Full Text
HIGH COURT OF DELHI
Date of Decision: 09th September, 2024
INDERJEET SINGH .....Petitioner
Through: Mr. Colin Gonsalves, Senior Advocate
Through: Ms. Aakanksha Kaul, Advocate for Respondents No.1 and 2/KNC.
Mr. Mohinder J.S. Rupal and Mr. Hardik Rupal, Advocates for Respondent No.3/University of
Delhi.
JUDGMENT
1. This writ petition has been preferred on behalf of the Petitioner seeking a writ of mandamus to Respondent No. 1/Kamla Nehru College (hereinafter referred to as ‘College’) to declare the results of the interviews conducted on 24.02.2024 by the Selection Committee for appointment to the post of Assistant Professor (Journalism) (OBC Category), pursuant to advertisement No.02/KNC/Assistant Professor/2022 dated 20.10.2022.
KUMAR Location: Direction is also sought restraining the Respondents from cancelling the selection process and re-advertising the post as also for appointment of the Petitioner to the said post.
2. Factual matrix emerging from the writ petition is that Petitioner was appointed as Assistant Professor on ad-hoc basis in the College in the Department of Journalism and has been working on the said post for the past two and a half years, his contract being renewed every 120 days after an artificial break of 01 day. On 20.10.2022, an advertisement was published by the College being Advt. No. 2/KNC/Assistant Professor/2022, inviting applications for appointment to the posts of Assistant Professors on a regular basis in different departments of the College including the Department of Journalism. On 19.11.2022, Petitioner applied against the said advertisement vide Application No.ADR5784281. Schedule for interview to the post of Assistant Professor in the Department of Journalism was notified on 15.02.2024 and the interview was to be conducted on 24.02.2024 for the shortlisted candidates, which included the Petitioner.
3. It is averred by the Petitioner that while results for posts in other departments and for the post under Unreserved category in the Department of Journalism were declared without any delay, result of the post in question reserved for OBC category was not declared for the longest time. Petitioner sent a representation on 19.07.2024 after waiting for five months for declaration of the result since he was a stakeholder and the delay in declaring the result was causing an uncertainty in his career, however, there was no response and Petitioner then filed the present writ petition at that stage. Notice was issued in this writ petition on 06.08.2024 returnable on 21.08.2024, on which date Ms. Akanksha Kaul, learned counsel for the KUMAR Location: College had handed over copy of Minutes of the meeting of the Selection Committee pertaining to the post of Assistant Professor (Journalism), OBC category and had submitted that Petitioner was placed at No.1 position in the panel recommended by members of the Selection Committee, save and except, one member i.e. the Subject Expert, who dissented on the ground that Petitioner does not possess Ph.D. degree. It was also submitted, on instructions, that on account of the dissent, Delhi University/Respondent NO. 3 has directed the College to re-advertise the post but she was unsure if any advertisement had so far been issued. After hearing arguments at some length, Court restrained the College from re-advertising the post and if the advertisement had been published not to take further steps towards the selection process, till the next date and the matter was adjourned for final hearing.
4. Mr. Colin Gonsalves, learned Senior Counsel appearing on behalf of the Petitioner submits that a duly constituted Selection Committee comprising of seven members in its meeting held on 24.02.2024 recommended a panel of 4 candidates for the post of Assistant Professor in the OBC category in the Department of Journalism in the order of merit and from the Minutes handed over to the Petitioner, it is evident that, being at No. 1 in the merit list, Petitioner was declared as ‘selected’ while the other three were placed in the waiting list. One of the seven members, however, has dissented on the ground that Petitioner does not possess a ‘Ph.D.’ degree, which is wholly erroneous and illegal and contrary to the advertisement wherein requirement of possessing Ph.D. degree is in alternative to the requisite qualification of a Master’s Degree. The dissenting member has clearly glossed over the word ‘OR’ between Clause I(A), which KUMAR Location: requires Master’s Degree and I(B) which stipulates the requirement of a Ph.D. Degree. It is urged that Petitioner fulfils the requisite qualifications for the post of Assistant Professor (Journalism), OBC category as he possesses a Master’s degree with 55% marks as required in the advertisement and has also cleared the National Eligibility Test (NET) and having been recommended at merit position No.1, there is no impediment in his appointment. It is also argued that no Ordinance of the University contains any provision mandating re-advertising of a post in the event of a dissent by one or more members of a Selection Committee and therefore, the direction by the University to the College to re-advertise the post is without any basis.
5. Mr. Mohinder J.S. Rupal, learned counsel appearing on behalf of the University, relying on the counter-affidavit, submits that after the advertisement was issued, the Governing Body of the College constituted a Selection Committee for conducting the interview for the post of Assistant Professor (Journalism), OBC category comprising of seven members which included Chairperson of the Governing Body of the College, two nominees of the University, one subject expert, one academician representing the reserved categories, Teacher in-charge of the concerned department of the College and officiating Principal of the College. After the interviews, the Selection Committee recommended a panel of 4 candidates in the order of merit and Petitioner being at No. 1 was declared selected. However, one of the members of Selection Committee Prof. Om Prakash Singh, subject expert dissented noting “Not agreed, No Ph.D. suited to the merit”. Owing to the fact that the subject expert dissented in respect of the candidature of the Petitioner and his eligibility came in question, University wrote to the College in response to a clarification sought by the College that the KUMAR Location: Governing Body of the College should re-advertise the post in the OBC category. Insofar as the post of Assistant Professor (Journalism) in Unreserved category was concerned, one Nidhi Sharma was selected and the University informed the College to proceed with the appointment. It is argued by Mr. Rupal that in the wake of the dissent of the subject expert in the case of the Petitioner, offer of appointment cannot be issued to him and the post has to be re-advertised albeit Mr. Rupal is unable to point out any Ordinance of the University which contains any provision mandating readvertisement of a post in case of a dissent.
6. Ms. Aakanksha Kaul appearing on behalf of the College, on written instructions from the College, has handed over a compilation of documents containing Minutes of the meeting held by the Selection Committee on 24.02.2024 for selection to one post of Assistant Professor (Journalism) in the OBC category as well as the Minutes for selection to the post in the Unreserved category for which the meeting was held on the same day and by the same Committee. It is submitted that six members of the Selection Committee declared the Petitioner as selected but the subject expert dissented and in view of this, the College sought clarification from the University for future course of action by letter dated 14.03.2024, in response to which the University vide its letter dated 15.03.2024 addressed to the Chairperson of the Governing Body directed the College to re-advertise the post meant for the OBC category and to proceed with the appointment process for the post in Unreserved category. Albeit the Governing Body of the College is empowered to proceed with the appointment, however, since instructions were received from the University, the College published a notice on 02.08.2024 re-advertising the post in the OBC category.
7. Ms. Kaul in her usual fairness submits, on instructions, that recommendation for selection of the Petitioner was justified as neither the advertisement nor UGC Regulations, on which the advertisement is based, mandate a Ph.D. degree for the post in question and a candidate possessing either a Master’s degree with 55% marks and having cleared NET ‘or’ a Ph.D. degree is eligible and in this light the dissent was wrong. From the documents handed over, it is pointed out that the Governing Body of the College has noted under Item No. 4 in the meeting of the Governing Body held on 27.05.2024 that the dissent was in apparent contradiction with the selection of the Unreserved candidate, who also did not possess a Ph.D. degree and that too, by the same Selection Committee. Ms. Kaul is also unable to point out any Ordinance in reference to which direction was issued to the College to re-advertise the post in the event of a dissent.
8. Heard learned Senior Counsel for the Petitioner and learned counsels for the Respondents.
9. Before proceeding to examine the case on merits, I may pen down that Court is conscious of the scope and ambit of the jurisdiction of the High Court to interfere in matters relating to appointments in the education field while exercising the power of judicial review under Article 226 of the Constitution of India. It is a settled law that while exercising powers of judicial review, Courts cannot step into the shoes of Selection Committee or assume the role of an appellate authority to examine comparative merits of the candidates and that assessment and evaluation of the performance of the candidates is best left to the experts in the field. [Ref.: Dalpat Abasaheb Solunke and Others v. B.S. Mahajan and Others, (1990) 1 SCC 305 M.V. Thimmaiah and Others v. Union Public Service Commission and Others, KUMAR Location: (2008) 2 SCC 119; Union Public Service Commission v. M. Sathiya Priya and Others, (2018) 15 SCC 796 and Baidyanath Yadav v. Aditya Narayan Roy and Others, (2020) 16 SCC 799].
10. It is equally settled that it is not a thumb rule that in no case a Court can interfere in a selection process and the Supreme Court has carved out cases where interference may actually be warranted. In M. Sathiya Priya (supra), the Supreme Court observed that jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have expertise in the respective fields, it is not open for Courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on ground of bias, mala fides or arbitrariness. It was also observed that it may not be proper to state that expert body’s opinion is not subject to judicial review in all circumstances and in our Constitutional scheme, decision of the Selection Committee/Board of Appointment cannot be said to be final and absolute and any other view will have a dangerous consequence. The Supreme Court observed that we must remind ourselves of the famous words of Lord Acton, “Power tends to corrupt, and absolute power corrupts absolutely”. Relevant paragraphs from the judgment are as under:-
KUMAR Location: Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee. The courts have very limited scope of judicial review in such matters.
18. We are conscious of the fact that the expert body's opinion may not deserve acceptance in all circumstances and hence it may not be proper to say that the expert body's opinion is not subject to judicial review in all circumstances. In our constitutional scheme, the decision of the Selection Committee/Board of Appointment cannot be said to be final and absolute. Any other view will have a very dangerous consequence and one must remind oneself of the famous words of Lord Acton “Power tends to corrupt, and absolute power corrupts absolutely”. The aforementioned principle has to be kept in mind while deciding such cases. However, in the matter on hand, it is abundantly clear from the affidavit filed by UPSC that the Selection Committee which is nothing but an expert body had carefully examined and scrutinised the experience, Annual Confidential Reports and other relevant factors which were required to be considered before selecting the eligible candidates for IPS. The Selection Committee had in fact scrutinised the merits and demerits of each candidate taking into consideration the various factors as required, and its recommendations were sent to UPSC. It is the settled legal position that the courts have to show deference and consideration to the recommendations of an Expert Committee consisting of members with expertise in the field, if malice or arbitrariness in the Committee's decision is not forthcoming. The doctrine of fairness, evolved in administrative law, was not supposed to convert tribunals and courts into appellate authorities over the decision of experts. The constraints—selfimposed, undoubtedly—of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless.”
11. In Baidyanath Yadav (supra), the Supreme Court observed that it is not for the Courts to address questions of comparative merit of the candidates but what the Courts may look into is whether there was any serious violation of statutory Rules or any bias, mala fides or arbitrariness in KUMAR Location: the selection process and to address this question, it is essential to revisit the process prescribed for the selection in question.
12. It would be useful in this context to allude to the judgment of the Supreme Court in Biju K.K. v. Cochin University of Science & Technology, Kochi and Others, (2022) 8 SCC 349. In this case, the Appellant before the Supreme Court i.e. the writ Petitioner, who was working as a daily wager applied for the post of Technical Assistant in response to an advertisement and was placed much below in the rank list as he was awarded less marks on experience, ignoring his earlier services rendered as daily wager. Learned Single Judge of the High Court opined that as the Selection Committee had followed certain criteria and that too in respect of all candidates, the process was not arbitrary and it was not open to the Court to exercise power under judicial review and decide otherwise. It was further held that Selection Committee had found that the experience certificate of Respondent No. 6 satisfied the criteria and there was no reason to interfere with the same. Division Bench upheld the order leading to the writ Petitioner approaching the Supreme Court. Examining the issue, the Supreme Court observed that what was challenged was the decision of the Selection Committee and the High Court was not justified in not deciding the same on merits on the ground that in exercise of power under judicial review, the High Court was not required to interfere with the decision of the Selection Committee. The matter was remanded back to the learned Single Judge to consider the petition afresh and decide on whether the Selection Committee was justified in awarding the marks on experience, ignoring the services rendered by the Appellant as daily wager and also whether Respondent No. 6 was fulfilling the requisite eligibility criteria as per the advertisement. Relevant passages KUMAR Location: from the judgment are as follows:- “2. That the appellant herein—original writ petitioner was serving as Technical Assistant Grade II on daily wages in the School of Engineering under the Cochin University of Science and Technology. That he was continued in service as daily wager by giving periodical breaks. Thereafter he applied for the post of Technical Assistant Grade II in terms of Notification dated 24-7-2010 issued by the respondent University. He was placed much below in the rank list as he was awarded less marks on experience ignoring his earlier services rendered as daily wager. Therefore, he approached the High Court by way of Writ Petition No. 27538 of 2012. All the other employees in the rank list were also made party to the writ petition. xxx xxx xxx
4. So far as the case of the writ petitioner is concerned, the learned Single Judge was of the opinion that as the Selection Committee has followed certain criteria and forwarded the same in respect of all the candidates awarding the marks on experience, cannot be said to be arbitrary and it is not open for the Court to exercise the power under judicial review and decide otherwise. That it was submitted on behalf of the writ petitioner that even the 6th respondent was not having the requisite qualification and was not fulfilling the eligibility criteria as he was not having the experience in the Computer Science Lab. The learned Single Judge again observed that the Selection Committee found that the experience certificate submitted by Respondent 6 did satisfy the criteria, and there was no reason to interfere with the same.
7. It is required to be noted that what was challenged was the decision of the Selection Committee and therefore, the High Court was not justified in not deciding the same on merits on the ground that when the Selection Committee has taken a decision, in exercise of powers under judicial review, the High Court is not required to interfere with the same. Under the circumstances to the aforesaid extent the matter has to be remanded to the learned Single Judge.
8. In view of the above and for the reason stated above, the present appeal succeeds in part. The impugned judgment and order passed by the Division Bench and the learned Single Judge are hereby quashed and set aside. The matter is remitted to the learned Single Judge to consider the writ petition afresh on whether the Selection Committee was justified in awarding the marks on experience ignoring the services rendered by the appellant as daily wager and also whether Respondent 6 was fulfilling KUMAR Location: the requisite eligibility criteria as per the advertisement, namely, “Ist Class Diploma in Computer Science and 3 years' experience in respective laboratories of Engineering Colleges/Universities”.
13. In Tajvir Singh Sodhi and Others v. State of Jammu and Kashmir and Others, 2023 SCC OnLine SC 344, the Supreme Court reiterated as follows:-
14. From a conspectus of the aforesaid judgments, it is discernible that ordinarily Courts will not sit over assessments made by the Selection Committee as an appellate authority, more particularly, when it pertains to awarding of marks and/or comparative assessments. In matters of appointments in educational fields etc., the decision is best left to the experts constituting the Selection Committees and Courts should not step into their shoes while exercising powers of judicial review. The decisions of the Selection Committees are, however, not totally insulated or immune from interference and in judicial review the Courts can interfere where it is found that there is illegality or patent material irregularity in the constitution of the Selection Committee or its procedure or the decision making process or where the selection is vitiated either on ground of bias, mala fides or arbitrariness or where there are violations of statutory rules.
15. In light of these principles elucidated by the Supreme Court, I may now examine the present case. At the heart of the dispute before me for consideration are two issues: (a) whether the subject expert as a part of the KUMAR Location: Selection Committee was right in recording his dissent in light of the Regulations laying down the minimum qualifications for appointment to the post of Assistant Professor (Journalism) and the stipulation of essential educational qualifications in the advertisement in question; and (b) whether the University is right in instructing the College to re-advertise the post in question on account of a dissent by the subject expert.
16. During the course of hearing, Ms. Kaul has handed over copy of ‘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’ (‘Regulations, 2018’) notified on 18.07.2018. The eligibility conditions for direct recruitment for the post of Assistant Professor in various disciplines such as Arts, Commerce, Sciences including Journalism have been laid down in Regulation 4.[1] of Regulations, 2018 and are as follows:- “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:
17. Based on Regulations, 2018, College issued the advertisement on 20.10.2020 and the qualifications stipulated for the post of Assistant Professor (Journalism) were as follows:- “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)
(ii) and (iii) of General Note in the last section of this document.
(iii) the Academic Ranking of World Universities (ARWU) of the Shanghai
18. It is, therefore, clear as day that in order to be eligible for the post of Assistant Professor, the candidate was required to possess either a Master’s degree with 55% in the concerned/relevant/allied subject from an Indian University or an equivalent degree from an accredited Foreign University with an additional requirement of having cleared the NET conducted by UGC/CSIR etc. or a Ph.D. degree, as an alternative eligibility condition and not both. To hold that the eligibility condition mandated a candidate to possess a Ph.D. Degree will be incorrect and in the teeth of Regulations, 2018 and the advertisement. It needs no reiteration that the eligibility criteria has to be tested on the basis of requirements laid down in the Recruitment Rules/Regulations of the post in question and/or the stipulations in the advertisements and it is not open to the Selection Committee to assess eligibility basing its decision on a self-created criteria, contrary to the Recruitment Rules/Regulations and advertisements and in the present case, KUMAR Location: the subject expert has done exactly this and disagreed with the other six members of the Selection Committee erroneously.
19. A little backdrop at this stage will be necessary. Ms. Kaul has placed on record the Minutes of the Selection Committee meeting held on 24.02.2024. There is no dispute by the University that the composition of the Selection Committee was in consonance with Ordinance XVIII Clause 7(4-A) of Ordinances under the Delhi University Act, 1922. The Selection Committee recommended a panel of 4 persons in the order of merit for the post of Assistant Professor (Journalism) under OBC category and Petitioner being at No. 1 position of the merit list has been shown as ‘selected’ and the remaining three persons are in the waiting list. On the right hand side of the merit list, the subject expert has noted “Not agreed, No Ph.D. suited to the merit”. Therefore, the reason for dissent is that the Petitioner does not fulfill the eligibility criteria of possessing a Ph.D. degree, which on the face of it is contrary to Regulation 4.1(I) of Regulations, 2018 and the stipulation in the advertisement and in this light it has to be held that the dissent was illegal.
20. It also needs to be pen down that from the documents placed on record by the College, it is evident that the Governing Body of the College in its meeting convened on 27.05.2024 has noted that there is an apparent contradiction inasmuch as the same Selection Committee with the same subject expert, during the process of selection for the post of Assistant Professor (Journalism) in the Unreserved category, has recommended a candidate without a Ph.D. degree. Interestingly, overlooking this apparent contradiction in the view taken by the subject expert, the University directed the College to proceed for issuing offer of appointment to the selected candidate in the Unreserved category while for the OBC category it was KUMAR Location: directed that the post be re-advertised. It is nobody’s case that there was a different criteria for eligibility to the post of Assistant Professor (Journalism) in the OBC category and the Unreserved category. For the aforesaid reasons, this Court is constrained to hold that the subject expert has misread and wrongly construed the advertisement and the dissent is wholly illegal and arbitrary and cannot be sustained in law. None of the Respondents have been able to show any Ordinance or instruction which mandates re-advertisement of a post on a dissent being rendered by one or more members of the Selection Committee and therefore, the initiation of the process for re-advertising the post in question is also flawed.
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 KUMAR Location: to state that the offer of appointment will be issued as per the decision taken by the appointing authority, without any delay.
23. Pending application also stands disposed of.