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2011 DIGILAW 1037 (ALL)

SNEHALATA PRABHAKAR v. STATE OF U. P.

2011-04-22

JAYASHREE TIWARI, SUNIL AMBWANI

body2011
JUDGMENT By the Court.—We have heard Shri R.N. Singh, Senior Advocate assisted by Shri G.K. Singh for the petitioner. Learned Standing Counsel appears for the State respondents. Shri Neeraj Tripathi appears for Chancellor of Mahatma Gandhi Kashi Vidyapeeth, Varanasi. Shri Ajit Kumar Singh appears for the University. 2. The petitioner has prayed setting aside the order dated 23/28th December, 2010 passed by the Chancellor, Mahatma Gandhi Kashi Vidyapeeth, Varanasi, in so far as he has accepted the disagreement of the Executive Council of the University to the selection of the petitioner as Lecturer (Sangeet-’Sitar’) in the Department of Fine Arts of the University. 2. In the meeting of the Executive Council dated 22.5.2009 after considering the recommendations made by the selection committee held on 9.9.2009 and 10.9.2009, it was found that in the Department of ‘Manch Kala’, the recommendations were made for one post of Lecturer in ‘Sangeet-Sitar’, reserved for Scheduled Caste candidate; Dr. Snehlata Prabhakar-the petitioner in the writ petition was recommended for appointment. The Executive Council took a decision to accept the recommendation of the selection committee but in view of the pending vigilance enquiry a decision was taken to stay the process of issuing the appointment letter, and the recommendation was forwarded to the Chancellor under Section 31 (8) (a) of the Act. The Chancellor in his order dated 23.12.2010 noticed that Dr. Snehlata Prabhakar the petitioner has been recommended by the selection committee for appointment on the post of Lecturer (Sitar) reserved for Scheduled Caste candidate; the Executive Council has accepted the recommendation of the selection committee in its meeting dated 22.5.2009 but has deferred the process for issuing appointment letter on the ground of pendency of a vigilance enquiry. The Chancellor after noticing the recommendation of the Executive Council to accept the proposal of the Selection Committee, and to stay the process of issuing appointment letter, on the ground of pendency of a vigilance enquiry, has rejected the recommendation of the selection committee. 3. In the present case there was no complaint against the petitioner’s selection, either with regard to the availability of post; qualification and eligibility of the petitioner or the constitution and quorum of the selection committee nor there was no complaint with regard to the shortage of the number of experts. 3. In the present case there was no complaint against the petitioner’s selection, either with regard to the availability of post; qualification and eligibility of the petitioner or the constitution and quorum of the selection committee nor there was no complaint with regard to the shortage of the number of experts. The Executive Council had accepted the recommendations of the selection committee and had only deferred the process of issuance of the appointment letter on account of pendency of the vigilance enquiry into some allegations against the then Vice-Chancellor, who completed his term on 31.12.2007. It is alleged that the rejection of recommendation of the selection committee was not based on any other material and was thus wholly unjustified and arbitrary. The Chancellor did not apply his mind to the fact that the Executive Council had in fact accepted the recommendation, and that there was no ground of disagreement to refer the matter to the Chancellor, except the possible delay of more than four months from the date when the selection committee had made the recommendation and the consideration of the Executive Council on 22.5.2009. 4. In the counter-affidavit of Shri Om Prakash, Assistant Registrar (Legal Cell) of the University, a new fact has been given for disapproving the recommendation of the selection committee. It is stated in paragraph-3 (n) that since no expert was nominated for the post of Lecturer in Sitar in Manch Kala Department, as such, a letter was issued by the Vice Chancellor to the Principal Secretary, to the Chancellor on 26.4.2007, for nominating the names of experts in the subjects alongwith list of 09 persons for the nomination. In paragraph-3 (o) and 3 (p), it is stated that in pursuance thereto a letter was written by the office of Chancellor on 4.6.2007 nominating the name of five persons as experts for the post of Lecturer in Sitar. 5. By his letter dated 26.4.2007 the Vice-Chancellor had requested the Chancellor to provide a list of experts for selections to the post of Lecturer in Manch Kala ‘Sitar’, alongwith the recommendations of the name of 09 persons who were accomplished and renowned in the subject. The office of Chancellor by a letter dated 4.6.2007 recommended the names of 05 persons namely Prof. Sunita Dhar, Faculty of Music, Delhi University Delhi; Prof. Saroj Ghosh, Punjab University, Chandigarh; Prof. Maya Tak, Faculty of Music, Rajasthan University, Jaipur; Dr. The office of Chancellor by a letter dated 4.6.2007 recommended the names of 05 persons namely Prof. Sunita Dhar, Faculty of Music, Delhi University Delhi; Prof. Saroj Ghosh, Punjab University, Chandigarh; Prof. Maya Tak, Faculty of Music, Rajasthan University, Jaipur; Dr. Pankaj Mala Sharma, Department of Music, Punjab University Chandigarh and Prof. S.K. Dhar Choudhury, Rabindra Bharati University, Kolkata. The Chancellor directed that the list may be used in the descending order, to call them as experts for selection on the advertised sanctioned posts, keeping in mind the rules of reservation. The record of the proceedings of the selection committee which met under Section 31 (4) (a) of the Act on 9.9.2007, shows that Dr. Sunita Dhar and Prof. Maya Tak, the experts in the list provided by the Chancellor were present as experts in the selection committee. The selection committee recommended the name of the petitioner Dr. Snehlata Prabhakar for appointment. 6. Shri Ajeet Kumar Singh appearing for the University could not demonstrate as to how the selection of petitioner was illegal or even irregular. The averments in the counter-affidavit rather support the submission of counsel for petitioner that there was no illegality in the selections. 7. In Dr. Mohd. Suhail v. Chancellor, University of Allahabad and others, (1994) 2 UPLBEC 787, this Court had held that Section 66 of the UP State Universities Act has been overriding effect after the selection made by the Selection Committee. Section 66 provides as follows : “66. Proceeding not to be invalidated by vacancies, etc.—No act or proceeding, of any authority or body or committee of the University shall be invalid merely by reason of- (a) any vacancy or defect in the constitution thereof, or (b) some person having taken part in the proceedings who was not entitled to do so, or (c) any defect in the election nomination or appointment of a person acting as a member thereof, or (d) any irregularity in its procedure not affecting the merits of the case.” 8. The Court held that the proceeding of any committee of the University including the selection committee shall not be held invalid merely by reason of any irregularity in the constitution of selection committee or any vacancy and even if there was any irregularity in the constitution of the selection committee because some one participated in the selection who could not have participated the proceeding will not be invalidated. Where the selection committee has been duly constituted, the measurement of merit is to be left by the statutory committee consisting of experts. 9. In Km. Neelima Misra v. Dr. Harinder Kaur Paintal and others, AIR 1990 SC 1402 , the Supreme Court, after clarifying the difference between purely administrative function and quasi-judicial function, held that where an administrative order involves civil consequence, it must be made consistently with the rules expressed in the Latin Maxim, ‘audi alteram partem,’ meaning thereby that the decision maker should afford to any party to a dispute an opportunity to present his case. The Supreme Court, thereafter in the matter of appointment of teachers where Executive Committees do not agree with the recommendations of the selection committee, held that the power is not quasi-judicial, but administrative in nature and that with the shift of the approach towards fairness in the administrative action, the duty is caused upon such authorities to act fairly. For fairness it is not necessary that there should be any resolution of the lis, inter-se between the parties. The duty to act judicially or to act fairly may arise in widely different circumstances. The non-adjudicative administrative decision making is now covered under the general rubric of fairness in the administration. Paragraphs 24, 25, 26, 27, 28 and 29 read as follows : 24. In the light of those considerations, we revert to the central issue, that is with regard to the nature of the Chancellor’s power under Section 31(8)(a). It may be noted that the Chancellor is one of the three authorities in the Statutory Scheme for selecting and appointing the best among the eligible candidates in the academic field. The Chancellor is not an appellate authority in matters of appointment. He is asked to take a decision, because the Executive Council who is the appointing authority has no power to reject the recommendation of the Selection Committee and take a decision deviating therefrom. The Chancellor’s decision is called for when the Executive Council disagrees with the recommendation of the Selection Committee. What is referred to the Chancellor under Section 31 (8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue. Nor it is a dispute between two rival candidates on any controversy. The Chancellor’s decision is called for when the Executive Council disagrees with the recommendation of the Selection Committee. What is referred to the Chancellor under Section 31 (8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue. Nor it is a dispute between two rival candidates on any controversy. What is referred to the Chancellor is the recommendation of the Selection Committee with the opinion, if any, recorded thereon by the Executive Council. In fact, even without any opinion of the Executive Council, the matter stands automatically remitted to the Chancellor if the Executive Council delays its decision on the recommendation of the Selection Committee. The proviso to Section 31(8)(a) provides for this contingency. It reads : “Section 31(8)(a) xxxx xxxx Proviso : Provided that if the Executive Council does not take a decision on the recommendation of the Selection Committee within a period of four months from the date of the meeting of such Committing, then also the matter shall stand referred to the Chancellor, and his decision shall be final.” 25. The matter thus goes to the Chancellor for decision since the Executive Council could not take a decision on the recommendation of the Selection Committee. The Chancellor in the circumstances has to examine whether the recommendation of the Selection Committee should be accepted or not. If any opinion by way of disagreement has been recorded by the Executive Council on that recommendation, the Chancellor has also to consider it. He must take a decision as to who should be appointed. It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statutory authorities. Such a decision appears to be of an administrative character much the same way as the decision of the Executive Council with regard to appointment. 26. In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution. There shall be equality of opportunity and no discrimination only on’ ground of religion, race, caste, sex, descent, place of birth or residence or any of them. The eligible candidate has a right to have his case considered in accordance with law. There shall be equality of opportunity and no discrimination only on’ ground of religion, race, caste, sex, descent, place of birth or residence or any of them. The eligible candidate has a right to have his case considered in accordance with law. In the instant case, that requirement has been complied with by the Selection Committee. There is no further right with the candidates to make representation to the Executive Council and much less to the Chancellor. Reference however, was made to the observation of this Court in Dr. G. Sarana v. University of Lucknow, (1976) 3 SCC 585 at p. 592: ( AIR 1976 SC 2428 at p. 2433). While dismissing the writ petition challenging the recommendation made by the Selection Committee of the Lucknow University for appointment of a candidate as Professor, it was observed that “the aggrieved candidate has remedy by way of representation to the Executive Council and an application for reference under Section 68 of the Act to the Chancellor”. We have carefully perused the decision and that observation. We find that it is of little assistance to the present case. We are concerned with the scope of Section 31(8)(a) of the Act which was not considered in that case. Apart from that, Section 31 confers no such right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee. There is no provision in the Section for hearing any candidate or the Executive Council. There is also no provision for receiving evidence. The material in respect of every candidate has already been collected and collated by the Selection Committee. Every material is on the record and the Chancellor has no power to take further evidence. The Chancellor is authorised to take a decision and he must take it on the available records since the Executive Council has not taken a decision on the recommendation of the Selection Committee. The decision of the Chancellor in the exercise of this Statutory function does not, in our opinion, expressly or impliedly require the application of the principles of natural justice. See also the observations of K. N. Singh, J. in R.S. Dass v. Union of India, 1986 (Suppl). SCC 617 at p. 633 : ( AIR 1987 SC 593 at Pp. 603-4). 27. See also the observations of K. N. Singh, J. in R.S. Dass v. Union of India, 1986 (Suppl). SCC 617 at p. 633 : ( AIR 1987 SC 593 at Pp. 603-4). 27. It has been argued that the order of the Chancellor becomes final and binding which is one of the features of judicial power. It is true that the conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power. But it must be added that the order made by a statutory authority even if it is given finality does not thereby acquire judicial quality if no other characteristic of judicial power is present. Power to make orders that are binding and conclusive is not, by itself a decisive factor to hold that the power is judicial. Prof. DeSmith makes a similar point in his book ‘Judicial Review of Administrative Action’ (4th Edition p. 82). 28. Taking all these factors into consideration, we would sum up our opinion in this way. The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasi-judicial power. No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function. The function of the Chancellor is to consider and direct appointment of a candidate on the basis of the relative performance assessed by the Expert Selection Committee and in the light of the opinion, if any, expressed by the Executive Council. His decision nonetheless is a decision on the recommendation of the Selection Committee. Such a power cannot be considered as a quasi judicial power. And we see nothing in that to justify our thinking that it must conform to the principles of natural justice. The contention urged to the contrary is, therefore, unacceptable to us. We also do not agree with the contrary view taken by the High Court in the Full Bench decision in L.N. Mathur case ( AIR 1986 All 273 ) (supra). 29. The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the Statutes. He must not be guided by extraneous or irrelevant consideration. 29. The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the Statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution. As stated in E.P. Royapa v. State of Tamil Nadu, (1974) 2 SCR 348 : ( AIR 1974 SC 555 ) “equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch.” The principle of equality enshrined in Article 14 must guide every State action, whether it be legislative, executive, or quasi judicial. See Mrs. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at pp. 283-84: ( AIR 1978 SC 597 at P. 624); Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 at pp. 740-41 : ( AIR 1981 SC 487 at Pp. 498-499); Som Raj v. State of Haryana, (1990) 1 JT 286 at p. 290 ( AIR 1990 SC 1176 at P. 1180). 10. In the present case there is no complaint made by any person regarding the non-availability of the vacancy; the category in which the vacancy falls; the qualifications and eligibility of the petitioner and the constitution of the selection committee. The vigilance enquiry conducted by the Vigilance Establishment under the orders of the State Government as only a fact finding enquiry into some complaints with which the selection of petitioner, has not been co-related. Learned counsel for the State states that the enquiry report has been submitted and is under consideration of the State Government, but nothing has been brought on record to show that there is any finding in the enquiry report which relates to and may affect petitioner’s selection. 11. The background of the case will demonstrate that the Chancellor for the reasons best known to him, did not have any faith in the Vice-Chancellor to act fairly. He was passing repeated orders restraining the Vice-Chancellor to hold and conclude selections, inspite of the directions of the High Court to conclude the proceedings. 11. The background of the case will demonstrate that the Chancellor for the reasons best known to him, did not have any faith in the Vice-Chancellor to act fairly. He was passing repeated orders restraining the Vice-Chancellor to hold and conclude selections, inspite of the directions of the High Court to conclude the proceedings. The High Court had to intervene on four occasions to allow the selection proceedings to be concluded. If there was any complaint of any irregularities which could have vitiated the selections, the same should have been brought on record by the Chancellor. The circumstances, in which the Executive Council met under the orders of the Court to consider the recommendation of the selection committees, would clearly shows that he was prejudiced against the previous Vice-Chancellor. The reasons for not placing the trust on the office of Vice-Chancellor have not been brought on record. The anxiety of the Vice Chancellor to fill up the teaching posts could not be, in the absence of any positive material, misunderstood and co-related with any corrupt motive. 12. We find that the reasons given by the Executive Council, for disagreeing with the recommendations of the selection committee were not relevant for the purposes of selection. There was absolutely no material with the Executive Council after agreeing with the recommendations of the Selection Committee to refer the matter to the Chancellor. The Executive Council did not have any authority under Section 31 (8) (a) of the Act, after agreeing with the recommendation of the Selection Committee, to refer the matter to the Chancellor. The reference could only be made, if there was any disagreement. The withholding of the process of issuing appointment letter until the conclusion of the vigilance enquiry also could not be a ground for disagreeing with the recommendation of the selection committee for reference to the Chancellor. We, therefore, hold that, on the material placed on record before us the petitioner’s selection did not suffer from any irregularity. 13. The writ petition is allowed. The order of the Chancellor, Mahatma Gandhi Kashi Vidyapeeth, Varanasi dated 23/28.12.2010, so far as it rejects the recommendation of the selection committee on the disagreement purportedly recorded by the Executive Council on her selection on the post of Lecturer in Music (Sitar) on the seat reserved for Scheduled Caste, is set aside. 13. The writ petition is allowed. The order of the Chancellor, Mahatma Gandhi Kashi Vidyapeeth, Varanasi dated 23/28.12.2010, so far as it rejects the recommendation of the selection committee on the disagreement purportedly recorded by the Executive Council on her selection on the post of Lecturer in Music (Sitar) on the seat reserved for Scheduled Caste, is set aside. The respondent University is directed to issue appointment letter to the petitioner, without any delay. —————