JUDGMENT R.K. Mahajan, J.
1. The petitioner has sought the following reliefs through this writ petition:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 16.7.1986 passed by the Chancellor respondent No. 1 as contained in Annexure '8' to this writ petition;
(ii) issue a writ, order of direction in the nature of mandamuss directing the respondents not to interfere with the petitioner's functioning as Lecturer in Rig-Veda.
(iii) issue any other writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case; and (iv) to award costs."
2. This writ petition is coming up for hearing after the petitioner obtained a stay order on 23rd August, 1986 by which the operation of order of Chancellor dated 15.7.1986 was stayed by virtue of which petitioner's appointment as a Lecturer in Rig-Veda in the Sampurnanand Sanskrit Vishvavidyalaya was found to be illegal as he lacked basic qualification and also on other grounds which are of vital importance i.e. the petitioner's application was entertained much after the lapse of last date mentioned in the advertisement and he was also selected through a back door entry. The Chancellor gave a direction to the University to make fresh appointment after readvertisement of the post. In this writ petition two questions are to be considered. What is the effect of entertaining the application of the petitioner after the advertisement date has been issued and selecting him without readvertising the post in all fairness and not complying with the provisions-of Article 14 of Constitution of India for not giving a chance to the candidates who were qualified for consideration.
3. There is Sampurnanand Sanskrit Vishvavidyalaya (hereinafter referred to as the Vishvavidyalaya) in Varanasi. It appears that the said Vishvavidyalaya; advertised a post of Lecturer in Rig-Veda. Provision of Statute 11.01 of the Statute of Vishvavidyalaya is quoted here for ready reference:-
"11.01. In case of the Faculties of Veda- Vedanga, Sahitya - Sanskrit, Darshan Shraman Vidya and Adhunik Jnana- Vijnana, the following shall be the minimum qualifications for the post of Lecturer in the University, namely-
(a) A doctorate in the subject of study, concerned or a published work of a high standard in that subjected
(b) Consistently good academic record (that is to say (the overall record of all assessment throughout the academic career of a candidate), with first class or high second class ( that is to say, with an aggregate of more than 54 percent marks ) Master's Degree in the subject concerned or equivalent degree of a foreign university in such subject.
2. Where the Selection Committee is of opinion that the research work of: a candidate, as evidenced either by his thesis or by his published work, is of a very high standard, it may relax any of the requirements specified in Sub-clause (b) of Clause (1).
3. If a candidate possessing a qualification prescribed in Sub-clause (a) of Clause (1) is not available or is not considered suitable a person possessing a consistently good academic record (Due weightance being given to M. Phil, or equivalent degree or research work of quality) may be appointed in the condition that he will attain the prescribed qualification (namely doctorate or published work aforesaid) withing five years, from the date of his appointment; provided that where, the teacher so appointed fails to attain the prescribed qualification within the said period of five years, he shall not be entitled to yearly' comments after such period, until he attains such qualifications."
4. It is not disputed by the learned Counsel for the petitioner that the petitioner filed an application much after the advertisement date was over and selection was made on the basis of advertisement which was old one at the time of meeting of Selection Committee. In other words this is not disputed that he did not apply in pursuance of the advertisement at all. It appears that the protest was made by the affected candidates who had filed representations and whose name figures in the representation submitted under Section 68 of U.P. State Universities Act, 1973 i.e. Ganga Dhar Deo and Km. Savitri Singh. The petitioner was selected on 2.12.1985 by Selection Committee which was approved by the executive council in its meeting dated 16.12.1985. The representations were filed on 3.12.1985 regarding illegal selection. The thrust of the protest in the representation was that Dr. Ram Murti Chaturvedi is not possessing Master's Degree in the subject of Rig-Veda and he has been selected and the date for entertaining application had elapsed. According to Statute 11.04 three weeks time is given for making an application after the advertisement having been put in various news papers. It is mentioned in the Chancellor order. This order of Vice Chancellor has been challenged by the petitioner on the ground that he was superb in qualification and the Selection Committee selected him after giving due consideration of qualification based on the opinion of experts and the Chancellor should not have bye passed the opinion of the expert which was contrary to law. The Chancellor also fell in error which holding that his qualification was not relaxed and the petitioner submits that it was not a case of relaxation as he was duly qualified. The impugned order has been further challenged on the ground that the department of Veda consists of six subjects. There are only three posts of Lecturers sanctioned in the University further supports the petitioner's case that the petitioner is holding Master's Degree in Shukla-Uajurveda and had acquired learning in adequate degree and is proficient for teaching in Rig-Veda, the concerned subject. The Chancellor had, however, lost sight to this fact and Committee error of law resulting into miscarriage of justice.
5. It is further submitted in para No. 15 of the writ petition that department of veda consists of six subjects namely-Rig-Veda, Shukla Yajur Veda, Krishan Yajur Veda, Samveda, Atharveda and Nattukuti Prikiya. It may also be stated that only five posts for teachers are sanctioned in the Department of Veda, out of which one post is for Professor and three posts for Lecturers and one for Instructor. Learned Counsel for the petitioner has cited ah example that Shri Yugul Kishore Mishra is working on the post of Professor and he is the Head of the Department of Veda and it is curious to note that he is possessing Master's Degree in Shukla Yajurveda. He has further submitted that the research of the petitioner is of very high standard and he has much experience and the same must have been weighed with the Selection Committee.
6. The case of the respondent is as follows:
Counter affidavit has been filed on behalf of Chancellor, respondent No. 1, supporting his decision. It is alleged that the petitioner should have been qualified as per Statute in Rig-Veda and not Shukla Yajurveda as they are different subjects of particular discipline to be taught in a University. It is further averred that it was essential for the appointment to the post of Lecturer Rig-Veda. It is also mentioned in the counter affidavit that the University has failed to cite any provision of law which entitles the Vice Chancellor to relax the limitation of time for submission of application in favour of a candidate after the last date fixed for the purpose and relaxation of date without readvertisement affects the interest of other similarly situated persons.
7. Respondent No. 4 Ganga Dar Deo has submitted in his counter affidavit that he is best amongst all the candidates for selection. He further submitted that out of 13 candidates at least 5 candidates namely -Radhey Shyam Sharma, Ram Chandra Deo, Raja Ram Ghule, Km. (Dr.) Savitri Singh and respondent No. 4 himself were holding degree and certificates in the subject Rig-veda and there was clear violation of Statute 11.04 of the Statute of the Vishvavidyalaya. There is no need to repeat the qualification which the petitioner possess as it has already mentioned in para No. 3 of counter affidavit. The respondent No. 4 stated that he was haying certificate in Mimansa and other works on Rig-veda. He has also averred that he has experience of teaching in Rig-veda in Jokhu Ram Mataru Mal Gaenjia Mahavidhyalaya from 27.8.1980 to 31.1.1981 arid 19.8.1981 to this day. Respondent No. 4 goes on mentioning the experience and thesis submitted on the Rig-Veda laying his claim for consideration. The respondent No. 4 has stated the selection as legal.
8. Before we proceed further amendment application has been filed by pointing out that there is amendment in the Statute vide Notification No. 5675/XV-10-80-13 (10)-(79), dated December 2, 1980. This amendment was made and the same was published by the University and in place of old Statute No. 11.01 and 11.02 the following Statutes were substituted which are reproduced herein below:
" 11.01 (i) In case of faculties of Veda Vedang, Sahitya -Sanskriti, Darshan, Shraman Vidya and Adhunik Janana-Vijnana, the following shall be the minimum qualifications for the post of lecturer in University namely:-
(a) A Doctorate Degree or Research work on an equally high standard in relevant subject and, (b) consistently good academic record with first or high second class Master's Degree, or an equivalent degree of a foreign University in a relevant subject.
(b) If the selection committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very high standard, it may relax any of the qualifications prescribed in Sub-clause (b) of Clause (1)."
9. Learned Counsel for the petitioner has submitted that by virtue of this amendment the petitioner was qualified as Master Degree in Shukla Yajurved which is relevant subject matter and one can teach proficiently and accurately Rig-Veda. He has further submitted that the petitioner was selected by the Selection Committee and the Chancellor should not have interfered by converting as Court of appeal in the selection. In other words submission is that the expert opinion cannot be over ruled by the Chancellor.
10. Shri Tiwari, learned Counsel for the petitioner has further submitted that University has not denied that the petitioner's application was entertained late but has justified that it was within the purview of the authority.
11. Learned Counsel for the respondent has supported the Chancellor's decision.
12. We are of the considered view that ordinarily in a writ jurisdiction the High Court under Article 226 of the Constitution of India does not sit as a Court of appeal but if the decision as arrived by the selection committee, is arbitrary regarding selection and the Chancellor has held that it was illegal, improper and arbitrary the Court is reluctant to interfere. There is no error in the decision of the Chancellor when he was declared the selection invalid on the ground that the interest of others have been affected by not advertising a post again and selecting on the basis of old advertisement. Article 14 of the Constitution of India lays down that every person who is qualified has equal right for consideration on the post. It deals with equality before law. Article 16 of the Constitution of India deals with equal opportunity in the matter of public employment. Arbitrariness and unreasonableness in the matter of procedure followed for selection of the post is contrary to the spirit of Article 14 of the Constitution of India. In fact this concept was evolved by Hon'ble Supreme Court in E.P. Royappa v. State of Tamilnadu, 1974 (2) S.C.R. 348. It is highly dynamic in dimensions and of positive consequences. It embodies guarantee against arbitrariness and antithesis to arbitrariness. This concept was repeated in Maenka Gandhi Case, reported in (1978) 2 S.C.R. 621 and later on in R.D. Shetty v. Airpot Authority, reported in (1979) 3 S.C.R. 1014. The whole idea is that discretion should not be exercised arbitrarily. Power involves duty. Duty is to be exercised reasonably and fairly and with responsibility. Lest it be degenerated in the rule of jungle. Administrative action is subject to the principle of rule of law. In other words ratio of this concept is that if the fairness in procedure by any instrumentality of the State in an action is not observed it is liable to be struck down under Article 14 read with Article 21 of the Constitution of India. In this case the question posed is that when the last date is over for entertaining application the University authority by back door entry has taken the application from the petitioner and selected him, Assuming for the argument sake that he is highly qualified for appearing in the interview, as stated by the learned Counsel for the petitioner which is controverted by the learned Counsel for the respondent, this approach was not warranted under Articles 14, 16 and 21 of the Constitution of India as it lack transperancy in action and the protection of equal rights of similarly situated persons. Their non-consideration is violative of Article 14 of Constitution of India.
13. Learned Counsel for the petitioner has not been able to convince us on this aspect and we are of the opinion that back door entry of the petitioner is illegal, invalid and rightly struck down by the Chancellor and there is no error of law or apparent mistake on record in the order of Chancellor. Rather injustice was undone by the Chancellor.
14. Learned Counsel for the petitioner has further submitted that the petitioner remained in job since long i.e. 1985 and it would be highly unfair to put him out of job and he may be given benefit of relaxation and be regularized.
15. Learned Counsel for the respondent has controverted the submission that non-possession of basic qualification will not cure back door entry to the job. We are of the view that it would amount to put premium on back door entry. It would negate rule- of law.
16. Learned Counsel for the parties have cited certain rulings. First of all we would like to quote the rulings cited by learned Counsel for the petitioner. Learned Counsel for the petitioner has relied upon JT 1993 (4) S.C. 143, Dr. M.S. Mudhol and Anr. v. Shri S.D. Halegkar and Ors. (para 6). In the above noted case person was not having requisite qualification and it was held that illegality if any was committed by the Selection Committee and person appointed is not to suffer after 12 years. He has also relied upon (1979) 1 SCC 168, Ram Sarup v. State of Haryana and Ors. and (1993) 1 U.P.L.B.E.C. 745 (S.C.), Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors. In this case appointment was found illegal and the Hon'ble Supreme Court did not disturb appointment if continued for 12 to 18 years. We would like to distinguish this ruling of Hon'ble Supreme Court on facts. The Court was moved after 9 years and the Court considering the post was not of senstive nature and did not interfere. It was case of acquiescence. Another ruling (1979) 1 SCC 168 (supra), is not applicable in this case on facts as it was a case of irregular appointment as he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of Labour Laws in any one of the three capacities mentioned in Clause (1) of Rule 4 in any higher capacity, his appointment must be regarded as having been regularies.
17. In this case the Vice Chancellor was moved immediately and case remains stayed by the High Court for more than 13 years. We may note that the petitioner after getting stay order for one reason or the other got the matter delayed some time on illness slips of the counsel to enjoy the so called fruits of the stay order, the trend of, the Apex Court rulings if that if the appointment which is ultimately found illegal and void and if the person is holding it on the strength if the stay order of the Court it will not ensure for the benefit of the incumbent. The rationale behind is that appointment will be subject to the result of the writ petition and Court cannot make the things valid which were invalid at the time of entering into service.
18. Learned Counsel for the respondent has also cited so many rulings of Apex Court that the petitioner cannot take advantage of the stay order as he lacked qualification on the relevant date. The first ruling is JT 1996 (6) SC 26 (Paras 12 and 15), State of Punjab and Ors. v. Tara Singh Shahi. In this case it has been held that rule of equality would not be applicable if a person lacks qualification. Learned Counsel for respondent has also relied upon J.T. 1996(10) S.C. 610 (para 18). The Committee of Management, Vasanta College for Women v. Tribhuwan Nath Tripathi and Ors. In this case it has been held that acquiring the subsequent qualification cannot be given benefit to the petitioner.
19. We have also noticed that the advertisement was not placed on record nor its terms and conditions as averred in the writ petition. This also shows that the petitioner has not come with clean hands.
20. It has also been submitted by the learned Counsel for the petitioner that the Vice Chancellor could not reviewed the decision of the Expert of the Selection Committee. It is a basic principle of judicial review that the reviewing authority can certainly go into the illegality or legality in process of selection to see whether the relevant factors have been taken into consideration for the appointment or it is based on irrelevant or extraneous factors. It can also see whether the appointment is based on factors / materials which could not have been taken into consideration. The relevant case law cited by learned Counsel for respondent on this aspect is AIR 1991 SC 531 (paras 21 and 28), Harbans Singh v. Dhara Singh, AIR 1975 S.C. 915 (para 25), Ramchandra Keshav Adke v. Govind Joti Chavare and Ors. and JT 1995 (7) SC 137, Dr. Krishan Chandra Sahu and Ors. v. State of Orissa and Ors.
21. So in our considered view that the Chancellor did not sit as a Court of appeal. He certainly has a power under Section 68 of U.P. State Universities Act to correct the invalid and incorrect decision. It has been further stated by learned Counsel for the petitioner that by amendment made in Statute in 1980 relevant subject matter would cannot Shukla-Yajurveda equivalent to Rigveda. We are unable to agree as if a post has been advertised for a particular subject matter or study or discipline the University has no function to change the Statute at all. To our mind there is no material difference in 'concerned subject' and' relevant subject'. We would like to quote the dictionary meaning of "relevant" as defined in Westerns Dictionary IInd Edition, as quoted by learned Counsel for the respondent No. 4 in his written argument:-
Relevant"- Bearing upon or relating to the matter in hand; to the point; pertinent; applicable; as, the testimony is relevant to the case; the argument is relevant to the question; opposed to irrelevant."
22. Learned Counsel for respondent No. 4 has also submitted that the Shukla-Yajurveda has been treated differently right from XIth Class and he has placed on record in Supplementary Counter Affidavit extract of the syllabus of High School upto the graduation to demonstrate the fact. We hardly find any force in the submission of the Counsel for the petitioner. Learned Counsel for the respondent has raised objection that if there is conflict with the notification of Hindi version would prevail. There is submission advanced by learned Counsel for the petitioner that an amendment application has been made for making amendment in the Statute and the word "concerned subject" was deleted and substituted by "relevant subject". According to him relevant subject is Shukla-Yajurveda and can fail in Yajurveda study and also is relevant subject matter. We are not convinced by the argument of the learned Counsel for the petitioner at all as it lacks force and rationality. We are of the view that Yajurveda is a different strdy than Rigveda has no bearing in different discipline.
23. To out notice there is Full Bench of Allahabad High Court Paranveer Singh Satvat v. Chancellor, Chandra Shekhar Azad Krishi Evam Prodyogic Vishwidyalaya, Kanpur and Ors., reported in (1997) 3 U.P.L.B.E.C. 1682. In this case it has been observed that the petitioner was not qualified till the last date of submission of the application. The appointment of the petitioner was found to be invalid and it was set aside, the order on merit having been found to be perfectly legal and justified. The Court is not found to interfere in such order under Article 226 of the Constitution of India. By way of analogy the ratio of the aforesaid case can be used. At the most in the present case the petitioner lacked the qualification from the very beginning and it was a case of back door entry.
24. In another case Dr. Triloki Nath Singh v. Dr. Bhagwan Din Misra and Ors., (1990) 4 S.C.C. 510, the ratio is that in the selection committee expert was associated for the purpose of selection in which he was not qualified. Linguistics subject was not treated as the separate subject than Hindi. It has been observed that Hindi Language and Literature and Linguistics are two different and separate subjects in the department of Hindi of the Lucknow University. This is clearly borne out from Explanation I to Section 5 (a) of Section 31 of the Act of 1973. Separate panel of experts was drawn for the subjects of Hindi and Linguistics. Separate courses of study are prescribed for M.A. Part I or Part II in respect of Hindi on the one hand and Linguistics on the other. Moreover even graduates who have not passed the B.A. Examination with Hindi could be admitted and awarded the degree of M.A. in Linguistics. Merely because Linguistics is also a subject of study in one paper of Hindi, it cannot be said that Linguistics and Hindi Language and literature fall under the same subject of study in the University. Advertisement nowhere provided that one Reader in Linguistics in the Department of Hindi was to be selected as common to more than one subject of study. Merely because the post of Reader in Linguistics was required in the Department of Hindi,, it cannot be held that such Reader in Linguistics was to teach the subject of Linguistics as well as the subject of Hindi Language and Literature. Appointment of all the experts in the present case of subject of Hindi for the selection of one Reader in Linguistics in the Department of Hindi was totally wrong and illegal. So at the most again help can be taken by way of analogy that Linguistics and Hindi are different subjects and unless the petitioner was qualified according to rules his appointment cannot be held to be legal as stated above.
25. We are also of the view that white giving proposive interpretation to the Statute it cannot be at all assumed that while amending the Statute be meant but the Counsel for the petitioner wants us to believe or wants us to give an interpretation. For example, in study of Vedas it involves different study of Vedas i.e. Atharveda, Yajurveda and Rigveda. Similarly in study of law it has different branches i.e. Constitutional Law, Indian Penal Code, Law of Evidence and for recruitment Professor/Lecturer a qualification is advertised who had expertise or knowledge about a particular branch.
26. So we are of the opinion that the selection committee fell into an error in selecting the petitioner who was not having qualification and the Chancellor corrected the decision under Section 68 of the U.P. State Universities Act. We are also of the considered view that the Chancellor was right in deciding the representation under Section 68 of the U.P. State Universities Act directing the University to readvertise the post and make the selection. The Sampurnanand Sanskrit Vishvavidyalaya, Varanasi is involved in teaching heritage of India and it is supposed to perform its duty in imparting education to the students in its excellence and of high standard. Article 51A of Constitution of India which relates to the fundamental duties lays down that it shall be duty of every citizen of India to value and preserve the rich heritage of our composite culture. The University departed from the principles of recruiting the qualified person who lacked basic qualification for the appointment on the post and acted also in an arbitrary and unfair manner by giving him appointment on the basis of the application filed after the last date mentioned in the advertisement, which in our opinion is arbitrary and illegal and Chancellor's decision does not warrant interference. In our view the Chancellor's decision does not suffer from any apparent error of law. We are also of the opinion that the post be filled up on accordance with law as early as possible preferably within six months from the date of production of certified copy of this order. We dismiss the petition accordingly. No order as to costs.