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HIGH COURT OF DELHI
LPA 1117/2024 & CM APPL. 66421/2024, CM APPL.
66422/2024 KAMLA NEHRU COLLEGE .....Appellant
Through: Mr. Umesh Sharma, Adv.
Through: Mr. Colin Gonsalves, Sr. Adv.
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
14.11.2024 C. HARI SHANKAR, J.
1. At the outset, we must observe, with some disquietude, that the appellant Kamla Nehru College[1], before this Court in LPA, is adopting a stand which is directly opposed to the stand adopted by it before the learned Single Judge.
2. Para 7 of the impugned judgment of the learned Single Judge reads thus: “the College” hereinafter
3. However, before this Court, the College, represented by Mr. Umesh Chandra Sharma, contests the entitlement of the respondent to selection as Assistant Professor (Journalism) in the appellant College.
4. We are doubtful as to whether the College can thus approbate and reprobate, by adopting different stands at different stages of the same litigation. Nonetheless, we have heard Mr. Sharma, learned Counsel for the appellant, at some length and have perused the judgment under challenge.
5. The respondent had applied for recruitment to the post of Assistant Professor (Journalism) pursuant to an advertisement dated 20 October 2022. He belongs to the Other Backward Classes[2]. Interviews were held on 24 February 2024. The respondent was interviewed and was shortlisted for appointment as Assistant Professor (Journalism) as an OBC candidate. He was the first in the merit list. “OBC”
6. As there was only one OBC vacancy, the remaining candidates were placed in the wait list.
7. Ultimately, one unreserved category candidate was appointed. The respondent was not appointed against the OBC vacancy.
8. The respondent approached this Court by way of WP (C) 10829/2024. The said writ petition stands allowed by the learned Single Judge.
9. Aggrieved thereby, the College has filed the present Letters Patent Appeal.
10. As was revealed from the facts before the learned Single Judge, the Selection Committee which interviewed the candidates consisted of seven members. Of the seven members, six members recommended that the respondent be selected and appointed as Assistant Professor (Journalism), especially as he was the first in the merit list of OBC candidates. However, the seventh member, who happened to be the “expert member”, entered a dissent which read: “Not agreed, No Ph.D. suited to the merit”.
11. In view of this lone dissent, the College wrote to the University of Delhi, clarifying as to the further course of action to be adopted. The University advised the college to re-advertise the post.
12. The learned Single Judge has allowed the writ petition, noting the following factual and legal position:
(i) The prescribed educational qualifications did not require a candidate aspiring to the post of Assistant Professor (Journalism) necessarily to hold a Ph.D.
(ii) The qualifications prescribed in the applicable UGC
(Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education), Regulations 2018 read thus: “4.0 Direct Recruitment 4.[1] For the Disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication.
I. Assistant Professor:
(iii) The advertisement, which was issued by the College on
20 October 2022, based on the aforesaid Regulations, prescribed the following qualifications for the post of Assistant Professor (Journalism): “Qualifications for the post of Assistant Professor in the Colleges
1. For the Disciplines of Arts, Commerce, Humanities, Law, Social Sciences, Sciences, Languages and Physical Education.
I. Assistant Professor: Eligibility (A or B)
13. Noting this, the learned Single Judge has held, in para 18, thus:
14. We are entirely in agreement with the judgment of the learned Single Judge. It is clear, from a bare reading of the Regulations and the advertisement, that the candidate was not necessarily required to hold the Ph.D. A Ph.D. was only an alternate qualification. Candidates who were Master’s Degree holders with more than 55 % and had cleared the NET were equally eligible for appointment as Assistant Professor (Journalism). There is no dispute that the respondent held a Master’s degree with more than 55% and had cleared the NET.
15. As such, we are in agreement with the learned Single Judge that the ground on which the subject expert dissented with the opinion of the remaining six members of the interview committee and opined that the respondent was ineligible for appointment as Assistant Professor (Journalism) was factually and legally incorrect.
16. In fact, this position was candidly acknowledged by the college before the learned Single Judge in para 17 of the impugned judgment, which already stands reproduced supra. However, as already noted, the college is taking a volte face before us.
17. The learned Single Judge has, secondly, observed that the candidate who had been selected against the unreserved vacancy of Assistant Professor (Journalism) was also not a Ph. D. holder. This further establishes the fact that the holding of Ph.D. qualification was not essential for recruitment as Assistant Professor (Journalism). Needless to say, it is not open either to the College or to the University to adopt different stands for unreserved and OBC candidates, when no such differentiation is to be found either in the applicable Regulations or in the advertisement.
18. The third ground on which the learned Single Judge has allowed the writ petition is that there was no procedure shown to the learned Single Judge by which, merely because there was a lone dissent by one of the members of the Selection Committee, even if it was the subject expert, the post could be readvertised.
19. This position is not traversed in the writ petition. However, it is not necessary for us to enter into this arena as, in our view, the advice of the University to readvertise the post was based on the lone dissent of the subject expert in the Selection Committee which, according to us, is not sustainable on facts or in law.
20. Mr. Umesh Sharma submitted that this Court, in writ proceedings, cannot sit in appeal over the decision of the subject expert. There can be no cavil with this proposition. We do not feel that the learned Single Judge has sat in appeal over the decision of the subject expert. Had it been a case where the subject expert had, on a holistic consideration of all factors, come to a decision based on an objective and comparative evaluation on merits that the respondent was not suitable, matters may have stood otherwise. In the present case, however, the decision of the subject expert is founded solely on the fact that the respondent did not possess a Ph. D. qualification suitable to the merit of the post. As no Ph. D. qualification was required mandatorily to be possessed by the respondent, the decision of the subject expert was obviously incorrect.
21. It is trite, from the times of E.P. Royappa[3] onwards that arbitrariness is antithetical to Article 14 of the Constitution. The decision of the subject expert was manifestly arbitrarily and contrary to the Regulations as well as the advertisement. No error can, therefore, be said to have been committed by the learned Single Judge in reversing the said decision.
22. The principle that a Court should not interfere with decisions of selection committee is obviously not applicable in such circumstances.
23. Mr. Sharma also sought to submit that the learned Single Judge has granted relief in excess of the prayers in the writ petition. The prayer clause in the writ petition reads thus: “PRAYER
17. The Petitioner, therefore, prays that in the facts and circumstances of the present case, this Hon’ble Court may be pleased to: issue the Writ of Mandamus or any other appropriate order, or direction in the nature to the Respondents: a) For a writ, order or direction to the respondents to declare the results for the interviews conducted on 24.02.2024 by a duly constituted selection committee for permanent appointment to the post of Assistant Professor (Journalism) (OBC category) at the Respondent No. 1 college, i.e. Kamala Nehru College advertised vide Advt. No. 2/KNC/Assistant Professor/2022 dated 20.10.2022 in which Petitioner appeared and immediately fill the post; b) For an order restraining the respondents from cancelling the said selection process and initiating the fresh process of selection and/or issuing fresh advertisement for the post of Assistant Professor (Journalism) (OBC category); and, should the process be cancelled for an order quashing and setting aside the said order for cancellation; c) Call for the entire records, including minutes of the Selection Committee Meeting held on 24/02/2024 for appointment of permanent post of Assistant Professor (OBC category) in the Department of Journalism of Respondent no. 1 college; d) Pass any other writ, order or direction as this Hon’ble Court deems fit and necessary in the interest of justice.”
24. Paras 21 and 22 of the impugned judgment of the learned Single Judge read thus:
21. The next and the only other question that arises for consideration is the relief that can be granted to the Petitioner at this stage. The stand of the College clearly is that Governing Body of the College is the appointing authority and empowered to make appointment to the post in question. The selection process had reached up to a stage where the Governing Body had sought clarification from the University basis the dissent of the subject expert in the Selection Committee. In my view, the appropriate course of action will be to permit the appointing authority to proceed with the process from the stage of examining the panel recommended by the Selection Committee, with a caveat that the dissent recorded by the subject expert will not be taken into account.
22. In view of the aforesaid, this writ petition is allowed to the extent of directing the Governing Body of the College to consider the panel recommended by the Selection Committee in the order of merit, in the meeting held on 24.02.2024 and take further decision. This exercise shall be completed within three weeks from the date of receipt of the order. Needless to state that the offer of appointment will be issued as per the decision taken by the appointing authority, without any delay.
25. If anything, the learned Single Judge has been conservative in the relief that she has granted to the respondent. She has not directed outright appointment of the respondent. She has only directed that the respondent should be considered as per his merit in the list of OBC candidates, following the interview held by the Selection Committee. This is but a natural sequitur to the finding that the decision to readvertise the post, consequent to the erroneous view of the subject expert, was unsustainable in law.
26. We are not, therefore, in agreement with Mr. Sharma that, in passing the impugned judgment, the learned Single Judge has granted any relief in excess of that sought in the writ petition.
27. No occasion therefore arises for us to interfere.
28. We direct that the decision of the learned Single Judge be implemented within a period of three weeks from today.
29. The appeal stands dismissed in limine.
C. HARI SHANKAR, J.