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Allahabad High Court · body

2007 DIGILAW 428 (ALL)

SYED AHSAN v. ALIGARH MUSLIM UNIVERSITY, ALIGARH

2007-02-23

PANKAJ MITHAL, SUSHIL HARKAULI

body2007
JUDGMENT By the Court.—In the Aligarh Muslim University, an advertisement No. 2 A/97-98 dated 16th August, 1997 was issued inviting applications for appointment to a large number of posts including the post of Reader in Arabian Studies, Department of Islamic Studies and Reader in Iranian Studies, Department of Islamic Studies. These vacancies can be found at item No. 19 and 20 of the said advertisement, a copy of which has been enclosed as Annexure 1 to this writ petition. 2. The qualification prescribed for the posts of Reader in the advertisement read as follows : ”Qualification.—Essential Good academic record with a Doctoral Degree or equivalent published work. Candidates from outside the University system in addition shall also possess at least 55% marks or an equivalent grade at the Master’s degree level. Eight years experience of teaching and/or Research including upto three years for research degrees and has made some mark in the areas of Scholarship as evidenced by quality or publications, contribution to educational renovation, Resign of new courses and curricula. NOTE : (For post at S. No. 19 & 20) M.A., Ph.D., shall be in Islamic studies. Desirable : Knowledge of Arabic/Persian/Turkish”. 3. It will be noticed that for the posts in question, the advertisement clearly prescribed that the Post Graduation and Doctorate has to be in Islamic Studies. It is quite obvious that if the person is being appointed a teacher in a particular subject, he must be educated in that subject. A person not educated in the relevant subject is not likely to be able to teach properly howsoever meritorious he may be in other fields. It must also be remembered that the purpose of appointing the teachers in academic bodies like, the University is primarily intended for the benefit of the students. 4. In this backdrop, we have to examine the validity of the appointment of respondent No. 4 to the post of Reader in the Arabian Studies in the Department of Islamic Studies. The challenge has been made by the two petitioners of this writ petition on the ground that the respondent No. 4 had his Masters Degree as well as Doctorate in Political Science, which is nowhere even close to Islamic Studies. 5. The challenge has been made by the two petitioners of this writ petition on the ground that the respondent No. 4 had his Masters Degree as well as Doctorate in Political Science, which is nowhere even close to Islamic Studies. 5. The challenge is sought to be resisted by the University as well as the respondent No. 4 on the ground that the petitioner No. 1 cannot now maintain this writ petition as the petitioner No. 1 has been appointed as Professor vide Office Memo dated 3rd June, 2004. Having been appointed Professor more than two years ago, even if the appointment of the respondent No. 4 is quashed by this Court and the post of Reader is re-advertised, there should be no occasion on part of the petitioner No. 1 to apply for that post now. 6. So far as the petitioner No. 2 is concerned, it has been submitted by the contesting respondents that the petitioner No. 2 had applied as a rival candidate for the same post on which the respondent No. 4 has been appointed i.e., the Reader in Arabian Studies, but the petitioner No. 2 failed to turn up before the Selection Committee and has, therefore, no right to challenge the selection of respondent No. 4. 7. So far as the first petitioner is concerned, we agree with the respondents that he has no interest left in the matter and would not get any benefit if the petition is allowed and, therefore, his locus standi has weakened almost to an extent of making the issue academic for him and this Court may not feel inclined to exercise the discretionary jurisdiction in such a situation. However, we decline to express any final opinion on this question of locus standi of the petitioner No. 1 because we are of the opinion that the writ petition is clearly maintainable by and on behalf of the petitioner No. 2 for the reasons given below. 8. A candidate who has participated and taken a chance at a selection and has lost out to a better rival candidate is normally not permitted to turn round after losing out and start questioning the selection process. However, that principle of estoppel applies to the facts, events and situations prevailing and known at the time when the candidate takes his chance at the selection. However, that principle of estoppel applies to the facts, events and situations prevailing and known at the time when the candidate takes his chance at the selection. That principle would not have any application to facts, events and situations which arise after the chance at selection has been taken. Similarly, a candidate who has abandoned his chance or candidature by failing to appear at the selection, may also not be allowed to question the selection of the rival, who has been given a walkover. However, this would apply to a challenge to the selection process or to the challenge on the ground that the selected candidate was not meritorious enough. We are of the considered opinion that no estoppel would apply where an unqualified candidate has been appointed to a public post or a post concerned with the performance of the public duties such as education. In fact, writs of quo warranto do not require very strict locus standi on part of the writ petitioners. It is the concern of everybody that posts requiring performance of public duties should not be allowed to be occupied by unqualified or ineligible persons. There is yet another reason in support of the petitioner No. 2 namely that if the selection and appointment of the respondent No. 4 is quashed and the post of Reader is re-advertised, the petitioner No. 2 may take his chance at the fresh selection. This is being mentioned because some sort of an explanation has been offered by the petitioner No. 2 because of which he was unable to appear before the Selection Committee at the selection in question. Therefore, we hold that the writ petition challenging the selection and appointment of respondent No. 4 is maintainable at least by the petitioner No. 2. 9. We may mention here that we had given time repeatedly to the University to produce material before this Court that the Aligarh Muslim University Act or the statutes or ordinances permitted relaxation of the eligibility criteria or qualifications prescribed for the post in question. Despite grant of repeated opportunity and time, the University has failed to produce any such material. 10. On the other hand, the petitioner has shown to us statute No. 17-2(i) proviso, which can be found in the Schedule of the Aligarh Muslim University Act, 1920, and which thus forms part of the Central Statute. Despite grant of repeated opportunity and time, the University has failed to produce any such material. 10. On the other hand, the petitioner has shown to us statute No. 17-2(i) proviso, which can be found in the Schedule of the Aligarh Muslim University Act, 1920, and which thus forms part of the Central Statute. The relevant part of that statutory provision reads as follows : "Provided that no action shall be taken by the executive council in respect of ........................... qualifications..........................and teachers, without consideration of the recommendation of the Academic Council”. 11. Thus, under the statutes which are an integral part of the Central Act, even the Executive Council cannot relax the qualifications of teachers on its own, unless there is a recommendation to that effect by the Academic Council. 12. In view of this legal position, the condition regarding relaxation mentioned in the advertisement has to be examined. The condition is quoted below : "The Selection Committee will be authorise to relax the prescribed qualifications if the highly qualified scholar as otherwise found suitable for the post”. 13. No advertisement issued by the University can supersede the statutory provisions incorporated in the Central Act of which the statutes form an integral part. It is not clear as to who has permitted such a condition to be incorporated in the advertisement giving such blanket powers to the Selection Committee, but this could not have been done unless the statutes empower to any authority the power to grant such liberty to the Selection Committee. The statutes could be amended only by a parliamentary enactment because the statutes are part of the Schedule of the Act. 14. Moreover, even assuming for the sake of argument that such a power to relax could have been granted, it could be exercised in the rarest of rare cases where a person though not having prescribed qualifications is a scholar of such eminence as to be ‘Head and Shoulders’ above all other teachers i.e., where the candidate who is being granted relaxation virtually borders upon or is akin to a genius. 15. The respondent No. 4 does not qualify within such rare exception. This does not mean we are making any adverse comments upon the knowledge, ability or experience of the respondent No. 4. 15. The respondent No. 4 does not qualify within such rare exception. This does not mean we are making any adverse comments upon the knowledge, ability or experience of the respondent No. 4. The principle that we are laying down is that statutory bodies have to abide by the rule of law and discretion has to be exercised within the four corners of the law. Where the discretion exists to override the normal law, rare and exceptional circumstances must either be mentioned or must appear on the face of the record. Casual departure from the normal law can lead to several unhealthy results. 16. An attempt has also been made from the side of the respondents to rely upon the words “Doctoral Degree or equivalent public work” mentioned in the essential qualifications quoted above. It was contended by the respondents relying upon the bio data of respondent No. 4 that he has written several books and therefore, be treated as exempted from the Doctoral degree in the relevant subject. Unfortunately, neither the Selection Committee nor the Executive Council have said anywhere that the published work of the respondent No. 4 is equivalent to a Doctoral Degree, not to say a Doctoral Degree in the relevant subject. Further, even by way of return to this writ petition, respondents have not been able to show such cogent material on the basis of which they could expect a finding by this Court that the published work of the respondent No. 4 is equivalent to the Doctoral Degree. 17. In the circumstances, respondent No. 4 was not qualified and eligible for being selected for the post of Reader in Arabian Studies, Department of Iranian Studies and there was no power on part of the respondents, the Selection Committee or the Executive Council to relax the qualifications prescribed i.e., M.A. and Ph.D. in Islamic Studies. Therefore, we set-aside the selection and appointment of the respondent No. 4 to the aforesaid post of Reader. The post shall be re-advertised and filled up at the earliest by the University in accordance with the prescribed procedure. 18. The writ petition is allowed as above. ———