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2004 DIGILAW 128 (GAU)

Xavier P. Mao v. North Eastern Hills University

2004-02-20

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. The core issue involved in this writ petition is as to whether a candidate not selected for the post of Professor by the Selection Committee for which the advertisement was made, could be recommended for appointment as Reader under the same selection although the post of Reader was not advertised. 2. Adverting to the facts of the case, the Petitioner joined the North Eastern Hills University (University) in the year 1988 as a Lecturer in Philosophy and at the time of filing of the writ petition, he had 14 years of service to his credit. The University issued an advertisement on 16.10.2001 form any posts of Professor, Reader and Lecturer including two posts of Professor in Philosophy. In this writ proceeding we are concerned with the said two posts of Professor in Philosophy with specialization "Philosophy of culture" and "Indian Philosophy with special emphasis on Buddhism" respectively. As per the assertion made by the wit Petitioner he did not apply for any one of the said two posts of Professor because at the material point of time he was not qualified for the same. However, he asserts that he is better qualified then the Respondent No. 6 whose appointment as Reader against one of the said two posts of Professor is under challenge in this writ proceeding. 3. As per the averments made in the writ petition, the Petitioner is an experienced Lecturer in the department of the University having rendered 14 years of service. He is an M.Phil from Delhi University and M.Lett from Sydney University one of the top ranking University in Australia and he has completed Ph.D. thesis in the year 2000 on the subject "Contemporary ethics". In response to the aforesaid advertisement, the Respondent No. 6 along with some others offered their candidature. According to the Petitioner, the Respondent No. 6 was not qualified to apply for the post of Professor. In the advertisement, the following requirements for the post of Professor were laid down as essential qualifications: a) Professor: An eminent scholar with published work of higher quality actively engaged in research with 10 years of experience in post-graduate teaching and/or research at the University/National Institutions, including experience of guiding research at doctoral level. Or An outstanding scholar with established reputation who had made significant contribution to knowledge. Or An outstanding scholar with established reputation who had made significant contribution to knowledge. Professor (USIC): Similar to UGC norms/or the post of Professor with experience in any branch of instrumentation. The Petitioner asserts in his writ petition that the Respondent No. 6 does not have specialization either in Philosophy of Culture or in Buddhism and there is no evidence that he has published any standard research papers as required by the advertisement. He has also no published work of higher quality with experience of guiding research at doctoral level. Coupled with this, the Respondent No. 6 is not a scholar of eminence having no publication in any standard journal and having not produced single Ph.D. on the subject. 4. Pursuant to the above advertisement, the University conducted a selection through the Selection Committee and as per the recommendation of the Selection Committee, the Respondent No. 6 was appointed as Reader against one of the aforesaid post of Professors which is under challenge in this writ petition. Amongst others, the main ground of attack against the appointment of the Respondent No. 6 as Reader is that the University having advertised the post of Professor, could not have appointed the Respondent No. 6 as Reader without making any advertisement for the post of Reader giving equal opportunity to all other eligible candidates including the Petitioner. 5. The Petitioner has also challenged the very Constitution of the Selection Committee in which two experts participated. According to the Petitioner, the requirement is of three experts as per the U.G.C. guidelines. Violation of the provisions of the University Ordinances and Statute has also been alleged. Act of favouritism and nepotism on the part of the Vice Chancellor and his wife who incidentally is the head of the department concerned and who were members of the Selection Committee has also been alleged. 6. An affidavit-in-opposition has been filed on behalf of the University. Certain short coming and misconduct have been attributed to the Petitioner which are not in issue for the purpose of deciding the real issue involved in this writ petition. According to the averments made in the affidavit, the Respondent No. 6 was appointed as Reader of the University in May, 2002 against the sanctioned post of Professor after observing all procedure as required under the Statute/Act/Ordinances of the University. According to the averments made in the affidavit, the Respondent No. 6 was appointed as Reader of the University in May, 2002 against the sanctioned post of Professor after observing all procedure as required under the Statute/Act/Ordinances of the University. As regards the allegation made in the writ petition that the Respondent No. 6 does not have the essential qualification by way of having specialization either in Philosophy in Culture or in Buddhism and that there is no evidence that the Respondent No. 6 has published any standard research papers as required by the advertisement, the Respondents in their affidavit have simply denied the same by making a statement that the ignorance of the writ Petitioner with regard to the specialization of the Respondent No. 6 cannot be taken into account for invalidating the candidature of the Respondent No. 6 and that the Screening Committee which was constituted for examining and recommending the eligible candidates for being called for the interview found six applications including the one of the Respondent No. 6 to be in order and accordingly recommended them for being called for the interview. Admitting the factum of the appointment of the Respondent No. 6 as Reader while conducting the selection for the post of Professor, the Respondents in their affidavit have taken a stand that it is a normal practice in the University that if a candidate is not found fit for the post advertised, he or she may be appointed to a lower post than the post advertised. 7. In addition to the above, a further allegation has been made in the writ petition that the Respondent No. 6 was once selected for appointment as Lecturer in the University in the year 1990 when the wife of the present Vice-Chancellor was the head of the department of the Philosophy and the member of the Selection Committee, but his selection/appointment was set aside by the Visitor (the President of India) on the ground that he did not have requisite percentage of marks in M.A. Examination to be selected as a Lecturer. The Respondents in their affidavit have re-acted to the said allegation with the reply that the same has got no relevancy in the present case, meaning thereby that the said allegation is admitted. The Respondents in their affidavit have re-acted to the said allegation with the reply that the same has got no relevancy in the present case, meaning thereby that the said allegation is admitted. As regards the lack of essential qualification as quoted above and raised in paragraph 9 and 20 of the writ petition, more particularly in paragraph 20, the Respondents have countered the same as indicated above and in reply to paragraph 20, the only statement made is that the reply has been furnished in earlier paragraph of the affidavit. In this connection the averments made in paragraph 9 and 20 of the writ petition and the replies thereto in the affidavit in paragraphs 12 and 20 are quoted below: 9. That in response to the said advertisement of the Professor in the Department of Philosophy Dr. Vanlalngak the Respondent No. 6 along with some other candidates applied for the post of Professors but non of them including the Respondent No. 6 were found suitable by the Screening Committee to be called for interview for the post. It may be mentioned in this connection that Dr. Vanlalngak does not have specialization either in Philosophy of Culture or in Buddhism and there is no evidence that he has published any standard research papers as required by the advertisement. The Petitioner craves for calling of the entire record including the recommendations of the Screening Committee at the time of hearing. 20. That the Petitioner begs to bring to the notice of your Lordship that there is no evidence at all that Dr. Vanlalngak has done any outstanding research and got in published in the form of research papers or has supervised scholars so as to be called for interview for the post of Professor of Philosophy and subsequently appointed as a Reader. RE-4.1 on the qualification of University Teachers Reads: "An eminent scholar with published work of high quality actively engaged in research with 10 years of experience of P.G and/or research at the University/National level Institutions, including experience of guiding research at doctoral level or an outstanding scholar with established reputation who made significant contribution to knowledge. 12. RE-4.1 on the qualification of University Teachers Reads: "An eminent scholar with published work of high quality actively engaged in research with 10 years of experience of P.G and/or research at the University/National level Institutions, including experience of guiding research at doctoral level or an outstanding scholar with established reputation who made significant contribution to knowledge. 12. That while denying that statements made in para 9 and 10, it is submitted that under OE.4(V) (2), the Screening Committee was constituted which examined the seven applications received including that of the Respondent No. 6 and found six applications in order, and accordingly recommended them for being called for the interview. The allegation is totally false, baseless, malafide. The report of the Screening Committee meeting held on 4.12.2001 is annexed herewith as Annexure 'B'. The ignorance of the writ Petitioner with regard to the specialization of the Respondent No. 6 cannot be taken into account for invalidating the candidature of the Respondent No. 6. 20. That the reply to para 20, it is submitted that the reply given in foregoing paras may be referred to. 8. An affidavit-in-opposition has also been filed on behalf of the Respondent No. 6 adopting the same very arguments as has been adopted in the affidavit filed on behalf of the University. In the said affidavit, the Respondent No. 6 has stated that the Petitioner does not have a cordial relationship with the University authority. He also admitted that he was appointed as Reader in the department of Philosophy and states that his such appointment was against a sanctioned post and was in a regular manner in-accordance with the provisions of the statute/act/ordinance of the University. He admits that he was appointed against the post of Reader in the department of Philosophy. Like the University Respondent he also met the aforesaid averments made in paragraphs 9 and 20 of the writ petition without high lighting anything as to whether he conforms and/or conformed to the requirements of the advertisement in respect of essential qualification. The said two paragraphs of the writ petition have been replied by the Respondent No. 6 in paragraph 11 and 18 of his affidavit which are quoted below: 11. That the averments made in paragraph 9, 10 and 11 of the petition are false, malicious, concocted and the Petitioner is put to strict proof thereof. The said two paragraphs of the writ petition have been replied by the Respondent No. 6 in paragraph 11 and 18 of his affidavit which are quoted below: 11. That the averments made in paragraph 9, 10 and 11 of the petition are false, malicious, concocted and the Petitioner is put to strict proof thereof. He deponent say that his name, including that of five other applicants were recommended by the Screening Committee for being called for interview. 18. That the averments made in paragraph 20 of the petition are not admitted and hereby denied. The deponent say that he has been appointed as reader of the University since he possess the requisite qualifications and the Petitioner has no locus standi to challenge his appointment on baseless and malicious allegations. The Petitioner is a mere busy body who in order to spite the University Authorities has dragged the deponent to Court on irrelevant considerations. 9. The Petitioner has filed two rejoinders, one in respect of the affidavit-in-opposition filed on behalf of the University and the other one in respect of the affidavit-in-opposition filed by the Respondent No. 6. In the rejoinder to the affidavit against the affidavit-in-opposition of the Respondent University, the Petitioner asserts that he obtained M. Lett from the Sydney University which is comparable to Ph.d. Degree. In the rejoinder, he has highlighted publication of his research papers. Apart from reiterating his stand in the writ petition that the Respondent No. 6 was lacking the essential qualification for appointment as professor, the Petitioner asserts that he did not apply for the post of Professor because at the material point of time he was not qualified for the said post and that had it been made known that mere submission of an application for the post of Professor might fetch him the post or Reader, he would have applied for the same and perhaps would have been selected on the basis of his better qualification than the Respondent No. 6. In the rejoinder he has asserted that the Respondent No. 6 is not even a second class in Matriculation, Pre-University and B.A. and that he has no specialization either in Philosophy of Culture or in Buddhism. In the rejoinder he has asserted that the Respondent No. 6 is not even a second class in Matriculation, Pre-University and B.A. and that he has no specialization either in Philosophy of Culture or in Buddhism. Further assertion made in the rejoinder is that the Respondent No. 6 has got no publication of any Article in any standard research journal and that he has not supervised any research leading to award of Ph.D. Degree. Another important assertion made in the rejoinder is that the presence of three subjects experts in the Selection Committee is a mandatory requirement but in the instant case the Selection Committee was comprised of only two experts which is in violation of the U.G.C. guidelines. Referring to the provisions of the rules holding the field, the Petitioner in his rejoinder has asserted that the selection and appointment of the Respondent No. 6 is in violation of the same and that the Vice-Chancellor of the University failed to discharge his statutory duty and rather became a party to the wrong committed towards appointment of the Respondent No. 6. 10. In the rejoinder submitted to the affidavit-in-opposition filed by the Respondent No. 6, the Petitioner reiterated his stand and asserted that the appointment of the Respondent No. 6 as Reader in Philosophy is illegal and was so appointed in a clandestine manner without the post being advertised which naturally deprived not only the Petitioner but many others even from applying for the post and consideration thereof. 11. The Petitioner argued his case himself by appealing in person. The University was represented by Mr. S.R. Sen, learned senior Advocate assisted by Mrs. P.D. Buzarbaruah. The Respondent No. 6 was represented by Mr. T.T. Diengdoh, learned Advocate. Referring to the various assertions made in the writ petition and the rejoinder, the Petitioner argued that the selection and appointment of the Respondent No. 6 on the face of it was illegal and liable to be set aside. P.D. Buzarbaruah. The Respondent No. 6 was represented by Mr. T.T. Diengdoh, learned Advocate. Referring to the various assertions made in the writ petition and the rejoinder, the Petitioner argued that the selection and appointment of the Respondent No. 6 on the face of it was illegal and liable to be set aside. Apart from pointing out the various irregularities committed in the matter of appointment of the Respondent No. 6 such as lack of essential qualification, violation of the provisions of the University Statute, Act, Ordinances, improper constitution of the Selection Committee in absence required number of experts (3), the basic thrust of argument of the Petitioner is that the University authority having advertised the post of Professor, could not have appointed the Respondent No. 6 as Reader without making any advertisement for the same. It was submitted that the Petitioner being not qualified at the material point of time to apply for the post of Professor, he did not do so but had it been made known in the advertisement or by any subsequent Notification that the candidature for the post of Professor could be considered even for the post of Reader, the Petitioner and other eligible candidates eligible for being appointed as Reader would have applied and thus the very appointment of the Respondent No. 6 is illegal and liable to be set aside. 12. On the other hand Mr. S.R. Sen, learned senior counsel appearing for the University submitted that there was nothing wrong in considering the case of the Respondent No. 6 for appointment as Reader pursuant to the selection conducted for the post of Professor. Referring to Annexure-E minutes of the Selection Committee. Mr. Sen submitted that although as per the said minutes, the Respondent No. 6 was not recommended for the post of Professor on the ground of being not found suitable but the Selection Committee recommended his case for appointment as Reader and it was on that basis, the Respondent No. 6 was appointed. As regards the allegation of the Petitioner that the Screening Committee did not verify and scrutinise the application as required under the rules, Mr. Sen submitted that such verification was earned out as would be evident from Annexure-B to the affidavit-in-opposition, according to which six applications including the one of the Petitioner with their specialization in Philosophy of Culture/Indian Philosophy were recommended for being called for the interview. Sen submitted that such verification was earned out as would be evident from Annexure-B to the affidavit-in-opposition, according to which six applications including the one of the Petitioner with their specialization in Philosophy of Culture/Indian Philosophy were recommended for being called for the interview. According to Mr. Sen it is in the University practice to make appointment to a lower post than the one advertised if the candidate is not found for fit for the same and thus there was nothing wrong in making the appointment in favour of the Respondent No .6. 13. The learned Counsel Mr. T.T. Diengdoh appearing for the Respondent No. 6 adopted the arguments advanced by the learned senior counsel appearing for the Respondent University. He submitted that the Respondent No. 6 having been found suitable for appointment as Reader although was being considered for the post of Professor by the Selection Committee, there was nothing wrong in his appointment as Reader. 14. It is in the aforesaid background, basically the main issue involved in the present proceeding is as to whether the University-authority was justified to act upon the recommendation of the Selection Committee for appointment of the Respondent No. 6 as Reader against one of the post of Professor, although he was not found suitable for the post of Professor. As per Clause 2(3) of the North Eastern Hills University Ordinances on notification of vacancies and preliminary selection under the head "mode of advertisement", the condition, if any under which the essential qualifications are relaxable shall be clearly stated in the advertisement. Relating to the procedure of scrutiny of the applications for the post of Lectures, Readers, Professor or equivalent post under Clause 5(3)(ii) of the Ordinance, the applications will be scrutinised with reference to the essential and desirable qualification. Clause 5(3)(v) provides that in the case of higher post of Professor, achievement in the fields of their study and work will be given a higher priority. Clause 5(3)(vi) provides that the qualifications advertised shall not be relaxed unless the fact that qualifications are relaxable under special circumstances has been mentioned in the advertisement. Clause 5(3)(v) provides that in the case of higher post of Professor, achievement in the fields of their study and work will be given a higher priority. Clause 5(3)(vi) provides that the qualifications advertised shall not be relaxed unless the fact that qualifications are relaxable under special circumstances has been mentioned in the advertisement. In continuation of such a scheme Clause (vii) also provides that the basic academic qualification will not be relaxable and that in case of candidate who does not satisfy any one of the other essential qualifications like experience and yet recommended for being called for interview, the facts shall be specifically stated and reasons for relaxing the qualifications will be given in writing. Clause (vi) of the same Ordinances has made provision for re-advertisement. If the number of candidates eligible for being called for interview is less then three in all, the post shall be re-advertised with the stipulation that candidates who may have applied earlier need not apply again. 15. The Petitioner had submitted a representation to the Vice-Chancellor-cum-Chairman of the Executive Council of the University on 26.4.2002 making a grievance against the selection of the Respondent No. 6 pointing out the above alleged infirmities. However, by a communication dated 2.5.2002 issued under the signature of the Deputy Registrar of the University the Petitioner was directed to substantiate his allegation instead of dealing with the allegations made in the representation. This naturally led to the filing of the instant writ petition challenging the legality and validity of the appointment of the Respondent No. 6. 16. The admitted position is that two posts of Professor in Philosophy were advertised with the specialization for each of the post as mentioned above. As against the specific averments made in the writ petition alleging lack of essential qualification on the part of the Respondent No. 6, there is no specific denial against the same. Neither the University authority nor the Respondent No. 6 has stated anything as to how the Respondent No. 6 conforms or conformed to the requirements of essential qualification as laid down in the advertisement. Neither the University authority nor the Respondent No. 6 has stated anything as to how the Respondent No. 6 conforms or conformed to the requirements of essential qualification as laid down in the advertisement. They have also not controverted the stand of the Petitioner that the same very Respondent No. 6 who was once selected under the same University for appointment as Lecturer, could not be so appointed at the intervention of the Visitor (the President of India) since he did not have the requisite qualification. Their only statements in the affidavit is that the said incident does not have any relevancy to the present proceeding. The Respondent University in their affidavit has annexed the University guidelines in support of their case. Clause 3.1.0 of the UGC guidelines circulated to all the Universities of the States/Union Territories by letter dated 24.12.1998 (Annexure-C to the affidavit) clearly provides that the Selection Committee should have a minimum of three experts. In the instant case, the admitted position is that the Selection Committee in question was comprised of only two experts. The assertion made on behalf of the Petitioner that even the said two experts do not have specialization either in Philosophy of Culture or in Buddhism has not been denied by any of the Respondent. In the advertisement also there is no mention indicating any relaxation or that in the event of non-availability of any eligible and suitable candidate for the post of Professor, one would be considered for appointment as Reader. It is the cardinal principle relating to the matter of recruitment that in case of availability of any relaxation or any deviation to be made in the process of selection and recruitment, same should be clearly indicated in the advertisement so that all intending candidates can offer their candidature. In absence of such indication in the advertisement, same would necessarily deprive the intending candidates who in absence of any such indication would naturally not respond to the advertisement simply for the reason that they are not eligible for the post as advertised. This is precisely the reason why the Apex Court has again and again emphasised that the qualification/eligibility should be decided on the basis of the last date of submission of the application. This is precisely the reason why the Apex Court has again and again emphasised that the qualification/eligibility should be decided on the basis of the last date of submission of the application. Any deviation from the same or any entertainment of any application on the basis of obtaining of the eligibility subsequent thereof would lead to violation of Article 14 and 16 of the Constitution of India If any reference is to be made one may refer to the decisions of the Apex Court as reported in (1997) 4 SCC 18 (Ashok Kr. Sharma v. Chancier Shekher); (1998) 8 SCC 399 (State of Harayana v. Anurag Srivastava); and (1995) 1 SCC 138 (Ravinder Sharma v. State of Punjab). 17. As noticed above, University Ordinance itself provides that the condition if any under which the essential qualification are relaxable shall be clearly stated in the advertisement. The same very ordinance provides that the qualification advertised shall not be relaxed unless the same has been indicated in the advertisement and that the basic academic qualification will not be relaxable. It has further been provided by the ordinance that in the event of a candidate who does not satisfy any one or the other essential qualification like experience and yet recommended for being called for interview the facts shall be specifically stated and reasons for relaxing the qualification shall be given in writing. It also provides for re-advertisement of the post if the candidates eligible for being called for interview is less then three. As per the minutes of the Selection Committee as has been annexed to the affidavit-in-opposition filed on behalf of the University-Respondent, the Respondent No. 6 was not found suitable to be recommended for appointment as Professor, yet he was recommended for appointment as Reader. No reason has been assigned for adopting such a method. The selection in question was for appointment as Professor and certainly not for appointment as Reader. The Selection Committee recommended the Respondent No. 6 for appointment as Reader as follows: The candidate was not found suitable to be recommended for appointment as Professor, but he is recommended for appointment as Reader against the Professor's position in Philosophy of Culture the post in Indian Philosophy should be re-advertised. 18. The Selection Committee recommended the Respondent No. 6 for appointment as Reader as follows: The candidate was not found suitable to be recommended for appointment as Professor, but he is recommended for appointment as Reader against the Professor's position in Philosophy of Culture the post in Indian Philosophy should be re-advertised. 18. If the Respondent No. 6 was not found suitable to be recommended for appointment as Professor, it was not the business of the Selection Committee to recommend him for appointment as Reader inasmuch as the selection in question was not for appointment for the post of Reader. The assertion made by the writ Petitioner that had it been made known in the advertisement that an offer to the post of Professor might also be considered for appointment as Reader and that had it been made known in the advertisement, he would have offered his candidature cannot be said to be without any substance, rather same is the essence of the basic thrust made in the writ petition. Apart from this the admitted position is that the Selection Committee was comprised of only two experts instead of three as required under the UGC guidelines referred to above and relied upon by the University. There is also no mention and or denial on the assertion made by the Petitioner that even the said two experts were not having specialization either in Philosophy or Culture or in Buddhism. 19. The strong assertion made on behalf of the Petitioner that the Respondent No. 6 did not fulfill the requirements of the essential qualification for the post of Professor as quoted above has also not been controverted stating as to how the Respondent No. 6 conforms and or conformed to the requirements of the essential qualification. Law is well settled that when a point is ostensibly a point of law and is required to be substantiated by facts by the party raising the point must plead such facts in the writ petition, if he is the wit Petitioner and in the counter affidavit, if he is the Respondent. In the instant case to the specific facts and assertion pleaded in the writ petition, there is no specific denial in the counter affidavit filed by the Respondents. In the instant case to the specific facts and assertion pleaded in the writ petition, there is no specific denial in the counter affidavit filed by the Respondents. The test of bias, as has been pleaded in the writ petition in respect of selection of the Respondent No. 6 is whether a reasonable man, fully apprised of all circumstances would feel a serious apprehension of bias. The test is not whether in fact, a bias has affected the decision. It is in this sense that it is often said that justice must not only be done, but must also be appeared to be done. 20. In the case of Dr. J.P. Kulshrestha and Ors. v. Chancellor, Allahabad University reported in (1980) 3 SCC 418 , the Apex Court has held that an ordinance framed under statute by a competent authority, cannot be deemed to have been impliedly amended by the authorities action violation thereof. In that case, the Supreme Court noticed that the power of relaxation, did not exist in the University ordinance. In that case the writ Petitioner was denied his chance of being considered by the Selection Committee and the Apex Court held that if the Selection Committee had chosen to give an opportunity as they did in respect of others, the Petitioner might well have turned up and having regard to his high marks, might also have stood a good chance of being selected. The Apex Court has observed that the criticism is not that the Selection Committee's action was mala fide or biased, but that there has been unequal treatment between the equals. On that scores alone the selection of the Respondent held deserved to be struck down as violative of Article 14 of the Constitution of India. The Apex Court countering the argument of the Respondents that the Selection Committee is an expert body and their decision should not be interfered with lightly, observed that their expertise is not in law but in their branches of learning and the judicial interpretation of an ordinance is a legal skill outside the academic orbit. It has been observed that the University organ and for that matter any authority in our system, is bound by the rule of law and cannot be law unto itself. It has been observed that the University organ and for that matter any authority in our system, is bound by the rule of law and cannot be law unto itself. The Apex Court has further observed as follows: Once we recognise the basic yet simple proposition that no islands of insubordination to the rule of law exist in our Republic and that discretion to disobey the mandate of the law does not belong even to University organs or other authorities, the retreat of the Court at the sight of an academic body, as has happened here, cannot be approved. On the facts and features of this case such a balanced exercise of jurisdiction will, if we may anticipate our ultimate conclusion, result in the reversal of the appellate judgment and the restoration, in substantial measure, of the learned single Judge's judgment quashing the selections made by the University bodies for the posts of Readers in English way back in 1973. 21. The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the service of the most meritorious candidate. Any power either express or implied giving the authority to make deviation and thereby ignoring the just claims of others for recruitment to offices would be violative of Article 14 and 16 of the Constitution of India. In this connection I may gainfully refer to a decision of the Apex Court as reported in AIR 2002 SC 1230 (K. Shekar v. Indiramma). While recognising that the Courts are normally reluctant to interfere with the selection and appointment made in the educational institution it has been held that the actions of such institution are not immune from judicial scrutiny and that there can be no islands of in-subordination to rule of law. In that case also the person concerned was appointed to a lower post of Lecturer than Assistant Professor and it was argued that having regard to that aspect of the matter, it was not necessary to be advertised. The Apex Court held that acceptance of such an argument would lead to violation of Article 14 and 16 of the Constitution of India. It has been held that the absence of an advertisement for the post in which the person concerned was appointed, necessarily deprived persons who could have applied for the post. The Apex Court held that acceptance of such an argument would lead to violation of Article 14 and 16 of the Constitution of India. It has been held that the absence of an advertisement for the post in which the person concerned was appointed, necessarily deprived persons who could have applied for the post. The observations of the Apex Court as made in paragraphs 21, 22, 23, 24 and 25 are worth quoting: 21. We can take judicial notice of the fact that NIMHANS is an institution of repute. It has already been so recognised by this Court in B.R. Kapoor and Anr. v. Union of India and Ors. 1989 (3) SCC 387 . It is also true that generally speaking Courts have been reluctant to interfere with the running of educational institutions. But there can be no islands of insubordination to the rule of law. The actions of educational institutions, however highly reputed, are not immune from judicial scrutiny. Indeed to preserve the high reputation, there is a greater need to avoid even the semblance of arbitrariness or extraneous considerations colouring the Institution's actions. 22. It may be that the Respondent No. 1 could not directly challenge the Appellant's appointment as Lecturer at the Centre in 1986 either because she herself was merely not an applicant but was unqualified to be so appointed or on the ground of delay. But the immediate grievance of the Respondent No. 1 was the Appellant's appointment in 1990 as Assistant Professor, because the appointment was as a result of the Appellant's appointment as a Lecturer in the ICMR Centre in 1986, it was also called into question. To get rid of the "weed" so to speak, one had to eliminate the root. It is nobody's case that the Respondent No. 1 could not be considered for appointment as Assistant Professor in 1990. The writ application was filed in the same year. There was as such no question of the Respondent No. l's application being defeated because of any delay. 23. If we start with the 'root' there can be no doubt that the Appellant's appointment as Lecturer in 1986 was not in terms of the advertisement pursuant to which he had applied. Before any appointment could be made to the post of Lecturer, the post should have been advertised together with the eligibility criteria in respect thereof. 23. If we start with the 'root' there can be no doubt that the Appellant's appointment as Lecturer in 1986 was not in terms of the advertisement pursuant to which he had applied. Before any appointment could be made to the post of Lecturer, the post should have been advertised together with the eligibility criteria in respect thereof. The submission of NIMHANS was that since the post of Lecturer was lower than an Assistant Professor's, it was not necessary to be advertised. If this argument were accepted, it would amount to a violation of Article 14 and 16. The absence of an advertisement necessarily deprived persons who could have applied for the post of the opportunity of applying for the post. The clause in the advertisement which enabled the Selection Committee to recommend the candidate for a lower post if the candidate was not found suitable to fill the post applied for, did not give NIMHANS the power to appoint the recommended candidate against an unadvertised post. Significantly, in the other advertisements on record dated 6.12.1986 and 1.6.1989 the post of Assistant Professor and the post of Lecturer were both advertised. 24. The clause, far from allowing NIMHANS the power to dispense with the advertisement of any lower post as a precondition to appointment, indicates that only eligible persons could be considered for selection. Once the barrier of eligibility was crossed, the Selection Committee could consider the suitability of the candidate for the post advertised. It follows that the Appellant should not have been called for interview at all. His application clearly showed that he did not fulfil the requisite eligibility criteria for the post he had applied for, because he lacked any post-doctorate experience at all. The power in the Selection Committee to relax the eligibility criteria cannot be read as including the power to do away with the criteria altogether. 25. Then again, the post which was advertised was a temporary tenure post and yet by virtue of the Corrigendum, the posts were made permanent. It is true that the advertisement stated there was a likelihood of some of the advertised posts being made permanent after three years. All that this mean was that the posts would remain temporary tenure posts for three years after which there was a possibility of the appointments being made permanent. It is true that the advertisement stated there was a likelihood of some of the advertised posts being made permanent after three years. All that this mean was that the posts would remain temporary tenure posts for three years after which there was a possibility of the appointments being made permanent. When the post itself was made permanent from its very inception by the corrigendum issued several months later, the post should have been re-advertised so as to give fair notice to all prospective candidates regarding the nature of the vacancy to be filled. It was not open to NIMHANS to retrospectively and subsequent to the appointment change the nature of post advertised by issuing the Corrigendum. 22. Recruitment in public service should be held strictly in-accordance with the terms of advertisement and the recruitment rules. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made as has been emphasised by the University in their affidavit, such an illegality cannot be allowed to continue. Two wrongs cannot make one right. The University authority cannot claim that since something wrong was done earlier, they should be allowed to do another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India cannot be pressed into service in such cases. What the concept of equal treatment presupposes is the existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrong at a par even if it is accepted that a wrong has been committed in the past by introducing a concept of negative equality. The Respondent University cannot strengthen their case on that basis. They have to establish strength of their case on the some other basis and not by claiming negative quality. In this connection we may refer to the decision of the Apex Court as reported in (2003) 5 SCC 437 (Union of India v. International Trading Co.) wherein the Apex Court has pointed out that Article 14 of the Constitution of India does not contemplate repetition of wrong action. 23. In this connection we may refer to the decision of the Apex Court as reported in (2003) 5 SCC 437 (Union of India v. International Trading Co.) wherein the Apex Court has pointed out that Article 14 of the Constitution of India does not contemplate repetition of wrong action. 23. The Respondent University has annexed the recommendation of the Screening Committee by which six candidates including the Respondent No. 6 were recommended for being called for the interview. The admitted position is that the advertisement was for two posts of Professor with specialization/experience "in Philosophy of Culture" (one post) and "Indian Philosophy with special emphasis on Buddhism" (another post). Thus while making the recommendation for being called for interview, it was incumbent on the part of the Screening Committee to prepare two separate lists of candidates one each for "Philosophy of Culture" and "Indian Philosophy with special emphasis on Buddhism. There is no indication regarding specialization of six candidates recommended for interview, although they were recommended for interview with the remark "with their specialization in Philosophy of Culture/Indian Philosophy recommended for being called for the interview". 24. The admitted position is that in the advertisement there was no indication that in the event of non-availability of suitable candidates for the post of Professor, the candidates might be considered for appointment as Reader. This necessarily leads to the question as to whether the Petitioner and for that matter any other candidate was deprived or not leading to violation of Article 14 and 16 of the Constitution of India. As asserted by the Petitioner, had it been made known in the advertisement, he would have applied for the post of Professor but he did not do so as he was aware that at the material point of time he was not eligible and or suitable for the post of Professor. According to the Petitioner he was eligible for appointment as Reader. It is also an admitted position that the advertisement did not indicate any power of relaxation and from the provisions of the University Ordinances as noticed above the qualifications advertised shall not be relaxed unless the fact such relaxation has been mentioned in the advertisement. According to the Petitioner he was eligible for appointment as Reader. It is also an admitted position that the advertisement did not indicate any power of relaxation and from the provisions of the University Ordinances as noticed above the qualifications advertised shall not be relaxed unless the fact such relaxation has been mentioned in the advertisement. It further provides that in case of a candidate who does not satisfy the essential qualification and yet recommended for being called for interview, the facts shall be specifically stated and reasons for relaxing his qualification will be given in writing. A bare perusal of the minutes of the Selection Committee and recommendation made by the Screening Committee does not reflect any reason not to speak of any cogent reason for recommending the Respondent No. 6 for his appointment as Reader against one of the advertised post of Professor. 25. Time and again, the Apex Court has pointed out that the advertisement inviting application for appointment to the post must indicate that Selection Committee/Appointing authority has power to relax the qualification. In the instant case such relaxation has been extended by the Selection Committee itself without any reference to the academic council or Executive Council of the University. It is another thing that eventually the recommendation for appointment of the Respondent No. 6 as Reader was accepted by the Executive Council. In the case District Collector v. M. Tripura Sundare Devi as reported in (1990) 3 SCC 655 , the Apex Court has held that when an advertisement mentioned a particular qualification and then appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualification then the appointee or appointees who had not applied for the post because they did not possess the qualification mentioned in the advertisement. The Apex Court held that the same amounts to a fraud on public to appoint person with inferior qualification in such circumstances unless it is clearly stated that the qualification are relaxable. The Apex Court emphasized that no Court should be a party to the perpetuation of the fraudulent practice. 26. In the case of State of Andhra Pradesh v. Dr. The Apex Court emphasized that no Court should be a party to the perpetuation of the fraudulent practice. 26. In the case of State of Andhra Pradesh v. Dr. Mohanjit Singh as reported fn 1988 (Suppl.) SCC 562 the Supreme Court dealing with the question of quorum in respect of a Selection Committee constituted for the purpose of making selection held that where the presence of a particular member of the Committee regarded as essential for completing quorum, absence of that member in the selection meeting would render the selection in-valid, notwithstanding ex-post-facto ratification of the exercise by that member. In the instant case the University guidelines relied upon by the University Respondent themselves clearly stipulates that for recruitment to the post of Professor in the University the Selection Committee should have a minimum of three experts meaning thereby that the number of experts should be normally more than three but in any case a minimum of three experts. In the instant case the admitted position is that the number of experts were only two who according to the Petitioner also did not have specialization either in Philosophy of Culture or in Buddhism which assertion has not been denied by the Respondents. 27. In any process of selection, the Selection Committee is required to adjudge the suitability of the candidates for appointment on the post for which selection is being made. The suitability of a candidate for appointment has to be considered on the basis of an overall assessment of his academic pursuits and performance in the selection as prescribed for the post. In the instant case the post in question was Professor and not Reader. The Selection Committee after clearly holding the Respondent No. 6 to be not suitable to be recommended for appointment as Professor could not have recommended him for appointment as Reader against one of the post of Professor i.e. Philosophy of Culture. The other post in the category of "Indian Philosophy with special emphasis on Buddhism" was recommended for re-advertisement by the Selection Committee. The other post in the category of "Indian Philosophy with special emphasis on Buddhism" was recommended for re-advertisement by the Selection Committee. Thus while one of the post was recommended for re-advertisement, the other post for which the Respondent No. 6 was admittedly not found suitable was recommended for appointment as Reader against the same very post and thereby the Selection Committee relaxed the standard without, however, indicating anything as to what for such a course of action was required to be adopted and that too without there being any indication of possibility of such a course of action in the advertisement. The Selection Committee was entrusted with the task of making selection and recommendation for the post of Professor and not Reader. It overstepped and acted beyond its jurisdiction. The Respondent No. 6 having been found not suitable for the post of Professor, there was no occasion for the Selection Committee to recommend him for appointment as Reader and that too without indicating any reasons" thereof. The Selection Committee was also not vested with the power of relaxation. It is in this context the aforesaid decisions in the realm of availability of relaxation and or acceptance of the same in the field of selection and appointment come into play and fully support the case of the Petitioner. 28. In view of the above discussions and conclusion on the basis of the materials on record and the submissions advanced by the learned Counsel for the parties including the Petitioner who argued his case appearing in person and also having regard to the proposition of law enunciated by the Apex Court, I allow the writ pet it ion by setting aside and quashing the appointment of the Respondent No. 6 as Reader pursuant to the advertisement dated 16.10.2001 for the post of Professor in Philosophy of Culture in the department of Philosophy, North Eastern Hills University. The Respondent University authority is directed to re-advertise the post along with the other post of Professor with the specialization "Indian Philosophy with special emphasis on Buddhism" for which there is already a recommendation from the Selection Committee. There shall be no order as to cost. The Petition is Allowed.