Hon'ble Mahesh Chandra Tripathi,J.
(Oral: Hon'ble M.C. Tripathi, J.) We have heard Shri Anil Tiwari and Shri Sanjeev Singh, learned counsel for the petitioners. Shri V.K. Upadhyay, Sr. Advocate assisted by Shri Ajit Kumar Singh appears for Banaras Hindu University. Shri R.K. Ojha, Sr. Advocate assisted by Ms. Harshita Raghuvanshi appears for Dr. Vandana Srivastava.
As in all the writ petitions, the validity of the selection proceedings held by the Banaras Hindu University, Varanasi for the post of Assistant Professor in different Departments is under challenge, the same are being decided by this common judgment.
The facts of Writ Petition No.14235 of 2014 are being taken as a leading case for deciding the writ petitions.
By this writ petition, the petitioner has prayed for following reliefs:-
"i. Issue a writ, order or direction in the nature of certiorari calling for the records of the selection proceedings pertaining to the post of Assistant Professor in the Department of Commerce so far as the same pertains to general category candidates, held on 31.01.2014 and further be pleased to quash the same so far the same pertains to respondent nos.6 to 10.
ii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to prepare the result of the selection proceedings held on 31.1.2014 strictly in accordance with Ordinance 11A of the University and the regulations namely University Grants Commission (Minimum qualifications for appointment of teachers and other academic staffs in Universities and colleges and measures for the maintenance of standards in Higher Education) Regulations 2010 as amended from time to time."
The present writ petition is directed against the selection proceedings dated 31.1.2014 held by the Banaras Hindu University, Varanasi (in short "the University"). The University is a Central University and is governed by the provisions of Banaras Hindu University Act and statute framed therein. The present matter pertains to appointment of Asstt. Professors, which is governed by Ordinance 11A framed by the BHU as amended from time to time.
Just to improve the teaching standards, the University Grants Commission (in short "UGC") has framed the regulations on minimum qualifications and for other measures namely "University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staffs in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (in short "the Regulations 2010") as amended from time to time. The said Regulation of UGC was adopted by the University vide resolution of the Executive Committee of the University dated 31.08.2010, which is reproduced as under:-
"Resolved that the orders of the Vice-Chancellor for adoption of UGC Regulations on minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standards in Higher Education, 2010 and the follow up actions taken in this regard be approved.
Resolved further that further follow-up actions as required in these Regulations be also initiated.
Resolved still further that UGC/ MHRD may be informed about discrepancies in qualification for Assistant Professor in Management where NET has not been prescribed as essential qualifications notwithstanding the fact that NET is conducted in Management.
Resolved still further that the Vice-chancellor be authorized to make the required changes in the short-listing guidelines for faculty position in the University as approved by Executive Council, in the light of the provisions of the new UGC Regulations, 2010."
As the University is funded by the UGC, therefore, the directives issued by the UGC are binding on the Banaras Hindu University.
As per the aforesaid Regulations and Ordinance of the University a rolling advertisement was issued by the University in the month of March, 2013 inviting applications from eligible candidates for 14 posts of Assistant Professors in the Department of Commerce out of which 05 posts were meant for general category candidates. As per the advertisement, this much is reflected that in consonance with the UGC Regulations and the Ordinance of the University, short-listing guidelines were also notified, which provides three level procedure for the selection, which for ready reference, is reproduced as under:-
"(i) The application shall firstly be placed before the Faculty Affairs Committee-Level-1 (FAC-1) which is constituted at the level of the department. The FAC-1 will make the assessment and award the marks.
(ii) The proceedings of FAC -1 shall be placed before Faculty Affairs Committee-Level-2 (FAC-2) which is the body for assessment at the second stage and constituted at the higher level of faculty. FAC-2 will again award marks and make a final list in order of merit and recommend the same to the Selection Committee for interview.
(iii) The records of FAC-2 shall be placed before the Selection Committee which shall hold the interview and thereafter final recommendation as per merit will be made."
As per the UGC Regulations, the method had been given for awarding the marks in Appendix-III Table-II (c), which for ready reference is also reproduced as under:-
"APPENDIX-III TABLE-II (c) Minimum Scores for APIs for direct recruitment of teachers in university department/ Colleges, Librarian/ Physical Education cadres in Universities/ Colleges, and weightages in Selection Committees to be considered along with other specified eligibility qualifications stipulated in the Regulation.
Assistant Professor/ equivalent cadres (Stage 1) Associate Professor/ equivalent cadres (Stage 4) Professor/ equivalent cadres (Stage 5) Minimum API Scores Minimum Qualification as stipulated in these regulations Consolidated API score requirement of 300 points from category III of APIs Consolidated API score requirement of 400 points from category III of APIs Selection Committee criteria/ weightages (Total Weightages=100)
a) Academic Record and Research Performance (50%)
b) Assessment of Domain Knowledge and Teaching Skills (30%)
c) Interview performance (20%)
a) Academic Background (20%)
b) Research performance based on API score and quality of publications (40%)
c) Assessment of Domain Knowledge and Teaching Skills (20%)
d) Interview performance: (20%)
e) Academic Background (20%)
f) Research performance based on API score and quality of publications (40%)
g) Assessment of Domain Knowledge and Teaching Skills (20%) Interview performance: (20%) Note: For universities/ colleges for which Sixth PRC Awards (vide Appendix 2) are applicable, Stages 1, 4 and 5 correspond to scales with AGP of Rs.6000, 9000 and 10000 respectively."
On the basis of aforesaid Appendix-III Table-II (c), it has been contended that it is manifestly clear that 50% marks is to be provided for academic record and research performance, which is to be assessed at the level of FAC-1; 30% marks is to be assessed on the basis of knowledge and teaching skills at FAC-II level. Thereafter, the marks obtained in FAC-1 and FAC-2 are to be transmitted by the Selection Committee at the time of interview and as such it is claimed that the discretion of Selection Committee is only for remaining 20% marks. The petitioner, who claims to be fully eligible for the said post had proceeded to apply on the prescribed formate along with academic qualifications. It is also claimed that the petitioner is holding M.Com. and Doctoral degree (Mergers and Acquisitions in Indian Banking Sector) from the BHU on 26.10.2010. The petitioner had appeared before FAC-1 and FAC-2 along with all candidates. Consequently, merit list was prepared and the recommendations were made on the basis of FAC-1 and FAC-2. It is averred that the petitioner had been recommended at the First position for interview on the basis of FAC-1 and FAC-2. The petitioner appeared in the interview on 31.1.2014.
Learned counsel for the petitioners alleged that from the stage of interview the manipulations were started by the respondents to oust the meritorious candidates and to favour their wards. This fact is apparent from the conduct of the respondents in dispatching the interview letters. From the interview letter dated 24.1.2014 issued in favour of Dr. Namrata Prakash of Dehradoon, it is apparent that she was required to appear before the Interview Board on 31.1.2014, but the same was dispatched on 27.1.2014 and which was served on 30.1.2014 resulting in denial of opportunity to appear before the interview board. Dr. Namrata Prakash was also recommended at the level of FAC-1 and FAC-2 and stood at merit position 33 in the category of general candidates for the interview.
The result of the Selection Committee was published on 5.2.2014 in which the respondent nos.6 to 10 were shown as selected. It has also been sought to be contended that as per the recommendations by FAC-1 and FAC-2, the merit position of the respondent nos.6 to 10 were 19,29,32, 34 and 39 respectively. It is contended that at the level of FAC-1 and FAC-2, the petitioner was at the top with 80% marks, and by no stretch of imagination the Selection Committee could select respondent nos.6 to 10 out of 20% marks, which were left open at the discretion of the Selection Committee.
Serious allegations have also been levelled against the selection of Vandana Srivastava- respondent no.9, who was permitted to participate for FAC-2 on 31.1.2014, the date on which the interview was to be held and which was not permissible as per the Rules and Regulations.
As per the record, this much is also reflected that 572 candidates applied for the post of Assistant Professor in the Department of Commerce for Post Code No.3978. After scrutiny by FAC-1 total 315 candidates were found qualified out of which 50 candidates were recommended to FAC-2. After scrutiny of all the details and credentials, FAC-2 had recommended only 40 candidates for the post in question from Sl.No.1 to 40.
It had also been contended on behalf of the petitioner that as per the Ordinance, the merit of FAC-1 is based on API (Academic Performance Indicator) Score (43%) and Quality Score (57%). Along with this score average marks, evaluation by the experts of the department and faculty is also required to be submitted before the Selection Committee. This evaluation is for the purpose of evaluating the candidate in personal interaction in classroom situation.
It is also alleged that though the proceedings of Selection Committee has already been filed by the University in its counter affidavit as Annexure No.CA-11 but the University has attempted a fraud upon the Court as the correct copy of the proceedings has deliberately not been filed. The said details have been obtained by the petitioner under the Right to Information Act and consequently it had been claimed that the name of the petitioner find place at wait listed candidate. It is contended that such deliberate attempt was made by the University not to provide the benefits of appointment to the petitioner.
Reliance has also been placed on the Ordinance of the University by which the Selection Committee has been empowered to recommend the name of more than the post advertised. University Ordinance 11A, VI-D clearly states that "the Selection Committee", if it thinks fit, may also recommend a panel of names in order of merit for appointment against the vacancies likely to occur during course of the years. The panel will remain operative for one year from the date of approval by the Executive Council." It is claimed that the said minutes of Selection Committee was approved on 05.02.2014 and remained operative till 04.02.2015.
In this background, Shri Anil Tiwari, learned counsel for the petitioner vehemently submitted that the malafide and arbitrariness of the University is apparent on the face of record. As per the record, this much is reflected that one Prof. S.P. Srivastava had to retire on 31.8.2014 and the University had subsequently proceeded to upload the said vacancy on BHU website. As per online roster, the said post was available to Asstt. Professor-unreserved category and as such once the post of Asstt. Professor was available on 1.9.2014 after retirement of Prof. S.P. Srivastava and the petitioner's name being in panel/ wait list, he must be appointed on the said post. Instead of giving appointment to the petitioner, the University has proceeded illegally in advertising the said post. The said advertisement dated 14.1.2015 has also been assailed by means of amendment application. It had been contended that the University had wrongly advertised the said vacancy, despite the fact that the petitioner was validly recommended by the Selection Committee and as such it was incumbent upon the University to provide appointment to the petitioner It is also submitted that the arbitrariness of the University is very much reflected as while preparation of the API score and quality score, the petitioner was deliberately given lesser marks intentionally in the quality score so that he could not get more than 70 marks, which could place the petitioner in the category of 'very bright candidate' as per the Ordinance. In this background, following discrepancies and anomalies, regarding marks awarded, have been pointed out by the petitioner:-
"a. Clause 1.3.4 of the Ordinance, which contemplates that the very bright candidate would be those who obtained a quality score of 70 or above on a 100 point scale.
b. The petitioner has been given 68.48 as quality score.
c. The petitioner has been given only 3 marks under the category of Books Published, whereas he is entitled for 12 marks for 4 published books as per shortlisting Guideline ( page 109 of supplementary affidavit).
d. In the Head of Quality of Publication the petitioner has been given 5 marks for "Other Non Indexed Journals". The petitioner is entitled for 7 marks as per shortlisting guidelines.
e. The petitioner has given the details of 2 Journals of which he is Editor/ Member of the Editorial Board in the application form. He has been given only 3 marks although he is entitled for 6 marks as per the shortlisting guidelines.
f. If the correct marks are given then the quality score would be more than 70 and the petitioner will become entitle to be categorized as 'very bright candidate'.
g. In case of Awdhesh Singh, respondent no.6 under the head of Quality of Publication, he has been given 15 marks for 'Other Non Indexed Journals' though for 5 Journals he is entiled for 5 marks and in this way his marks of quality score has been enhanced.
h. In case of Smt. Vandana Srivastava, Respondent No.9, she has been given 6 marks under the Head of "Rank Holders separate point for U.G. And P.G." Maximum marks in this category is 4 (as per the shortlisting guidelines). Smt. Vandana Srivastava is not entitled for any marks in this category as she has never been a topper either in the U.G. or P.G., which is clear from her records."
Shri Anil Tiwari, learned counsel for the petitioner has also vehemently opposed the candidature and appointment of Dr. Vandana Srivastava. As per the hard copy of application form of Dr. Vandana Srivastava, which was provided to the petitioner under the RTI Act, it is clear that the said application form fails to fulfil the required minimum details. Even her photograph was not pasted on the said form. Further it had been contended that FAC-1 while scrutinizing her credentials had clearly made mention "conditional no supporting document". In this background, necessary information had also been obtained from the University, wherein application forms of 274 candidates were rejected and under Column No.4 'remarks' reasons were recorded for the said rejections. From perusal of the rejected list of the candidates at Sl.Nos.11, 21, 22, 29, 55, 56, 81, 99, 130, 138, 150, 233 and 265, their forms were rejected due to 'incomplete details' but the form of Dr. Vandana Srivastava, though incomplete on the face of it, was deliberately not placed in the rejected list and consequently she had been offered appointment too. .
He has also vehemently contended that the recommendation of Selection Committee is per se bad and the same is affected on account of malice of respondent no.6 and 7.
He further submits that so far as academic qualifications of the petitioner-Dr. Brijesh Kumar Tiwari is concerned, his credentials have been scrutinized by FAC-1 and FAC-2 and only thereafter he had been permitted to appear before the Selection Committee.
Shri Sanjeev Singh, learned counsel for the petitioner also supported the submissions advanced by Shri Anil Tiwari but at the same time he has vehemently contended that from the stage of FAC-1 and FAC-2 this much is reflected that there was complete design to favour the selected candidates and inspite of the fact that the petitioners were recommended at the top by FAC-1 and FAC-2, even though at the time of interview, the Selection Committee having discretion only to the extent of 20%, in utter violation to the Regulations and Ordinance of the University, has used their discretion for selection of candidates ignoring the marks awarded by FAC-1 and FAC-2. Even though it was paramount responsibility of the Selection Committee to select the best candidates but instead of best candidates they have compromised and given appointment to the candidates, those have scored very less marks on FAC-1 and FAC-2 stage. As there is trust deficit in the whole selection process, the same is liable to be set aside and this Court should come to rescue and reprieve of the petitioner.
Per contra, Shri V.K. Upadhyay, Sr. Advocate assisted by Shri Ajit Kumar Singh, learned counsel for the University has vehemently opposed the writ petition and contended that in the present matter the API score and Quality Score were given as per the prescribed guidelines and the whole selection process is in consonance with the the U.G.C. Regulations, 2010; UGC (2nd Amendment) Regulations, 2013 and Ordinance 11.A.1. The same was assessed by the Faculty Affairs Committee Level-1 (FAC-1) without insisting any kind of percentage of marks. On the basis of API score and Quality Score, a merit list was prepared of all the qualified candidates and 10 candidates per vacancy strictly in order of merit were shortlisted and sent to FAC-2 for further consideration. The FAC-2 recommended 8 names of candidates per vacancy to be called for interview. It is submitted that API score is applied for screening purpose only and will have no bearing on expert assessment of candidates in direct recruitment/ CAS in terms of the provisions as contained under UGC (2nd Amendment) Regulations, 2013. The petitioners have wrongly presumed the UGC Guidelines 2010 for giving 50% weightage to academic record and 30% weightage to domain knowledge and teaching skill. They are meant for the Selection Committee making the final selection and not FAC-1 and FAC-2, which have only to make assessment based on objective verifiable criteria stipulated in Short-Listing Guidelines. Once the FAC-1 and FAC-2 stage is over, the Selection Committee would have discretion to assess the candidate objectively. Consequently, it had been pleaded that the Selection Committee would have absolute discretion to assess the suitability of a candidate for the post and FAC-1 and FAC-2 stages are only meant for short listing. As per the record, this much is reflected that huge number of candidates had applied for the post in question and the University had put tremendous effort in scrutinizing the credentials and track record as per the provisions contained in FAC-1 and FAC-2 and at no point of time the University has vitiated the guidelines enunciated by the U.G.C. Regulations, 2010; UGC (2nd Amendment) Regulations, 2013 and Ordinance of the University.
Shri V.K. Upadhyay, learned senior counsel has submitted that API score and quality score are applied only for the purposes of screening and will have no bearing on expert assessment of candidates in the direct recruitment/CAS in terms of the provisions contained in UGC (2nd Amendment) Regulations, 2013, which clearly provides that the assessment of candidates is to be strictly based their academic performance, research performance, domain knowledge, teaching skills and interview performance and the Selection Committee had given due weightage to each parameters as prescribed by UGC.
He vehemently opposed the contention advanced by Shri Anil Tiwari to the effect that there was certain design in it and extra benefit had been conferred to Dr. Vandana Srivastava. He contended that the presentation and personal interaction of Dr. Vandana Srivastava was ensured on 31.1.2014 as per the guidelines prescribed in Clause III 1.4 of sub-clause (vii) of Ordinance 11.A.1, which is reproduced as under:-
"(vii) Those, who are not able to be available for visit or video-conferencing within the desired period, may visit the Department later at their convenience upto a day prior to the selection committee meeting and their cases shall also be evaluated by FAC-1. Applicants not having the interaction/ presentation may not be considered by the Selection Committee for interview."
It is submitted that the schedule of presentation and personal interaction depends on the mutual convenience of the applicant and FAC-1, though having the interaction prior to interview is mandatory. It is further submitted that the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 was adopted and approved by the Executive Council on 31st August, 2010. Reliance has been placed in Ordinance 11.A.1, which prescribes the following provisions for procedure of short-listing of applications under Clause III 1.4 (xi):
"III 1.4 (xi): The FAC-1 shall prepare the final merit in order of the short-listed candidates based on the API score, reference letters and Quality Score. The said components shall have following relative weightages for deriving the overall score of a candidate/ applicant:
(a) API score:30%
(b) Reference letters:30%
(c) Quality score:40%.
Subsequently, the score of the reference letters:30% has been deleted from the above parameters and it was modified as under:-
"III 1.4 (xi) : The FAC-1 shall prepare the final merit in order of the short-listed candidates based on the API score, reference letters and Quality Score. The said components shall have following relative weightages for deriving the overall score of a candidate/applicant:
(a) API score:43%
(b) Quality score:57% Shri V.K. Upadhyay, learned Senior Counsel further submits that in exercise of the powers conferred under clause (e) and (g) of sub-section (1) of Section 26 of University Grants Commission Act, 1956, the UGC under 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) (2nd Amendment) Regulations, 2013 amended and submitted the following provisions under the Clause 6.1.0 of the 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, 2010:-
"6.1.0 The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/ her performance on a scoring system proforma based on the Academic Performance Indicators (API) as provided in this Regulations in Table I to IX of Appendix III.
Provided that API scores will be used for screening purpose only and will have no bearing on expert assessment of candidates in Direct/Recruitment/CAS.
Provided also that the API score claim of each of the sub-categories in the Category-III (Research and Publications and Academic contributions) will have the following cap to calculate the total API score claim for Direct Recruitment/CAS:
Sub-Category Cap as % of API Cumulative score in application III(A) Research papers ( Journals etc.) 30.00% III (B) Research publications ( Books etc) 25.00% III(C) Research Projects 20.00% III(D) Research Guidance 10.00% III(E) Training Courses and Conferences/Seminar etc. 15.00% In order to make the system more credible, university may assess the ability for teaching and/ or research aptitude through a seminar or lecture in a class room situation or discussion on the capacity to use latest technology in teaching and research at the interview stage. These procedures can be followed for both direct recruitment and CAS promotions wherever selection committees are prescribed in these Regulations."
The UGC (Minimum Qualification for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education), Regulations,, 2010 under Appendix-III Table-II(c) prescribed the following provisions:
Minimum Scores for APIs for direct recruitment of teachers in university departments/ Colleges, Librarian/ Physical Education cadres in Universities/ Colleges, and weight-ages in Selection Committees to be considered along with other specified eligibility qualification stipulated in the Regulations.
Assistant Professor/ equivalent cadres ( Stage-1) Assistant Professor/ equivalent cadres ( Stage-4) Professor/ equivalent (Stage-5) Minimum API Scores Minimum Qualification as stipulated in these regulations Consolidated API scores requirement of 300 points from category III of APIs Consolidated API scores requirement of 500 points from category III of APIs Selection Committee criteria/ weightages ( Total=100)
a) Academic Record and Research Performance ( 50%)
b) Assessment of Domain Knowledge and Teaching Skills ( 30%)
c) Interview performance ( 20%)
a) Academic Background (20%)
b) Research performance based on API score and quality of publications (40%)
c) Assessment of Domain Knowledge and Teaching Skills (20%)
d) Interview performance (20%)
e) Academic Background (20%)
f) Research performance based on API score and quality of publications (40%)
g) Assessment of Domain knowledge and Teaching Skills (20%)
h) Interview performance (20%) It is submitted that from the above it is ample clear that these guidelines for giving weightages are for the Selection Committee and not FAC-1 and FAC-2, which are performing the short-listing based on the short-listing guidelines. Therefore, considering his shortlisting merit as merit in the Selection Committee is erroneous. The FAC-2 has recommended 40 names of the candidates strictly in order of merit to be called for interview by the Recruitment & Assessment Cell. This short-listing score was used only for short-listing of candidates to be called for interview and it was not used for expert assessment of candidate by the Selection Committee for direct recruitment of the post of Assistant Professor. Similarly, the FAC-1 has also sent the average score of the presentation and personal interaction so received by an applicant/ candidate for use of the Selection Committee. The aforesaid average score of each candidates shortlisted for interview were placed before the Selection Committee for its use.
On overall assessment of (I) Academic record and Research Performance (ii) Domain Knowledge and Teaching Skill (iii) Interview Performance as well as average score of the presentation and personal interaction was made by the duly constituted Selection Committee in the interview giving due weightage to three parameters, five candidates were recommended for appointment to the post of Assistant Professor in Commerce (General Category) in the Faculty of Commerce, BHU. Weightage score sheet was prepared by the Selection Committee in its meeting held on 31.1.2014 for the post of Assistant Professor in Commerce, as the proceedings of Selection Committee are in-camera and records of discussions and/ or score of the candidates against each parameter are not maintained for the sake of confidentiality. Only the final recommendation of the Selection Committee are drafted as minutes.
Shri Upadhyay, learned senior counsel has submitted that the allegations levelled regarding the anomalies and discrepancies while giving marks to the petitioners, which have been highlighted by the Shri Anil Tiwari, is purely an human error. So far as the favouritism part is concerned, he has contended that the petitioner -Shri Brajesh Kumar Tiwari was an internal candidate, whereas Dr. Vandana Srivastava is absolutely outsider, and therefore the said allegation cannot be held to be justified.
Shri V.K. Upadhyay, Sr. Advocate has also raised an issue regarding the petitioner's minimum eligibility and has placed reliance on Para 3.3.1 of the UGC Regulations, 2010, which reads as under:-
"3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professor in universities/ college/ institutions:
Provided, however, that candidates, who are or have been awarded a PhD degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of PhD Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/ SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in universities/ college/ institutions."
In support of his contentions, he has also placed reliance on the judgment passed by Hon'ble Apex Court in P. Suseela & Ors. v. University Grants Commission & Ors., (2015) 8 SCC 129. As per the said judgment the UGC opined that all candidates having Mphil degree on or before 10.07.2009 and all persons who obtained the PhD degree on or before 31.12.2009 and had registered themselves for the PhD before this date, but are awarded such degree subsequently shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/ Assistant Professor. The Central Government vide letter dated 3.11.2010 informed UGC that they were unable to agree with the decision of the Commission and stated that consequently a candidate seeking appointment to the post of Lecturer/ Assistant Professor must fulfil the minimum qualifications prescribed by UGC including the minimum eligibility condition of having passed NET test. The said objections have been answered by Hon'ble Apex Court in P. Suseela (Supra), the operative portion of which is reproduced as under:-
"23. We have already pointed out how the directions of the Central Government under Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also pointed out that the regulation making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government.
24. The Allahabad High Court adverted to an expert committee under the Chairmanship of Professor S.P. Thyagarajan which laid down that if six out of eleven criteria laid down by the Committee was satisfied when such University granted a Ph.D. degree, then such Ph.D. degree should be sufficient to qualify such person for appointment as Lecturer/Assistant Professor without the further qualification of having to pass the NET test. The UGC itself does not appear to have given effect to this recommendation of the Thyagarajan Committee. However, the High Court thought it fit to give effect to this Committee's recommendation in the final directions issued by it. When the UGC itself has not accepted the recommendations of the said Committee, we do not understand how the High Court sought to give effect to such recommendations. We, therefore, set aside the Allahabad High Court judgment dated 6th April, 2012 in its entirety.
25. In SLP (C) NO.3054-3055/2014, a judgment of the same High Court dated 6th January, 2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter which causes us some distress. A Division Bench judgment of the same High Court is binding on a subsequent Division Bench. The subsequent Division Bench can either follow it or refer such judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate the manner in which this subsequent judgment, (even though it has reached the right result) has dealt with an earlier binding Division Bench judgment of the same High Court. In fact, as was pointed out to us by learned counsel for the appellants, the distinction made in paragraph 20 between the facts of the earlier judgment and the facts in the later judgment is not a distinction at all. Just as in the 2012 judgment Ph.D. degrees had been awarded prior to 2009, even in the 2014 judgment Ph.D. degrees with which that judgment was concerned were also granted prior to 2009. There is, therefore, no distinction between the facts of the two cases. What is even more distressing is that only sub para 4 of the conclusion in the 2012 judgment is set out without any of the other sub paragraphs of Paragraph 104 extracted above to arrive at a result which is the exact opposite of the earlier judgment. This judgment is also set aside only for the reason that it did not follow an earlier binding judgment. This will, however, not impact the fact that the writ petitions in the 2014 judgment have been dismissed. They stand dismissed having regard to the reasoning in the judgment delivered by us today. In view of this pronouncement, nothing survives in Contempt Petition Nos. 286-287 of 2014 which are disposed of as having become infructuous. The other appeals from the Delhi, Madras and Rajasthan High Courts are, consequently, also dismissed. There shall be no order as to costs."
It is submitted that in the present matter, admittedly the University had conferred the degree to Dr. Brijesh Kumar Tiwari after the cut off date fixed by UGC and therefore, he was not eligible for the said post as per judgment in P. Suseela (Supra).
Lastly, it is submitted that the petitioners have still alternative and efficacious remedy for the redressal of their grievances by making an appeal to the Executive Council and also the President of India in the capacity to the Visitor of the Banaras Hindu University, which they have not availed.
Shri R.K. Ojha, learned Senior Counsel assisted by Ms. Harshita Raghuvanshi, learned counsel for Dr. Vandana Srivastava- contesting respondent no.9 has also vehemently opposed the writ petition and contended that pursuant to the advertisement the contesting respondent no.9 had proceeded to apply on the post in question. After due process and scrutiny as per the Ordinance of the University, interview letter was issued in her favour on 24.1.2014. The University had also informed her about the personal interaction and seminar presentation fixed on 28.01.2014 and she had participated in it. Thereafter, she had also appeared in the interview. The Selection Committee has recommended the name of respondent no.9 for appointment on the post of Assistant Professor in Commerce Faculty of Banaras Hindu University, Varanasi, which was duly considered by the Executive Council of the University in its meeting on 5.2.2014. Accordingly, appointment letter was issued in her favour on 6.2.2014 and she had joined the institution on 14.2.2014 and she is working since then and getting her salary. It is further contended that the respondent no.9 is duly qualified for appointment on the post in question. She has possessed NET qualification and has been awarded Doctorate in commerce. She has also completed Master of Business Administration.
He has further contended that the API score is applied for screening purpose only and will have no bearing on expert assessment of the candidates in direct recruitment/ CAS in terms of provisions as contained in UGC (2nd Amendment) Regulations, 2013.
Shri Ojha, learned Senior Counsel has corroborated the submissions advanced by Shri Upadhyay, learned Senior Counsel. He submits that on the basis of API score and quality score, a merit list was prepared. The API score is applied for screening purpose only and will have no bearing on expert assessment of candidates in direct recruitment/ CAS in terms of the Regulations. The interview letter had been issued well within time to respondent no.9 and pursuant thereto she appeared before the Interview Board. Reliance has also been placed on Clause III, 1.4 of sub-clause (vii) of Ordinance 11.A.1, which has been reproduced above.
Heard rival submissions and perused the record.
From the perusal of record, we find that the API score and Quality Score were given as per the prescribed guidelines and the whole selection process is in consonance with the Regulations and Ordinance. The same was assessed by FAC-1 and FAC-2. FAC-1 and FAC-2 stages are only meant for short listing. Once the FAC-1 and FAC-2 stages are over, the Selection Committee would have discretion to assess the candidate objectively.
As per the constitution of Selection Committee it is apparent that the same was constituted inclusive of visitors nominee. Once the high level selection committee was constituted for selecting the candidate, then in absence of grave material on record, the entire selection process would not vitiate. There is no material, which could indicate that at any point of time the Selection Committee had proceeded to select any candidate with ulterior motive, which is not subscribed in law. Moreover this is admitted fact that all the petitioners except Ravindra Narayan Tiwari had appeared at FAC-1 and FAC-2. They were all selected and appeared in the interview but finally could not succeed, therefore, at this stage, in the light of the judgment in Madras Institute of Development Studies & Anr. v. Dr. K. Sivasubramaniyan & Ors., JT 2015 (7) SC 350, the objection cannot sustain. In the said judgment, Hon'ble the Apex Court held that the selection process challenged in the writ petition by unsuccessful participants, having participated in selection process without objection, cannot be challenged after final result.
It is necessary to indicate that there is exhaustive methodology and guidelines provided for short listing the candidates by which procedure have been given for short listing the applications to be called for interview before the selection committee and for which stages of FAC-1 and FAC-2 have been provided.
From the record in question, we find that certainly there were certain human errors while processing the credentials at the level of FAC-1 and FAC-2 but once admittedly each and every petitioners were given opportunity to face the selection committee, then we do not find any infirmity or illegality, which are highlighted, at the level of FAC-1 and FAC-2, which would vitiate the entire selection process.
It is clear from the affidavit filed by the University that the Expert Committee had carefully examined and scrutinised the qualification, experience and published work of the incumbents before selecting them for the posts in question. We do not find ourselves justified in sitting in appeal over the unanimous recommendations of the Expert Committee. The Expert Committee had infact scrutinised the merits and demerits of each candidate including qualification and the equivalent published work and its recommendations were sent to the University for appointment, which were accepted by the University.
It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the respective field. In Central College, Bangalore in University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 the Constitution Bench of Hon'ble Supreme Court unanimously held that normally the Court should be slow to interfere with the opinions expressed by the experts particularly in a case when there is no allegation of malafides against the experts, who had constituted the Selection Board. Hon'ble the Apex Court further observed that it would normally be wise and safe for the courts to leave the decisions of academic matters to the experts, who are more familiar with the problems they face than the courts generally can be.
In Dr. J. P. Kulshrestha & Others v. Chancellor, Allahabad University & Others (1980) 3 SCC 418, Hon'ble the Apex Court observed that the court should not substitute its judgment for that of academicians:
"17. Rulings of this Court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. ... ... ..."
In Maharashtra State Board of Secondary and Higher Secondary Education & Another v. Paritosh Bhupeshkumar Sheth & Others (1984) 4 SCC 27, it was observed:
"29. ... As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. .. ... ..."
In Neelima Misra v. Harinder Kaur Paintal & Others (1990) 2 SCC 746, the Apex Court observed that in the matter of appointments in the academic field, the court generally does not interfere. The court further observed that the High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor had acted.
In Bhushan Uttam Khare v. Dean, B.J. Medical College & Others (1992) 2 SCC 220, the Apex Court reiterated the same legal position and observed as under:
"8. ... the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice. ... ... ..."
In Dalpat Abasaheb Solunke & Others v. Dr. B.S. Mahajan & Others (1990) 1 SCC 305, it is observed as under:
"... ... ...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."
In Chancellor & Another etc. v. Dr. Bijayananda Kar & Others (1994) 1 SCC 169, the Supreme Court observed as under:
"9. This Court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a candidate fulfils the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection...."
We have respectfully considered the aforesaid judgments and find that the courts have a very limited role particularly when no malafide has been alleged against the experts constituting the selection committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realize and appreciate its constraints and limitations in academic matters.
So far as the question whether a person in the wait list against the existing vacancy should be appointed or not and the period for which such a wait list shall be operative, it is a policy decision and is within the administrative authority of the University. It is always open to the University to take a policy decision in this regard. In this regard, it is useful to refer the Division Bench judgment in Brij Mohan v. State of U.P. & Ors., Writ Petition No.41612 of 1998 decided on 18.1.2002, in which the Court held as under:-
"We do not agree with this submission for the simple reason that the G.O. dated 31.1.1994 clearly mentions that the waiting list will only survive beyond one year if within that period of one year the concerned department requests to send the names from the waiting list. In the present case the concerned department wanted 63 names from the waiting list and these were supplied by the Commission. No further intimation was sent by the concerned department within one year and hence the waiting list has been exhausted. In our opinion, the waiting list has come to an end after the expiry of one year and the same cannot be utilized now FIR filling up more vacancies. These vacancies can now only be filled up by another examination held by the Commission."
Same view has been taken by this Court in Arjun Prasad Pathak and ors vs. the State of UP and ors, Civil Misc. Writ Petition No.1204 of 1998 decided on 31st October, 2002.
A wait list candidate has no right to seek appointment, if the employer has not chosen to make such an appointment. In Sri Kant Tripathi v. State of U.P., AIR 2001 SC 3757, it was held:-
"An applicant, whose name appears in the wait list, does not get an enforceable right for being appointed to a post...."
In the case of U.P. Public Service Commission, Allahabad & Anr. v. State of U.P. & Anr., 2007 (5) ADJ 280 (DB), it was held:-
"A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list."
From the aforesaid decisions, it is evident that a wait list candidate can seek appointment only if such a provision has been made under the Rules or an executive order having force of law or the scheme of appointment enforced by the authorities provide for making appointment from the wait list. However, it is neither obligatory nor mandatory for the employer to prepare simultaneously a wait list or to keep a wait list intact as and when any selection is made besides the select list, unless a provision is made making it obligatory to prepare a wait list. Whereas admittedly no wait list has ever been prepared by the University.
So far as the objections raised regarding eligibility and qualification of the petitioner is concerned, we proceed to make a mention that as per the provisional certificate issued by University to Dr. Brajesh Kumar Tiwari appended at page 79 of the writ petition, this much is reflected that the certificate has been issued by the Controller of Examination on 11.11.2010 awarding degree of Doctor of Philosophy in Commerce for the year 2009. The said degree was awarded by the Research Degree Committee (Faculty of Commerce) in its meeting held on 27.10.2010. The certificate further mentions that the degree (diploma) will be issued to him on the occasion of the next convocation of the university. As such this much is reflected that if the Research Degree Committee (Faculty of Commerce) in its meeting held on 27.10.2010 had accorded the degree of Doctor of Philosophy in Commerce to the petitioner then definitely the said date is subsequent to the cut off date as per the judgment in P. Suseela (Supra) and as such the petitioner does not hold the requisite qualification.
So far as allegations levelled against the members of the Screening Committee are concerned, we do not find any substance in this argument. Only some minor human errors were found. Hon'ble the Apex Court in B. C. Mylarappa @ Dr. Chikkamylarappa Vs. Dr. R. Venkatasubbaiah & Ors. (2008) 14 SCC 306 has held that in the absence of any rule or regulation requiring the Selection Committee to record reasons, a decision taken by a Selection Committee without recording reasons would not be subject to a judicial review.
So far as the contention that the Screening Committee had not assigned any marks at the interview, therefore, the University had fouled the selection process by not adhering to the norms notified by UGC on 18th September, 2010, it is relevant to indicate that the UGC Regulation dated 18th September, 2010 was amended by a Regulation dated 13th June, 2013, which did away with the requirement of allotting any marks at an interview. The Regulations stipulated that the API scores are for the purposes of screening only and it would have no bearing on expert assessment of candidates at the stage of interview. Since the regulation in question does not warrant any marks to be allocated at the interview, the grievance of the petitioner which is founded on the regulation of the year 2010 is not sustainable in law in view of the law declared by the Supreme Court in B.C. Mylarappa's case (supra).
The purpose of screening is to eliminate unsuitable or unqualified candidates from the selection process. In the screening the unqualified candidates are eliminated on the basis of information given in the application form. Obviously the preliminary screening should be conducted by some one, who inspire confidence.
Ordinance 11.A.1 clearly prescribes the provisions for procedure of short-listing of applications under Clause III 1.4 (xi) and as such the FAC-1 shall prepare the final merit in order of the short-listed candidates based on the API score, reference letters and Quality Score. The said components shall have relative weightages for deriving the overall score of a candidate/ applicant namely (a) API score :30% (b) Reference letters: 30% and (c) Quality score : 40%. Subsequently the score of reference letters:30% has been deleted from the above parameters and relative weightages for deriving the overall score of a candidate/ applicant were provided as (a) API score : 43% and (b) Quality score: 57%. As such the purpose of FAC-1 is to ensure the final merit in order of short-listed candidates based on API score and quality score. After the short-listing of FAC-1, the details have to be furnished/ sent to FAC-2 for further consideration. Therefore, it is apparent that the FAC-1 and FAC-2 are entirely distinct stages and as per the Regulations of 2010 and Regulations of 2013 exhaustive procedure has been provided to process the credentials and track record of a candidate. As such the FAC-1 and FAC-2 stages are only meant for assessment based on objective verifiable criteria stipulated in Short-Listing Guidelines. Once FAC-1 and FAC-2 stages are over, the Selection Committee would have discretion to assess the candidate objectively and there is no ambiguity as such. The Regulation of 2010 and Regulations of 2013 clearly provides that FAC-1 and FAC-2 are meant for definite purpose and once the purpose has been achieved i.e. short-listing of candidate, the entire material is to be transmitted to the Selection Committee, which would have discretion to assess the candidates objectively.
We find that in the present matter at the stage of FAC-1 and FAC-2 the Regulations and Ordinance of the University clearly provides that at both the stages the eminent scholars being as Committee Members are entrusted with the job to screen out the best candidates. After the stages of FAC-1 and FAC-2 are over, the Selection Committee has exercised its discretion to assess the candidate objectively and the same cannot be subjected to judicial scrutiny.
So far as Ravindra Narayan Tiwari (the petitioner in Writ Petition No.2774 of 2016), who has not even attempted FAC-1 and FAC-2, is concerned, he has challenged the guidelines for shortlisting the candidates to be called for interview. In pith and substance, he is challenging the Regulations of 2010 and Regulations of 2013. As narrated above, since there is exhaustive procedure provided for selection procedure by UGC by way of Regulations of 2010 and Regulations of 2013 just to improve the teaching standards of the Universities, as such, we do not find any infirmity or illegality in the said Regulations and, therefore, the arguments advanced by learned counsel in this regard is unsustainable and accordingly rejected. Once we have refrained ourselves to interfere in the selection proceedings, therefore, Shri Ravindra Narayan Tiwari is also not entitled to get any relief and reprieve, as prayed for, from the Court.
In view of above, we do not find any illegality or infirmity in the selection proceedings in question and no interference is required under Art. 226 of the Constitution of India. The writ petitions sans merit and are accordingly dismissed.
Order Date :- 12.04.2016 SP/