Dr.Subho Mojumdar (Mozumdar) vs The University Of Delhi & Ors.
2009 Latest Caselaw 2342 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI



+    Writ Petition (Civil) No. 8707/2008 & CM No.17329/2008


                                   Date of Decision : 29.5.2009


DR.SUBHO MOJUMDAR (MOZUMDAR)          ...... Petitioner
                        Through : Ms.Neela Gokhle,
                        Advocate.
                             Versus



THE UNIVERSITY OF DELHI & ORS.         ...... Respondents

                           Through      :    Mr.V.P.Singh,
                           Sr.Adv. with Mr.M.J.S.Rupal,
                           Adv. for respondent no.1.
                           Mr.R.K.Saini,    Adv.       for
                           respondent Nos. 2 and 3.



CORAM :
HON'BLE MR. JUSTICE V.K. SHALI



1.    Whether Reporters of local papers may be
      allowed to see the judgment?                 YES
2.    To be referred to the Reporter or not ?      YES
3.    Whether the judgment should be reported
      in the Digest ?                              YES



V.K. SHALI, J.(Oral)

1. The petitioner has filed the present writ petition under

Article 226 of the Constitution of India praying for issuance of a

appropriate writ, order or direction to declare the process of

selection for appointment to the post of Professor in the

Department of Chemistry in University of Delhi to be illegal and

therefore, quash the same. It is further prayed that the

respondent be directed to conduct fresh interviews for the

appointment to the said post in accordance with the ordinance of

the statute of the University and the notifications issued by UGC.

2. Briefly stated the facts of the case are that the petitioner is

presently working as a Reader in the Department of Chemistry of

the respondent /University. In pursuance to an advertisement

issued on 12.3.2008 for appointment to the post of Professors in

the said Department. The petitioner had applied as one of the

candidates. The eligibility criteria for the said post as given in

the Ordinance XXIV of the University was as under:-

"An eminent scholar with published work of high quality, actively engaged in research with 10 years of experience in post-graduate teaching and /or post doctoral research at University/National level institutions including experience of guiding research at doctoral level."

OR "An outstanding scholar with established reputation who has made significant contribution to knowledge."

3. 33 candidates had applied for the six posts. The University

of Delhi constituted a screening committed for short listing the

candidates to be called for interview before the Selection

Committee. The Screening Committee as a collective body of 10

persons, laid down a further conditions in the eligibility criteria

for the posts advertised. The additional eligibility condition set

out by the Screening Committee were follows:-

a. First class academic career throughout;

b. 10 years of teaching/research experience at P.G.level,

c. Minimum 10 publications in the last 5 years in internationally

reputed peer reviewed journals;

d. Guidance and award of minimum 2 Ph.D. students.

4. The Screening Committee short listed only those candidates

who fulfilled the criteria as mentioned hereinabove to face the

Selection Committee, resulting in rejection of 21 applications out

of a total number of 33 candidates. The Respondent Nos.2 and 3

were not short listed by the Screening Committee since they did

not satisfy the eligibility criteria. It was set out by the Screening

Committee that the Respondent No.2 does not have the

necessary 10 publications in the last five years and the

Respondent no.3 has not supervised to research students who

have been awarded Ph.D.Degree. This has been admitted by the

Respondents in their counter affidavit.

5. The first grievance of the petitioner is that in spite of the

Screening Committee rejecting the candidature of respondent

Nos. 2 and 3 to be considered and to call them to face the

Selection Committee, the head of the department /Pro Vice

Chancellor/Vice Chancellor of the University directed the

Assistant Registrar (Estab-IV) to call them for interview by the

Selection Committee. Thus, it is the contention of the Petitioner

that once the Screening Committee has rejected the candidature

of the respondent Nos.2 and 3 on account of being ineligible for

the post, the Vice Chancellor /Pro Vice Chancellor cannot

overreach the decision of the Screening Committee and allow the

respondent Nos.2 and 3 to be considered for selection especially

when 21 other candidates have been rejected by the Screening

Committee applying the same parameters. The application of

respondent Nos.2 and 3 were considered only to dilute the

candidature of the petitioner and as a result the petitioner was

made to face an unfair competition.

6. Another subsidiary argument with regard to the

candidature of respondents no. 2 and 3 was based on the ground

of malafidies and bias in favour of respondents no. 2 and 3 in

considering their candidature despite the fact that they were

found ineligible by the Screening Committee. The petitioner

tried to explain this argument by referring to the various dates.

It was alleged that the advertisement was floated on 12th March,

2008. On 10th April, 2008 the Screening Committee laid down

the additional eligibility criteria. On 15th /18th July, 2008 the

respondents no. 2 and 3 are purported to have made

representation to the Vice Chancellor requesting him to consider

their case for being called for the interview. The call letters for

interview were issued on 26th October, 2008 and the actual

interview took place on 10th November, 2008. The contention of

the learned counsel for the petitioner was that none of the

candidates other than the respondents no. 2 and 3 came to know

as to whether they are being called for the interview or not before

26th October, 2008. While as the respondents no. 2 and 3 made

representation in the month of July itself to the Vice Chancellor

requesting for considering their candidature. It was further

contended that this was in sharp contrast to the fact that the

petitioner had applied for information from the respondents with

regard to the selection process even after the interview was over

but the same was not furnished to her on the spacious ground

that disclosing of such information would jeopardize the safety of

the Members of the Selection Committee. All these facts clearly

showed that the respondent/university was going out of the way

to ensure selection of respondents no. 2 and 3 to the post in

question.

7. The next arguments which was connected with this only

was, that the Screening Committee consisted of one Prof. M.

Kidwai who was a part of the Screening Committee as well as the

candidate, and therefore, the selection is vitiated.

8. The respondent no. 1 filed its counter affidavit and raised

preliminary objection regarding the maintainability of the writ

petition on the ground that the petition is premature and is

actuated by malafidies. It was also contended that the Selection

Committee was constituted as per University Ordinance and

consisted of Vice Chancellor, Prof. Deepak Pental, Prof. S. K.

Tandon, Pro Vice Chancellor, Prof. G. Padmanaban (Indian

Institute of Sciences, Banglore), nominee of visitor, Prof. V. S.

Parmar, Head Department of Chemistry, Expert, Prof. Charusita

Chakravorty (Indian Institute of Technology, Delhi), External

Expert, Prof. S. S. Ramasesha (Indian Institute of Science,

Bangalore), External Expert, Prof. Ganesh Prasad Pandey,

(Deputy Director, Division of Organic Chemistry, National

Chemical Laboratory Pune), External Expert. It was contended

that the Selection Committee consisted of highly eminent people

apart from the Vice Chancellor and the visitors nominee, and

therefore, the petitioner was deliberately trying to stall the

process of selection by raising false and frivolous pleas. The

respondent also took the plea that there was concealment of fact

on the part of the petitioner in as much as the entire

advertisement and the correct facts were not placed before this

Court. It was contended that the advertisement not only

conferred power on the Selection Committee to consider the

applications received even after the last date of advertisement

but it also enabled the University to consider the name of

suitable candidates who might not have even applied. It was

stated that the entire selection process was taking place in

accordance with Rule 19 the Statute of University of Delhi.

9. It was also contended on the strength of the judgment of

the Supreme Court that the petitioner having participated in the

selection process and fearing that the petitioner may not be

found suitable by the Selection Committee is pre-empting the

entire process of selection by filing the writ petition and obtaining

the restraint orders. Reliance was also placed on the judgment

of the Supreme Court in case titled Madan Lal Vs. State of J& K

(1995) 3 SCC 486, wherein the Supreme Court held that once a

candidate having taken a chance to appear in an interview and

having remained unsuccessful, he cannot turn around and

challenge either the constitution of the selection board or the

method of selection is being illegal. He is estopped to question

the correctness of the selection unless and until he alleges bias

or malafidies.

10. So far as the respondents no. 2 and 3 are concerned, it was

mainly urged that the writ petition is totally premature and

further that the Court cannot sit as a court of appeal and assess

or reassess the relative merits of the candidates who have been

subjected to interview by the Selection Committee consisting of

expert body for this purpose. Reliance in this regard was placed

on Madan Lal Vs. State of J & K AIR 1995 SC 1088 para 9.

11. The petitioner also challenged the Constitution of the

Selection Committee on the ground that the same contravenes

the notification No.V of the UGC to the effect that if any aspiring

candidate appearing for the interview belongs to the Scheduled

Cast community there has to be a representative of the said

community in the Selection Committee which was not the case in

the present matter.

12. The third challenge to the selection process was that one of

the experts namely Mrs. Charusita Chakravorty was much junior

to the candidates to be interviewed. This plea was raised by the

petitioner specifically keeping in view her own candidature. It is

further stated that out of the three experts, one of the experts

was from Organic Chemistry and the other two were from

theoretical chemistry. As per the Statutes and the law of the

land if there are three branches of chemistry which are taught at

Masters level (M.Sc. Chemistry), the experts for the selection of

teachers should be from one each from Inorganic, Organic and

one from Physical Chemistry and preferably from experimental

chemistry background. Hence, the selection of experts was also

manipulated in order to select one of the respondents who was

not eligible even be called for the interview. Thus the petitioner

has assailed the selection procedure adopted by the University

for filling up six posts of Professor in the Chemistry Department.

13. I have heard Ms.Neela Gokhle the learned counsel for the

petitioner as well as the learned senior counsel Mr. V. P. Singh

for the respondent no.1. I have also gone through the record.

14. At the outset, it must be stated that at the time of the

conclusion of the arguments the learned senior counsel for the

respondent no. 1 had very fairly conceded before this Court that

the respondent/university would not accept the recommendation

of the Selection Committee so far as the respondents no. 2 and 3

are concerned and in case their names are recommended by the

Selection Committee for the appointment to the post of Professor,

they would not be sent to the Executive Council for the purpose

of approval and appointment. This statement was made by the

learned senior counsel in the larger interest of the studies of the

students being affected on account of non-filling of the vacancies

to the post of Professor, and thereby jeopardizing the academic

interest of the students.

15. A perusal of the averments made by the petitioner and the

arguments which have been advanced are substantially based on

the non eligibility of the respondents no. 2 and 3 and their

inclusion in the list of candidates for the post of interview by the

Selection Committee. Even the allegation of favourtism and

malafidies are attributed to them. Though a perusal of the

record shows that the submission made by the learned counsel

for the petitioner on the strength of the ineligibility of respondent

nos. 2 and 3 having been declared by the Screening Committee

they ought not to have been called for the purpose of interview

but the very fact that the learned senior counsel has very fairly

conceded that in case the recommendations are made by the

Selection Committee with regard to respondents no. 2 and 3 the

same will not be sent for approval to the Executive Council in

fact takes wind out the sail of the petitioner. Therefore, the

entire edifice of the petitioner which is based on the strength of

her submission with regard to the challenge to the candidature of

respondents no. 2 and 3 is brought to nought and no relief

whatsoever can be granted to the petitioner on that score.

16. I do not agree with the submissions of the learned counsel

for the respondent that the petitioner can be prohibited from

challenging the process of selection after having participated in

the same on the strength of the judgment of the Supreme Court

in Madan Lal's case (Supra) on account of the fact that the facts

of the present case are slightly distinguishable from the fact of

the reported case. In Madan Lal's case (supra) the candidate

was purported to have appeared in the interview and was

declared to be unsuccessful in the process of selection. It was in

such a contingency that the Court observed that the petitioner

who has participated in the selection process and has been

declared unsuccessful and it was held that he cannot be

permitted to turn around and challenge the Constitution of the

Selection Committee or the process of selection on the ground of

doctrine of estoppel but the facts of the present case are different

in as much as the petitioner though has participated in the

process of selection but the outcome of the selection is yet to be

declared as the same has been stayed by this Court and he has

come to the Court at the earliest possible opportunity raising

doubts about the selection process. This question has become of

academic value today on account of the fact, Sh.V.P.Singh,

learned Senior counsel at the time of the conclusion of the

arguments has stated that the recommendation of the Selection

Committee with regard to the respondents No.2 and 3 would not

be accepted.

17. The only other argument which has been raised by the

learned counsel for the petitioner with regard to the challenge to

the process of selection is that according to the instructions of

the Government of India, respondent /University ought to have

an expert in the category of SC in the Selection Committee to

interview to SC candidate Dr.Ahilesh Kumar Verma.

18. Admittedly, there is no merit in this submission of the

learned counsel for the petitioner because firstly, the selection

committee has been constituted according to the statute of the

University and secondly, there is no reservation to the post of

Professor and thirdly, in any case the petitioner not being a SC,

an aggrieved party and therefore, cannot raise any grievance on

account of the same.

19. As regards the contention of the petitioner that there was

an expert by the name of Mrs. Charusita Chakravorty who was

junior to him could not have been a Member of the Selection

Committee as it would jeopardize his interest or that there was a

Prof. M. Kidwai who was a Member of the Screening Committee

and also a candidate are not the grounds for setting aside the

process of selection. The reason for this is that the expert who

is said to be the junior of petitioner as a matter of fact was

invited as Professor and an external expert for the post for which

the petitioner was an aspirant in the capacity of a Reader and

therefore, this argument was totally absurd. So far as the

grievance of Professor Kidwai is concerned, I have seen the

original record, this does not support the contention of the

petitioner in any manner whatsoever.

20. So far as the process of selection is concerned, the result of

the Selection Committee has been kept in a sealed cover and is

yet to be declared as the same was stayed vide order dated

10.12.2008.

21. For the reasons mentioned above as the result of the

selection is yet to be declared, therefore, the writ petition of the

petitioner is premature as the challenge to the candidature of the

respondent no.2 and 3 does not revive any more at this stage.

Accordingly, the writ petition is dismissed with the above

observations. The stay granted on 08.12.2008 stands vacated.

V.K. SHALI, J.

MAY 29, 2009 RN/KP