Rekha Joshi v. Radhey Shyam — 1984 DIGILAW 445 (ALL)

ORDER 1. This petitioner under Articles 226 of the Constitution is directed against the appointment of Dr. Radhey Shyam, Respondent No. 1, Professor of Medieval and Modern History in the University of Allahabad. 2. Smt. Rekha Joshi and Dr. Radhey Shyam respondent both have been working as Readers in the Department of Medieval and Modern History of the University of Allahabad with effect from 27.3.1974. In 1975 the post of Professor, was advertised, the petitioners as well as Respondent No. 1 and several others applied for the same. A Selection Committee constituted under the provisions of Section 31(4) of the U.P. State Universities Act, 1973, hereinafter referred to as the Act, interviewed the candidates on 7th May, 1975. It did not, however find anyone suitable for appointment. The University thereupon again advertised the post of Professor in 1976. The petitioner as well as Respondent No. 1 both in addition to other candidates applied for the same. The candidates appeared before the Selection Committee on 17.7.1976, but again the Selection Committee did not find any candidate suitable for appointment. The University thereafter again issued advertisement for the post of Professor in the year 1977. The petitioner and Respondent No. 1 as well as other candidates applied and they appeared before the Selection Committee on September 23, 1978. The Selection Committee recommended Dr. Radhey Shyam, Respondent No. 1, for appointment to the post of Professor. The Executive council accepted the recommendation on October 7, 1978, and it appointed Dr. Radhey Shyam as Professor of Medieval and Modern History. The petitioner filed a representation to the Chancellor under Section 68 of the Act challenging the appointment of Dr. Radhey Shyam on the ground that he did not possess the minimum prescribed qualification for appointment to the post of Professor and that the Selection Committee had acted arbitrarily in granting the relaxation. The Chancellor by his order dated July 26, 1978, rejected the petitioner's representation and upheld the validity of the respondent's appointment. Aggrieved, the petitioner has challenged the validity of the order of the Selection Committee making recommendation in favour of Dr. Radhey Shyam and the order of the Executive council appointing him to the post of professor as well as the order of the Chancellor dated July 26, 1978 rejecting the petitioner's representation. 3. Aggrieved, the petitioner has challenged the validity of the order of the Selection Committee making recommendation in favour of Dr. Radhey Shyam and the order of the Executive council appointing him to the post of professor as well as the order of the Chancellor dated July 26, 1978 rejecting the petitioner's representation. 3. Before considering the submissions made on behalf of the petitioner, it would be useful to refer to the statutory provisions regulating the selection and appointment of Professors. Section 31 of the Act provides for appointment of teachers of the University by the Executive Council on the recommendation of the Selection Committee in the manner provided in the various sub-sections. Sub-section (4) provides for constitution of the Selection Committee for appointment of teachers. Sub-section (10) provides that no selection or appointment shall be made except after the advertisement for the post has been published in newspapers having adequate circulation in the State. Section 49 provide for framing of status prescribing the qualifications, experience and emoluments of teachers of the University, it further lays down that the first statute of the University shall be made by the State Government has framed the first statutes relating to the University of Allahabad. Statute 11.01 and 11.02 prescribing minimum qualifications for teachers in the Faculty of Arts of the University. These are as under:- "11.01 (1) in the case of the Faculties of Arts, Commerce and Science, the following shall be the minimum qualifications for the post of a Lecturer in the University, namely: (a) a doctorate in the subject of study concerned or a published work of a high standard in that subject; and (b) consistently good academic record (that is to say, the overall record of all assessments 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 per cent 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 qualifications specified in sub-clause (b) of Clause (1). (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 qualifications specified in sub-clause (b) of Clause (1). 11.02(1) No teacher appointed before the commencement of these Statutes shall be deemed to be qualified for appointment to the post of Reader or Professor if he does not, possess the qualifications prescribed in Statute 11.01 provided that where the Selection Committee is of opinion that the research work of a candidate, as evidenced by his thesis or by his published work, is of a very high standard, it may relax any of the qualifications specified in sub-clauses (b) of Clause (1) of Statute 11.01." 4. It would be seen that the Statutes as quoted above prescribe the minimum qualifications for a teacher which are applicable to the post of Professor also as the post of Professor is included within the definition of 'teacher' as contained in Section 2(19) of the Act. According to the Statutes the minimum qualifications required for the post are that the candidates should have a degree of doctorate in the subject of study or a published work a high standard in the subject and must have consistently good academic record with first class or high second class Master's Degree in the subject concerned. High Second class means that the candidate must have obtained an aggregate of 54 per cent marks. The Selection Committee is, empowered to relax any of the qualifications specified in sub-clause (b) of Clause (1) of statute 11.01, if it is of opinion, that the research work of a candidate as evidenced by his thesis or published work is of a very high standard. 5. Admittedly, Dr. Radhey Shyam, Respondent No. 1, did not possess the Master's Degree in the subject of History with a first class or high second class he had obtained only 53.1 percent marks in M.A. The Selection committee, in exercise of its power under sub-clause (2) of Statute 11.01, relaxed the qualifications specified in sub-clause (b) of Clause (1) of Statute 11.01, and it made recommendation in his favour having regard to his research work as evidenced by his thesis and publication on the subject. 6. Sri S.P. Gupta, counsel for the petitioner urged that Dr. 6. Sri S.P. Gupta, counsel for the petitioner urged that Dr. Radhey Shyam did not possess the requisite qualifications and as such he was not eligible for selection and appointment to the post of Professor, he did not further possess consistently good academic record, that is to say, the overall record of all assessment throughout the academic career, did not possess first or high second class with an aggregate of more than 54 per cent marks in the Master's degree in the subject concerned. In the absence of these essential qualifications, the appointment of Respondent No. 1 is invalid. Dr. Radhey Shyam, Respondent No. 1, had obtained 56.8 percent marks in High School, 46 per cent marks in Intermediate 45-5 percent in B.A. and as already stated, he had obtained 53.1 percent marks in M.A. It is true that he did not possess consistently a very high academic record, but it is difficult to say that be did possess a good academic record. The expression used in statute 11.01(b) merely requires the candidate to have consistently good academic record. This provision implies that the over all academic record of the candidate should be good. It does not require the candidate to possess a very high academic record. This is clear from the plain language used in statute 11.01(b). High academic record does not imply that the candidate must have obtained first division in all the four classes or he must have more than 54 per cent marks in the aggregate. A candidate with a first class has a very good academic record, but a person having even second class would also be having good academic record although he may not be having very high academic record. The emphasis on the candidate having 54 per cent marks is only for Master's degree and not for B.A., Intermediate or High School examinations. The academic record of Respondent No. 1 shows that he did possess consistently good academic record. He did not possess first class or high second class Master's degree in the subject, but the Selection Committee granted relaxation to him on the basis of the high standard of his research and published work. 7. Learned counsel challenged the relaxation granted by the Selection Committee. He did not possess first class or high second class Master's degree in the subject, but the Selection Committee granted relaxation to him on the basis of the high standard of his research and published work. 7. Learned counsel challenged the relaxation granted by the Selection Committee. He submitted that the Selection Committee did not exercise its own discretion, instead it abrogated its function and referred the matter relating to grant of relaxation to the Executive Council. The order of relaxation is on its face invalid and ineffective inasmuch as the Selection Committee did not expressly record any reasons. The Selection Committee could not reasonably apply its mind within the short period during which the interview of Respondent No. 1 took place to assess the nature of thesis or published work of Respondent No. 1 to form an opinion that the thesis or published work was of high standard. The relaxation was granted arbitrarily without there being any justification for the same as qualified persons fulfilling all the conditions were available. 8. While making recommendation for appointment of Respondent No. 1 the Selection Committee observed as under:- "The Selection Committee after considering the relative merit of candidate decided to recommend that Dr. Radhey Shyam, Serial No. 7 of the precies, be appointed Professor in the Department of Medieval and Modern History. In view of his high research work as evidenced by his thesis and published work, the selection committee recommends that the requirement of qualifications specified in sub-clause (b) or Cause (1) of the Statutes be relaxed. " On a reasonable construction of the recommendation of the Selection Committee, it is evident that after considering the relative merits of all the candidates who appeared for interview before it, the members of the Committee were unanimous in their opinion that the respondent was the most suitable candidate for appointment as Professor in the Department of Medieval and Modern History. The members of the Committee were conscious that Dr. Radhey Shyam did not possess the qualifications specified in sub-clause (b) of Clause (1) of Statute 11.01 and in order to meet that difficulty the Committee recommended that the aforesaid qualifications be relaxed. The Selection Committee no doubt used the word "recommends" but a reasonable construction of its recommendation the essence of the matter is apparent that it relaxed the qualifications as specified in sub-clause (b) of Clause (1) of Statute 11.01. The Selection Committee no doubt used the word "recommends" but a reasonable construction of its recommendation the essence of the matter is apparent that it relaxed the qualifications as specified in sub-clause (b) of Clause (1) of Statute 11.01. In our opinion the Committee exercised its own discretion and power and it did not abdicate its function. 9. The petitioner's contention that the order of relaxation is invalid for absence of reason is again misconceived. A bare perusal of the extract of the recommendation made by the Selection Committee as quoted earlier shows that the Selection Committee has recorded reasons in granting relaxation. The reasons are that in view of the High research work as evidenced by his thesis and published work, the Selection Committee considered it fit to grant relaxation, while it is true that the Selection Committee did not record any elaborate reasons, but it was not necessary under the law. The Selection Committee was not writing a judgment, instead it was submitting its recommendations to be Executive Council. The Statutes do not require recording of reasons by the Selection Committee, but even if reasons are necessary to be recorded the Selection Committee has recorded reasons in granting relaxation. 10. Learned counsel then urged that Selection Committee could only grant relaxation on the basis of respondents research work being of "very high standard." Absence of the expression "very" before the expression "high standard of research work" of Respondent No. 1, in the Selection Committee's recommendation renders the recommendation invalid. No doubt, Statute 11.02 provides that the Selection Committee may relax the qualifications if it is of opinion that the research work of a candidate as evidenced by his thesis or published work is of a "very high standard" In the instant case, the Selection Committee while granting relaxation did not use the expression "very high standard." The omission to use the expression "very high standard" in our opinion does not vitiate the relaxation granted by the Selection Committee. The use of the expression "in view of his high research work as evidenced by his thesis and published work" substantially amounts to the same as required by Statute 11.02. In this connection we may refer to the view taken by a Division Bench of this Court at Lucknow in Dr. Mrs. Prabha Gupta v. Lucknow University (1981) Lawyers Law Times ( Service Cases) 51. 11. In this connection we may refer to the view taken by a Division Bench of this Court at Lucknow in Dr. Mrs. Prabha Gupta v. Lucknow University (1981) Lawyers Law Times ( Service Cases) 51. 11. The Bench while interpreting a similar provision of the Statutes framed for the University of Lucknow held that the expression "high" itself implies excellence and the adverb "very" only emphasises the same. The difference between the two is indefinite and not insurable. Mere omission to use the word "very" with the adjective "high" cannot vitiate the decision of the Selection Committee. The members of the Selection Committee did not possess expertise in law and they could not be expected to anticipate that validity of their decision on the subject would depend on the use of the word "high" or "very high". The expressions "high" and "very high" substantially refer to the same class of efficiency and standard and a mere omission of the expression "very" does not affect the substance of the matter. Both the expressions are equally imprecise and subjective in import. In our opinion the substance of the recommendation of the Selection Committee has to be seen, which undoubtedly makes it clear that it granted relaxation to the respondent on the basis of his very high standard of thesis and published work. 12. The petitioner's contention that the Selection Committee failed to apply its mind or to assess the high standard of respondent's thesis or published work during the short period of interview, consequently the relaxation granted was arbitrary, is devoid of any merit. The Selection Committee was constituted by experts having technical experience and high academic qualifications. Respondent No. 1 had given details of his thesis and other published work in his application which had been included in the pricis which was circulated well in advance to the members of the Selection Committee. According to Dr. Radhey Shyam, Respondent No. 1, at the time of his interview he had taken the copies of his thesis and also the copies of all the books published by him which he had shown to the members of the Selection Committee. According to Dr. Radhey Shyam, Respondent No. 1, at the time of his interview he had taken the copies of his thesis and also the copies of all the books published by him which he had shown to the members of the Selection Committee. The Selection Committee was not required to examine the thesis or the various published work of Respondent No. 1 in a microscopic manner to adjudge the nature of the work but the Committee having technical experience and expertise knowledge in the academic held could very well adjudge the standard of research work and publication. It had ample opportunity to judge the standard of the research work and publication as the details of the same had already been circulated to the members of the Selection Committee well in advance before the Committee met to interview the candidates. It would not be proper or desirable for this Court while exercising jurisdiction under Article 226 of the Constitution to interfere with the recommendation of the Selection Committee merely on the ground that the Committee could not have judged the academic matters relating to the standard of the published work. The Court must bear in mind the note of caution struck by the Supreme Court in Dr. M.C. Gupta v. Dr. Arun Kumar Gupta, (1979 Lab IC 296). The Supreme Court observed:- "When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing, teaching/research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law may interfere in a writ petition under Article 226." 13. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law may interfere in a writ petition under Article 226." 13. The Selection Committee acted bona fide in granting relaxation under the statutes and it is open to this Court to probe further or to enquire as to whether the Committee could actually assess the high nature of the standard of thesis and published work of Respondent No. 1. Since the Committee did not contravene any rule or regulation in granting relaxation to Respondent No. 1, we do not find any good reason to interfere with the relaxation granted by the Selection Committee. 14. In this context we consider it necessary to observe that the petitioner had no doubt made certain allegations of mala fides against some of the members of the Selection Committee but during the course of arguments the counsel for the petitioner did not press the same as the members of the Selection Committee were not made parties and they had no opportunity to controvert the allegations. 15. Learned counsel for the petitioner urged that since qualified candidates were available there was no occasion for granting relaxation to Respondent No. 1. The Selection Committee acted arbitrarily in granting relaxation. It was pointed out that the petitioner and Dr. Kamla Prasad, two candidates fulfilled all the qualifications prescribed in the Statutes and their academic record was consistently very good. They had also experience of guiding research scholars. There was thus no occasion for the Selection Committee to relax the qualification of Respondent No. 1. It is true that the petitioner and Dr. Kamla Prasad fulfilled the qualifications. It is however difficult to hold that they were more suitable for appointment to the post as Respondent No. 1. The question whether Respondent No. 1 or the petitioner or Dr. Kamla Prasad was most suitable for appointment to the post of Professor depends upon the consideration of relative merits of the candidates and over all suitability for appointment to the post of professor. Eminently, the Act and the Statutes have assigned this function to the Selection Committee which is constituted by academicians. The relaxation was permissible under the rules and the Selection Committee while granting relaxation acted within the limits of its powers. Eminently, the Act and the Statutes have assigned this function to the Selection Committee which is constituted by academicians. The relaxation was permissible under the rules and the Selection Committee while granting relaxation acted within the limits of its powers. Consequently, it is not open to this Court to sit in judgment over the decision of the Selection Committee or to sit in appeal by considering the relative merits of the candidates to find the suitability of the candidate for appointment to the post of Professor. Since there is no allegation of malafide against the members of the Selection Committee, it is safe for the Court to leave the matter to the experts who are more familiar with the problems they face than the Court generally can do. What this Court should consider is whether the Executive council has by making appointment of Respondent No. 1 on the recommendation of the Selection Committee contravened any statutory or binding rule and in doing so, we have already held that no such binding rule has been violated. In the circumstances we show due regard to the opinion of the Selection Committee and its recommendation which was accepted by the Executive council and the Chancellor. Following the principles laid down by the Supreme Court in Mysore University v. Govinda Rao, ( AIR 1965 SC 491 ) we find no good ground to interfere with the recommendation made by the Selection Committee. 16. In the result the petition fails and is accordingly dismissed. There will be no order as to costs.