JUDGMENT 1. Heard. 2. Since both the appeals are arising out of the same order passed by the learned Single Judge, therefore, they are heard together and disposed of by this common order. 3. Both these appeals have been filed by the appellants against the common order dated 13.9.2013 passed by the learned Single Judge in Writ Petition No.3241/2013 and Writ Petition No.6291/2013 [reported in 2013(III) MPWN 52 ]. 4. Respondent No.1 University issued an advertisement and invited applications for appointment to the post of Assistant Professors including ‘Tabla’ and ‘Sitar’. The appellants applied to the posts. In accordance with the rules, the appellants were called in interview vide letter dated 25.6.2012. They participated in the interview, which was conducted by the committee consisting three members. The committee in its decision dated 13.7.2012 and 17.7.2012 selected the appellants to the post of Assistant Processor ‘Sitar’ and ‘Tabla’ and recommended appointment of the appellants to the Executive Council. Executive Council has approved the recommendations of the committee in regard to four persons of the subjects (1) Gayan Vibhag, (2) Nritya Vibhag (Kathak), (3) Chitrakala Vibhag and (4) Vyavaharik Kala Vibhag. However, two members of the Executive Council had made objections in regard to appointment of the appellants. Consequently, the matter was referred to the Hon’ble Governor. 5. Hon’ble Governor vide letter dated 13th August 2012 informed the University that in accordance with the provisions of section 33(5) of the Act, the Executive Council is competent to take a decision, hence, the Council would take the decision. There is no necessity to issue directions by the Governor in the matter. Thereafter the decision had been taken not to appoint the appellants, that was challenged by the appellants before the writ Court. Learned writ Court dismissed the writ petition after holding that it was not mandatory on the Executive Council to accept the recommendations of the selection committee. The decision of the Executive Council is not arbitrary, illegal or mala fide, hence, the appellants have no legalright for appointment to the post. 6. State Legislature enacted an Act named as Raja Man Singh Tomar Sangit Evam Kala Vishwavidyalaya Adhiniyam, 2009 (hereinafter referred to as the ‘Act of 2009’) for the purpose to establish and incorporate a teaching and residential university known as “Raja Man Singh Tomar Music and Arts University”. Consequently, the University was established. 6. State Legislature enacted an Act named as Raja Man Singh Tomar Sangit Evam Kala Vishwavidyalaya Adhiniyam, 2009 (hereinafter referred to as the ‘Act of 2009’) for the purpose to establish and incorporate a teaching and residential university known as “Raja Man Singh Tomar Music and Arts University”. Consequently, the University was established. Section 33(1) of the Act of 2009 prescribes that the appointment shall not be made to any other teaching post of the University including the Professor, Reader or Lecturer except on the recommendations of the Selection Committee constituted in accordance with sub-section (2) of the Act of 2009. The relevant provisions of section 33(2), (3) and (4) are as under : “(2) The members of the Selection Committee shall be, -- (i) The Vice-Chancellor -- Chairman; (ii) one expert to be nominated by the visitor from a panel, submitted by the Academic Council of three experts in the subject, not connected with the University in any manner whatsoever; (iii) three subject experts not connected with the University in any manner whatsoever to be nominated by the visitor : Provided that at least one of three experts shall be nominated from category of Scheduled Castes, Scheduled Tribes or other Backward Classes, and in case of non-availability of an expert from these categories, one Administrative Officer not below the rank of Commissioner, who belongs to reserved categories, shall be nominated. (3) Three members of the Selection Committee shall form a quorum. (4) The Committee shall recommended to the Executive Council the names, if any, of persons whom it considers suitable for the posts, arranged in order of merit : Provided that no recommendation shall be made unless at least two experts nominated under clauses (ii) and (iii) of sub-section (2) are present in the meeting in which such recommendation is to be decided upon. (5) Out of the names so recommended under sub-section (4), the Executive Council shall appoint persons in order of merit.” 7. The aforesaid statutory provision mandates that the Committee shall recommend to the Executive Council the names of suitable candidates arranged in the order of merit and the Executive Council shall appoint persons in order of merit. 8. Section 14 of the Act of 2009 prescribes powers of the Executive Council. The section is as under : “14. The Executive Council. -- (1) The Executive Council shall be the chief executive body of the University. 8. Section 14 of the Act of 2009 prescribes powers of the Executive Council. The section is as under : “14. The Executive Council. -- (1) The Executive Council shall be the chief executive body of the University. (2) The administration, management and control of the University and the income thereof shall be vested with the Executive Council which shall control and administer the property and funds of the University.” 9. We have perused the record of the interview produced by the counsel for the University. In accordance with the aforesaid record 17 candidates were short listed for the interview to the post of Assistant Professor (Sitar). Some persons were absent. Candidates were interviewed and the committee awarded highest marks of 119.6 to the appellant Shyam Rastogi, who was at S.No.12. He was awarded following marks : Marks Academic Research Domain Interview Total record performance knowledge performance 35 22 33+35+30 31+29+30 119.6 98/3 = 32.6 90/3 = 30 10. Ms. Sonia Singh was awarded 84 marks and she was placed at Sl.No.2. The Committee decided to select appellant Shyam Rastogi being awarded highest marks for appointment to the post of Assistant Professor (Sitar). 11. Similarly, appellant Manish Karwade was awarded 141 marks out of 27 candidates interviewed by the committee for appointment to the post of Assistant Professor (Tabla). Five candidates were absent.The appellant Manish Karwade was awarded following marks : Marks Academic Research Domain Interview Total record performance knowledge performance 35 30 44.3 31.6 141 12. Ms. Anamika Kumari was placed at Sl.No.2 because she ws awarded 120 marks. The committee made recommendation for appointment of Manish Karwade to the post of Assistant Professor (Tabla). The record was placed before the Executive Council. 13. The proceeding of the meeting of the Executive Council held on 12.5.2012 were filed as Annexure P-15 before the writ Court. In the aforesaid meeting, the Executive Council considered the matter of appointment to the post of Assistant Professor in accordance with the recommendations of the Selection Committee. The Executive Council accepted the recommendations in regard to four posts, however, in regard to the appellants for the post of Assistant Professor (Tabla) and (Sitar), two members of the Executive Council Professor Tribhuvan Nath Shukla and Mr. Atul Tare made objections. The Executive Council accepted the recommendations in regard to four posts, however, in regard to the appellants for the post of Assistant Professor (Tabla) and (Sitar), two members of the Executive Council Professor Tribhuvan Nath Shukla and Mr. Atul Tare made objections. Their objections have been recorded in the minutes of the meeting to the effect that the academic record of the appellants was not at par with other candidates and the Selection Committee awarded equal marks to other candidates and highest marks to the appellants, hence, the Committee had not adopted fair procedure. The Vice-Chancellor objected about the objections made by the two members. He was the President of the Selection Committee. He submitted that the performance of the appellants was of high quality. There was no favour to the appellants and the Committee awarded proper marks to the appellants. However, looking to the objections of the two members, the Executive Council had taken a decision to refer the matter to the Hon’ble Governor. He was the President of the Selection Committee. He submitted that the performance of the appellants was of high quality. There was no favour to the appellants and the Committee awarded proper marks to the appellants. However, looking to the objections of the two members, the Executive Council had taken a decision to refer the matter to the Hon’ble Governor. The followings are the proceedings recorded in the meeting of the Council : ^^’kklu }kjk Lohd`r lgk;d izk/;kid ds inksa ij fo’ofo|ky; vf/kfu;e] 2009 dh /kkjk 33 ds varxZr xfBr p;u lfefr }kjk p;u izfØ;k ds varxZr vH;fFkZ;ksa ds lk{kkRdkj fofHkUu foHkkxksa ds varxZr fnukad 11 tqykbZ 2012 ls 19 tqykbZ 2012 rd fy, x, FksA 6 lgk;d izk/;kidksa gsrq p;u lfefr dh vuq’kalkvksa ds can fyQkQksa dks dk;Z ifj”kn~ dh cSBd esa lnL;ksa ds le{k [kksyk x;kA lfefr }kjk ?kksf”kr ifj.kkeksa dk v/;;u fd;k x;kA dk;Z ifj”kn~ nks lnL;ksa izks- f=Hkqou ukFk ‘kqDy ,oa Jh vrqy rkjs dk ;g dguk gS fd rcys vkSj flrkj ds fo’ks”kKksa }kkj ,d tSlh ekfdZax dh xbZ gS ,oa vU; vH;fFkZ;ksa dh rqyuk esa p;fur vH;FkhZ dks lokZf/kd vad fn, x, gSaA tcfd p;fur vH;fFkZ;ksa ds vdknfed fjdkMZ dqN vH;fFkZ;ksa dh rqyuk esa de gSA blls Li”V gksrk gS fd vf/kd ;ksX;rk j[kus okys vH;fFkZ;ksa ds lkFk i{kikr fd;k x;k gSA izks- f=Hkqou ukFk ‘kqDy ,oa Jh vrqy rkjs us rcyk vkSj flrkj foHkkx esa foHkkx dh p;u izfØ;k esa viuh vlgefr O;Dr dh gS vkSj mudk vuqjks/k gS fd jktHkou esa bl izdj.k dks Hkstk tk,A ekuuh; dqyifr th] tks mDr p;u lfefr esa v/;{k ds :i esa Fks] mUgksaus dgk fd nksuksa vH;fFkZ;ksa dh izLrqfr mPpLrjh; FkhA vr% os bl ckr ls lger ugha gS fd fdlh izdkj dk dksbZ HksnHkko fd;k x;k gSA izR;sd vH;FkhZ dh izLrqfr ds vk/kkj ij fo”k; fo’ks”kKksa us xgu ppkZ ds ckn ekfdZax dh gSA laiw.kZ p;u fu”i{k ,oa ikjnf’kZrk ds lkFk fd;k x;k gSA fQj Hkh bl gsrq jktHkou ls ekxZn’kZu izkIr dj fd;k tk,A vU; lnL;ksa us ekuuh; dqyifr th dh jk; dk leFkZu fd;kA** 14. Thereafter, the Hon’ble Governor vide letter dated 13th August 2012 directed that the Executive Council is competent to take a decision and it had to take a decision. Thereafter, the Executive Council in its meeting dated 5.2.2013 had taken a decision to cancel the selection process and issue a fresh advertisement. Thereafter, the Hon’ble Governor vide letter dated 13th August 2012 directed that the Executive Council is competent to take a decision and it had to take a decision. Thereafter, the Executive Council in its meeting dated 5.2.2013 had taken a decision to cancel the selection process and issue a fresh advertisement. The Council had taken following decision: ^^lgk;d izk/;kidksa ds p;u ds laca/k esa fopkjA fo”k; % ekuuh; dqyifr egksn; }kjk i= Ø-1151@iz’kk-] fnukad 30-7-2012 ds lanHkZ esa jktHkou dks tks i= Hkstk x;k FkkA jktHkou us mDr izdj.k ij dk;Z ifj”kn esa fu.kZ; ysus gsrq fo’ofo|ky; dks i= Ø-1340@jkl@;w-,-&2@2012] fnuakd 13 vxLr 2012 HkstkA dk;Z ifj”kn~ esa nksuksa i=ksa dk voyksdu fd;k x;k vkSj fu.kZ; fy;k fd lgk;d izk/;kid rcyk vkSj lgk;d izk/;kid flrkj ds p;u esa fo’ks”kKksa }kjk ,d tSlh ekfdZax dh xbZ gS vkSj vU; vH;fFkZ;ksa dh rqyuk esa p;fur vH;fFkZ;ksa dks vf/kd vad fn, x, gSa ,oa vU; vH;fFkZ;ksa dks leku vad fn, x, gSaA blls Li”V gksrk gS fd vf/kd ;ksX;rk j[kus okys vH;fFkZ;ksa ds lkFk HksnHkko gqvk gSA lnL;ksa us bl vk/kkj ij mDr nksuksa inksa ij dh xbZ p;u izfØ;k dks fujLr dj iqu% foKkfir djus dk fu.kZ; fy;kA** 15. The Executive Council had taken a decision to cancel the selection process on the ground that the specialists had awarded same marks to the candidates and the appellants were awarded highest marks in comparison to other candidates, hence, there was partiality. The Vice-Chancellor, who was the President of the Selection Committee, had specifically made an observation that the marks were awarded according to the performance of the candidates and there was no favourtism.The record of the Selection Committee has been produced before the Court and the record does not show that there was any favourtism shown to the appellants. The appellants obtained higher marks in comparison to other persons. 16. In the matter of selection, the Selection Committee has a power to award marks to the candidates. As per section 33(1) of the Act of 2009, the Executive Council shall appoint the persons in accordance with the recommendations of the Selection Committee. The appellants obtained higher marks in comparison to other persons. 16. In the matter of selection, the Selection Committee has a power to award marks to the candidates. As per section 33(1) of the Act of 2009, the Executive Council shall appoint the persons in accordance with the recommendations of the Selection Committee. We are in agreement with the findings recorded by the learned writ Court that the recommendations made by the Selection Committee to the Executive Council are not mandatory and the Executive Council has discretion to accept or reject the recommendations, however, it was obligatory on the part of the Executive Council to apply its discretion properly. 17. The Constitution Bench of the Hon’ble Supreme Court in Shankarsan Dash v. Union of India, reported in (1991)3 SCC 47 , has held as under in regard to right of the selected candidate : “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha [ (1974)3 SCC 220 ]; Neelima Shangla v. State of Haryana [ (1986)4 SCC 268 ]; or Jatendra Kumar v. State of Punjab [ (1985)1 SCC 122 ].” 18. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha [ (1974)3 SCC 220 ]; Neelima Shangla v. State of Haryana [ (1986)4 SCC 268 ]; or Jatendra Kumar v. State of Punjab [ (1985)1 SCC 122 ].” 18. Hon’ble Supreme Court in R.S. Mittal v. Union of India, reported in 1995 Supp.(2) SCC 230, has held as under in regard to right of selection candidate : “Although a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or on its whims decline to make the appointment. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to the candidate at serial No.1 of the select list within a reasonable time of availability of the vacancy and thereafter to the next candidate.The Central Government’s approach in this case was wholly unjustified.” 19. Hon’ble Supreme Court further in A.P. Aggarwal v. Government of NCT of Delhi, reported in (2000)1 SCC 600 , has held as under in regard to exercise of discretionary power by the authority in the matter of appointment on the basis of recommendations by the Selection Committee: “11. In our opinion, this is a case of conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. Even if it is to be said that the instructions contained in the office memorandum dated 14.5.1987 are discretionary and not mandatory, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also satisfy the mandatory requirement of the statute. It is not therefore open to the Government to ignore the panel which was already approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same. It is not the case of the Government at any State that the appellant is not fit to occupy the post. No attempt was made before the Tribunal or before this Court to place any valid reason for resorting to the appellant and launching a fresh process of selection. 12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us {vide : Shrilekha Vidyarthi v. State of U.P. [ (1991)1 SCC 212 ]}.” 20. From the aforesaid judgments of the Hon’ble Supreme Court including the judgment of the Constitution Bench in Shankarsan Dash (supra), it is clear that discretion in regard to appointment has to be exercised in fair and bona fide manner and proper reasons have to be assigned in regard to rejecting the recommendations of the Selection Committee. 21. In the present case, the Selection Committee has recommended the case of the appellants for appointment. They were awarded highest marks. The Vice-Chancellor was the Chairman of the Selection Committee. Only two members of the Executive Council raised on objection to the effect that the appellants were awarded highest marks and some candidates were awarded highest marks and some candidates were awarded equal marks. We have perused the record and markings by the Selection Committee. No candidates were awarded equal marks. As per the President of the Selection Committee, the appellants were awarded marks on the basis of their performance and record. Two members were not the members of the Selection Committee. Their objections are general in nature. Hence, the decision of the Executive Council based on the basis of the objection of two members could not be said to be bona fide and reasonable. Two members were not the members of the Selection Committee. Their objections are general in nature. Hence, the decision of the Executive Council based on the basis of the objection of two members could not be said to be bona fide and reasonable. It also could not be said that Executive Council has exercised its discretion properly. In our opinion, the decision of the Executive Council could not be said to be proper and in accordance with law. Consequently, the appeal is disposed of with the following directions: (i) That the impugned order passed by the learned Single Judge as well as the resolution dated 5.2.2013 (Annexure P-1) passed by the Executive Council is hereby quashed. (ii) The matter is remanded back to the Executive Council to take a fresh decision in the matter after application of proper mind and in accordance with the observations made by this Court and if the appellants are found suitable for appointment, they shall be appointed to the post at par with other four persons. (iii) The Executive Council shall take a fresh decision within a period of four weeks from the date of receipt of copy of the order. No order as to costs.