Hon'ble Jayant Banerji,J.
(Delivered by Hon'ble B. Amit Sthalekar, J.) The petitioner in the writ petition is seeking quashing of the selection proceedings/appointments of Respondents no. 7 and 8 on the post of Assistant Professor, Biotechnology, IIDS, University of Allahabad, held pursuant to the Advertisement No. 1 of 2012, as well as the result declared by the Selection Committee on the basis of the meeting held on 27.4.2013 and 28.4.2013 in the Committee room of the Vice-Chancellor's Office, with a further prayer to appoint the petitioner on the basis of merit on the post of Assistant Professor, Biotechnology, University of Allahabad.
The facts of the case as stated in the writ petition, briefly, are that three vacancies of the post of Assistant Professor, Biotechnology were advertised through Advertisement No. 1 of 2012 by the University of Allahabad out of which two posts were to be filled in the OBC category and one in the SC category. The petitioner applied under the OBC category under the advertisement for the post of Assistant Professor, Centre for Biotechnology, IIDS, University of Allahabad. Along with other candidates Respondent no. 7-Dr. Ashish Kumar Singh and Respondent no. 8-Dr. Awadh Bihari Yadav also applied for the same post under the OBC category.
The educational qualifications of the petitioner as stated in the writ petition are as under :-
S.No.
Qualification Board/University Year of passing Percentage (%)
1. High School ICSE Board 1995 55.0
2. Intermediate CBSE Board 1998 61.04
3. B.Sc. in Microbiology Bangalore University 2001 55.84
4. M.Sc. in Biotechnology Bangalore University 2003 58.06
5. M.Phil in Biotechnology on the topic "RAPD Molecular Marker Studies in Anticancer Drug Plants"
Periyar University 2008 71.25
6. Ph.D in Biotechnology on the topic "RAPD Molecular Marker Studies in Anticancer Drug Plants"
Vinayaka Missions University 2010
--
The petitioner has also obtained fellowship degrees as mentioned below:-
1. Fellow of Society of Sciences (F.S.Sc)
2. Fellow of Society of Environmental Sciences (F.S.E.Sc.)
3. Fellow of International Society of Ecology (F.I.S.E.C.)
4. Fellow of International Society of Biotechnology (F.I.S.B.T).
According to the petitioner he also possessed professional skills in areas of Biotechnology, namely:-
1. Molecular Biology and Genetic Engineering,
2. Microbial and Immumo Technology
3. Animal and Plant Biotechnology The petitioner has also attended training in the following:-
1. RAPD Fingerprinting/PCR Technique from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka;
2. Production Technology of Mushroom from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka;
3. Medicinal & Aromatic Plants used in home remedies from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka;
4. P.G. Diploma in Molecular Biology & Recombinant DNA Technology from Sangene Biotech, Tumkur & Kuvempu University, Karnataka;
5. P.G. Diploma in Plant Biotechnology, Sangene Biotech, Tumkur & Kuvempu University, Karnataka;
6. Diploma in Computer Application, MS-Office, Windows, MS.DOS, Internet, E-mail, etc. According to the petitioner in his resume he has also mentioned that he has published 35 research papers out of which 8 are at international level and 27 at national level and has attended and presented research papers in 92 conferences : 21 international level and 71 national level, he has helped/guided 13 students in getting M. Phil degree and also guided 8 students in getting Ph. D. Degree. He has 24 awards to his credit out of which 8 are state awards, 9 national awards, 7 young/best/junior scientist awards with 2 gold medals. He is also stated to have completed one project of Major Department of Biotechnology (DBT), Government of India. He has compiled 5 e-books and is also having 10 years experience in teaching and research.
According to the petitioner as per the University Grants Commission Regulation, 2010 under Category-III:-Research and Academic Contributions, the minimum points required for Assistant Professor is 200. The petitioner only required 200 points for selection but in his research and academic contributions he has obtained API 767.50 (and not 2009) points at the time of applying, which is much more than what was required.
The submission is that in spite of having such excellent qualifications he has not been selected. When the petitioner sought information under the RTI the same was not provided to him and therefore, he filed Writ Petition No. 63893 of 2013 (Dr. Rabin Chandra Paramanik Vs Union of India and others) in this Court which was disposed of by order dated 22.11.2013 with a direction to the University to provide necessary information to the petitioner.
In the meantime the respondents no. 7 and 8 were appointed as Assistant Professor, Centre for Biotechnology, IIDS, University of Allahabad.
According to the petitioner the select list of persons called upon for interview consisted of 25 candidates out of which 8 were absent and only 17 appeared for interview and out of these 17 the name of the petitioner stood at serial no. 9 and the names of respondent no. 7, Dr. Ashish Kumar Singh and of respondent no. 8, Awadh Bihari Yadav stood at serial no. 3 and 4 in the OBC category.
The educational and academic qualifications of respondents no. 7 and 8 have been quoted in para 23 and 24 of writ petition which may be reproduced herein as the respondents were required to file counter affidavit specifically with response to the allegations made in these paragraphs.
"23. That according to the brief resume/application form of the respondent no.7, his qualification is that:-
i) The respondent no. 7 had applied under OBC category for the appointment on the post of Assistant Professor, specialization in Microbiology and Immunology, and not at all for Centre of Biotechnology while it was a post of Assistant Professor, Centre of Biotechnology as per the advertisement published by the University. It appears that the 'Centre of Biotechnology' has been subsequently added after thought and consultation with collusion of the University Authorities otherwise the entire form was filled up by typing and there was no handwriting at all. Whereas, the petitioner had applied under OBC category for the appointment on the post of Assistant Professor, specialization in Biotechnology.
ii) The respondent no.7 has passed M.Sc. in the subject of Biochemistry. While for the appointment on the post of Assistant Professor in Biotechnology, the candidates should have possessed M.Sc. in Biotechnology, but the respondent no.7 has passed M.Sc. in Biochemistry which is not even a branch of 'Biotechnology', therefore, the respondent no.7 is missing the basic qualification as required. Whereas, the petitioner has passed M.Sc. in Biotechnology.
iii) The respondent no.7 have Ph.D in the topic of 'Molecular Basis of Cold Adaptation in Psychrophilic Bacteria Identification of Genes Require for Growth at Low Temperature' which is a topic of Biochemistry/Microbiology but not having Ph.D. in 'Biotechnology'. Whereas the petitioner having Ph.D. in Biotechnology on the topic of 'RAPD Molecular Marker Studies in Anticancer Drug Plants.'
iv) The respondent no.7 having no experience of teaching in P.G. Classes and U.G. Classes but only having 3.7 years research experience. Whereas, the petitioner having experience of 10 years in teaching and research, in this respect, he has submitted documentary evidence along with his brief resume but the same was not considered.
v) The respondent no.7 at item no. 18 of the application form which is 'Fields of Specialization under the subject/discipline' has mentioned five subjects i.e. Microbiology, Immunology, Molecular Biology, Cancer Biology and Biochemistry. The aforesaid five subjects is not related to the Biotechnology and related to the Biochemistry, even then, the respondent no.6 Selection Committee has appointed the respondent no.7 as Assistant Professor in Biotechnology.
vi) The respondent no.7 has published 8 research papers and he has no record in respect of research project and consultancies. Whereas the petitioner has published 35 research papers out of them 8 at international level and 27 at national level and he has completed one major research project from Department of Biotechnology (DBT), Govt. of India, New Delhi.
vii) The respondent no. 7 has no record in respect of research guidance to the candidates of M.Phil or equivalent and Ph.D. or equivalent. Whereas, the petitioner having record of research guidance to the 13 candidates of M.Phil and still guiding to the 8 candidates of Ph.D.
viii) The respondent no.7 has completed only one Training Course. Whereas, the petitioner has completed 8 Training Course i.e. "RAPD Fingerprinting/PCR Technique from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka", "Production Technology of Mushroom from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka", "Medicinal & Aromatic Plants used in home remedies from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka", "P.G. Diploma in Molecular Biology & Recombinant DNA Technology from Sangene Biotech affiliated to Tumkur & Kuvempu University, Karnataka" etc.;
ix) The respondent no.7 has presented only 3 research papers. Whereas, the petitioner has presented 98 research papers in the different conferences out of them 21 at international level and 77 at national level.
x) The respondent no.7 has no record in respect of invitation to attend lectures and chairmanship at national or international conference/seminars. Whereas, the petitioner has invited to attend 19 lectures/talks/chairmanship/seminars out them 1 at international level and 18 at national level.
xi) The respondent no.7 has only API Score 133 (in points) as per UGS regulation. Whereas, the petitioner has API Score 2009 (in points) which is much higher than the score of the respondent no.7.
xii) The respondent no.7 has received only one award at National Cancer Institute. Whereas, the petitioner has received 24 awards out of them 8 state awards, 9 national awards, 7 young/best/junior scientist awards with 2 gold medals.
24. That so far as the respondent no.8 is concerned according to the brief resume/application form of the respondent no.8, his qualification is that :-
(i) The respondent no.8 had applied under OBC category for the appointment on the post of Assistant Professor, specialization in Biotechnology and the petitioner had also applied under OBC category for the appointment on the post of Assistant Professor, specialization in Biotechnology.
(ii) The respondent no.8 has passed M.Sc. in the subject of Biochemistry. While for the appointment on the post of Assistant Professor in Biotechnology, the candidates should have possessed M.Sc. in Biotechnology but the respondent no.8 has passed M.Sc. in Biochemistry which is not even a branch of 'Biotechnology', therefore, the respondent no.8 is also missing the basic qualification as required. Whereas, the petitioner has passed M.Sc. in Biotechnology.
(iii) The respondent no.8 having Ph.D. in the topic of "Transcriptional Analysis of Gene Expression Profile of Macrophage Response Mbt Infection after Microparticles Treatments' which is a topic of Biochemistry/Microbiology but not having Ph.D. in 'Biotechnology'. Whereas, the petitioner having Ph.D. in Biotechnology on the topic of 'RAPD Molecular Marker Studies in Anticancer Drug Plants.'
(iv) The respondent no.8 having no experience of teaching in P.G.Classes and U.G. Classes but only having 2.25 years research experience. Whereas, the petitioner having experience of 10 years in teaching and research, in this respect, he has submitted documentary evidence along with his brief resume but the same was not considered.
(v) The respondent no.8 at item no.18 of the application form which is 'Fields of Specialization under the subject/discipline' has mentioned one subject i.e. Biochemistry. Whereas, it was the post of Assistant Professor in Biotechnology, even then, the respondent no.6 Selection Committee has appointed the respondent no.8 as Assistant Professor in Biotechnology.
(vi) The respondent no.8 has published 10 research papers which are related to the subject of Biochemistry and Microbiology and not at all related to the Biotechnology. He has no record in respect of research project and consultancies. Whereas, the petitioner has published 35 research papers out of them 8 at international level and 27 at national level and he has completed one major research project from Department of Biotechnology (DBT), Govt. of India, New Delhi.
(vii) The respondent no.8 has no record in respect of research guidance to the candidates of M.Phil or equivalent and Ph.D. or equivalent. Whereas, the petitioner having record of research guidance to the 13 candidates of M.Phil and still guiding to the 8 candidates of Ph.D.
(viii) The respondent no.8 has no record in respect of Training Course. Whereas the the petitioner has completed 8 Training Course i.e. "RAPD Fingerprinting/PCR Technique from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka", "Production Technology of Mushroom from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka", "Medicinal & Aromatic Plants used in home remedies from Biotechnology Centre, Hulimavu, Bangalore, Govt. of Karnataka", "P.G. Diploma in Molecular Biology & Recombinant DNA Technology from Sangene Biotech affiliated to Tumkur & Kuvempu University, Karnataka" etc.
(ix) The respondent no.8 has presented only 8 research papers in Conferences, Seminars, Workshops. Whereas, the petitioner has presented 98 research papers in the different conferences out of them 21 at international level and 77 at national level.
(x) The respondent no.8 has no record in respect of invitation to attend lectures and chairmanship at national or international conference/ seminars. Whereas, the petitioner has invited to attend 19 lectures/talks/chairmanship/seminars out them 1 at international level and 18 at national level.
(xi) The respondent no.8 has only API Score 232.5 (in points). Whereas, the petitioner has API Score 2009 (in points) which is much higher than the score of the respondent no.8.
(xii) The respondent no.8 has no record in respect of getting any award. Whereas, the petitioner has received 24 awards out of them 8 state awards, 9 national awards, 7 young/best/junior scientist awards with 2 gold medals."
Heard Sri Brij Raj Singh, learned counsel for the petitioner, Sri Rajesh Tripathi, learned counsel for the respondent no.1, Sri Chandan Sharma, learned counsel for the respondents no. 3 to 6 , Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare for the respondent no.7 and Sri Nitya Prakash Tiwari, learned counsel fro the respondent no.8 and perused the documents on record.
Sri B.R. Singh, learned counsel for the petitioner has referred to the Advertisement No. 1 of 2012 and submitted that the qualifications for the post of Assistant Professor were mentioned therein and for the Centre of Biotechnology (Engg. and Tech.) Discipline, the essential requirements were:
"6. CENTRE OF BIO-TECHNOLOGY (ENGG. & TECH.) DISCIPLINE:
Assistant Professor:
I. Essential:
1. First Class Master's Degree in the appropriate branch of Engineering (Engg.) & Technology (Tech.);
OR
2. A Ph.D. Degree in Applied Biological Sciences such as, Micro-Biology, Bio- Chemistry, Genetics, Molecular Biology, Pharmacy and Bio-Physic;
OR
3. Good academic record with at least 55% marks (or an equivalent grade) and at the Master's Degree level, in the relevant subject or an equivalent degree from an Indian/Foreign University.
II. Besides fulfilling the above qualifications, candidates should have cleared the eligibility test (NET) for lecturers conducted by the UGC, CSIR or similar test accredited by the UGC.
III. Desirable:
1. Teaching, research industrial and / or professional experience in a reputed organisation;
2. Papers presented at Conferences and / or in refereed journals;"
Much stress was led on the term "Desirable" and it was submitted by the learned counsel for the petitioner that the teaching, research industrial or professional experience and the papers presented at conferences by the petitioner were much more than those of the respondents no. 7 and 8. Referring to the qualifications disclosed by the respondent no. 7 in his application form (Annexure 13 to the writ petition) it was submitted that the respondent no. 7 was only an M.Sc. in Bio-Chemistry whereas the requirement for the post of Assistant Professor was First Class Master's Degree in the appropriate branch of Engineering and Technology and the subject in question/ appropriate branch being Biotechnology, the respondent no. 7 did not posses the requisite qualification in the said appropriate branch and that merely being an M.Sc. in Bio-Chemistry would not make him eligible for selection against the branch of Biotechnology.
Similarly for respondent no. 8 also, it was submitted that he too was only an M.Sc. in Bio Chemistry and did not have the requisite Master's Degree in the appropriate branch namely Biotechnology, whereas the petitioner was an M.Sc. in Biotechnology.
Sri B.R. Singh further referred to UGC Regulations 2010, para 4.4.6.2 and submitted that the regulations also prescribed the essential qualifications for the subject of Biotechnology (Engg. & Tech.) discipline as First Class Master's Degree in the appropriate branch of Engineering and Technology and therefore, submitted that the respondents no. 7 and 8 did not possess the requisite qualification and therefore, they were not eligible for selection.
He also referred to paragraph 6.1.0 and submitted that the Academic Performance Indicator (API) requires that for selection of Professor/Associate Professor/Assistant Professor in Universities and Colleges shall be as given in Table I-III of Appendix III. The Table I of Appendix III requires the minimum score as 75.
Sri Ashok Khare, learned Senior Counsel appearing for the respondent no.7, on the other hand submitted that the prescribed qualifications for the Centre for Bio-Technology (Engg. & Tech.) were exactly the same as those mentioned in the UGC Regulations, 2010 and there has not been even the slightest deviation therefrom. He further submitted that a First Class Master's Degree in the appropriate branch of Engineering (Engg.) and Technology (Tech.) is not the sole academic qualification because the essential qualification uses the word 'OR' between the first eligibility qualification and the second eligibility qualification, namely, that after the words First Class Master's Degree in the appropriate branch of Engineering (Engg.) & Technology (Tech.), the word used is 'OR' a Ph.D. Degree in Applied Biological Sciences such as, Micro-Biology, Bio-Chemistry, Genetics, Molecular Biology, Pharmacy and Bio-Physics and thereafter, again there is use of the word 'OR' good academic record with at least 55% marks (or an equivalent grade) and at the Master's Degree level, in the relevant subject or an equivalent degree from an Indian/Foreign University.
The submission, therefore, is that even if it may be said that the Respondents no. 7 and 8 did not possess a First Class Master's Degree in the subject of Bio-Technology, nevertheless, the Respondent no. 7 was a M.Sc. in Biochemistry and a Ph.D./D.Phil in MOLECULAR BASIS OF COLD ADAPTATION IN PSYCHROPHILIC BACTERIA IDENTIFICATION OF GENES REQUIRE FOR GROWTH AT LOW TEMPERATURE from the Centre for Cellular And Molecular Biology (CCMB. Hyderabad)/Jawaharlal Nehru University. It is also stated that the Respondent no.7 held a Postdoctoral Fellow in the University of Maryland School of Medicine, Baltimore, USA, Postdoctoral Fellow in National Cancer Institute/National Institute of Health (NIH), Maryland, USA and Postdoctoral Fellow in Trudeau Institute, Saranac Lake, New York, USA and though he may not have possessed any teaching experience in P.G. or U.G.C. Classes, he had a research experience of 3.7 years excluding the years spent in M.Phil/Ph.D/D.Phil and his fields of specialization are:-
(1) Micro-Biology (2) Immunology (3) Molecular Biology (4) Cancer Biology (5) Biochemistry He had also published 52 papers in various journals. It was stated that even if his Academic Performance Indicator score was less than that of the petitioner that in itself was not the only ground on which his candidature ought to have been rejected if the contention is to be accepted.
So far as the Respondent no.8 is concerned, it was stated that he was a M.Sc. in Biochemistry and a Ph.D/D.Phil in TRANSCRIPTIONAL ANALYSIS OF GENE EXPRESSION PROFILE OF MACROPHAGE RESPONSE TO MTB INFECTION AFTER MICROPARTICLES TREATMENTS from JNU, New Delhi and appointments held were JRF in CDRI, Lucknow; SRF in CDRI, Lucknow and Postdoctoral in RCSI, Dublin, Ireland. His research experience was 2.25 years excluding the years spent in M.Phil/Ph.D/D.Phil. He also does not possess any teaching experience in PG and UG Classes and his field of specialization is Biochemistry.
What we notice from the documents on record is that the eligibility qualifications prescribed for the post of Centre of Bio-Technology in the Advertisement no. 1 of 2012 is absolutely identical to that prescribed in the UGC Regulations, 2010. The qualifications prescribed in paragraph 4.4.6.2 of the UGC Regulations 2010 for the post of Assistant Professor read as under:-
"4.4.6.2 Bio-Technology (Engg. & Tech.) Discipline:
1. Assistant Professor:
i. Essential:
1. First Class Master's Degree in the appropriate branch of Engineering (Engg.) & Technology (Tech.);
OR
2. A Ph.D. Degree in Applied Biological Sciences such as, Micro-Biology, Bio- Chemistry, Genetics, Molecular Biology, Pharmacy and Bio-Physic;
OR
3. Good academic record with at least 55% marks (or an equivalent grade) and at the Master's Degree level, in the relevant subject or an equivalent degree from an Indian/Foreign University.
ii. Besides fulfilling the above qualifications, candidates should have cleared the eligibility test (NET) for lecturers conducted by the UGC, CSIR or similar test accredited by the UGC.
iii. Desirable:
1.Teaching, research industrial and / or professional experience in a reputed organisation;
2. Papers presented at Conferences and / or in refereed journals;"
The qualifications prescribed by the University in the Advertisement are already noted above. A careful scrutiny of the eligibility criteria required for the post of Bio-Technology (Engg. & Tech.) shows that the possession of a First Class Master's Degree in appropriate branch of Engineering and Technology is not the sole criteria for rendering a person eligible for selection. The word used thereafter is 'OR'. The person having a Ph.D Degree in Applied Biological Sciences such as Micro-Biology, Bio-Chemistry, Genetics, Molecular Biology, Pharmacy and Bio-Physics 'OR' a person having a good academic record with at least 55% marks (or an equivalent grade) and at the Master's Degree level, in the relevant subject or an equivalent degree from an Indian/Foreign University would also be eligible. Therefore, so far as the essential qualifications 1, 2 and 3 are concerned, a candidate is not required to possess all of them at the same time and the non-possession of any one of them would not render him ineligible for selection. The use of the word 'OR' creates a distinction between the requirements of the essential qualifications and therefore, the essential qualification 1, 2, and 3 among themselves have to be read disjunctively and not conjointly. Applying the above test to the eligibility criteria of the petitioner, we find that he has a Master's Degree in Bio-Technology and a Ph.D/D.Phil in RAPD Molecular Marker Studies in Anti Cancer Drug Plants. The Respondent no. 7 is an M.Sc. in Bio-Chemistry but also possesses a Ph.D/D.Phil in Molecular Basis of Cold Adaptation in Psychrophilic Bacteria Identification of Genes required for growth at low temperature from Centre for Cellular and Molecular Biology (CCMB, Hyderabad), Jawaharlal Nehru University. The Respondent no. 8 is an M.Sc. in Bio-Chemistry and also possesses a Ph.D/D.Phil in Transcriptional Analysis of gene expression profile of macrophage response to Mtb infection after microparticles treatments from JNU, New Delhi.
The petitioner has not been able to show that the Ph.D Degree in the subjects possessed by the Respondents 7 and 8 are not the same as required in the advertisement. Therefore, it cannot be said that merely because the respondents 7 and 8 do not have a First Class Master's Degree in the subject of Bio-Technology, they would be rendered ineligible for selection.
Coming to the API score, Sri Ashok Khare, learned Senior Counsel referred to the UGC Regulations, 2010, para 4.1.0 which is the qualification prescribed for the post of Professor; Para 4.2.0 which are the qualifications prescribed for the post of Principal; Para 4.3.0 which are the qualifications for the post of Associate Professor; and submitted that the qualifications for the post of Professor, Principal and Associate Professor required the candidate to possess a minimum score as stipulated in the Academic Performance Indicator based Performance Based Appraisal System (PBAS) set out in the Regulations in Tables I to IX of Appendix III. But so far as, qualifications for the post of Assistant Professor in para 4.4.0 and 4.4.1 in the subject of Sciences, there is no such mention of a requirements of a minimum score in the Academic Performance Indicator as per Tables I to IX of Appendix III of the Regulations.
The qualifications for the post of Professor, Principal and Associate Professor as provided in the Regulations, 2010 read as under:-
"4.0.0 DIRECT RECRUITMENT 4.1.0 PROFESSOR A. (i)..............
(ii).............
(iii)............
(iv) A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Tables I to IX of Appendix III.
OR B. ...............
4.2.0. PRINCIPAL i. ...................
ii. .................
iii..................
iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Tables I to IX of Appendix III.
4.3.0. ASSOCIATE PROFESSOR i. ...................
ii. .................
iii..................
iv. ................
v. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Tables I to IX of Appendix III."
We have already noted that the Advertisement is silent so far as the requirement of minimum score in the API as required in Tables I to IX of Appendix III. Therefore, in our opinion, the requirement of a minimum score in the API was not an essential qualification for the purposes of selection to the post of Assistant Professor, Bio-Technology (Engg. & Tech.).
The learned counsel for the petitioner then submitted that the Advertisement under the "eligibility qualifications" also mentions a requirement of- (i) teaching, research industrial and/or profession experience in a reputed organisation; (ii) papers presented at Conferences and/ or in refereed journals as "Desirable" and submitted that the respondent no. 7 did not have any teaching experience either in PG Classes or UG Classes. His research guidance in M.Phil or equivalent was '0', his training courses, teaching-learning evaluation, Technology etc. was 20, papers presented were 60. His total API score was 133. So far as the respondent no. 8 is concerned, his period of teaching experience in PG and UG Classes were '0', his research publication total API score was 150 and his presentation in Conferences was also NIL. His total API score was 232.5 whereas the API score of the petitioner was 767.50 (and not 2009) at the time of submission of the application form and therefore, the API score being a desirable qualification for purposes of selection could not have been ignored.
In our opinion, the Advertisement is required to be strictly in conformity with the standards laid down by the UGC Regulation, 2010 and cannot deviate from the same. The Advertisement may provide for certain additional qualifications or score or research papers or teaching experience under a heading of 'Desirable' but that itself was not an essential qualification for selection since the UGC Regulations did not stipulate the same. Therefore, even though such qualifications may have been mentioned under the heading of 'Desirable', in our opinion, the number of research papers or the number of years of teaching experience or total API score itself would not be the sole or only criteria for selection of a candidate if he otherwise fulfils all the other essential qualifications mentioned in the UGC Regulations, 2010 and in the Advertisement for the post of Assistant Professor, Bio-Technology.
The Supreme Court in (1990) 1 SCC 305, Dalpat Abasabheb Solunke and Others Vs Dr. B.S. Mahajan and Others, in paragraph 7 has held as under:-
"7. The second ground given for setting aside the Order of appointment of the appellant in CA No.3507/89, viz. to the post of Chief Extension Education Officer is that there was a deliberate attempt to delay the filling in of the post till 1980 since the University wanted the appellant to qualify himself for the said post. The facts reveal that the minimum educational qualification required-for the post, as per the advertisement, was M.Sc. The advertisement had no doubt also added that the candidate with five years experience will be preferred. However, as the wording of the advertisement itself shows the experience was not an essential qualification. If the University had only the applicant in view there was nothing to prevent it from inviting the applications in 1975 itself when the appellant acquired M.Sc. degree, without insisting on any experience whatsoever. The University likewise could have filled in the vacancy between 1975 to 1980 requiring experience of the proportionate period. The High Court was therefore not right in picking up this circumstance without considering all the aspects of the matter."
The learned Senior Counsel for the respondents has placed reliance on a decision of the Supreme Court reported in (2001) 8 SCC 119 Nilangshu Bhusan Basu and Ors. Vs. Deb K. Sinha and Ors. In that case the post graduate qualification was mentioned as one of the desirable qualifications, the Supreme Court however, held that the Selection Committee made the selection of the candidate whom it thought to the best among the appellants. Para 11 of the judgment reads as under:
"11. It has next been submitted that the departmental officers have been discriminated against since only those departmental officers could apply who responded to the qualification laid down for the candidates for direct recruitment more particularly about the age, since maximum age limit was 45 years. In this connection it may be observed that the qualifications have been prescribed in the rules including the upper age limit for an applicant. It is informed that there were forty outside candidates and eight others working in the Department. From amongst the 48 candidates, the appellant was selected, who is said to have been working as an Executive Engineer in the department. According to the learned counsel for the respondent he would become senior and an officer even higher to the Dy. Chief Engineer, who have either not been selected or were not able to apply because of the age bar or for any such reason. It is submitted that ignoring the senior officers working in the department or placing junior officers above them would lead to only unreasonable results. It may be observed that method of direct recruitment was adopted as permissible under the rules. Anyone responding to the qualification was free to apply including the departmental candidates. Some of the petitioners in the other Writ Petition are those who had applied but remained unsuccessful. It was an open selection based on merit and not seniority. Therefore, it cannot be argued that method of direct recruitment as adopted brought about any unreasonable results or it was discriminatory. In this connection it may also be mentioned here that learned counsel for the appellant submitted that post graduate qualification was one of the desirable qualification prescribed under the rules. It is further submitted that the appellant was the only candidate who possessed the post graduate qualification. We are however not on the merit of the selection. The Selection Committee made the selection of the candidate whom it thought to be the best among the applicants. We therefore find no force in this submission too as raised on behalf of the respondents."
Reference has also been made to the judgment of a learned single Judge of this Court in (2005) 4 AWC 3410 Karunesh Kumar Singh Vs. State of U.P. & Ors. That was a matter where the regulations framed under the Intermediate Education Act, 1921 with reference to selection for the post of lecturer in Physics, was under consideration. The advertisement in that case, in the Appendix-A, in column-7 against Entry No. 31 mentioned desirable qualification that the candidate should be trained. The Court referring to the provisions of the Regulations held that the regulations nowhere provided training as a desirable qualification. There is no mention of training as a desirable qualification and held that in case of a conflict between a statute and the advertisement, the statute will prevail. Para 10 of judgment reads as under:
"10. In Yogesh Kumar (supra), the teachers training qualification was prescribed in the advertisement as essential qualification. The Supreme Court did not rely upon any statutory provisions providing minimum qualifications and had proceeded on the basis of advertisement for recruitment. In the case at hand we have the benefit of Appendix 'A' which provides training as desirable qualification. In case of conflict between the statute and advertisement, the statute will prevail., vide Ashok Kumar Sharma v. Chandra Shekhar, 1997(4) SCC 18; Bhupendra Pal v. State of Punjab, 2000(5) SC 2001; Zafar Ram 2002(1) SCC 124 followed in Shabbir Kumar Mandal v. State of Bihar 2003() SCC 519. In T.M.A. Pai Foundation v. State of Karnataka 2002(8) SCC 481, the right of minority institution of their choice to appoint staff (teaching as well as non-teaching)subject to regulatory measure designed towards the achievement of the goal of making the minority institution, effective instruction for imparting education was upheld In Leela Pavlus v. Regional Deputy Director, 1998 (1) UPLBEC 241, it was held that the Regional Deputy Director is not required to assess competitive merits of various candidates who had appeared before the selection committee and merits of various candidates who had appeared before the Selection Committee and record his finding as to whether the view taken by the exerts and other members of the selection committee was correct."
In support of his submission the learned counsel for the petitioner has referred to a judgment of the Supreme Court reported in (2014) 3 SCC 767 Ganapath Singh Gangaram Singh Rajput Vs. Gulbarga University and submitted that in that case the advertisement required Post Graduate Degree in the relevant subject and the Supreme Court held that since the selection was for the post of lecturer in Master in Computer Application (MCA), therefore, a Master's degree in Mathematics was not the relevant subject. Para 21 of judgment reads as under :
"21. As is evident from the advertisement, applications were invited for filling up various posts in different subjects including the post of Lecturer in MCA. The advertisement requires post-graduate degree in the ''relevant subject'. The relevant subject would, therefore, in the context of appointment to the post of Lecturer, mean post-graduate degree in MCA. In our opinion, for appointment to the post of Lecturer, Masters' degree in the Mathematics is not the relevant subject. The advertisement requires Masters' degree in ''relevant subject' and not ''appropriate subject'. In the present case, the Board of appointment has not stated that post-graduate degree in Mathematics is the relevant subject for MCA but in sum and substance it is equivalent to a post-graduate degree in MCA for the reason that Mathematics is one of the subjects taught in MCA. This, in our opinion, was beyond the power of the Board of appointment."
In our opinion the said judgment has absolutely no application to the facts of the present case as the judgment of the Supreme Court in that case was specifically with regard to the Notification dated 22.5.1998 inviting applications for appointment to various posts including the post of Lecturer in MCA and the Syndicate of the University had recommended Mathematics as a relevant subject for the purposes of adjudging applicability. In the present case, the Advertisement of the University has to be strictly in accordance with the Regulations 2010 framed by the UGC which does not prescribe 'First Class Master's Degree in the appropriate Branch as the sole and only qualification for selection and appointment. Therefore, the said judgment of the Supreme Court has no application to the facts of the present case.
In the supplementary affidavit filed by the petitioner in paragraph 4 it has been stated that the UGC Regulation 2010, clause 4.4.0 prescribes the qualification only for the post of Bio-Technology and not for the post of Bio-Technology (Engg. & Tech.) Discipline.
It is not open for the petitioner to raise this objection for the reason that the Advertisement itself has not been challenged before us and in any case the petitioner himself is seeking relief for appointment under the same selection.
When a Selection Committee comprising of experts entrusted with the selection of candidates for a particular post considers the selection of candidates who fulfill the eligibility criteria required for that post, this court cannot sit in judicial review over the decision of the experts to upset the same.
The Supreme Court in paragraph 12 of Dalpat Abasaheb Solunke (supra), has held as under:-
"12. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasize 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."
The Supreme Court in (2007) 5 SCC 519 Bihar Public Service Commission And Others Vs Kamini And Others, in paragraph 8 has held as under:-
"8. Again, it is well settled that in the field of education, a Court of Law cannot act as an expert. Normally, therefore, whether or not a student/candidate possesses requisite qualifications should better be left to educational institutions [vide University of Mysore v. Govinda Rao, (1964) 4 SCR 576 : AIR 1965 SC 591]. This is particularly so when it is supported by an Expert Committee. The Expert Committee considered the matter and observed that a person can be said to be Honours in the subject if at the Graduate level, he/she studies such subject as the principal subject having eight papers and not a subsidiary, optional or side subject having two papers. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable. The learned Single Judge, in our opinion, was, therefore, right in dismissing the petition relying upon the Report of the Committee and in upholding the objection of the Commission. The Division Bench was in error in ignoring the well considered report of the Expert Committee and in setting aside the decision of the learned Single Judge. The Division Bench, while allowing the appeal, observed that the 'litmus test' was the admission granted to the first respondent by the Central Institute of Fisheries Education, Mumbai. According to the Division Bench, if the first respondent did not possess Bachelor of Science Degree with Zoology, the Institute would not have admitted her to the said course. The Division Bench observed that not only the first respondent was admitted to the said course, she had passed it with "flying colours". In our opinion, the Division Bench was not right in applying 'litmus test' of admission of the first respondent by Central Institute of Fisheries Education, Mumbai. The controversy before the Court was whether the first respondent was eligible for the post of District Fisheries Officer, Class II. The correct test, therefore, was not admission by Mumbai Institution. If the requirement was of Honours in B.Sc. with Zoology and if the first respondent had cleared B.Sc. Honours with Chemistry, it could not be said that she was eligible to the post having requisite educational qualifications. By not treating her eligible, therefore, the Commission had not committed any illegality.
Therefore, on a conspectus of facts of the case and the law laid down by the Supreme Court in the case of Nilangshu Bhusan Basu (supra), Karunesh Kumar Singh (supra), Dalpat Abasaheb Solunke (supra) and Bihar Public Service Commission (supra), we do not find any merit in the writ petition and the same is accordingly, dismissed.
Order Date :- 24th August, 2018 Kirti/Vandana