Subrata Mukherjee vs Achin Vinayak & Ors.
2010 Latest Caselaw 3246 Del

*              HIGH COURT OF DELHI : NEW DELHI

+                       WP (C) No. 8178/2008


Subrata Mukherjee                          .....          Petitioner
                        Through: Mr. Dipak Bhattacharya and
                                 Mr. Rajesh Kumar, Advs.

                        Versus

Achin Vinayak & Ors.                       .....        Respondents
                        Through: Mr. M.S. Vinaik, Adv. for R-1
                                 Mr. Amitesh Kumar, Adv. for UGC
                                 Mr. Amit Bansal, Adv. for R-2

            Judgment pronounced on            : 14th July , 2010

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       Yes

2. To be referred to Reporter or not?                    Yes

3. Whether the judgment should be reported               Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The present writ petition has been filed by the petitioner under

Articles 226 and 227 of the Constitution of India praying for issuance of

the writ of mandamus or any other appropriate writ to respondent nos. 2

and 3 to remove respondent no. 1 from the post of Head of Department

("HoD" for brevity) of Political Science being junior to the petitioner and

not eligible for the said post.

2. The facts necessary for deciding the present petition are that

the petitioner is a professor in the department of political science at

respondent no. 2 University of Delhi. A detailed bio profile of the

petitioner has been given in the petition which shows that the petitioner

has been a Reader at respondent no. 2 from 1979 to 1989 and a Professor

at respondent no. 2 since 1989 and retired as Professor in the Department

in January, 2006 and subsequently from the re-employment in January

2009. The petitioner claims to be the senior most professor in the

department of political science and therefore, has challenged the

appointment of respondent no. 1 to the post of HoD of the said

department by this writ petition on the basis that respondent no. 1 does

not possess the requisite qualifications for the same.

3. The petitioner‟s grievance is that respondent no. 1 is qualified

with only a B.Sc. degree in which he obtained a second division.

Allegedly, respondent no. 1 does not have a basic degree in the subject of

political science and has falsely shown himself to be a holder of a

doctorate degree though he is not one. Further, he has teaching experience

of one year and seven months and no experience of guiding research at

the doctoral level which implies that he is wanting in the mandatory

requirements prescribed for the post for which he has been selected. The

respondent no. 1 also has no academic articles to reckon with and is thus

stated to be inadequately qualified for the post of professor as well as

HoD of the political science department at the respondent no. 2

University.

4. The petitioner has sought the removal of respondent no. 1

from the post of professor and initiation of disciplinary action against

respondent no. 1 in case it is found that he does not possess a PhD degree

as claimed on the following grounds :

(i) The appointment of respondent no. 2 to the post of professor

contravenes with the University Grants Commission

(minimum qualifications required for the appointment and

Career Advancement of teachers in Universities and

Institutions affiliated to it) Regulations, 2000 and Ordinance

XXIV of the University statute as respondent no. 1 does not

possess the requisite qualifications;

(ii) The procedure of selection and appointment of professors

has been vitiated as respondent no. 1 has been appointed de

hors the same as well as with no regard to the relevant

regulations and statues, thereby being arbitrary and

unsustainable in law.

(iii) The respondent no. 2 University is a premier university

known for its high standards and quality of education and

appointment of respondent no. 1 as professor despite an

obvious lack of the requisite qualifications is against the

academic interest of the students.

5. I have perused the submissions of both parties and heard the

arguments of the learned counsel.

6. As per the University Grants Commission (minimum

qualifications required for the appointment and Career Advancement of

teachers in Universities and Institutions affiliated to it) Regulations, 2000

"no person shall be appointed to a teaching post in University or in any

of institutions including constituent or affiliated colleges recognized

under clause (f) of Section 2 of the University Grants Commissions Act,

1956 or in an institution deemed to be a University under Section 3 of

the said Act in a subject if he/she does not fulfil the requirements as to

the qualifications for the subjects as provided in the Annexure." The

relevant portion of the said Annexure states as under :

"1.3.0 Humanities, Social Sciences, Sciences, Commerce, Education, Physical Education, Foreign Languages and Law.

1.3.1 Professor

An eminent scholar with published work of high quality, actively engaged in research, with 10 years of experience in postgraduate teaching, and/or experience in research at the 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."

7. Ordinance XXIV sets out the requisite qualifications for the

post of Professor in respondent no. 2 University as under :

"Ord.XXIV. Qualifications of University Teachers (Appointed and Recognised) and Principals other than those for whom special qualifications may be prescribed by the Executive Council on the recommendations of the Academic Council.

...............

Professor (except management studies, Music, Journalism & Mass Communication and Social Work)

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."

8. Delhi University, the respondent no. 2 has submitted that an

advertisement dated 22.06.2004 inviting applications for the post of

Professor in the department of political science with essential

requirements as set out in Ordinance XXIV above was met with a

response of 16 candidates who were called for an interview out of which

only 8 actually presented themselves for the same.

9. It is also submitted by the respondent No.2 that the respondent

No.1, previous to his appointment as Professor with Delhi University, was

also working as a visiting Professor in Jamia Milia Islamia University

from 1996-1997 and 2001-2002 and in Delhi University since the year

2002. The respondent No.1 has also authored several articles/chapter

books on global issues and international relations, published by

prestigious publications like Oxford University Press and Orient

Longman, amongst others. Further, the respondent No.1 has been a

member of several prestigious bodies like Fellow of the Transnational

Institute which is an international body of scholars concerned about

problems of global inequality and development. Further, he is on editorial

board of the journal, Comparative Studies of South Asia, Africa and the

Middle East, brought out from Duke University, South Carolina, USA.

The respondent No.1 is also a co-recipient, with Praful Bidwai, of the

"Sean MacBride International Relations and Global Politics" and the

respondent No.1 specializes in the area of international relations and

global politics. Hence the respondent No.1 has requisite qualifications for

consideration and appointment to the post of Professor.

10. After assessing the comparative merit of the candidates, the

Selection Committee unanimously selected respondent no. 1 for the

advertised post. Minutes of the meeting at which the said selection

transpired have been placed on record. On 25.10.2004 the Executive

Council approved the recommendations of the Selection Committee and

therefore, the selection of respondent no. 1 as a professor in the

respondent no. 2 University has been in accordance with the prevalent

rules and Regulations and is beyond reproof. It has been clarified by

learned counsel for respondent no. 2 that respondent no. 1 was selected

for the post of professor as per the University and Ordinance requirements

as he falls within the latter category of qualifications i.e. of „an

outstanding scholar with established reputation who has made

significant contribution to knowledge‟.

11. Learned Counsel for the respondent no. 2 has argued that the

petitioner has already retired as professor in 2006 and from subsequent

re-employment in 2009 and it is not his case that he had applied and was

not considered for appointment by the Selection Committee and for these

reasons, the petitioner has no locus standi to file the present writ petition

as neither is he personally aggrieved nor has any fundamental right of his

been violated. Further, the persons who were in the position to be

personally aggrieved were the other candidates who appeared for the

interview but were not selected and none of them have challenged the

appointment of respondent no. 1.

12. Another contention of respondent no. 2 is that the appointment

of respondent no. 1 was carried out in 2004 and the petitioner has been

well aware of the same since then and therefore, the filing of the present

petition in November 2008 is belated it should be rejected on the ground

of delay and laches.

13. As regards the allegation that the respondent no. 1 has

misrepresented himself to be a doctorate with a Ph. D. degree, counsel for

respondent no. 2 has clarified that nowhere has the respondent no. 1

represented himself as such and in fact it has been an inadvertent mistake

on the part of the Selection Committee which has referred to the said

respondent as „Doctor‟. The said mistake has been committed by the

person writing the minutes of the Selection Committee who has

inadvertently prefixed the word "Dr." against the name of the respondent

no.1. The contentions of the respondent No.1 in its counter affidavit are

the same as that of respondent No.2.

14. Let me first deal with the objection of the respondents that the

writ petition is not maintainable as the petitioner has no locus standi to

file the present writ petition as neither is he personally aggrieved nor has

any fundamental right of his been violated, in exercising power of writ

jurisdiction, the Supreme Court in its recent judgment N. Kannadasan vs.

Ajoy Khose & Others, (2009) 7 SCC 1, has settled the law in respect of

exercise of judicial review and quo warranto in paras 105, 126, 129, 130

and 134 which are as follows:

"105. Judicial review in our constitutional scheme itself is a part of its basic structure. Decisions whether arrived at by the executive or the judiciary are subject to judicial review.

126. While exercising the power of judicial review in a case of this nature, the Court would not be concerned with the merit of the decision but with the decision-making process. If it is found that the decision-making process has not been adhered to, indisputably, judicial review would lie.

129. The respondents herein filed the writ petitions inter alia for issuance of a writ of quo warranto. A writ of quo warranto can be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions.

130. Section 16 of the Act lays down the qualifications inter alia for appointment of the Chairman of the State Commission. Clause (a) of sub-section(1) of Section 16 provides that the candidate must be "is" or "has" been a Judge". The proviso appended thereto, however, mandates consultation by the State Government with the Chief Justice of the High Court concerned.

134. Indisputably, a writ of quo warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat and RK. Jain v. Union of Ind.a (See also Mor Modern coop. Transport Society Ltd. v. Govt. of Haryana.) In Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain

the qualifications of the person concerned. (See also Arun Singh v. State of Bihar). We may furthermore notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. (See Kashinath G. Jalmi (Dr.) v. Speaker.)"

15. In view of the settled law, I am of the considered view that the

writ petition filed by the petitioner is maintainable. The objection of the

respondents is without any merit and is rejected. However, it is the

court‟s discretion to intervene in the matter or not.

16. It is settled law that in exercise of extraordinary jurisdiction

under Article 226 of the Constitution of India, this Court cannot sit in

appeal over the decision of the validly constituted Selection Committee

which is an expert body comprising eminent people, having expertise in

the field of selection. The Apex Court in the case of Dalpat Abasaheb

Solunke Vs. B.S. Mahajan, 1990 (1) SCC 305 has held as under:

"12. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection et. It

is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."

17. It is also a matter of fact that the petitioner has not made any

allegation of malafide or procedural irregularity in respect of finding of

the Selection Committee nor any details of the same are given in the writ

petition. Under the said circumstances, the finding of the Committee

cannot be interfered with by the Courts. In M.V. Thimmaiah & Ors. v.

UPSC, 2008(2) SCC 119 the Supreme Court has observed as under:

"22. Keeping in view the ratio laid down by this Court in several decisions, now we shall examine the argument of learned Senior Counsel for the applicants which had been addressed. But we may at the very outset observe that the Court while considering the proceedings of the Selection Committee does not sit as a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed. In the present case, 39 candidates were examined by the Selection Committee for being recommended for appointment to IAS. The selection process took place between 24-11-2003 and 28-11-2003 whereby the Selection Committee scrutinized the service records of the individual candidates and interviewed them and the Selection Committee selected those candidates who were found to be having outstanding merit and ability."

18. The learned counsel for the petitioner has referred a letter

dated 26.10.2004 written by the respondent no.2 to respondent no.1. It

appears that the said letter was written by the officers of the University,

respondent no.2. I agree with the learned counsel for the respondent no.1

that he had no control over the same. Therefore, no malice can be

attributed to him.

19. As regard the objection raised by the petitioner regarding

passing of the non-speaking order by the Selection Committee, it is settled

law that in matters of selection where the rules do not provide so, it is not

essential for the Selection Committee to record reason for selecting a

particular committee over others. In National Institute of Mental Health

and Neuro Sciences v. Dr. K. Kalyana Raman and Ors., 1992 Supp (2)

SCC 481, the Supreme has observed as under:

"7. We will first consider the second point. In the first place, it must be noted that the function of the Selection Committee is neither juridical nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. The High Court in support of its reasoning has however, referred to the decision of this Court in Union of India v. Mohan Lal Capoor. That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons for superseding a senior member in the State Civil Service. The decision in Capoor case was rendered on September 26, 1973. In June 1977, Regulation 5(5) was amended deleting the requirement of recording reasons for the supersession of senior officers of the State Civil Services. The Capoor case cannot, therefore, be construed as an authority for the proposition that there should be reason formulation for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the

principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection nor non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass v. Union of India in which Capoor Case was also distinguished."

20. The learned counsel for the petitioner has referred to

paragraph 12 of Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devilal

University, Sirsa & Anr., (2008) 9 SCC 284 wherein it has been

observed that "the High Court was of the view that a person is not

qualified for appointment as Reader unless he has qualification in the

appropriate subject. The High Court was also of the view that since the

appellant had a qualification in the discipline of Political Science he

could not be appointed in the discipline of Public Administration. ..."

This judgment referred by the counsel has no bearing in the

present case as the respondent No.1 has not been selected on the basis of

his academic qualifications, and therefore, this interpretation is not

permissible in his case. Secondly, all his original work is in Political

Science and closely related fields.

21. It appears to me that it is not within this Court‟s writ

jurisdiction to sit over in appeal over the careful and diligent selection

made by the Selection Committee of Respondent no. 2 which was later

upheld by the Executive Council also. The Ordinance XXIV relied upon

by the petitioner itself provides two criterions by which candidates can be

selected and respondent no. 1 and 2 have both submitted that the former

has been chosen for his prowess and excellence recognized under the

second of the qualifications i.e. being an outstanding scholar etc.

22. Further, a perusal of the Minutes of the Selection Committee‟s

meeting and other documents placed on record as well as the respondent

no. 1‟s application form and Curriculum Vitae all show beyond doubt that

respondent no. 1 has nowhere referred to himself as a doctorate or stated

that he has a PhD degree and the prefix „Dr.‟ before his name appears to

be an error on the part of the Selection Committee. In such circumstances,

it cannot be said that respondent no. 1 was misrepresenting himself to be

the holder of a PhD degree. A perusal of his application submitted as

respondent no.1 shows the true details of his qualifications and material

fact required.

23. Under the alternative qualification provided under the said

ordinance, a candidate for the post of Professor is not judged by his

academic qualification but in terms of his achievement and contribution in

the relevant subject. Accordingly, educational qualification loses its

significance in the backdrop of accomplishments in their field of

specialization.

24. Admittedly, in the present case, the respondent no.1 was

appointed in the year 2004 in the same department where the petitioner

was working and the presumption is that he knew about the appointment

of respondent no.1. The present writ petition has been filed in November

2008 and prior to the filing of the writ petition the respondent no.1 had

been appointed Head of the Department of Political Science and he was

finally retired on 31.01.2009 after his three years extension. I find no

valid justification on behalf of the petitioner to file the present writ

petition after the expiry of more than four years.

25. After considering the overall situation in the matter and for the

reasons given above, I find no merit in the present writ petition. The

same is, therefore, dismissed with no orders as to cost.

MANMOHAN SINGH, J.

JULY 14, 2010 jk