Dr. T.D. Murali Dharan vs Union Of India & Ors.
2011 Latest Caselaw 3309 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 13th July, 2011

+                           W.P.(C) No.2198/2008

%        DR. T.D. MURALI DHARAN                      ..... Petitioner
                       Through: Mr. L.K. Singh, Adv.

                                      Versus

         UNION OF INDIA & ORS.                               ..... Respondents
                      Through:            Mr. Pinaki Misra, Sr. Adv. with Mr.
                                          Shibashish Misra, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                 Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                Not necessary

3.       Whether the judgment should be reported               Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This petition impugns the order dated 27th/28th September, 2007 of the

respondent No.3, Chancellor Shri Lal Bahadur Shastri Rashtriya Sanskrit

Vidyapeeth (hereinafter called "Vidyapeeth" and which Vidyapeeth has been

impleaded as the respondent No.2) rejecting the claim of the petitioner in

W.P.(C) No.15197/2004 earlier preferred by the petitioner and which writ

petition was vide order dated 24th March, 2007 therein was directed to be

treated as the representation of the petitioner to the respondent No.3. The

petitioner also seeks mandamus to the respondent No.2 Vidyapeeth to

appoint the petitioner to the post of Reader (Research & Publication) in the

respondent No.2 Vidyapeeth.

2. Notice of the petition was issued. The writ petition was accompanied

with an application for interim relief seeking to restrain the respondents from

initiating any process for filling up of the said post. Vide order dated 19 th

March, 2008, it was directed that any appointment made by the respondents

to the said post shall be subject to the outcome of this writ petition.

Pleadings have been completed and counsels have been heard.

3. The respondent No.2 Vidyapeeth had in January, 2004 invited

applications for appointment to the post aforesaid. The petitioner was one of

the applicants and was called for interview on 12th March, 2004 and claims

to have been orally informed of his selection. It is also not in dispute that the

Selection Committee constituted for this purpose recommended a panel of

two persons for appointment to the said post and in which the name of the

petitioner appeared first. The other name recommended was of one Dr. Sri

Prakash Pandey.

4. The 51st Meeting of the Karya Parishad of the respondent No.2

Vidyapeeth held on 15th April, 2004 approved the recommendation of the

Selection Committee for appointment of the petitioner. The respondent No.2

Vidyapeeth thereafter vide its letter dated 19th April, 2004 to the petitioner,

required the petitioner to submit:

(i) Proof with respect to his present salary with grade and

experience duly certified by the then employer of the petitioner.

(ii) Documents showing that the petitioner satisfied the condition of

five years experience of teaching and / or research excluding the

period spent for obtaining the research degrees and had made

some mark in the area of scholarship as evidenced by quality of

publications, contribution to educational innovation, design of

new courses and curricula.

It was stated that the aforesaid was required to comply with UGC

guidelines and to enable the respondent No.2 Vidyapeeth to issue an offer

letter to the petitioner.

5. The petitioner vide his reply dated 23rd April, 2004 stated that he had

already submitted all the aforesaid documents at the time of his interview; he

nevertheless again furnished the particulars of the salary being then drawn

by him along with No Objection Certificate issued by Somaiya Vidyavihar,

Mumbai where the petitioner was then employed and also stated particulars

of his teaching and / or research experience, publications, contribution to

educational innovation, new design and curricula, updation of Sanskrit

knowledge etc.

6. It is the case of the petitioner that notwithstanding the aforesaid, no

offer of appointment was made to him and inspite of his representations.

7. It is further the case of the petitioner that upon enquiry, he learnt that

his appointment was being deliberately delayed because of the Vice

Chancellor of the respondent No.2 Vidyapeeth being interested in

appointment of Dr. Sri Prakash Pandey who was second on the panel

prepared by the Selection Committee and that the Vice Chancellor had called

for a meeting of the Executive Committee to review the earlier decision for

appointment of the petitioner.

8. It was then that the petitioner filed W.P.(C) No.15197/2004 (supra).

The respondent No.2 Vidyapeeth in response to the said writ petition refuted

the right of the petitioner to appointment; it was pleaded that though its

Karya Parishad as aforesaid approved the recommendation of the Selection

Committee but subsequently a Sub Committee had been appointed to review

the said recommendation of the Selection Committee and the Sub

Committee had on 18th September, 2004 decided to reject the

recommendation of the Selection Committee and the said decision of the Sub

Committee had been ratified by the Karya Parishad in its 54th Meeting held

on 25th October, 2004. It was also pleaded by the respondent No.2

Vidyapeeth that the petitioner at the time of interview had not produced the

books and articles of his work and his credentials in original. Needless to

state that the petitioner controverted all the said averments of the respondent

No.2 Vidyapeeth. It was his contention that his selection ratified by the

Karya Parishad in the 51st Meeting held on 15th April, 2004 could not be

reviewed, especially by a Sub Committee; that while the reasons stated in the

54th Meeting of the Karya Parishad for review of the decision was that a

doubt had arisen as to the authenticity of the publications of the petitioner,

the reason given in the counter affidavit was of complaints against the

petitioner having been received; that the credentials of the petitioner could

not be re-assessed.

9. W.P.(C) No.15197/2004 as aforesaid was disposed of vide order dated

24th March, 2007 with a direction that the same be treated as a representation

of the petitioner and be considered by the respondent No.3.

10. The respondent No.2 Vidyapeeth vide its letter dated 27/28th

September, 2007 to the petitioner and impugned in this petition has

communicated to the petitioner the decision of Justice P.N. Bhagwati (Retd.)

acting as the Chancellor of respondent No.2 Vidyapeeth disposing of the

representation aforesaid of the petitioner. The respondent No.3, chancellor of

the respondent No.2 Vidyapeth has observed / found:

(i) That before any offer of appointment to the post could be made

to the petitioner, a letter was received from Professor Shukdev

Chaturvedi one of the members of the Karya Parishad pointing

out that no publications were produced by the petitioner before

the Selection Committee and therefore the matter should be sent

back to the Karya Parishad for examining the publications for

the purpose of deciding whether the petitioner was fit for being

appointed to the post;

(ii) That another letter was received from Professor Ramesh Kumar

Pandey one of the members of the Selection Committee, also

stating that the petitioner has not produced his books and

publications before the Selection Committee;

(iii) That accordingly the Karya Parishad in its 52 nd Meeting did not

confirm the Minutes of the 51st Committee in so far as

accepting / approving the recommendation of the Selection

Committee for appointment of the petitioner;

(iv) That the Karya Parishad of the respondent No.2 Vidyapeeth in

its 53rd Meeting constituted a Sub Committee to assess and

evaluate the academic credentials of the petitioner either by

itself or by co-opting members from the relevant field;

(v) That the Sub Committee so constituted observed that none of

the published work, research papers and articles etc. claimed by

the petitioner came up to the required standard and satisfied the

test of high quality of contribution and educational innovations

required for consideration for the post;

(vi) That the six publications produced by the petitioner are not

original contributions but constitute edition of works produced

by others; the petitioner was not the author of any of the

publications; yet another work submitted by him was prepared

by a group of scholars and the petitioner had merely

coordinated the work of the group; the same was in any case not

a research work;

(vii) The aforesaid assessment by the Sub Committee was accepted

by the Karya Parishad which took a view that the petitioner was

not fit to be appointed to the post;

(viii) That the Chancellor to satisfy himself whether the view of the

Karya Parishad was correct or not referred the case of the

petitioner to three outside scholars being the (i) Ex. Head,

Department of Sanskrit, Osmania University, (ii) Vice

Chancellor, Kavikulguru Kalidas, Sanskrit Vishwavidyalaya

and (iii) Vice Chancellor, Jagadguru Ramanandachrya,

Rajasthan Sanskrit Vishwavidyalaya;

(ix) The Chancellor after considering the report of the three

independent outside experts was of the view that the

recommendations of the Selection Committee were not finally

accepted / approved by the Karya Parishad in accordance with

Rule 28(v) of the Memorandum of Association and no Offer of

appointment had been made to the petitioner and that the

petitioner was not eligible for appointment to the post as his

publications did not show any quality evidencing scholarship

nor had the petitioner made any contribution to educational

innovation required for the post.

The Chancellor accordingly approved the recommendation of the

Karya Parishad made in its 54th Meeting of not accepting the

recommendation made by the Selection Committee and directed the post to

be re-advertised.

11. The counsel for the petitioner has contended that the petitioner had in

his application for appointment made full and complete disclosure; whatever

works had been translated or edited by the petitioner were so described; that

the petitioner had never claimed authorship of any works which he had not

authored; that others also who had not made any publications had been

appointed; that the appointment of the petitioner was complete; that Sub

Committee could not have re-examined the works of the petitioner which

had already been examined by the Selection Committee at the time of

interview and on the basis whereof recommendation for appointment of the

petitioner was made; that the Sub Committee could not have reviewed the

decision of the earlier Selection Committee; that all that the Sub Committee

could have examined was whether the petitioner had made any

misrepresentation; that neither the Sub Committee nor the Chancellor have

held the petitioner guilty of misrepresentation; that without the petitioner

having been found guilty of misrepresentation, the decision to appoint him

could not have been reviewed; that the Chancellor was not justified in

appointing another Expert Committee of three outside experts; that no fresh

selection could have been made.

12. I have at the outset enquired form the counsel for the petitioner as to

what is the "right" of the petitioner. The petitioner has not been appointed.

The petitioner is at best a selected candidate. It is the settled position in law

that a selected candidate has no right of appointment. I have recently in

judgment dated 5th May, 2011 in W.P.(C) No.827/2010 titled Devi Darshan

Seth Vs. UOI and in judgment dated 3rd May, 2011 in W.P.(C) No.178/2011

titled Dr. Prem Lata Vs. GNCTD examined plethora of cases in this regard

and need is as such not felt to burden this judgment with the same. Even if it

were to be believed that the appointing authority of the respondent No.2

Vidyapeeth had accepted the recommendation of the Selection Committee,

as long as no appointment had been effected and which had not been

effected, the respondent No.2 Vidyapeeth had a discretion not to appoint the

petitioner. The Supreme Court in R.S. Mittal Vs. UOI 1995 (2) SCC 230 has

held that the Court has a power to only examine whether there are any

reasons for not making such appointment. As long as some reasons exists,

the Court cannot compel the appointing authority to make the appointment.

13. In the present case the aforesaid narrative would show that there are

reasons aplenty for the respondent No.2 Vidyapeeth, inspite of

recommendation of the Selection Committee, having not appointed the

petitioner.

14. The counsel for the petitioner would argue that the non appointment

of the petitioner is for the reason of mala fide. The senior counsel for the

respondent has rightly contended that charge of mala fide is easily made then

made out. The petitioner in the present case has failed to lay any foundation

for such mala fide. The reasons why the Vice Chancellor was or would be

interested in appointment of the person at serial No.2 in the Selection Panel

have not been stated. Moreover, the appointment was not in the hands of the

Vice Chancellor alone. The matter as aforesaid has been examined by the

highest body of the respondent and all have been ad idem that the petitioner

is not a suitable person. This Court is neither competent nor would sit in

appeal over the decision of the experts. The Apex Court in Dr. Basavaiah

Vs. Dr. H.L. Ramesh 2010 (7) SCALE 529 has reiterated that the Courts

have a very limited role particularly when no mala fide has been alleged

against the experts and that it would normally be prudent / wholesome and

safe for the Courts to leave the decisions to the expert. It was further held

that as matter of principle the Courts should never make an endeavour to sit

in appeal over the decision of the experts. If the experts have stated that the

petitioner does not fit the bill for appointment for the reason of having not

done the work and research essential for performance of duties on the said

post, the Court would accept the same particularly when the Chancellor of

the respondent No.2 Vidyapeeth to satisfy himself has got the matter

examined from outside experts also. It thus cannot be said that any injustice

has been done to the petitioner. The credentials of the petitioner have been

examined at the highest level and the petitioner has been found unsuitable

for the job.

15. The Senior counsel for the respondent taking cue from the queries

made to the counsel for the petitioner has referred to para 18 of M.D., T.

Nadu Magnesite Ltd. Vs. S. Manickam AIR 2010 SC 3125 to contend that

to be able to maintain any action existence of a right is essential and without

right there could be no claim. He has further from the documents, sought to

establish that the petitioner in his application for appointment had not made

a clean breast relating to his publications. It is further stated that the Minutes

of the 51st Meeting of the Karya Parishad ratifying the selection of the

petitioner were not ratified in the 52nd Meeting and are thus of no avail. It is

also contended that the petitioner is a habitual litigant and had also filed

W.P.(C) No.7941/2009 in this Court impugning the order of the appointment

to the post of Registrar of the respondent University for which also the

petitioner had applied and which writ petition was dismissed on 1st April,

2009 observing that the petitioner had not stated full and true facts and had

not come to the Court with clean hands. It is contended that the petitioner

for his such conduct is in any case not a suitable person for the post and

cannot be thrust on the respondent No.2 Vidyapeeth.

16. No merit is found in the petition; the same is dismissed. I refrain from

imposing costs on the petitioner.

RAJIV SAHAI ENDLAW (JUDGE) JULY 13, 2011 „gsr‟ (corrected and released on 28th July, 2011)