Dr. Syed Tanvir Hussain vs University Of Delhi & Ors.
2015 Latest Caselaw 2289 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) No. 546/2014 & W.P.(C) No.3897/2014

%                                                 18th March, 2015

+     W.P.(C) No.546/2014

DR. SYED TANVIR HUSSAIN                                 ..... Petitioner

                           Through:   Mr. Aditya Gaur, Adv.


                           versus



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

Through: Mr. Mohinder J.S.Rupal, Adv. for R-1

Mr. Bajrang Vats, Adv. for R-3 to R-

Mr. Shad Anwar and Mr. Harbir Chaudhary, Adv. for R-6.

+     W.P.(C) No.3897/2014

DR. RAVI DEVI                                           ..... Petitioner

                           Through:   Mr. Raj Kumar Sherawat, Adv.

                           versus

JAWAHARLAL NEHRU UNIVERSITY & ORS.                      ..... Respondents

                           Through:   Mr.G.S.Chaturvedi, Adv. for R-1 and
                                      R-2.


                                          Mr. Alok Singh, Mr. S.P.Singh, Mr.
                                         N.P.Singh and Mr. C.Mishra, Adv. for
                                         R-3

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

W.P.(C) No.546/2014

1. By this writ petition filed under Article 226 of the Consitution of

India, petitioner seeks the relief of quashing of the selection process

conducted by the respondent nos.1 and 2/University of Delhi and the Head

of the Urdu Department of the University, with respect to the four posts of

Assistant Professors in the respondent no.2/Urdu Department of the

respondent no.1/University. Petitioner prays that fresh interviews be

conducted for selection.

2. The facts of the case are that the respondent no.1/University for its

Urdu Department, vide advertisement dated 17.10.2013 advertised for filling

of four posts of Assistant Professors. The eligibility criteria for

consideration and short listing was prescribed, and thereafter the Screening

Committee in terms of the eligibility criteria fixed for short listing, short-

listed the candidates for appearing before the interview board. Petitioner

was one of the short listed candidates and he appeared before the interview

board but the petitioner was not selected and respondent nos. 3 to 6 were

selected. Petitioner hence questions the decision of appointment of

respondent nos. 3 to 6 on the ground that their selection is illegal and

arbitrary.

3. On behalf of the petitioner, basic reliance is placed upon the judgment

of the Supreme Court in the case of Dr. J.P. Kulshrestha and Others Vs.

Chancellor, Allahabad University and Others (1980) 3 SCC 418, and para

10 thereof, and in which para the Supreme Court has observed that the

interview process must be fair and it must have guidelines for marks and

remarks about the candidates etc and the record of the selection process

should be made available to the court whenever the court feels that it wants

to examine the same to judge the lack of arbitrariness. Para 10 of the

judgment in the case of Dr. J.P. Kulshrestha (supra) reads as under:-

"10. We may dispel two mystiques before we debate the real issues. Did the selection committee act illegally in resorting to the interview process to pick out the best ? We think not. Any administrative or quasi-judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic, flexible and functionally viable processes of transacting business subject, of course to the basics of natural justice fairplay in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping with in the leading strings of the law. We find no flaw in the

methodology of 'interviews'. Certainly, cases arise where the art of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests. This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So it is that courts insist, as the learned single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. If the court is skeptical, the record of the Selection proceedings, including the notes regarding the interviews, may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is bad. Dr. Martin Luther King Jr. was right when be wrote : (The Negro is your Brother by Martin Luther King Jr. published in "119 years of the Atlantic" ed. by Louise Desaulniers, p. 515) So I have tried to make it clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or even more, to use moral means to preserve immoral ends."

4. On behalf of respondent nos. 1 and 2, counter-affidavit has been filed

and in which counter-affidavit it is stated by the University that the Selection

Committee constituted of external experts and the Selection Committee was

unbiased and in fact no specific malafides and instances are alleged by the

petitioner against any member of the Selection Committee, and hence the

petitioner cannot question the selection process. Petitioner in rejoinder-

affidavit himself has mentioned who were the members of the Selection

Committee, and such persons are:-

"1. Prof. Sudhish Pachauri, Pro Vice Chancellor

2. Prof. Umesh Rai, Director, South Campus

3. Dean, Arts Faculty, University of Delhi

4. Dr. T.A.Khan, HOD, Urdu Department, University of Delhi

5. Visitor Nominee

6. Experts:

             a)     Prof. Mohd. Hamid, Allahabad University
             b)     Prof. Nasim Ahmed, BHU
             c)     Prof. B.A.Nahri, Kashmir University"

5. It may be noted that Visitor is the President of India and the Visitor's

nominee was the nominee of the President of India in the Selection

Committee.

6. The law with respect to the scope of a hearing of a writ petition filed

before courts for challenging the decision of the Selection Committee is now

well settled and one such judgment is the judgment in the case of Dalpat

Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others (1990) 1

SCC 305. In this judgment, it is categorically held that courts do not sit as

appellate courts over the decisions of the Selection Committee, and it is job

not of the court but of the Selection Committee to scrutinize the relative

merits of the candidate and decide as to whether the candidate is fit for a

particular post or not. It has been observed that a court has no expertise to

substitute the expertise of the Selection Committee. The relevant para of

this judgment is para 12 and which para reads 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 etc. 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."

7. Similarly, the Supreme Court recently in the judgment in the case

of B.C. Mylarappa Alias Dr. Chikkamylarappa Vs. Dr. R.

Venkatasubbaiah and Ors. (2008) 14 SCC 306 has held that once there is

scrutiny by appropriate persons and experts, being the members of the

Selection Committee, and which Selection Committee looks into the data

of the candidates and duly considers the same, the Selection Committee's

decision comprising of experts cannot be interfered with by the courts.

This judgment also holds that the expert body consisting of academicians

is not required to record the reasons and the mere absence of reasons

being recorded is not a ground for the decision of the Selection Committee

to be faulted. The relevant paragraphs of this judgment are paras 26 to 29

and which read as under:-

"26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the Expert Body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made herein above, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction.

27. Again in M.V. Thimmaiah Vs. Union Public Service Commission: (2008) 2 SCC 119 this Court clearly held that in the absence of any mala fides attributed to the expert body, such plea is usually raised by an interested party (in this case the unsuccessful candidate) and, therefore, court should not draw any conclusion on the recommendation of the expert body unless allegations are substantiated beyond doubt. That apart, the challenge to the selection made by the expert body and approved by he University Authorities was made by the respondent Nos. 1 and 2 who were unsuccessful candidates and were not selected for appointment to the post of Professor in the Department of Sociology.

28. In National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyana Raman: 1992 Supp (2) SCC 481, this Court considered in detail the role of an expert body in deciding the candidature for selection to a particular post. While doing so, this Court at SCC pp. 484-85, para 7 of the said decision observed as follows:

"7. ... In the first place, it must be noted that the function of the Selection Committee is neither judicial 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 Lai Capoor: (1973) 2 SCC 836. 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 (supra) was rendered on 26 September, 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 (supra) 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 or 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: 1986 Supp SCC 617 in which Capoor case (supra) was also distinguished."

Keeping this observation in our mind and considering the facts and circumstances of the present case, we find that there was no dispute in this case that the selection was made by the assessment of relative merit of rival candidates determined in the course of the interview of the candidates and after thoroughly verifying the experience and service of the respective candidates selected the appellant to the post of the Professor in the said Department.

29.It is not in dispute that there is no rule or regulation requiring the Board to record reasons. Therefore, in our view, the High Court was not justified in making the observation that from the resolution of the Board selecting the appellant for appointment, no reason was recorded by the Board. In our view, in the absence of any rule or regulation requiring the Board to record reasons and in the absence of mala fides attributed against the members of the Board, the selection made by the Board without recording reasons cannot be faulted with."

8. I may note that the Supreme Court in the case of B.C. Mylarappa

(supra) has observed that once there is no rule or regulation requiring the

board ie the Selection Committee to record reasons, courts cannot hold that

reasons are required to be noted by the Selection Committee constituting of

academicians and experts.

9. Similar is the ratio laid down by the Supreme Court in the judgment in

the case of U.P.S.C. Vs. K. Rajaiah and Ors. (2005) 10 SCC 15 that the

Selection Committee is not bound to record reasons for its decision when

there is no rule or regulation obliging the Selection Committee to record

reasons.

10. In the present case, in my opinion, it is not the ratio in the case of Dr.

J.P. Kulshrestha (supra) which is relied upon by the petitioner which will

apply but what will apply will be the ratios of the judgments of the Supreme

Court in the cases of Dalpat Abasaheb Solunke (supra), B.C. Mylarappa

(supra) and K. Rajaiah (supra). The judgment in the case of Dr. J.P.

Kulshrestha (supra), only makes observations of the Selection Committee's

report to be considered and that the Selection Committee should act fairly,

however, in the present case, it is found that no specific instances of bias and

malafides have been alleged by the petitioner against any of the members of

the Selection Committee. The process of selection by such a Selection

Committee hence cannot be faulted.

11. Counsel for the petitioner relied upon the judgment in the case of D.V.

Bakshi and Others etc. etc. Vs. Union of India and Others AIR 1993 SC

2374 and para 7 thereof to argue that there must be maintained a record by

the Selection Committee however, I note that it is not even the case of the

petitioner in the writ petition that the Selection Committee has not

maintained any record of the selection. In fact, this judgment goes against

the petitioner because this judgment holds that general charges of nepotism

and favoritism are not sufficient noting that the petitioner in this case has not

made or alleged specific instances of bias or malafides and has only made

general charges against the Selection Committee of malafides and bias. The

judgment in the case of D.V.Bakshi (supra) therefore does not support the

petitioner.

12. In view of the above, I do not find any merit in the petition and the

same is therefore dismissed, leaving the parties to bear their own costs.

W.P.(C) No. 3897/2014

1. This writ petition filed under Article 226 of the Constitution of India

will also stand dismissed in terms of the observations made while deciding

the W.P.(C) No.546/2014 inasmuch as in this case also, petitioner has been

considered by the Selection Committee but instead of the petitioner, the

respondent no.3 was appointed.

2. The scores which have been given by the Selection Committee are in

the form of a chart annexed to the counter-affidavit of respondent nos. 1 and

2 and this chart reads as under:-

"JAWAHARLAL NEHRU UNIVERSITY

Name of School: School of Environment Sciences Name of Post: Associate Professor

Advt. N. RC/44/2012 (Post No.33) (Unreserved) Number of Post: 01 Number of Candidates(s):Seven (07)

Selection Committee Meeting held on: 27 May, 2014 at 02:00 PM in the Office of the Vice-Chancellor

Sl. Name of Selection Committee Criteria Total No. shortlisted Score candidates obtained appeared before the Selection (A) Academic (B) Research (C) Assessment (D)Performance Committee for Background Performance of Domain in Interview interview and quality of Knowledge and publications Teaching Skills

(Maximum of (Maximum of 40 (Maximum of (Maximum of 20 20 marks) marks) 20 marks) marks)

1. Dr. Jayant K. 14.8 26.2 12.0 13.6 66.6 Tripathi

2. Dr.Mathukumalli - Absent - - AB Bala Krishna Prasad

3. Dr.Sreenivasa Rao 12.0 18.2 9.2 6.4 45.8 Amaraneni

4. Dr.R.Babu - Absent - - AB Rajendran

5. Dr.M.Muthukumar 12.2 18.8 10.2 8.6 49.8

6. Dr.Rani Devi 12.6 17.0 8.4 8.0 46.0

7. Dr.Manju Rawat 11.7 13.0 8.7 7.5 40.9 Ranjan

"

3. The Selection Committee in this case comprised of the Vice Chancellor

of the respondent no.1/University, Dean of the School of Environmental

Sciences, a Professor of Environmental Science and Engineering from IIT,

Mumbai, a Professor of the Department of Chemistry of IIT, New Delhi and

the Vice Chancellor of the University of Allahabad who is an expert in the

subject and a Chief Scientist of the National Physical Laboratory.

4. The grievance of the petitioner in this case is that petitioner was more

qualified and she should have been given more marks than the respondent

no.3 with respect to the research programmes and quality publication,

however, as noted, while deciding the W.P.(C) No. 546/2014, this Court

cannot substitute its opinion for the opinion of the Selection Committee,

whose constitution has been given above, and which has the necessary

expertise whereas this Court does not have so. The argument therefore

urged on behalf of the petitioner by claiming that she has more qualification

in terms of the eligibility criteria to be considered by the interview

committee, cannot be accepted by this Court in view of the fact that marks

under all/different heads have been given by the Selection Committee to the

different candidates and which Selection Committee is entitled to do in view

of the fact that it is the committee which has to decide the relative merits and

de-merits of the candidates.

5. Another argument of the petitioner in this case was that the list of

successful candidates was not put on the website, but this is an argument

which does not affect the merits, and in any case respondent nos.1 and 2

have stated that they did not put the results on the website for the reason that

it may in some manner have a bearing on the future prospects of

employment of a candidate if it is shown on the website that the candidate is

unsuccessful and which may hence hinder the future prospects of the

candidate.

6. In view of the above this petition is also dismissed.

MARCH 18, 2015                                   VALMIKI J. MEHTA, J.
ib