Pradeep Singh Dehal vs The State Of Himachal Pradesh

PRADEEP SINGH DEHAL .....APPELLANT(S)

VERSUS

STATE OF HIMACHAL PRADESH & ORS. .....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

1) The challenge in the present appeals is to orders passed by the

High Court of Himachal Pradesh, Shimla on June 24, 2015 and July

30, 2015 whereby, the Himachal Pradesh University 1 was directed

to add five marks on the parameter of “publications” in favour of

the respondent No. 32 in respect of appointment to the post of

Assistant Professor in the Department of Education in the

International Centre for Distance Education and Open Learning,

Shimla.

2) Initially, an advertisement No. 3 of 2010 was published inviting

applications for seven posts of Assistant Professor viz. four posts

1 for short, ‘University’ 2 hereinafter referred to as ‘writ petitioner’

1 under Unreserved category, one post under Other Backward

Classes3 category, one post under Scheduled Castes category and

one post in Scheduled Tribes category. The appellant and the writ

petitioner were the applicants for such posts. However, none of

the candidates were appointed to such posts. Thereafter, another

advertisement No. 3 of 2011 was published. This time,

advertisement was published for the post of Assistant Professor

inviting applications for six posts under Unreserved category, one

post under OBC category, one post under Scheduled Castes

category and one post under Scheduled Tribes category. One of

the conditions in the advertisement was that the candidates who

have applied earlier as per revised UGC guidelines and also with

reference to previous advertisements need not to apply again.

However, they may send additional information, if any.

3) The appellant and the writ petitioner did not apply again nor said

to have furnished any additional information. In such selection

process, the appellant was recommended by the Expert Committee

for appointment against the post meant for OBC category, having

obtained 60.83 marks.

4) Such appointment was challenged by the writ petitioner, inter alia,

on the ground that he has not been given any credit of

“publications” whereas, for such “publications”, he has been given

credit when he was considered in pursuance of the post applied in

3 for short, ‘OBC’

2 response to advertisement No. 3 of 2010. The High Court accepted

the claim of the writ petitioner with the following directions:

“The writ petition is accepted and respondents No. 1 and 2 are directed to add to the score-sheet of the petitioner five marks on the parameter of “publications”. In case the petitioner then is ranked first, then subject to completion of all necessary formalities the respondent concerned shall proceed to in accordance with law appoint him to the post of Assistant Professor, Education.”

5) The appellant filed review petition which came to be summarily

dismissed on July 30, 2015. Still aggrieved, the appellant filed the

present appeal.

6) The argument of the appellant is two-fold. First, it is for the experts

to assess the marks for “publications”. Since the writ petitioner

has not sent any “publications” along with his application form,

therefore, he has not been granted any marks under the heading

“publications”. It is also argued that decision of the experts as to

how much marks should be awarded cannot be interfered with by

the High Court, while exercising the power of judicial review under

Article 226 of the Constitution of India. Even if, the Court finds that

certain marks under heading “publications” have not been granted,

the only course of action open to the Court is to remit the matter to

the experts to examine the grant of marks under the heading

“publications”, if any. The reliance is placed upon judgment of this

Court in University Grants Commission & Anr. v. Neha Anil

Bobde (Gadekar)4 wherein this Court held as under:

4 (2013) 10 SCC 519

3 “31. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the regulations or the notification issued, the courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491] , Tariq Islam v. Aligarh Muslim University [(2001) 8 SCC 546 :

2002 SCC (L&S) 1] and Rajbir Singh Dalal v. Chaudhary Devi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887] , has taken the view that the court shall not generally sit in appeal over the opinion expressed by the expert academic bodies and normally it is wise and safe for the courts to leave the decision of the academic experts who are more familiar with the problem they face, than the courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the university. For attaining the said standards, it is open to UGC to lay down any “qualifying criteria”, which has a rational nexus to the object to be achieved, that is, for maintenance of standards of teaching, examination and research. The candidates declared eligible for Lectureship may be considered for appointment as Assistant Professors in universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India.”

7) Learned counsel for the University refers to the policy and

programme for recruitment of Lecturers in the University including

contemplating marks for “publications”, which is as under:

(vi) Publications 5 International, National referred Journals:

1 Mark each.

Authored books*: 1 Mark each.

Chapter in Books* (Excluding proceedings of seminars/ conferences): 0.5 Marks each. Edited books*: 0.5 Marks each.

4 Publications in popular magazines, newspapers etc.: Nil. *On the relevant subject only.

8) It may be noticed that the post of Lecturer has been renamed as

Assistant Professor and that the norms of the appointment to the

posts of Assistant Professor are prescribed by the UGC (Minimum

Qualifications for Appointment of Teachers and other Academic

Staff in Universities and Colleges and Measures for the

Maintenance of Standards in Higher Education) Regulations, 20105.

9) Learned counsel for the University submitted that the discretion as

to whether any marks for “publications” are to be awarded or not

falls within an exclusive domain of the experts. It is argued that

marks obtained in the earlier selection process which was not

completed cannot be directed to be taken into consideration as not

only the Selection Committee is different but also the selection in

response to advertisement No. 3 of 2011 is being conducted after

framing of the Regulations for appointment to the post of Assistant

Professor.

10) On the other hand, learned counsel for the writ petitioner pointed

out that not only the writ petitioner was granted five marks in the

earlier selection process but also five marks were granted to the

post of Assistant Professor in Education against the general

category post. Such document has been appended with Annexure

R-3/5.

5 for short, ‘Regulations’

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11) In this background, we examine the respective contentions of the

parties.

12) As per the conditions pertaining to advertisement No. 3 of 2011,

the applications submitted earlier were to be considered. This

shows that the “publications” of the writ petitioner were with the

University when the writ petitioner was granted marks for

“publications”. Even if the Selection Committee has undergone a

change as well as norms of selection as per the Regulations, the

Selection Committee was within its jurisdiction not to award any

marks for “publications”, if it was not meeting the requisite

conditions. But surprisingly, the writ petitioner has not been

granted any marks under the heading “publications” in the

interview held on May 12, 2012, when the candidates for under

OBC category were interviewed but the writ petitioner was granted

five marks for “publications” when the interview was being

conducted for the post of Assistant Professor under general

category on May 13, 2012. Though, the writ petitioner has not

appeared in the interview but the fact remains that he has been

granted five marks for “publications”. It is the same Selection

Committee who conducted interview on May 12, 2012 and on May

13, 2012. Therefore, the stand of the appellant that the writ

petitioner has not submitted any “publications” does not merit

acceptance. Such “publications” were before the Search

Committee when the writ petitioner was interviewed on May 13,

2012.

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13) But it is equally true that it is for the experts to award marks for

“publications”. The High Court, while exercising the power of

judicial review, does not sit in the arm chair of the experts to award

the marks for publications, that too, on the basis of an earlier

selection process. The marks obtained by the writ petitioner under

the heading “publications” on May 13, 2012 were not before the

High Court. The appellant was granted three marks for

“publications” in the earlier selection process initiated vide

advertisement No. 3 of 2010. Such “publications” were also

required to be taken into consideration by the Selection

Committee.

14) We find that the process of conducting separate interviews for the

posts of Assistant Professor under general category and OBC

category is wholly illegal. Though, none of the parties have raised

any dispute about it but since the same is inherently defective, we

are constrained to observe so. Every person is a general category

candidate. The benefit of reservation is conferred to Scheduled

Castes, Scheduled Tribes and OBC category candidates or such

other category as is permissible under law. It is a consistent view

of this Court starting from Indra Sawhney & Ors. v. Union of

India & Ors.6 that if a reserved category candidate is in merit, he

will occupy a general category seat. In Indra Sawhney’s case,

the Court held as under:

“811. In this connection it is well to remember that the

6 1992 Supp. (3) SCC 217

7 reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.”

15) In judgment reported as Vikas Sankhala v. Vikas Kumar Agar-

wal7 one of the questions examined was whether reserved cate-

gory candidate who obtains more marks than the last general cate-

gory candidate is to be treated as general category candidate. It

was held that such reserved category candidate has to be treated

as unreserved category candidate provided such candidate did not

avail any other special concession. The Court held as under:

“84.2. Migration from reserved category to general cate- gory shall be admissible to those reserved category can- didates who secured more marks obtained by the last un- reserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category.”

16) The concessions which were availed by the reserved category can-

didates are in the nature of age relaxation, lower qualifying marks,

concessional application money than the general category candi-

dates.

17) In view of the said fact, we find that the selection process

conducted by the University cannot be said to be fair and

reasonable. Consequently, the University is directed to re-examine

the selection process by constituting an Expert Committee who

shall consider the “publications” of the candidates who were being

considered in pursuance of advertisement No. 3 of 2011 and make 7 (2017) 1 SCC 350

8 suitable recommendations accordingly by having a joint merit list

of all the categories of candidates who applied for appointment to

the post of Assistant Professor. However, in such selection process,

the appointment of candidates already selected will not be

disturbed, except the appellant whose appointment shall be

subject to the decision of the University on the basis of

recommendation of the Expert Committee.

18) We hope that University will be able to finalise the revised

selections within a period of six months from today.

19) The appeals are, thus, allowed in the above terms.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI;

SEPTEMBER 17, 2019.

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