Mohd. Sohrab Khan vs Aligarh Muslim University & Ors

Aligarh Muslim University & Ors. ...Respondents

WITH CIVIL APPEAL NO. 1131 OF 2009 (Arising out of SLP(C) No. 6718 of 2007)

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The present appeals are directed against the judgment and order dated

3.7.2006 passed by the Division Bench of the High Court of

Allahabad. By the common judgment and order, we propose to

dispose of both the said appeals.

Page 1 of 15

3. The High Court by the said order allowed the Writ Petition filed by

Mohd. Sohrab Khan and set aside the Office Memo dated 20.05.2004

issued by the University regarding appointment of Merajuddin

Ahmed, as a Lecturer in Chemistry in University Polytechnic, Aligarh

Mulsim University, Aligarh.

4. Mohd. Sohrab Khan filed the said Writ Petition challenging the

aforesaid appointment and also seeking for a direction that he be

appointed to the said post on the basis of his selection by the

Selection Committee. Since by the said judgment and order the High

Court set aside the appointment of the appellant Merajuddin Ahmed

but, however, as High Court did not grant a direction as sought for by

Mohd. Sohrab Khan, therefore, two appeals came to be filed in this

Court on which we have heard the counsel appearing for the parties.

We have also heard the learned counsel appearing for the Aligarh

Muslim University. In order to deal with the contentions raised in

both the appeals, it would be necessary to deal herein with some of

the relevant facts leading to the filing of the writ petition.

5. Aligarh Muslim University issued an advertisement through

Advertisement No. 2 of 2004 dated 6.2.2004 whereby it called for

applications for filling up about 79 posts in the University. One of

Page 2 of 15 the said posts which was advertised was the post of Lecturer in

Chemistry in University Polytechnic, Aligarh Muslim University.

Qualification that was laid down by the University as essential

qualification was a First Class Masters' Degree in the appropriate

branch of teaching post in Humanities and Sciences. Both Mohd.

Sohrab Khan as also Merajuddin Ahmad submitted their applications

to be considered as against the aforesaid post which was advertised

namely Lecturer in Chemistry. Mohd. Sohrab Khan had a First Class

Masters' Degree in Chemistry (Pure) whereas Merajuddin Ahmad was

holding a First Class Masters Degree in Industrial Chemistry.

The University Authority, however, called both of them for the

interview. The Selection Committee which was constituted for the

purpose of selecting the suitable candidate selected Merajuddin Ahmad

on the ground that he would be more suitable to the aforesaid post as he

holds a Masters Degree in Industrial Chemistry which according to them

would be best suited to teach the particular subject for the University

Polytechnic, Aligarh Muslim University. The University Authority

accepted the aforesaid recommendation of the Selection Committee and

issued an order of appointment in favour of Merajuddin Ahmad.

Page 3 of 15

6. Mohd. Sohrab Khan, being aggrieved by the aforesaid order passed

by the Aligarh Muslim University filed a writ petition in the High

Court of Allahabad.

7. The Division Bench of the High Court of Allahabad heard the

aforesaid Writ Petition and by a judgment and order dated 3.7.2006

allowed the aforesaid writ petition holding that the aforesaid

appointment of Merajuddin Ahmad to the said post is not legal as he

did not possess the minimum qualification. The High Court

consequently set aside the order of appointment with a direction to the

respondent-University to initiate fresh selection process for the

aforesaid post giving liberty to the University to reconsider the

essential qualification for the post, in question. The High Court while

coming to the aforesaid conclusion clearly recorded that the

University award degrees separately in both subjects Chemistry as

well as Industrial Chemistry and that both the subjects are distinct and

separate.

By referring to the course structure of Graduate and Post Graduate

classes in Chemistry and Industrial Chemistry, the High Court came to

the conclusion that the courses of the aforesaid two subjects are quite

different and distinct and in the light of the aforesaid findings, it also

Page 4 of 15 recorded that degree of M.Sc. in Industrial Chemistry cannot be equated

with the degree of M.Sc. in Chemistry.

The High Court referred to the decision of this Court in Dr. Bhanu

Prasad Panda Vs. Chancellor, Sambalpur University and Others [(2001)

8 SCC 532] for coming to the conclusion that the eligibility

qualifications cannot be ignored. The High Court of Allahabad held that

the facts of the present case are similar to that of the abovementioned

case wherein there was an advertisement for the post of Lecturer in

Political Science and it was held that the person having degree in Public

Administration cannot be appointed.

8. The contention that is raised on behalf of Merajuddin Ahmad is that

the selection committee being constituted of experts on the subjects

was the only competent authority to decide that the person holding

Masters Degree in Industrial Chemistry is best suited for teaching the

subject for which advertisement was issued and the High Court acted

illegally and without jurisdiction in interfering with the aforesaid

opinion of the experts by substituting its own decision.

It was also submitted that the Masters Degree in Industrial

Chemistry is as good as Masters Degree in Chemistry for the post for

Page 5 of 15 which the advertisement was issued and that a person having Masters

Degree in Industrial Chemistry was better suited for teaching the said

subject. Learned counsel also invited our attention to the course contents

which the teacher appointed to the said post was required to teach.

Relying on the same, he submitted that a candidate having Masters

Degree in Industrial Chemistry would have been better suited to teach the

said subjects constituting the course contents.

9. Learned Counsel appearing for Mohd. Sohrab refuted the aforesaid

submissions and contended that for teaching Chemistry to Diploma

students only the basic knowledge of Chemistry is required and

therefore a person holding a Masters Degree in pure Chemistry is

better suited to teach the said subject. It was also submitted by him

that Masters Degree in Industrial Chemistry is quite distinct and

separate from pure Chemistry which is a separate subject altogether

and therefore recommendation made by the Selection Committee and

the appointment made by the University was against the requirements

and norms laid down in the advertisement issued by the University

and therefore the same was rightly set aside by the High Court.

Learned Counsel also submitted that since Mohd. Sohrab Khan

was placed at serial No. 2 and the appointment of Merajuddin Ahmad

Page 6 of 15 was found to be illegal and therefore non est and nullity, Mohd. Sohrab

Khan who was placed at serial No. 2 could have directly been appointed.

It was submitted that as the same has not been done the second part of

the judgment of the High Court be set aside and a direction by this Court

to appoint Mohd. Sohrab Khan on the said post be issued.

10.According to the advertisement issued by the University, post in

Chemistry had fallen vacant and in order to fill up the said post,

applications were invited. In the advertisement it is clearly stated

that what is advertised is a post of lecturer in Chemistry. Therefore, it

would be necessarily assumed that candidates possessing a Masters

Degree in pure Chemistry should submit their application as against

the aforesaid post.

11.We have gone through the aforesaid advertisement which was issued

for filling up various posts and on scrutiny, we find that whenever and

wherever the University desired to fill up a post at variance with the

main subject, it is specifically notified and indicated in the said

advertisement. For example, advertisement which find place at Serial

No. 59 was for filling up the post of Lecturer in Civil Engineering

(Environmental Engg.) for University Polytechnic for which

qualification which was necessary and essential was mentioned as

Page 7 of 15 First Class Bachelor's Degree in Environmental / Civil Chemical /

Petroleum / Biochemical Engineering/ Architecture.

12.Many more posts advertised in the said advertisement specifically

indicate that whenever the University desired to have a post filled up

in a particular branch of the Humanities and Science Department, it

specifically indicated as such in the said advertisement. If it was

necessary for the University to fill up the post from the stream of

Industrial Chemistry, it would have so indicated in the advertisement

itself for in subsequent years, we find specific advertisement has been

issued by the same University for filling up the post of Lecturer in

Industrial Chemistry by issuing an advertisement specifically in

that regard.

13.There is no doubt with regard to the fact that it is the University

Authority who knows best as to what is their requirement. Aligarh

Muslim University was founded by Central Act called the Aligarh

Muslim University Act. It also has a statute made under Section 28

(1) of the said Act. Statute 22 of the University deals with the Boards

of Studies. One of the functions of the said Board of Studies is to

recommend to the Faculty in the manner prescribed in the ordinances,

the field of study of each post at the time of its creation.

Page 8 of 15

14.Statute 21 on the other hand deals with the powers and functions of

the Faculties. The aforesaid recommendation of the Board of Studies

is to be decided by the Faculties at Statute 21 of the University and

therefore, it is confirmed by the Academic Council under Statute 19

of the University, and therefore it is to be approved by the Executive

Council under Statute 17(2)(1) of the University. After such a

repeated multi-tier exercise, the essential qualification is earmarked

for a particular post and then it is advertised. It is also established

from the records and there is no dispute with regard to the fact that

pure Chemistry and Industrial Chemistry are two different and

separate subjects.

15.Learned counsel appearing for Merajuddin Ahmad strongly relied

upon the course contents. A bare look at the same would indicate

that what is dealt therein is not Industrial Chemistry but Engineering

Chemistry. We are not informed as to whether Engineering

Chemistry is considered to be at par with Industrial Chemistry.

16.Learned Counsel appearing for the University on our enquiry fairly

stated before us that the aforesaid post which was advertised to be

filled up in the aforesaid manner is at present vacant and the same is

Page 9 of 15 being manned by appointing a Guest Lecturer who holds a Masters

Degree in pure Chemistry.

17.If the requirement was to have a person having Masters Degree in

Industrial Chemistry, then in that event the post would have been

manned through a Guest Lecturer from the Industrial Chemistry

stream. Therefore, it cannot be accepted that the person holding a

Masters Degree in Industrial Chemistry would be better suited for

appointment as against the said post.

18.The post advertised was meant for a person belonging to the pure

Chemistry Department for if it was otherwise, then it would have been

so mentioned in the advertisement itself that a person holding a

Masters Degree in Industrial Chemistry should only apply or that a

person holding such a degree could also apply alongwith other

persons. It was not so mentioned in the advertisement and therefore,

except for Merajuddin Ahmad, no other degree holder in Industrial

Chemistry had applied for becoming a candidate as against the

aforesaid post.

19.According to us, the Selection Committee as also the University

changed the rule in the midstream which was not permissible. The

Page 10 of 15 University can always have a person as a Lecturer in a particular

discipline that it desires to have, but the same must be specifically

stated in the advertisement itself, so that there is no confusion and all

persons who could be intending candidates, should know as to what is

the subject which the person is required to teach and what essential

qualification the person must possess to be suitable for making

application for filling up the said post.

20.We are not disputing the fact that in the matter of selection of

candidates, opinion of the Selection Committee should be final, but at

the same time, the Selection Committee cannot act arbitrarily and

cannot change the criteria/qualification in the selection process during

its midstream. Merajuddin Ahmad did not possess a degree in pure

Chemistry and therefore, it was rightly held by the High Court that he

did not possess the minimum qualification required for filling up the

post of Lecturer Chemistry, for pure Chemistry and Industrial

Chemistry are two different subjects.

21.The advertisement which was issued for filling up the post of Lecturer

in Chemistry could not have been filled up by a person belonging to

the subject of Industrial Chemistry when the same having been

specifically not mentioned in the advertisement that a Masters Degree

Page 11 of 15 holder in the said subject would also be suitable for being considered.

There could have been intending candidates who would have

applied for becoming candidate as against the said advertised post,

had they known and were informed through advertisement that

Industrial Chemistry is also one of the qualifications for filling up the

said post. The Selection Committee during the stage of selection,

which is midway could not have changed the essential qualification

laid down in the advertisement and at that stage held that a Masters

Degree Holder in Industrial Chemistry would be better suited for

manning the said post without there being any specific advertisement

in that regard. The very fact that the University is now manning the

said post by having a person from the discipline of pure Chemistry

also leads to the conclusion that the said post at that stage when it was

advertised was meant to be filled up by a person belonging to pure

Chemistry stream.

22. In Secy., A.P. Public Service Commission v. B. Swapna, [(2005) 4

SCC 154] at para 14 it was held by this Court that norms of selection

cannot be altered after commencement of selection process and the

rules regarding qualification for appointment, if amended, during

continuation of the process of selection do not affect the same.

Further at para 15 it was held that the power to relax the eligibility

Page 12 of 15 condition, if any, to the selection must be clearly spelt out and cannot

be otherwise exercised. The said observations are extracted herein

below:

"14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka (1990) 1 SCC 411 and Gopal Krushna Rath v. M.A.A. Baig (1999) 1 SCC 544.)

15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141 this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised."

In Krushna Chandra Sahu (Dr) v. State of Orissa, [(1995) 6 SCC 1], at

para 34 it was held by this Court the Selection Committee does not even

Page 13 of 15 have the inherent jurisdiction to lay down the norms for selection nor can

such power be assumed by necessary implication. In the said case

reference was made to the decision in P. K. Ramachandra Iyer v. Union

of India [(1984) 2 SCC 141], wherein at para 44 it was observed:

"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."

23.After analysing the present issue in the light of the abovesaid legal

proposition laid down by this Court we hold that the High Court was

justified in rejecting the candidature of Merajuddin Ahmad as against

the said post which was advertised for pure Chemistry stream.

However, with the appointment of Merajuddin Ahmad to the said

post, the list recommended by the Selection Committee and approved

by the other competent authority has lapsed. We, therefore, uphold

the order passed by the High Court giving liberty to the University to

lay down the qualification necessary for filling up the aforesaid post.

The University shall now advertise the said post by laying down exact

essential qualification indicating the particular subject and subjects-

stream which is required to be possessed for making an application to

fill up the said post and therefore proceed to appoint a Lecturer

suitable for the aforesaid post.

Page 14 of 15

24.In terms of the above said both the appeals are disposed of.

.............................J. [S.B. Sinha]

..............................J. [Dr. Mukundakam Sharma] New Delhi,

February 20, 2009

Page 15 of 15