Dr. Ashutosh Mishra v. Indian Institute of Mass Communication

39. Considering the allegations levelled by the petitioner, it is also possible that while some of the documents may be proven true, others may not, and the cumulative research and teaching experience may meet the ten year threshold (since the 6 years and 7 months or research experience is not denied, but only the details as to the teaching positions held at the Kerala Law Academy and the National University of Juridical Sciences (and not the Hidayatullah National Law University) are contradicted. Whether in such a case the cumulative total amounts to ten years, and whether this is sufficient to meet the threshold under Clause 1.3.[1] is indeed a matter for the Selection Committee to decide and consider. xxxx xxxx xxxxx

41. Equally, the Court is cognizant of the fact that Clause 1.3.[1] locates an alternative qualification, i.e. “[a]n outstanding scholar with established reputation who has made significant contribution to knowledge.” This standard clearly incorporates a subjective determination by the Selection Committee based on objective factors/material placed before it. While learned counsel for the petitioner has urged that Sivakumar did not place any material so as to demonstrate his satisfaction of this criterion, and did not specifically apply under this head, this line of argument is unpersuasive. Not only did Sivakumar, in his “Academic Profile” attached to his application, enter comprehensive details which speak as to his contribution to the law, such as details of twelve research publications, four book reviews, eleven papers presented internationally, along with three papers submitted and presented (though not personally present), various papers presented nationally, a list of other publications, including four book contributions, programmes organized by him and academic assignments taken, but also, there is no requirement, either under the 2000 UGC Regulations or in the advertisement issued by the ILI, to specifically apply under that head. Rather, a fair reading of the text of Clause 1.3.[1] leads to the inevitable conclusion that the Selection Committee may, in its wisdom, and on a consideration of the relevant factors, decide that a candidate falls under either of those heads. Sivakumar’s publications and engagement with academia, from a reading of his academic profile, spans from 1992 to 2005 (i.e. the time of the application), while covering a variety of legal issues. The precise and detailed evaluation of these activities, i.e. Dr. Sivakumar’s academic inputs and research, and whether it qualifies him as an “outstanding research scholar with established reputation who has made significant contribution to knowledge”, however, is a matter properly reserved for the Selection Committee’s decisionmaking authority, which the Court cannot enter. Indeed, this breadth of authority granted to the Selection Committee is particularly apt given that it sits as an expert body to consider the suitability of the academic qualifications of the candidates, which this Court should not and, as a matter of law, cannot review on merits. Once it is admitted, and the petitioner does not dispute this fact, that the Selection Committee applied its mind to the relevant factors to determine the candidate which, in its opinion, was best suited for the post of Research Professor (i.e. purely as illustrative examples, his academic qualifications, previous research experience, quality of research publications, reviews etc.), and did not base its decision on irrelevant material, this Court’s limited judicial review is satisfied. In fact, a Division Bench of the Supreme Court echoed this precise sentiment in Rameshwar Dass Mehla v. Om Prakash Saini and Ors., JT 2002 (2) SC 403, in considering a writ of quo warranto directed against the incumbent university librarian by Kurukshetra University: “5......................It is also pointed out that the equivalence of the two qualifications is a question which pertain purely to an academic matter and courts would hesitate to express a definite opinion, particularly, when it appears to the experts that a candidate fulfils the qualification …..................... 7..................... We do not think the view taken by the selection committee can be the subject matter of the judicial review as was held by this Court in Govind Rao's case. In academic matters, particularly pertaining to qualifications, the view taken by the experts would be final. If this approach had been adopted by the High Court, the High Court could not have interfered with the action taken by the university in this case at all…………..” (emphasis supplied)

42. At the very least, the various details disclosed in the academic profile, which are detailed above, render Sivakumar eligible for the post of Research Professor under the second alternate criterion, and that being the case, his further selection lies at the discretion of the Selection Committee.”

11. Without prejudice to the said argument, Mr. Banerjee argues that the appointment of Respondent No. 3 is in consonance with the Recruitment Rules and the Advertisement issued by IIMC. IIMC invited applications for the Post of DG on 13.07.2019 with the last date for submission of applications being 19.07.2019. Thorough examination of all the applications received by Respondent No. 2 was carried out and only after it was found that Respondent No. 3 fulfilled the eligibility criteria, his candidature was considered and recommended by a duly constituted Search-cum-Selection Committee. The Search-cum-Selection Committee personally interviewed all the applicants along with their supporting documents and only thereafter shortlisted Respondent No. 3. The recommendation was finally approved by Appointments Committee of the Cabinet. The appointment is not contrary to any statutory provision, does not suffer from any illegality and is also in consonance with provisions of Rule 35 of the Recruitment Rules of the Respondent Institute. Rule 35 as brought to the notice of the Court is as follows:- “The appointment of Director will be by the Executive Council on recommendations of the Search & Selection Committee constituted by the Ministry and approved by DOPT on such terms and conditions as may be approved by the Central Government, vide minutes of the 112th Meeting of Executive Council held on November 20, 2008. The Director of the Institute shall be appointed by the Executive Council with the prior approval of the Central Government on such terms and conditions as may be approved by the Central Government.”

12. Mr. Banerjee submits that the allegation of the Petitioner that Respondent No. 3 does not possess minimum experience of 25 years as postulated in the Advertisement is baseless. Respondent No. 3 completed his Bachelor of Arts from Lucknow University, UP in 1993 and started his Career in Journalism on the platform of Print Media as Sub-Editor at Dak Desk, Dainik Bhaskar, Bhopal, where he worked from 10.07.1994 till 07.08.1995. He completed his Bachelor in Journalism and Mass Communication (BJMC) in 1995 and Masters in Journalism and Mass Communication (MJMC) in 1996. Thereafter he worked with various newspapers in different capacities, which is clearly evident from his Biodata. Respondent No. 3 was appointed as a Reader in Makhanlal Chaturvedi Journalism University and thereafter given the charge of Vice-Chancellorship in the same University. Thus counting the experience of Respondent No. 3 with effect from 10.07.1994 he meets the requirement of having 25 years experience as on 19.07.2019 coupled with possessing a good Master’s Degree, in accordance with the requirements of the Advertisement.

13. Elaborating the argument Mr. Banerjee submits that the requisite Essential qualifications as per the Advertisement are possessing a good Master’s Degree and a minimum 25 years experience in the field of Journalism/Films/Media with administrative experience of holding senior positions in Academic/Professional Institution/University/Organization of National repute. The requirement of holding a Masters Degree is disjunctive to the 25 years experience required. There is no stipulation in the Advertisement that the experience must be post the acquisition of the Masters Degree and the Petitioner cannot read into the Advertisement something that does not exist. Perusal of the requisite Desirable qualifications substantiates that Post Graduation would be given preference, but the same cannot be read to mean that a candidate must have the minimum years of work experience required for the post of DG after the PG degree.

14. Mr. Banerjee relies on the judgement of the Supreme Court in the case of Dr. Duryodhan Sahu & Ors. vs. Jitendra Kumar Mishra &Ors. [(1998)7 SCC 273] to argue that it is not for the Courts to substitute their views for that of the Selection Committees with regard to the eligibility criteria or suitability of a candidate. Relevant part relied upon is as follows:-

15. For the proposition that experience was not a post degree experience, reliance is placed on the judgement of the Division Bench of Madras High Court in Dr. S. Kathiroli vs. Govt. of India [(2011) SCC OnLine Mad 1494] particularly paras 19 & 20 which are as follows:-

16. Last but not the least Mr. Banerjee also questions the locus standi of the Petitioner in filing the present petition and submits that the petition is motivated and filed with mala fide intent and ought to be dismissed. Petitioner has not been able to establish his locus to challenge the impugned appointment inasmuch as neither he has any relationship with the Institute as a student or as a faculty nor was he a candidate aspiring for the Post of DG. The Petition is in the nature of Public Interest Litigation (PIL) in the garb of writ of quo warranto. It is a settled law that PIL cannot be filed in service law. It is vehemently contended that the Petitioner has been trailing and harassing Respondent No. 3 for reasons best known to him by filing frivolous and vilifying petitions before various Forums. Petitioner has already challenged the appointment of Respondent No. 3 to the post of Reader before the Jabalpur High court which is pending and thus challenge to appointment as a Reader is barred by the res judicata. The appointment was also challenged when respondent No. 3 was appointed as Reader in a University at Raipur, which later became infructuous. Petitioner has filed a petition before Punjab and Haryana High Court for quashing of the appointment of Respondent No. 3 to the Post of Vice-Chancellor in a State University at Rohtak. Mr. Banerjee has specifically drawn the attention of the Court to the observations made by the court in the order dated 22.03.2018, which are as follows:- “As per assertion, the petitioner is presently working as a Professor in Chitkara University, Punjab. Nowhere, the petitioner has been able to establish his locus standi in challenging the impugned appointment inasmuch as neither the petitioner, in any way, has been able to show his relation with the University as a student or as a faculty, nor it is his case that he was also a candidate for the said post. Having heard learned counsel for the petitioner and on perusal of the case file, it emerges that by way of the instant petition, the petitioner has tried to wreak personal vengeance against respondent No.3. This petition is ill conceived and nothing but an abuse of process of law. In “Kishore Samrite Vs. State of Uttar Pradesh and others”,(2013) 2 SCC 398, it was held as under:- “From the above specific averments made in the writ petitions, it is clear that both these petitioners have approached the Court with falsehood, unclean hands and have misled the courts by showing urgency and exigencies in relation to an incident of 3rd December, 2006, which, in fact, according to the three petitioners and the police was false, have thus abused the process of the Court and misused the judicial process. They maliciously and with ulterior motives encroached upon the valuable time of the Court and wasted public money. It is a settled canon that no litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wished. The privilege of easy access to justice has been abused by these petitioners by filing frivolous and misconceived petitions. On the basis of incorrect and incomplete allegations, they had created urgency for expeditious hearing of the petitions, which never existed. Even this Court had to spend days to reach at the truth. Prima facie it is clear that both these petitioners have misstated facts, withheld true facts and even given false and incorrect affidavits. They well knew that Courts are going to rely upon their pleadings and affidavits while passing appropriate orders. The Director General of Police, U.P., was required to file an affidavit and CBI directed to conduct investigation. Truth being the basis of justice delivery system, it was important for this court to reach at the truth, which were were able to reach at with the able assistance of all the counsel and have no hesitation in holding that the case of both the petitioners suffered from falsehood, was misconceived and was a patent misuse of judicial process. Abuse of the process of the Court and not approaching the Court with complete facts and clean hands, has compelled this Court to impose heavy and penal costs on the persons acting as next friends in the writ petitions before the High Court. This Court cannot permit the judicial process to become an instrument of oppression or abuse or to subvert justice by unscrupulous litigants like the petitioners in the present case.” In view of the above, the instant petition sans merit, and is accordingly dismissed with costs of Rs.50,000/- to be deposited with Punjab State Legal Services Authority, Punjab within a period of three months from the receipt of the certified copy of this order. The Registry is directed to send the certified copy of the order to the petitioner free of cost under registered A.D. Dismissed.”

17. I have heard the learned Additional Solicitor General and learned counsel for the petitioner.

18. The question that arises before the Court is if the facts of the present case warrant issuance of a writ of quo warranto.

19. The law that a writ of quo warranto lies for a violation of statutory provisions is well settled. In the case of Hari Bansh Lal v. Sahodar Prasad Mahto and Ors., (2010) 9 SCC 655 Supreme Court held as under:-

20. To the same effect are the observations of the Supreme Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply Board Employee’s Association & Ors. (2006) 11 SCC 731 (2) and Rajesh Awasthi v. Nand Lal Jaiswal and Ors. 2013 (1) SCC 501. Useful it would be to refer to a passage from the judgment in Rajesh Awasthi (supra) in which it was held that a writ of quo warranto can only be filed once the foundation is laid on violation of statutory provisions/rules. Relevant para is as follows:- “19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana [(2002) 6 SCC 269] held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy [(2006) 11 SCC 731 (2): (2007) 1 SCC (L&S) 548 (2)], this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bansh Lal [(2010) 9 SCC 655: (2010) 2 SCC (L&S) 771] wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy itself that the appointment is contrary to the statutory rules.”

21. As held by the Supreme Court in B.R. Kapur v. State of T.N., (2001) 7 SCC 231 quo warranto is a writ which lies against a person, who according to the relator is not entitled to hold an office of public nature and is only an usurper of the office. The said person against whom the writ is directed, is required to show, by what authority he is entitled to hold the office. The challenge can be laid on several grounds, including that the holder of the office does not have required qualifications or suffers from a disqualification which debars him from holding the office. At this stage, I may quote from Halsbury as follows:- “An information in the nature of a quo warranto took the place of the obsolate writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.”

22. In University of Mysore vs. C. D. Govinda Rao and Another, AIR 1965 SC 491, the Supreme Court held as follows:- “6…Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons, not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.”

23. The purpose of the writ of quo warranto is to protect the public from usurpers of public office, when they are not entitled to hold the office and therefore before a writ of quo warranto is filed the petitioner must satisfy the Court that the office in question is a public office and held by a person without legal authority which would then lead to an inquiry as to whether the appointment is in accordance with law or not. It is settled that while exercising jurisdiction under Article 226 of the Constitution, the High Court must at the outset determine whether a case is made out for issuance of a writ of quo warranto based on the limited parameter that the appointment challenged is contrary to statutory provisions.

24. This Court in Mr. S.N. Sahu v. Chairman, Rajya Sabha & Ors. being W.P.(C) No. 11146/2016, decided on 05.12.2016 held as follows:- “5. It is a settled law that a writ of quo warranto can be sought only if there is found to be violation of a statutory provision. This is so held by the Supreme Court in its various judgments and two such judgments are in the cases of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Assn. and Others, (2006) 11 SCC 731(2) and Rajesh Awasthi Vs. Nand Lal Jaiswal & Others (2013) 1 SCC 501. The relevant paragraphs of the judgment of the Supreme Court in the case of B. Srinivasa Reddy (supra) are paras 49, 57 and 60 which hold that a writ of quo warranto can only be filed if there is found to be violation of a statutory provision.

7. It is therefore clear that the present writ petition seeking reliefs in the nature of quo warranto is not maintainable because there is no pleading in the writ petition as to which statutory provision is violated in the appointments of Shri Ramacharyulu and Shri Mukul Pande. Prayer (a) therefore is misconceived and the writ petition is liable to be and is accordingly dismissed so far as prayer (a) is concerned”.

25. From the conspectus of the judgments referred above, it is clear that in order to succeed the petitioner has to make out a case that the appointment of respondent No.3 is in violation of the statutory provisions/Rules. A perusal of the writ petition shows that there is no averment in the petition that any statutory provision has been violated. The petitioner has primarily challenged the appointment on the ground that respondent No.3 does not meet the minimum eligibility criteria for appointment to the post of DG as per the Advertisement dated 13.06.2019, issued by IIMC. This is predicated on the ground that respondent No.3 acquired the Masters Degree in 1995-96 and the last date for submission of the application under the Advertisement being 19.07.2019, Respondent No.3 does not have the requisite 25 years experience. The other allegations relates to his allegedly not possessing a Ph.D. degree prior to his appointment as a Reader/Associate Professor followed by promotion as Professor. It is thus clear that in the absence of any averment as to the violation of any statutory provision, writ in the nature of quo warranto is not maintainable.

26. Although the principal contention of the learned Additional Solicitor General was that the present petition is not maintainable, there being no allegations of violation of statutory rules, yet it was pointed out that even on merits the appointment of respondent No.3 is in consonance with the Recruitment Rules and the Advertisement issued by IIMC. For the sake of completeness the Court is dealing with the said issue. From the arguments made it is evident that respondent No.3 completed his Bachelors of Arts in the year 1993 and started his career in Journalism in Print Media as a Sub-Editor at Dainik Bhaskar where he worked from 10.07.1994 till 07.08.1995. He completed his Bachelors in Journalism & Mass Communication in 1995 and Masters in the same subject in 1996. Between 10.08.1995 to February 1997 respondent No.3 worked in a Hindi dainik and thereafter in various other newspapers in various capacities. It is also reflected from the bio-data of respondent No.3 filed by the petitioner along with a compilation of judgments that respondent No.3 worked as a Reader in a University in Bhopal and was thereafter given a charge of Vice Chancellorship in the same University. Thus, if the experience is counted from 10.07.1994 till the last date of the application i.e. 19.07.2019, as rightly contended by the ASG, Respondent No.3 possesses the minimum experience of 25 years.

27. I also find force in the contention of the learned ASG that the ‘Essential’ qualification as per the Advertisement required the candidate to possess a good Masters degree and a minimum of 25 years experience in the field mentioned in the Advertisement. Reading of the Advertisement substantiates the stand of the respondents that the two requirements are disjunctive of each other and cannot be read conjunctively. It is not the requirement in the Advertisement that the 25 years experience must be post acquisition of the Masters Degree, as erroneously contended by the petitioner. The advertisement can only be read in the manner it is authored and it is not open to the Court or to the petitioner to read into the advertisement requirements of eligibility which do not exist. It is equally well settled that the author of the Advertisement is the best person to interpret its intent, requirements and implications.

28. A similar issue came up before a Division Bench of the Madras High Court in T. Lokachari v. Govt. of India, 2013 SCC Online Mad

129. The appellant therein had challenged the appointment of the 3rd respondent by filing a writ of quo warranto alleging that the appointment was contrary to statutory rules. The Rules in the said case relating to qualification and experience for the post of Director in the National Institute of Ocean Technology were as follows:- “Essential:- Doctorate in Science/ Engineering/ Technology, with over 20 years experience in teaching, research & technology development, with a minimum 5 years term as Head/Leader of an important technical/scientific programme or institution….”

29. The contention of the appellant before the Single Judge in the writ petition was that the respondent did not possess the requisite experience as he had acquired the Doctorate degree only in 1997 and therefore the period of experience shall be counted after the said date. The Single Judge held that the Appointing Authority while issuing the Advertisement had prescribed 20 years’ experience without specifically stating that the experience is to be counted only after acquiring the Ph.D. qualifications and therefore the petitioners were not justified in raising a contention to that effect. The qualification and experience should be satisfied by a candidate in terms of the Advertisement alone. While examining the judgement of the Single Judge, the Division Bench noted the contention of the appellant that the respondent had acquired the Doctorate Degree in 1997 and the period of experience shall be counted from the date of acquiring the Degree and rejected the said contention. The Court also observed as follows:-

30. In the present case as mentioned above the Advertisement does not specifically mention that the 25 years’ experience should be after acquiring the Masters Degree and therefore the contention of the petitioner in this regard cannot be accepted and the argument must fail.

31. The Court also accepts the contention of the learned ASG that Courts cannot while exercising powers of judicial review sit over the decisions of Expert Selection Committees. The fetters and limitations on the Courts to review actions of Selection and Appointment Committees and the limited window available in this field cannot be ignored. Principles laying down the strict parameters in interfering have been affirmed and re-affirmed in various judicial pronouncements. In this context, learned ASG has rightly relied on the observations of the Division Bench of this Court in Jose Meleth (supra), relevant paras of which have been extracted above.

32. In Jose Meleth (supra) the specific question posed by the Court was whether the person appointed to the post in question, whose appointment was challenged satisfied the basic minimum requirement under the relevant clause. The Division Bench while examining the issue in the background of its power of judicial review observed as follows:-

34. It would be very relevant at this stage to refer to the observations of the Supreme Court in the case of Basavaiah (Dr.) vs. Dr. H.L. Ramesh & Ors., (2010) 8 SCC 372, as follows:-

35. In the present case the candidature of respondent No.3 was first scrutinized by high powered Search-cum-Selection Committee which gave its recommendation on 24.02.2020 followed by an approval of the Appointments Committee of the Cabinet. There is no gainsaying that the Committee which carried out the selection would have scrutinized the eligibility as well as the merit of respondent No.3 before making the recommendation. The Committee constituted of the experts in the field with knowledge in the subject and was best equipped to decide whether respondent No.3 fulfilled the requirements of the Advertisement. In the absence of any allegations of mala fides it is not for this Court to interfere with the wisdom of the experts. I would only echo the observations of the Division Bench in Jai Singh Chauhan (supra) that Courts have a limited role to play while examining the recommendations of the Expert Selection Committees and it is prudent and safe to leave the decision to the Academician and experts in the field.

36. Insofar as the contention of the petitioner that respondent No.3 was appointed as a Reader without fulfilling the requisite qualifications, suffice would it be to note that the petitioner has already filed a writ petition bearing WP No.12660/2015 before the Jabalpur High Court challenging the appointment as Reader in a University at Bhopal, which is stated to be pending. In view of this it is not open to the petitioner to assail the said appointment in the present petition.

37. For all the aforesaid reasons, I find no merit in the present petition and the same is accordingly dismissed. Pending application also stands dismissed.