B.C.Mylarappa @ Chikkamylarappa vs R.Venkatsubbaiah & Ors

B.C. Mylarappa @Dr. Chikkamylarappa ..Appellant

VERSUS

Dr. R. Venkatasubbaiah and Ors. ...Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. The appellant herein along with two other persons

was appointed to the post of `Research Assistant' in

Sociology Department, Bangalore University (In

short, "the University") on or about 18th of October,

1988. The initial appointment was for a period of

three years provided however that the continuance

of the appointment will be on an year to year basis

1 subject to the report of the Head of the Department

concerned testifying to the satisfactory work and

conduct of the research during the year of review.

3. In the appointment letter, it was also made clear

that the appointment may be extended by one year

at a time for a further period of two years,

depending upon the progress of the research work.

The Clause 4 of the appointment letter states as

under :-

"They will be required to do tutorial work for 3 to 4 hours a week in addition to the research work approved by the University."

4. Clause 9 of the appointment letter states as

under :-

"They should produce all the original certificates pertaining to their qualifications, date of birth, experience etc. at the time of reporting for duty to the Heads of the Department concerned, for verification.

They should apply for registration for the Ph.d. Degree to the Registrar, Bangalore

2 University, Bangalore within two months after reporting for duty to do research work on a selected subject and also abide by the regulations for the Ph.d Degree."

5. On or about 12th of February, 1987, some

persons, whose tenure appointment as Research

Assistants was coming to an end in 1986-87,

made a representation on 12th of February, 1987

to the Chancellor, Bangalore University to

regularize them by promoting/upgrading the post

of Research Assistants. In their representation,

the said persons submitted that during the

tenure appointments (three years extended to five

years) have acquired sufficient experience in the

field of research and also teaching and they

would be rendered jobless and put to hardships

if their appointments were terminated at the end

of their tenures.

3

6. On 31st of October, 1988, the University framed a

draft statute thereby providing for absorption of

Research Assistants as Lecturers as a one-time

measure and submitted it to the State

Government for approval. By an order dated 19th

of October, 1991, the University directed that in

regard to Research Assistants who were

appointed for three years and continued beyond

that period, status quo would be maintained by

continuing their services until further orders or

until the Government takes a decision in regard

to proposals of their absorption as lecturers in

the University. By a communication/order dated

3rd of November, 1992, the State of Karnataka

returned the draft statute to the University

suggesting some changes. Again on 17th of

February, 1993, the University resubmitted the

draft Statute after making necessary changes as

instructed by the State Government. On 4th of

October, 1993, the Chancellor of the University

4 gave his assent to the said Statute and the

Statute was called as the "Conversion of certain

posts of Research Assistants to that of Lecturers

and abolition of vacant posts of Research

Assistants in various Departments of Bangalore

University (for short "Statute")".

7. The aforesaid Statute was notified by the

Registrar of the University on 8th of November,

1993. The clauses which are relevant for the

purpose of proper decision of this appeal are as

follows :-

"3.1. As from the date on which these Statutes shall come into force the posts of Research Assistants as mentioned in Annexure `A' to these Statute shall stand converted to the posts of Lecturer.

3.2. As from the date on which these Statutes shall come into force all posts of Research Assistants, which are vacant as on 13.11.1992, shall stand abolished and there shall be no further appointment of Research Assistants in any of the Departments of the University."

3.4. The Research Assistants holding the post as such and as mentioned in Annexure `A' to these Statutes as on the

5 date on which these Statutes shall come into force shall be eligible to be absorbed and appointed as Lecturers.

3.6. The Research Assistants absorbed and appointed under the Statutes as Lecturers for the purpose of seniority as Lecturers will rank below the Lecturer already working in the University as on the date on which these Statutes shall come into force."

8. In pursuance of the Statute, the Syndicate of the

University passed a Resolution on 18th of March,

1994 thereby absorbing 22 Research Assistants.

9. In pursuance thereof, a common appointment

order was issued on 21st of March, 1994 from which

the relevant conditions are as follows :-

"1. For the purpose of seniority as Lecturers, they will rank below the lecturers already working in the University and temporary lecturers now regularized.

2. Such of the Research Assistants, who are absorbed as lecturers not possessing Ph.D./Net/M.Phill qualification shall acquire Ph.D. /Net within a period of 3 years, failing which

6 they shall not earn their future increments, till they acquire above qualifications.

6. The services as Research Assistants will not be counted for the purpose of granting senior scale and selection scale of pay."

10. By an order dated 4th of August, 1994, the

University ordered that the date of appointment of

the present appellant as Lecturer in Sociology be

read as `effective from 21.3.1994'. In the year 1995,

the present appellant and some other Research

Assistants filed writ petitions before the High Court

of Karnataka, which were registered as Writ Petition

Nos. 41710-41786 of 1995, in which the writ

petitioners made the following prayer :-

"The petitioners therein interalia sought for a declaration that Clause 3.6 and 3.8 of the Statute are illegal and ultra-vires Article 14 of the Constitution; and also for a declaration that Condition Nos. 1 & 6 of the appointment order dated 21.3.1994 are illegal and void.

The Petitioners therein also sought for a direction to the University to give the benefits if their past services as Research

7 Assistants for the purpose of seniority in their past services as Research Assistants for the purpose of seniority in the cadre of lecturer and accord them consequential benefits...."

11. The aforesaid writ petitions were taken up for

final disposal by a learned Single Judge of the High

Court of Karnataka, who by his Judgment and

order dated 12th of April, 2000 allowed the writ

petitions in part inter alia upholding the validity of

Clauses 3.6 and 3.8 of the Statute as well as

Condition No. 1 of the appointment order dated 21st

of March, 1994. Further, it would be evident from

the Judgment of the learned Single Judge of the

High Court that the Condition No. 1, as noted

hereinearlier, of the appointment order dated 21st of

March, 1994 was cancelled.

12. Being aggrieved by the aforesaid Judgment

and Order passed by the learned Single Judge, the

writ petitioners as well as the University and the

8 State had preferred appeals before the Division

Bench of the High Court. By a Judgment and order

dated 7th of March, 2002, the Division Bench of the

High Court dismissed the appeal and allowed the

appeals preferred by the State as well as by the

University. While passing such Judgment, the

Division Bench made the following conclusions :-

"(i) It has been amply demonstrated that the posts of Research Assistants are lower to the post of lecturers; and

ii) A Research Assistant's post cannot be equated with that of lecturers."

13. The University thereafter issued a notification

on 30th of September, 2002, inviting various

persons to apply for the post of Professor, Reader

and Lecturer in the University. In the said

notification, the University invited candidates for

the post of Professors in which the following

qualifications were required :-

9

"An eminent scholar with published work of high quality, actively engaged in Research with :

10 years of experience of Post-Graduate teaching, and/or experience in research at the University/National Level Institutions (including experience of guiding research at Doctoral Level).

Or An outstanding scholar with established reputation who has made significant contribution to knowledge."

14. In response to the said notification, various

candidates including the appellant and the

Respondent Nos. 1 and 2 applied for the said post.

The last date of submission of application was 23rd

of October, 2002 on which date, the appellant had

completed 8 years, 7 months and 2 days i.e. from

21st of March, 1994 to 23rd of October, 2002. The

Chairman, Department of Sociology, submitted a

"Scrutiny and Verification Report". In the said

report, it was stated as under :-

10

"....on my scrutiny, I am satisfied that the candidate under reference fulfills all the requirements, as laid down in the University Notification under reference and the candidate may be invited for the interview.

If the candidate is not eligible, please furnish the details."

15. From this Scrutiny and Verification Report, it

appears that the Chairman found only four persons

eligible for the post and invited the appellant,

respondent Nos. 1 and 2 and one other person for

interview. A Board of Appointment in Sociology

Department of University was constituted by a

notification dated 30th of September, 2002 and the

Board assembled for selection of candidates for the

post of Professor in Sociology. The Board of

Appointment selected the following persons in the

order of merit :-

1. Dr. Chikkamylarappa (appellant herein)

2. Dr.R.Venkatasubbaiah (respondent No.1 herein)

3. Dr. C. Somashekar (respondent No.2 herein)

4. Dr. I. Maruthi

11

16. Challenging this selection, the respondent

Nos. 1 and 2 filed a writ petition before the High

Court seeking for a writ declaring the selection and

appointment of appellant to the post of Professor in

the Department of Sociology. In the said writ

petition, the appellant filed its written objection

and University also had filed its objection. On or

about 18th of June, 2003, the appellant was

appointed by an appointment order as a Professor

in the Department of Sociology. It would be

pertinent to mention that although during the

pendency of the writ petition, the appointment

order of the appellant was issued by the University,

but such appointment order was, however, never

challenged in the writ application even by way of an

amendment to the writ petition in which the only

challenge was against the selection of the appellant.

By a Judgment and order dated 31st of July, 2007,

12 the learned Single Judge of the High Court had

allowed the writ petition filed by the respondent

Nos. 1 and 2 herein and thereby directed the

University to readvertise the post and fill the

vacancy in accordance with law within a period of

three months from the date of reply of the order.

While setting aside the selection of the appellant,

the learned Single Judge, inter alia, concluded as

follow:-

(1) The writ petitioners/respondent Nos. 1 and 2

confined their challenge only to one aspect i.e.

whether the appellant possessed the minimum

qualification as required.

(2) The appellant could claim to be a Lecturer

only with effect from 21st of March, 1994 and

not prior to it.

(3) In view of the Judgment and order dated 7th of

March, 2002, it would not be permissible to

13 reckon the services/experience rendered by

the appellant as Research Assistant in the

University as a Lecturer in the same.

(4) Taking the said dates into account, the

appellant did not possess the stipulated

qualification set out in the notification i.e. 10

years of experience in post-graduate teaching

or the alternative. The appellant was selected

with reference to the number of years of

teaching and not with reference to the

qualification that he was an eminent scholar

with research experience and publications etc.

(5) The appellant was ineligible for appointment to

the post of Professor in the Sociology

Department of the University and hence could

not have been appointed. His selection and

appointment, therefore, was arbitrary and

illegal.

(6) The writ petition survived for consideration

despite the superannuation of the respondent

14 No. 1 herein and non-short listing of

respondent No. 2.

17. It is in this view, the learned Single Judge

came to the conclusion that the selection was

improper, arbitrary and illegal and, therefore, his

appointment ought to be cancelled. Being aggrieved

by the Judgment and order dated 31st of July, 2007,

the appellant preferred a writ appeal before the

Division Bench of the High Court. The Division

Bench of the High Court, by its Judgment and final

order dated 6th of August, 2007 dismissed the

appeal preferred by the appellant inter alia on the

following findings:-

"(i) The question whether the appellant's experience can be treated as research experience was not considered by the Board of Appointment. It was not clear how the Board of Appointment found the appellant eligible.

(ii) The question was whether the experience of the appellant as Research Assistant can be treated as equivalent to post-graduate teaching experience.

15 (iii) The High Court in its Judgment and order dated 7.3.2002 had taken the view that the post of Research Assistants was not equal to the post of Lecturer.

Therefore, the experience as Research Assistants could not be treated as equivalent to post-graduate teaching experience."

18. Accordingly, on the aforesaid grounds, the

Division Bench, by the aforesaid order, dismissed

the appeal of the appellant against which, the

appellant filed this Special Leave Petition in respect

of which leave has already been granted and the

appeal was heard in presence of the learned

counsel for the parties.

19. We have heard Mr.Rama Jois, learned senior

counsel appearing for the appellant and

Mr.Hrishikesh Baruah, learned counsel appearing

for the respondents and also examined the

impugned judgment of the Division Bench as well

as of the learned Single Judge passed in the writ

16 application in depth and in detail. Before us, Mr.

Rama Jois, learned senior counsel at the first

instance submitted that the High Court ought not

to have interfered with the decision of the Board of

Appointment which comprised of experts for

selection to the post of Professor in the University

as it was not for the court to go into the question

whether such selection was proper or not in the

absence of any pleading that either the Expert Body

of the University or the University Authorities had

acted mala fide in the matter of selection of the

appellant. Secondly it was argued by Mr.Rama Jois,

learned senior counsel for the appellant that the

High Court also erred in allowing the writ petition of

the respondents by holding that having regard to

the wording of the prescription both the periods of

experience in teaching as Lecturer for a period of 8

years 7 months and 2 days and experience as

Research Assistant for a period of 5 years 5 months

and 10 days ought to have been taken into account

17 and after taking into account the aforesaid period,

the High Court ought to have held that the

appellant was eligible for being selected as a

Professor in the Sociology Department of the

University and by not doing so, the High Court

erred in setting aside the appointment of the

appellant. In support of this contention, learned

senior counsel for the appellant had drawn our

attention to a decision of this Court in the case of

Dr.Kumar Bar Das vs. Utkal University & Ors.

[1999 (1) SCC 453] and argued that this case

squarely covered the case of the appellant which

was also relied on by the appellant before the High

Court, but the High Court had failed to take notice

of that decision. Reliance was also placed by the

learned senior counsel for the appellant in the case

of The University of Mysore vs. C.D.Govinda Rao

& Anr. [AIR 1965 SC 491] and National Institute

of Mental Health & Neuro Sciences vs.

Dr.K.Kalyana Raman & Ors. [1992 Supp (2) SCC

18 481]. Accordingly, learned senior counsel for the

appellant concluded that in view of the settled law

and the law laid down by this Court particularly in

Dr.Kumar Bar Das (supra), the judgments of the

Division Bench as well as of the learned Single

Judge are liable to be set aside. The learned

counsel appearing for the respondents, however,

refuted the submissions so made on behalf of the

appellant. According to the learned counsel for the

respondent, the Division Bench as well as the

learned Single Judge of the High Court were

perfectly justified in holding that the experience of

the appellant as Research Assistant could not be

treated as equivalent to Post Graduate teaching

experience and the question whether the experience

of the appellant could be treated as Research

experience was not considered by the Board of

Appointment of the University. Let us now deal with

the question raised by the learned counsel for the

parties. As quoted herein earlier that requirement

19 for selection in the post of Professor in the Sociology

Department of the University, 10 years experience

in Post Graduate teaching and/or experience in

Research in the University was necessary. It is not

in dispute that the appellant had 9 years of service

as Lecturer and had done Research work for 5

years. Therefore, there cannot be any dispute that

he had satisfied that he had got the experience of

10 years in Post Graduate teaching experience in

Research in the University. It is also not in dispute

that the Board of Appointment of the University

consisted of the persons, who were experts

academician as Head, found the appellant eligible

for such appointment, after scrutinizing the

experience required for appointment to the post of

Professor in the said Department. He was

interviewed along with others by the Board of

appointment of the Expert Body and found to be

eligible for appointment. The Syndicate of the

University, which also consisted of Academic

20 experts had passed a resolution approving the

appointment of the appellant as Professor. This

appointment of the appellant was challenged on two

grounds. Before we go into the two grounds, we may

keep it on record that it was the stand of the

University before the High Court as well that the

appellant was duly qualified for appointment to the

post of Professor. The learned Single Judge while

allowing the writ petition of the respondents,

however, reckoned the service of the appellant as

Lecturer, but ignore to consider the experience of

the appellant as Research Assistant. It cannot be

disputed that these two experiences, namely,

experience as Lecturer and experience as Research

Assistant, if counted, the eligibility of the appellant

for appointment to the post of Professor could not

be questioned. In Dr. Kumar Bar Das (supra), this

court in detail had considered this aspect of the

matter and in the said decision, this Court observed

that the opinion of experts in the Selection

21 Committee must be taken to be that the appellant's

teaching and Research experience satisfied the

above conditions of 10 years as mentioned for

appointment to the post of Professor. In that case,

this Court at para 27 at page 462 observed as

follows :

" In our view, having regard to the high qualifications of the experts and the reasons furnished by the Syndicate as being the obvious basis of the experts' opinion, the Chancellor ought not to have interfered with the view of the experts. The expert's views are entitled to great weight as stated in University of Mysore's case."

20. In Para 28 of the said decision, this Court also

observed :

"In our opinion, the Chancellor cannot normally interfere with the subjective assessment of merit of candidates made by an expert body unless mala fides or other collateral reasons are shown. In Neelima Misra case above-referred to, this Court observed, referring to the powers of the Chancellors in matters of appointment of Professors/Readers as

22 being purely administrative and not quasi-judicial."

21. Following the principles laid down in Kumar

Bar Das vs. Utkal University (supra), this Court

also in the case of G.N.Nayak vs. Goa University &

Ors. [2002 (2) SCC 712] considered this aspect of

the matter and held at para 27 which are as follows:

"A candidate can club together his qualification of teaching and research to cover the 10 years' period as has been held in Kumar Bar Das (Dr.) vs. Utkal University."

22. In view of the aforesaid two decisions of this

Court, as noted herein earlier, which extensively

dealt with the requirement to the post of Professor

in the University, we need not dwell in depth and in

detail any further and therefore, we must hold that

the appellant had satisfied the qualifications

required for appointment to the post of Professor in

23 the University. There is another aspect of this

matter which is also relevant for proper decision of

this appeal. We have already indicated earlier that

the Board of Appointment was constituted with

experts in this line by the University Authorities.

They have considered not only the candidature of

the appellant and his experience as a Lecturer and

Research Assistant along with others came to hold

that it was the appellant who was the candidate

who could satisfy the conditions for appointment to

the post of Professor. Such being the selection made

by the expert body, it is difficult for us to accept the

judgments of the High Court when we have failed to

notice any mala fides attributed to the members of

the expert body in selecting the appellant to the

said post. In University of Mysore vs.

C.D.Govinda Rao & Anr. [AIR 1965 SC 491], this

Court while dealing with the selection of candidates

for academic matters by a Board of Experts

appointed by the University for the post of Reader

24 and the recommendation of the Board, this Court at

Para 13 of the aforesaid decision observed:-

"Boards of Appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the court should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the court to leave the decisions of academic matter to experts who are more familiar with the problems they face that the courts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an executive authority, issuing an executive fiat, or was acting like a quasi- judicial tribunal, deciding disputes referred to it for its decision. In dealing with complaints made by citizens in regard to appointments made by academic bodies, like the Universities, such an approach would not be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writ of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration

25 which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinion expressed by the Board & its recommendations on which the Chancellor has acted. In this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No. 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified."

23. Admittedly, there is nothing on record to show

any mala fides attributed against the members of

the Expert Body of the University. The University

Authorities had also before the High Court in their

objections to the writ petition taken a stand that the

26 appellant had fully satisfied the requirement for

appointment. In this view of the matter and in the

absence of any mala fides either of the expert body

of the University or of the University Authorities and

in view of the discussions made herein above, it

would be difficult to sustain the orders of the High

Court as the opinion expressed by the Board and its

recommendations cannot be said to be illegal,

invalid and without jurisdiction.

24. Again in M.V.Thimmaiah & Ors. vs. Union

Public Service Commission & Ors. [2008 (2) SCC

119], this Court clearly held that in the absence of

any mala fides attributed to the expert body, such

plea is usually raised by an interested party (in this

case the unsuccessful candidate) and, therefore,

court should not draw any conclusion on the

recommendation of the expert body unless

allegations are substantiated beyond doubt. That

27 apart, the challenge to the selection made by the

expert body and approved by he University

Authorities was made by the respondent Nos. 1 and

2 who were unsuccessful candidates and were not

selected for appointment to the post of Professor in

the Department of Sociology.

25. In National Institute of Mental Health &

Neuro Sciences vs. Dr.K.Kalyana Raman & Ors.

[1992 Supp (2) SCC 481], this Court considered in

detail the role of an expert body in deciding the

candidature for selection to a particular post. While

doing so, this Court at Para 7 at P. 484 of the said

decision observed as follows:

"In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival

28 candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. The High Court in support of its reasoning has, however, referred to the decision of this Court in Union of India v.

Mohan Lai Capoor. That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons for superseding a senior member in the State Civil service. The decision in Capoor case was rendered on 26 September, 1973. In June, 1977, Regulation 5(5) was amended deleting the requirement of recording reasons for the supersession of senior officers of the State Civil services. The Capoor case cannot, therefore, be construed as an authority for the proposition that there should be reason formulation for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R. S. Dass v. Union of India in which Capoor case was also distinguished."

29 26. Keeping this observation in our mind and

considering the facts and circumstances of the

present case, we find that there was no dispute in

this case that the selection was made by the

assessment of relative merit of rival candidates

determined in the course of the interview of the

candidates and after thoroughly verifying the

experience and service of the respective candidates

selected the appellant to the post of the Professor in

the said Department. It is not in dispute that there

is no rule or regulation requiring the Board to

record reasons. Therefore, in our view, the High

Court was not justified in making the observation

that from the resolution of the Board selecting the

appellant for appointment, no reason was recorded

by the Board. In our view, in the absence of any

rule or regulation requiring the Board to record

reasons and in the absence of mala fides attributed

against the members of the Board, the selection

30 made by the Board without recording reasons

cannot be faulted with.

27. Before we conclude, at the risk of repetition,

we may reiterate that the Chairman, Department of

Sociology, University of Bangalore submitted his

scrutiny and verification report in which it was

stated as under:

"On my scrutiny, I am satisfied that the candidate under reference fulfils all the requirements as laid down in the University Notification under reference and the candidate may be invited for the interview. If the candidate is not eligible, please furnish the details."

28. A reading of the scrutiny report which was

extracted by the learned Single Judge in his order

would clearly show that the Chairman found only

four persons eligible for the post and invited the

appellant and the respondent Nos. 1 and 2 and one

more candidate for interview. After being satisfied

and after verifying the report of the eligibility and

31 the requirements for appointment to the post of

Professor in the Sociology Department of the

University, the scrutiny and verification report was

filed by the Chairman and on the basis of which the

appellant was selected and appointed in the post of

Professor in the University. That being the position

and in view of our discussions made herein above,

we are of the view that the Division Bench as well

as the learned single judge ought not to have

exercised the writ jurisdiction and interfered with

the selection of the expert committee of the

University for the reasons made in the order and

particularly when the selection of the appellant was

not challenged on the ground of mala fides.

29. For the reasons aforesaid, we are inclined to

set aside the orders of the High Court. Accordingly

the impugned orders of the High Court are set aside

and the writ petition filed by the respondents is

hereby rejected. In view of the fact that we have

32 already found that the appointment of the appellant

is legal, the University is directed to re-instate the

appellant within two months from the date of

supply of a copy of this order. The appeal is

allowed. There will be no order as to costs.

.........................J. [Tarun Chatterjee]

New Delhi; .........................J. October 03, 2008. [Harjit Singh Bedi]

33