidate, the respondent No.2 was

selected by Selection Committee. Contention of the petitioner is

that, the respondent No.2 had malafidely managed the

appointment of experts from the place where he belongs. At the

time of interview, Head of the Department of Urdu and Dean,

Faculty of Arts were not present. Thus, there was insufficient

quorum for conducting the interview as prescribed by University

Grants Commission (U.G.C.). The selection of respondent No.2

being against the rules and regulations of U.G.C. and usual

practice of respondent No.1, is illegal and deserves to be set

aside.

5. By filing affidavit-in-reply, respondent No.1

specifically denied the allegations of favouritism on the part of

respondent No.1. According to respondent No.1, the allegations

leveled by petitioner against the respondents are baseless and

without any substance. On the other hand, respondent No.2 was

appointed by following due procedure of law and considering his

Writ Petition No.1345/2006

merit and educational qualification. It was only co-incidence that

the two experts were from Bihar State and that was nothing to

do with the appointment of respondent No.2. Calling the expert

is procedure which is to be adopted by University so as to get

meritorious candidates. The Selection Committee was

constituted under Section 76(2) of the Maharashtra Universities

Act, 1994 to recommend the candidate on the post of professor

as follows :

1. Dr. Nagnath Kottapalle, Vice Chancellor, Chairman.

2. Dr. A.P. Pathan, Chancellor's Nominee.

3. Dr. S.N. Puri, Chancellor's Nominee.

4. Prof. Mohd. Fayyaz, Director of Higher Education's Nominee

5. Dr. Naaz Quadri, Subject Expert.

6. Dr. Mohd. Shaheed Hussain, Subject Expert

7. Dr. Rais Anwar Rahman, Subject Expert

8. Dr. Gajanan Surase, Registrar, Secretary of the Committee

6. After assessing the educational qualification and

subject proficiency of the candidates, the respondent No.2 was

selected by the Committee. The Committee had considered (1)

qualification, (2) teaching/ research experience, (3) proficiency

and (4) performance at the interview. Only because petitioner

was not selected, such baseless allegations are made without

Writ Petition No.1345/2006

producing material in support of these allegations. The

qualification of respondent No.2 was better than the petitioner.

In brief, contention of respondent No.1 is that, the respondent

No.2 was selected by the Selection Committee by following the

due procedure of law and, therefore, this petition being baseless,

deserves to be rejected.

7. Respondent No.2 also opposed this petition by filing

reply affidavit mainly on the ground that, when petitioner

participated in selection process of the Professor of Urdu as one

of the candidate, he is estopped from challenging the constitution

of Selection Committee. The Selection Committee was also

constituted as per the provisions of the Maharashtra Universities

Act, 1994 and the selection of respondent No.2 was made by the

Committee on the basis of academic qualification, publication of

research experience, proficiency and performance at interview.

All allegations made in the petition are baseless and devoid of

any substance. According to this respondent, he was better

qualified and experienced person than the petitioner.

Respondent No.2 has specifically denied any acquaintance with

the two experts who belonged to Bihar State. According to the

said respondent, he had no occasion even to meet these experts

prior to the interview. The respondent No.2 was not knowing any

of the member of the Selection Committee prior to the interview.

Writ Petition No.1345/2006

On the other hand, the respondent No.2 had completed his

Bachelor of Arts from L.N. Mithila University, Darbhanga whereas

Dr. Naaz Quadri was working as Professor of Babasaheb

Ambedkar Bihar University, Muzaffarpur. Even respondent No.2

had no occasion to meet Vice Chancellor, who was Chairman of

Interview Committee. In brief, contention of respondent No.2 is

that, being meritorious candidate, he was selected by Selection

Committee after following due procedure of law and, therefore,

this petition is required to be dismissed.

8. Learned counsel for the petitioner submitted that, in

the Selection Committee constituted under Maharashtra

Universities Act, 1994, three experts were invited by the

respondent No.1 University, but out of those three experts, two

were from State of Bihar, from where the respondent No.2

belonged and, therefore, those two experts from State of Bihar

were biased against the petitioner. It is also the contention of

learned counsel for the petitioner that the Vice Chancellor Dr.

Kottapalle, who was the Chairman of Interview Committee, was

previously working in Pune University and respondent No.2 also

worked as Lecturer in Poona College at Pune and both of them

were well acquainted with each other, prior to the date of

finalising the process of selection of post of Professor of Urdu

and, therefore, while selecting respondent No.2, partiality was

Writ Petition No.1345/2006

done by the Selection Committee.

9. Learned counsel for both the respondents submitted

that, the allegation of bias is baseless and petitioner has not

placed any substance on record to show that the two experts

hailing from Bihar State were well acquainted with respondent

No.2 and Dr. Kottapalle, who was Chairman of Selection

Committee, was well acquainted with respondent No.2 since

before the interview and, therefore, all of them carried bias

against the petitioner.

10. Learned counsel for the respondents placed reliance

on the judgment of the Supreme Court in case of Dr. G. Sarana

Vs. University of Lucknow & ors. reported in [ (1976) 3 SCC

585 ], wherein Apex Court held that, what has to be seen in a

case where there is allegation of bias in respect of a member of

an Administrative Board or Body, is whether there is a

reasonable ground for believing that he was likely to have been

biased. In other words, whether there is substantial possibility of

bias animating the mind of the members against the aggrieved

party. The Apex Court also upheld the opinion of the High Court

that the appellant having submitted to the jurisdiction of

Selection Committee, he could not be permitted to turn around

and denounce the constitution of the Committee. Principles laid

Writ Petition No.1345/2006

down by the Supreme Court in case of Dr. G. Sarana (supra)

apply to the facts of this case.

11. In the case at hand, after careful examining the

documents placed on record by the petitioner, it emerges that,

no material has been placed on record by the petitioner to show

that the two experts who were members of Selection Committee

and who belonged to State of Bihar, were knowing the

respondent No.2 since before the date of interview. No material

is placed on record by the petitioner to show that the Vice

Chancellor Dr. Kottapalle, who was the Chairman of Selection

Committee at any time worked together with the respondent

No.2 at Pune or he was well acquainted with the respondent No.2

since before the date of interview which has affected the

procedure of selection of respondent No.2 on merits. In the

circumstances, when no material is placed on record by the

petitioner to show that since before the interview the above said

two experts and Chairman of Interview Committee had well

acquaintance with respondent No.2 prior to the date of interview,

no inference can be drawn that those two experts from Bihar or

Vice Chancellor Dr. Kottapalle carried any bias against the

petitioner.

12. On the other hand, the Interview Committee consists

Writ Petition No.1345/2006

of total 8 members and, therefore, opinion of such three

members would have not created any influence on the opinion of

remaining five members. Therefore, even assuming that few

members of Selection Committee had any bias against the

petitioner, that would have not changed the ultimate conclusion

drawn by Selection Committee of eight members. It is not the

case of the petitioner that other five members of the Selection

Committee were also biased against the petitioner. In the

circumstances, the allegation of bias levelled by petitioner

against three members of the Selection Committee appointed for

selection of Professor of Urdu, in compliance with Section 76(2)

of the Maharashtra Universities Act is baseless and irresponsible.

Only because certain questions were alleged to have been asked

to the petitioner which he could not answer properly, it cannot be

said that the Selection Committee showed favouritism or

partiality.

13. In our view, the petitioner, having participated in

selection process by appearing for interview as one of the

candidate for the post of Professor of Urdu without raising any

objection, he cannot be permitted to challenge the procedure of

selection or about the composition of Selection Committee. In

the case at hand, all the objections raised by petitioner are only

after selection of respondent No.2 for the post of Professor.

Writ Petition No.1345/2006

Therefore, such afterthought action taken by the petitioner was

rightly rejected by the respondent No.1 University. Learned

counsel for the petitioner could not point out any provision of law

to show that the three experts shall be from nearby State or

University as canvassed by the petitioner. Therefore the

objection that experts should be called from nearby State is

baseless and needs no consideration. The advertisement was

issued inviting applications from candidates from all over India.

Members of Selection Committee are selected from all over India.

14. It is important to note that the petitioner has not

disputed the legality of constitution of selection committee under

Section 76 (2) of Maharashtra Universities Act, either in pleading

or in argument. Petitioner has raised only objection that at the

time of interview, Head of the Department of Urdu and Dean,

Faculty of Arts were not present. This objection is also not

supported by any material on record. We are inclined to accept

the averments made in the affidavit filed by respondent No.1

denying such allegation.

15. Insofar the objection raised by the petitioner that

there was no sufficient quorum for conducting the interview as

prescribed by U.G.C. is concerned, the quorum prescribed under

Rule 3.3.0 under University Commission (Minimum Qualifications

Writ Petition No.1345/2006

Required for Appointments and Career Advancement of Teachers

in University and Institutions Affiliated to it) Regulations, 2000

(hereinafter referred as U.G.C. Rules), is minimum four members

including two outside experts. It is not disputed by the petitioner

that 6 members of Selection Committee were present at the time

of interview including 3 experts. The objection raised by

petitioner regarding inadequate quorum at the time of interview

is afterthought and is even otherwise factually incorrect and is

thus rejected.

16. It is the case of the petitioner that, he was better

qualified than respondent No.2. On the other hand, according to

respondent No.2, his qualification is better than the petitioner.

Therefore, the comparative chart of qualification of the petitioner

and respondent No.2 on the basis of their application forms, is

set as under :

EDUCATIONAL QUALIFICATION Petitioner Respondent No.2 Degree Year % of marks Degree Year % of marks B.A. 49.83 B.A. 64.00 M.A. 54.25 M.A. 68.00 (Gold Medal) M.Phil./ Nil M.Phil. 1983 NET/SET/ GRF NET 1985 Ph.D. 2000 Ph.D. 1991

Writ Petition No.1345/2006

BOOKS PUBLISHED Petitioner Respondent No.2 1 book published 2 books published 1 book edited TEACHING EXPERIENCE Petitioner Respondent No.2 Undergraduate experience Undergraduate experience Lecturer 10.9.1974 to 5.10.1985 Lecturer 7.12.1988 to 6.12.1998 Reader 8.10.1985 to 8.10.1998 Reader 7.12.1998 till date of application i.e. 26.7.2004 Professor Nil Professor Nil Postgraduate experience Postgraduate experience Petitioner Respondent No.2 Lecturer 1986 to 1991 Lecturer 27.2.1993 to 6.12.1998 Reader 3.7.1991 to 8.10.1998 Reader 7.12.1998 till 26.7.2004 (i.e. date of application) Professor Nil Professor Nil CONTRIBUTION TO EDUCATIONAL INNOVATION Petitioner Respondent No.2 Nil Display of Urdu Video Cassettes on Television DESIGN OF NEW COURSES & CURRICULA Petitioner Respondent No.2 Nil 1) Submitted proposal to U.G.C. for Urdu Journalism Centre

2) Designed H.S.C. Teachers' Training Course in Urdu

RESEARCH PAPERS PUBLISHED Petitioner Respondent No.2 Total 3 Papers Total 17 papers BOOKS PUBLISHED Petitioner Respondent No.2 1 2 Books published 1 Book edited.

                                                       Writ Petition No.1345/2006



                   NO. OF REFRESHER COURSES ATTENDED
                   Petitioner                      Respondent No.2

                                ORIENTATION COURSES
                   Petitioner                      Respondent No.2

PAPERS PRESENTED AT CONFERENCES SEMINARS Petitioner Respondent No.2 5 Co-ordinator U.G.C. Sponsored one day National Seminar held on 8/3/2003 PARTICULARS ABOUT RESEARCH WORK Petitioner Respondent No.2 Applied for recognition as Research No. of Students guided for Ph.D....3 Guide for Ph.D. Degree Study of problems of communalism No. of students guided for M.Phil/ in Urdu Novels. Current research Ph.D. ......... Nil. work - Nazre-Quazi Abdul Sattar

17. The comparative study of educational qualification

and experience of the petitioner and respondent No.2 shows that,

respondent No.2 is more qualified and meritorious than the

petitioner. This also negates the possibility of alleged favouritism

done by the respondent No.1.

18. Next objection raised by learned counsel for the

petitioner is that, no marking or grading system was followed by

Selection Committee and, therefore, the selection process by the

said Committee was vitiated. He placed reliance on Kiran

Nimbalkar Vs. State of Maharashtra reported in [2007(4)

Writ Petition No.1345/2006

Mh.L.J. 775]. In that case, on account of bar of age limit as

well as absence of grading or marking system being followed in

the process of selection by Selection Committee, the selection of

the respondent No.5 therein was set aside by the Division Bench

of this Court. However, the learned counsel for the respondent

No.2 has rightly pointed out that, in the pleadings the petitioner

has not raised any objection regarding absence of marking and

grading system and, therefore, such objection cannot be

considered across the bar. Be that as it may, such grading and

marking system is not prescribed under U.G.C. Regulation 3.4.0

as specified above.

19. This Court, in case of Kiran Nimbalkar (supra), after

considering the regulations framed by the Central Council of

Indian Medicine governing the appointment of teaching staff in

Ayurvedic Colleges, held that since two equally qualified

candidates were available, in absence of marking and grading

system, it could not be ascertained as to why only respondent

No.5 was preferred. However, in the case at hand, under U.G.C.

Regulations governing the selection of Professor, experience,

qualification and research work parameters, have been

prescribed, and applying these parameters, the Selection

Committee selected the respondent No.2. In our view, the

judgment in case of Kiran Vs. State of Maharashtra (supra) is not

Writ Petition No.1345/2006

applicable in the case at hand and is clearly distinguishable in the

facts of this case.

20. On the other hand, in Dalpat Appasaheb Solunke

Vs. B.S. Mahajan reported in [AIR 1990 SC 434], Apex Court

ruled that, the decision of Selection Committee can be interfered

with only on limited grounds, such as illegality or patent material

irregularity in the constitution of Committee or its procedure

vitiating the selection or proved malafides affecting the selection.

In the case at hand, neither illegality nor patent material

irregularity in constitution of Committee or patent irregularity in

the procedure vitiating the selection or proved malafides affecting

the selection are established by the petitioner. Therefore, the

selection of respondent No.2 by respondent No.1 on the post of

Lecturer of Urdu cannot be set aside by allowing this Writ

Petition. Judgment of Supreme Court in case of Dalpat

Appasaheb Solunke (supra) applies to the facts of this case.

21. Another material aspect is that, the petitioner has

already retired from his service and, therefore, the relief sought

by the petitioner to direct the respondent No.1 to call fresh

interview for the post of Professor of Urdu has become

infructuous. On this count also this petition fails.

Writ Petition No.1345/2006

22. Accordingly, after careful consideration of each and

every objection raised by the petitioner while challenging the

selection of respondent No.2 on the post of Professor of Urdu in

respondent No.1 University, we have come to the conclusion

that, none of the prayers sought by the petitioner can be

allowed. This petition being devoid of merit, deserves to be

dismissed. Hence we pass the following order :

ORDE R

1. Writ Petition is dismissed.

                  2        Rule is discharged.

                  3        No order as to costs.




          (SUNIL K. KOTWAL)                        (R.D. DHANUKA)
               JUDGE                                     JUDGE




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