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2005 DIGILAW 34 (JK)

V. N. Kohli v. State Of J. &K.

2005-02-18

PERMOD KOHLI

body2005
1. Selection of respondents No.7 & 8 as Principal of Institute of Music & Fine Arts for Srinagar and Jammu Branches has been called in question by the petitioner, who himself was a candidate in the selection and remained un-successful as against these two respondents. Petitioner claims to be Senior Most Instructor in the Institute of Music and Fine Arts having been promoted to the said post in the year 1983, whereas respondents No. 7 & 8 came to be promoted as Senior Instructors in the year 1995. In the year 1999 one post of Principal became vacant at Srinagar on the retirement of one T.K. Jalali, who retired on 31-3-1999. Petitioner claims to have offered his services even for Srinagar Wing of the Institute and made some representations. However, it is alleged that instead of considering the claims of the petitioner, respondent No.7 was appointed as Principal for Srinagar Wing who is junior than the petitioner. The post of Principal in Jammu Wing also became available in March, 2002 on superannuation of one T.S. Batra the then Principal at Jammu. On availability of post in Jammu Wing, the petitioner was made incharge Principal and continued till regular selection was made. 2. It is admitted case of the parties that the Recruitment Rules were framed for recruitment/ promotion in the Institute of Music and Fine Arts. These rules were framed in the year 1996 and the post of principal is a selection post. Senior Instructor with minimum of 8 years experience as such constitute the feeding channel for the post of Principal. At the time of selection which was held in the year 2003, the petitioner as also respondents No.7 & 8 were eligible. A selection committee was constituted comprising of Chief Secretary, respondent No.4, and respondents No.3 & 5 and one Lalit Mangotra who did not participate in the selection. The Selection Committee on consideration of the inter-se merit of the candidates selected respondents no. 7 & 8 for the two available posts of Principal at Srinagar and Jammu respectively. Having failed to seek promotion/ appointment as Principal, the petitioner has challenged their appointment as Principal on the ground:- i) that respondent No.6 had strained relations with him and he had openly declared that the petitioner shall not be allowed to be the Principal of the Institute. Having failed to seek promotion/ appointment as Principal, the petitioner has challenged their appointment as Principal on the ground:- i) that respondent No.6 had strained relations with him and he had openly declared that the petitioner shall not be allowed to be the Principal of the Institute. According to the petitioner, it is because of respondent No.6 that he has been denied the post of Principal despite his seniority and merit. ii) It is also alleged that in the year 1995 when the post of Principal became available in Srinagar only the petitioner was eligible, but he was not considered for such promotion/ appointment despite his merit and eligibility; iii) It is also alleged that he has already filed writ petition SWP No. 698/03 seeking regularization which is still pending and also another writ petition SWP NO. 1680/03 for staying the interviews; iv) It is further stated that when the selection committee was constituted and Prof Lalit Mangotra was brought on the committee he objected to his name as member of the Selection Committee as the said Member and husband of respondent No.8 were working in Physics Department of the university and they had proximity. v) 3. Petitioner claims to have made some representation against respondent No.6. It is stated that though respondent No. 6 was not member of the selection committee however, at the time of interview the selection committee comprising of respondents No.4 & 5 interviewed him and respondent No.6 remained present during interview alongwith the Members of the Selection Committee. 4. Resistance to the writ petition has been shown by the respondents. Separate replies have been filed by respondents No. 3 & 8 respectively, whereas the other respondents have chosen not to file any reply. The challenge to the selection is sought to be protected primarily on the ground that the petitioner participated in the selection process with full knowledge of the members of the selection committee which was constituted by the President, who is the Chief Minister of the State. The post of Principal being a selection post under the Recruitment Rules of 1996 seniority has practically no relevance and it is the merit and suitability which is the determinative factor. 5. Learned counsel for the petitioner has stated that there was no expert in the Committee and no criterion was adopted for making selection. The post of Principal being a selection post under the Recruitment Rules of 1996 seniority has practically no relevance and it is the merit and suitability which is the determinative factor. 5. Learned counsel for the petitioner has stated that there was no expert in the Committee and no criterion was adopted for making selection. The Chief Secretary though Chairman of the Selection committee, yet he was not acquainted to judge the suitability and merit of the candidates in the Institute of Music and Fine Arts. This position is however, sought to be rebutted by the respondents, on the grounds that the Chief Secretary who has vast experience in the administrative field was the most suitable person to adjudge the candidate for the post of Principal, which itself require administrative acumen besides the knowledge of the subject. 6. Respondents were directed to produce the record as also the rules. From the perusal of the record, it transpired that vide order dated 12-8-2003 the President of the Academy for Cultural Languages which run the two Institutions of Music and Fine Arts constituted a selection committee for the selection of Principal vide his order dated 12-8-2003. The selection committee comprised of the Chief Secretary, as Chairman; Rehmat Rahi and Lalit Mangotra members and Balwant Thakur as Secretary Member. 7. I have perused the minutes of the selection committee. Inter-se merit of candidates including the petitioner, respondents No.7, 8 and one Shabir Mirza was duly considered. The Committee has recorded remarks in respect to each candidate and it was only on evaluating their inter-se merit, the administrative and professional knowledge that the selection has been made. From the remarks of the selection committee, I do not find that the Committee ignored the merit of the petitioner. Under the Recruitment Rules of 1996, the post of the Principal is a selection post and the seniority has very little role to play. It becomes relevant only when the inter-se merit is equal. As regards the question of competence of the Members of the Selection Committee is concerned, the Chief Secretary admittedly has vast administrative experience. The post of Principal also involves administrative skill and a person to be selected for such a post must possess sufficient administrative acumen. There were two other experts from the field i.e. Professor Rehman Rahi and Balwant Thakur. The post of Principal also involves administrative skill and a person to be selected for such a post must possess sufficient administrative acumen. There were two other experts from the field i.e. Professor Rehman Rahi and Balwant Thakur. It was not a post for teaching job only where the special expertise was necessarily required for the members of Selection Committee to be associated. From the Rules also it appears that the selection is to be made from Class-I Category E ( a to g). Under this category the feeding channel is from varied fields like Painting, Sculpture, Applied Arts, Sitar, Tabla, Vocal and Dance. Therefore, it may not be appropriate to say that the selection committee should comprise of experts in a particular subject. Therefore, such a contention of the petitioner appears to be without any substance. 8. Regarding the allegations against respondent No.6, same are not based upon any material on record. Simply to say that said respondent had strained relations may not be enough. It has been contended on behalf of the petitioner that there is no reply on behalf of respondent No.6, therefore, the allegations made by the petitioner be deemed to have been admitted. 9. I have perused the allegations in the writ petition which are contained in paras 25 to 29 and I am of the opinion that these allegations do not contain specific particulars to inspire confidence or make valid basis for establishment of malafides or bias against the petitioner. Other-wise also Secretary being one of the Member of the Committee headed by a person of the status of Chief Secretary of the State, there does not seem to be any ground for inferring bias particularly in absence of clear and specific allegations. 10. It is also admitted case of the petitioner that he participated in the selection process and filed this writ petition only after the selection/ appointment was made. It is settled proposition of law that a candidate having participated in the selection process and failed to make the grade is debarred to challenge the composition of the selection committee. Apex Court in case titled Om Parkash Shukla Vs Akhilesh Kumar Shukla and others, reported in AIR 1986 SC 1045 has held as under:- Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. Apex Court in case titled Om Parkash Shukla Vs Akhilesh Kumar Shukla and others, reported in AIR 1986 SC 1045 has held as under:- Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realized that he should not succeed in the examination..� 11. As far as the power of judicial review in the matter of selection is concerned, the writ Court can only examine the manner/method of selection and/or violation of any statutory provision, violation of principles of natural justice or established malafides. It has been found that the petitioner has failed to prove any malafides or bias. The scope of power of Judicial Review has been considered by the Apex Court in case Dalpat Abasahed Solunke Vs Dr. B.S. Mahajan, AIR 1990 SC 434 wherein it has been held as under: It is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted selection committee, which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved malafides affecting the selection etc. It is not disputed that in the instant case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant materials before it. Therefore, setting aside the selection on the ground of the so called comparative merits of the candidates as assessed by the Court while sitting in appeal over selection so made would not be permissible.� 12. In view of the facts and circumstances of the case and the record examined by me which clearly indicate the better merit of respondents No.7 & 8 and the law laid down by the Apex Court in Dalpat™s case (Supra). I do not find any legal and valid ground to interfere in the appointment of respondents No.7 & 8. In view of the facts and circumstances of the case and the record examined by me which clearly indicate the better merit of respondents No.7 & 8 and the law laid down by the Apex Court in Dalpat™s case (Supra). I do not find any legal and valid ground to interfere in the appointment of respondents No.7 & 8. Petition accordingly fails and is dismissed. Record of Selection be returned to Mr. Anil Sethi, AAG.