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Allahabad High Court · body

1973 DIGILAW 444 (ALL)

C. P. Tewari v. Lucknow University, Lucknow

1973-10-09

PREM PRAKASH

body1973
JUDGMENT Prem Prakash, J. - This is a petition under Article 226 of the Constitution by Dr. C.P. Tewari, a permanent Lecturer in the department of Bio-Chemistry, Lucknow University. By this petition he has prayed that a writ of quo-warranto be issued calling upon respondent No. 2 to show cause as to under what authority he is holding the post of Reader in Bio-chemistry. He has also prayed for a writ of certiorari or other appropriate writ or direction to quash the recommendation of the Selection Committee dated 24th July, 1972, and command the University of Lucknow to make a fresh selection to the post of Reader, in accordance with law. 2. The University of Lucknow as respondent No.1 has disputed the validity of the claim made by the petitioner. They contend that respondent No. 2 was properly appointed as Reader and that the contention made by the petitioner that the said appointment was invalid was not justified. The Executive Council by a resolution dated 1st October, 1972 appointed respondent No. 2 as Reader in Bio-Chemistry on which post respondent No.2 took over on 15th February, 1973. 3. The University of Lucknow advertised for two permanent posts of Reader in the Department of Bio-Chemistry; to the one post respondent No. 3 has been appointed and in respect of this appointment the petitioner has nothing to say. The second post was advertised by Annexure 'A' on 29th March, 1972. The qualifications prescribed for this post are material and it would be relevant to notice them here. Qualification:- Essential, First or high Second Class Master's Degree and Doctorate in the subject concerned with a good academic record and experience of teaching Honours, Post Graduate Classes for not less than five years and published research work of high standard in the subject concerned. Preferential:- Experience of teaching Post -Graduate classes and guiding research........Relaxation in the prescribed qualifications may be made in exceptional circumstances in accordance with the Ordinances. In accordance with the advertisements the petitioner and respondents Nos. 2 and 3 made applications. The petitioner after having obtained M.Sc. in Bio-Chemistry and Ph.D. in Bio-chemistry from Lucknow University was appointed as Assistant Professor in August, 1961; he became a Lecturer when the three grade system was re-introduced in the University. In accordance with the advertisements the petitioner and respondents Nos. 2 and 3 made applications. The petitioner after having obtained M.Sc. in Bio-Chemistry and Ph.D. in Bio-chemistry from Lucknow University was appointed as Assistant Professor in August, 1961; he became a Lecturer when the three grade system was re-introduced in the University. The Selection Committee to make selection for the two posts was the same, constituted by the Chancellor by two separate letters dated November 29, 1971 and April 15, 1972. Dr. D.p. Verma from Varanasi Medical College and Dr. Malvia, respondent No. 4, from Agra Medical College were the Two Experts in the said Selection committee. Separate interview letters were issued by the Registrar (by Annexures 3 and 4), though the Selection Committee was to meet separately to select candidates for both the post on July 24, 1972. The petitioner appeared before the Selection Committee, but respondent No. 2 being out of India, he could not appear before the Committee. Clause 175 of the statues forbids the Selection Committee to consider the name of a person for appointment as Reader unless he applied for it, but there is nothing in he statute to prohibit the Selection Committee from Selecting a candidate who applied but who could not appear before it. 4. The recommendations of the Selection Committee and the appointment made by the Executive Council on the basis of the said recommendations have been questioned upon a variety of grounds. First, it was contended that the post being temporary, when it was advertised through Annexure 'A', the University should have re-advertised it when it was made permanent in terms of Clause 173 of the Statute. Second, the Experts constituting the Selection Committee were not given due notice that in the meeting on 27th April, they were also to make selection for the second post of the Reader. Third, one of the Experts, Dr. Malviya, bore a prejudicial bias against the petitioner, and finally, that from the bio-data of the candidates available before the Selection Committee, the Experts or the Members of the Selection Committee could not be reasonably satisfied that respondent No.2 possessed five years' teaching experience and that, at any rate, the selection was vitiated because respondent No.2 did not possess the requisite teaching experience prescribed as one of the essential qualifications by the Ordinances framed by the University. 5. 5. Learned counsel for the petitioner has not pressed before me ground No.3, and, that being so, we have to take it as established at the very threshold that the Selection Committee in making the recommendations did not act upon irrelevant or collateral considerations. 6. The first brach of the contention is in respect of clause 167 of the statutes which provides that the Selection Committee shall not be deemed to be duly constituted unless all the Experts have been given due notice of the meeting and at least one Expert is present. The University have nothing to show that the Experts were intimated of the Selection to the second post. Normally, want of notice even to a particular member would invalidate the proceedings at a meeting. The general rule appears to be that every one who is entitled to participate must be informed, but howsoever, strict may be the rule, it has been pointed out by the Supreme Court in the case of Vice-Chancellor, Utkal University v. S.K. Ghosh, AIR 1954 SC 217 that a member who has no notice but who actually attends and participates in the meeting can be said to have waived the defect for want of notice. In the instant case, both the Experts constituting the Selection Committee were present when the selection was made; neither Expert complained of want of notice. They by their conduct themselves waived the requirements of notice and, that being so, the want of notice to the Experts was not fatal to the meeting itself. This disposes of the first contention. 7. It was also urged that the post being temporary, to begin with, the University should have re-advertised it when it was made permanent. Much of the substance of this argument has been taken away by the fact that the University advertised the post, as would appear from Annexure-'A', as the permanent post. That being so, there was sufficient compliance with Clause 1973 of the Statute and the petitioner cannot complain on that score. The second contention is, therefore, repelled. 8. Counsel for the petitioner has seriously canvassed before me that the present is a case where the petitioner, on the own showing of the bio-data sent by the University to the Selection Committee, did not possess the requisite teaching experience which was an essential qualification in terms of the Ordinance. The second contention is, therefore, repelled. 8. Counsel for the petitioner has seriously canvassed before me that the present is a case where the petitioner, on the own showing of the bio-data sent by the University to the Selection Committee, did not possess the requisite teaching experience which was an essential qualification in terms of the Ordinance. If the petitioner did not possess necessary experience as required by the Ordinance, the Selection by the Selection Committee should stand vitiated in law being not in conformity with the Ordinance framed in exercise of the powers under section 30 of the Lucknow University Act. From the bio-data, Annexure-'6' to the rejoinder affidavit filed by the petitioner, it appears that respondent No. 2 obtained Ph.D. in the year 1961 and worked as Senior Scientific Assistant from 1961-63 and as Staff Scientist from 1970 until the date of his application. The Registrar, who swore the affidavit on behalf of the University, states in para 16 "that from a perusal of the bio-data of respondent No.2 it was assumed that his research associate-ships at various places in U.S.A. involved teaching experience for more than 5 years. In the absence of detailed particulars to show how respondent No.2 possessed the requisite teaching experience and for lack of such particulars in para 16 of the counter affidavit produced by the University it was urged before me that the selection of respondent No. 2 was made by the Selection Committee in disregard of the relevant consideration, namely, that he possessed the teaching experience for five years. On the other side, it was contended that as a Senior Research Fellow in the University of Aligarh respondent No.2 imparted teaching to the Post Graduate classes in Bio-Chemistry, that in the Chicago Medical School of United States of America, known as University of Health Sciences, he was engaged in teaching from time to time and that when he was associated with the Research Institute at Boston in U.S.A., then he was also associated with the Harvard University of U.S.A., which is a teaching organisation. 9. In support of the averments made in the counter affidavit as to the teaching experience, respondent No.2 has filed by means of a supplementary affidavit certain certificates, namely, Annexure-'A/1' from Professor of Bio-Chemistry at the University of Health Sciences. 9. In support of the averments made in the counter affidavit as to the teaching experience, respondent No.2 has filed by means of a supplementary affidavit certain certificates, namely, Annexure-'A/1' from Professor of Bio-Chemistry at the University of Health Sciences. The Chicago Medical School, Illinois; Annexure A-III from the Boston Research Institute and Annexure-'A-V' from Professor of Bio-Chemistry, Aligarh University. The Chicago Medical School is one of the Divisions of the University of Health Sciences. They admit students for the degree of Doctor of Medicines, Doctor and Master of Science and the Bachelor of Science. During the period from June, 1963 to June, 1965 respondent No.2 was employed as a Research Associate in the Division of Enamology. He was a Research Associate of faculty rank. His responsibilities to teaching, research and other activities of the of the school were no different than any other members of the faculty. At the Boston Research Institute he was also Associate in the Harvard University Medical School and his activities besides research and teaching included participating in seminars. he was there from June,1969 to January,1973. At Aligarh he was teaching Bio-Chemistry to Post Graduate classes from May, 1960 to June,1961. Reliance has been placed by respondent No. 2 on these certificate to justify his contention that he possessed the requisite teaching experience and that despite the fact that the bio-data before the Selection Committee did not furnish full particulars, the date, constituted as it did of the experience in Medical Science, could fully satisfy that respondent No.2 being the Senior Scientific Assistant from 1961 to 1963 and Staff Scientist from 1970 in Chicago and Boston possessed the requisite teaching experience. 10. Counsel for the petitioner has challenged the correctness of this stand and he maintains that because the data before the Selection Committee was not sufficient enough on which the opinion about respondent No. 2 possessing the teaching experience could be founded, the recommendation was arbitrary. I feel considerable difficulty in agreeing with the learned counsel. "If the ground of challenge is not that irrelevant considerations have been taken into account, but that relevant considerations have not been taken into account, it is by no means clear what is the criterion of invalidity. I feel considerable difficulty in agreeing with the learned counsel. "If the ground of challenge is not that irrelevant considerations have been taken into account, but that relevant considerations have not been taken into account, it is by no means clear what is the criterion of invalidity. On one hand, it would be absurd for a court to hold that the discretion had been invalidly exercised whenever its repository had overlooked a relevant factor irrespective of the relative importance of that factor. On the other hand, once a court begins to assess the degree of influence that a disregarded factor might have exerted if it had not been overlooked, it embarks upon a cereval on conjecture into hypothetical circumstances." (Vide Judicial Review of Administrative Action by S.A.I. Smith, pp. 204-5). In what manner such questions are to be viewed when the appointment made by academic bodies like the Universities are scrutinised by courts has been indicated by the Supreme Court in the University of Mysore v. Govinda Rao, AIR 1965 SC 491 at p.497 where Gajendragadkar, J. (as he then was) observed:- "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....what the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule of ordinance, and in doing so, the High Court should have shows due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. In this connections 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". Earlier it was said:- "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 authority, issuing an executive fiat,or was acting like a quasi-judicial tribunal, deciding disputes referred to it for its decision." 11. Earlier it was said:- "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 authority, issuing an executive fiat,or was acting like a quasi-judicial tribunal, deciding disputes referred to it for its decision." 11. Applying the principles enunciated in the above, and having regard to the certificates which were produced by respondent No. 2 with the supplementary affidavit, and taking into consideration the factor that in the application respondent No. 2 had described himself as a senior scientific Assistant from 1961 to 1963 and a Staff Scientist from 1970 to the date of the application the Selection Committee, whose bona fides stand beyond question, could rightly form the opinion that respondent No. 2 possessed the requisite teaching experience of five years. The Selection Committee was not a quasi judicial body deciding rival contentions between the various candidates, but they were to select on the basis of the data before them in the light of whatever expert knowledge they possessed in the matter. They being experts could be presumed to know that the job of Senior Scientific Assistant and Staff Scientist in U.S.a. carried with it teaching activity as well. Considered in that manner, the criticism made by the petitioner that the Selection Committee's recommendations were bad in law on the ground that respondent No. 2 did not possess the requisite teaching experience is not justified. In consequence, this brach of the argument is over ruled. 12. Counsel for respondent No. 2 has next argued before me that because the interests of the petitioner are not directly affected by the impugned selection, the petitioner under Article 226 of the Constitution is not maintainable. In determining the question of standing, the rule, as laid down by the American courts, is "whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions", (Flast v. Cohen, 392 US 83). 13. 13. In other words, when standing is placed in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Professor Smith in 'Judicial Review of Administrative Action' sums up the position in these words:- "The meaning of a person aggrieved is for this purpose much wider than in most of the branches of the law; but an applicant's personal interest in the subject matter of an impugned order may be too slight or too remote for him to be treated as a person aggrieved by it. A person aggrieved should have a peculiar grievance of his own beyond some grievance suffered by him in common with the rest of public." In the present, it may be said, at the best, for respondent No. 2 that the petitioner complains of infraction of the Ordinance, a grievance in common with the rest of the public, but super-added to this grievance is his interest of being selected by the Selection Committee in the event of respondent No. 2 not fulfilling the requisite qualifications. What interest a person should have in the matter before he is allowed to maintain a petition under Article 226 has to be considered on the facts and circumstances of each case. It was held by the Supreme Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 that "the petitioner, should be one who has a personal or individual right in the subject matter of the petition. A personal right need not be in respect of a proprietary interests; it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression "ordinarily" indicates, a person who has been pre-judicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interests in the subject matter thereof". In the present, the petitioner being himself a candidate for the post, he was a person aggrieved at whose instance a petition under Article 226 can be entertained in order to adjudge the question whether the appointment was made in conformity with the Act, statutes or ordinance. This ground is, therefore, of no avail. 14. In the present, the petitioner being himself a candidate for the post, he was a person aggrieved at whose instance a petition under Article 226 can be entertained in order to adjudge the question whether the appointment was made in conformity with the Act, statutes or ordinance. This ground is, therefore, of no avail. 14. For the reasons in the above, there is no force in this petition which is hereby dismissed with costs. The stay order is vacated.