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2020 DIGILAW 573 (ALL)

Raj Kumar v. State of U. P.

2020-02-20

B.K.NARAYANA, PRAKASH PADIA

body2020
JUDGMENT : Prakash Padia, J. 1. Heard Counsel for the petitioner and learned Standing Counsel appearing on behalf of respondent No. 2. 2. The petitioner has preferred the present writ petition with the following prayers: "(i) issue a writ, order or direction in the nature of certiorari, quashing the order dated 25.1.2020 issued by the Visitor, respondent No. 2 (Annexure-5 to the writ petition); (ii) issue a writ, order or direction in the nature of certiorari, quashing the entire proceeding of the Committee which recommended the panel of names to the Visitor for filing up the post of Director, Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow pursuant to the advertisement dated 5.10.2019 (Annexure-1 to the writ petition); (iii) issue a writ, order or direction in the nature of mandamus, directing respondents to reconstitute the Committee under section 12 of the Act of 1983, complete the proceeding of recommendation of the panel of names of three persons by the committee and appointment by the Visitor on the post of Director, Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow strictly in accordance with law; (iv) issue such other appropriate writ, order or direction in the nature of writ, which this Hon'ble Court may deem fit and proper in the circumstances of the case to which the petitioner be entitled under law; and (v) award costs to the petitioner." 3. Facts in brief as contained in the writ petition are that an advertisement was issued by the Governor of the State inviting applications for appointment of Director, Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow (hereinafter referred to as the SGPGI). The institute in question was constituted under the Sanjay Gandhi Post Graduate Institute Act, 1983 and Rules framed thereunder namely Sanjay Gandhi Post Graduate Institute First Rules, 2011. The petitioner being a fully eligible candidate applied for the post of Director as per the aforesaid advertisement on 15.10.2019. The petitioner is at present working oh the post of Vice Chancellor U.P. University of Medical Sciences, Saifai Etawah. The provision for appointment on the post of Director are contained under section 12 of the Act of 1983. The petitioner being a fully eligible candidate applied for the post of Director as per the aforesaid advertisement on 15.10.2019. The petitioner is at present working oh the post of Vice Chancellor U.P. University of Medical Sciences, Saifai Etawah. The provision for appointment on the post of Director are contained under section 12 of the Act of 1983. The relevant provisions are reproduced below: "Director 12.-(1) There shall be a Director of the Institute who shall be appointed by the Visitor on the recommendation of a committee consisting of the following members, namely: (a) the President of the Institute; (b) one person who is a Judge of the High Court at Allahabad to be nominated by the Visitor, who shall also be the Convener of the committee. (2) The committee constituting under sub-section (1) shall have as Advisers two medical experts to be nominated by the Visitors; (3) Whenever a vacancy occurs or is likely to occur" in the office of Director, the committee constituted in accordance with the provisions of sub-section (1) shall prepare a panel of names of three persons who are in its opinion suitable to hold the said office. (4) The committee shall forward' to the Visitor, the panel of names prepared by it, together with a concise statement showing the academic qualifications and other distinctions of each of the persons included in such panel, but shall not indicate any order of preference. (5) That Visitor shall appoint the Director out of the panel of names submitted to him under sub-section (4)." 4. In paragraph 8 of the writ petition it is stated that in the selection committee there should be two Medical Experts as adviser nominated by the Visitor. In this regard it is stated that the Medical Experts who were nominated by the Visitor as advisers in the committee are junior to the petitioner. It is further stated that there is no provision under section 12 of the Act of 1983 for taking interview for the post of Director, SPGI. It is further stated in the writ petition that against the provisions of the Act of 1983 the committee interviewed the candidates in the presence of Dr. It is further stated that there is no provision under section 12 of the Act of 1983 for taking interview for the post of Director, SPGI. It is further stated in the writ petition that against the provisions of the Act of 1983 the committee interviewed the candidates in the presence of Dr. Rajneesh Dubey who is Principal Secretary, Medical Health and Education, Government of U.P. It is further stated in the writ petition that no person, except the members of the committee is authorized to participate in the meeting but wholly illegally Dr. Rajneesh Dubey actively participated in the proceeding for making recommendation to the Visitor. It is further stated that the petitioner faced the interview on 4.1.2020 though there was no provision for taking interview for the post of Director; SPGI. Subsequently the aforesaid committee prepared a panel contains names of three persons who were in its opinion suitable to hold the office of Director and thereafter forwarded the names to the Visitor alongwith concise statement showing the academic qualifications and other distinctions of each of the persons whose names were included in the panel. It is argued that though the petitioner was a highly qualified person but his name was wholly illegally not recommended by the committee to the Visitor. 5. Vide order dated 25.1.2020 issued by the Visitor, Sanjay Gandhi Post Graduate Institute of Medical Sciences/respondent No. 2 appointed professor (Dr.) Radha Krishna Dhiman/respondent No. 3 as Director, SPGI. It is argued by the Counsel for the petitioner that the appointment of the respondent No. 3 by the respondent No. 2 is bad in the eyes of law since the petitioner is more meritorious candidate than respondent No. 3. 6. Being aggrieved against the action taken by the respondent No. 2 in respect of appointment of the respondent No. 3 as Director of the Institute, the petitioner has preferred the present writ petition. 7. Although in certain paragraphs allegations of malafide have been made in respect of the selection of respondent No. 3 on the post of Director of the Institute but no document whatsoever has been submitted by the petitioner in support of the allegations made in the writ petition. Further no argument in respect of the malafide in selection of respondent No. 3 whatsoever has been raised by the Counsel for the petitioner. Further no argument in respect of the malafide in selection of respondent No. 3 whatsoever has been raised by the Counsel for the petitioner. Only arguments raised by the Counsel for the petitioner before the Court is that the petitioner is more meritorious than respondent No. 3 for selection and appointment on the post of Director of the Institute qua respondent No. 3 as such the entire selection done by the selection committee is bad in the eyes of law. 8. Learned Standing Counsel appearing on behalf of state-respondents argued that selection and appointment of the respondent No. 3 on the post of Director of Institute is as per the provisions contained in law. It is further argued that no documents whatsoever have been brought on record in support of the allegations made against the selection of respondent No. 3, as such those allegations cannot be looked into by the Court in the absence of supporting material. 9. Heard Counsel for the parties and perused the record. 10. It is well-settled law that the Court should refuse to consider the allegations of the malafide if supporting documents are not brought on record in this regard. The burden of establishing malafide is very heavy on the person who alleges it. The Court therefore, should be slow to draw dubious inference from incomplete facts placed before it by the petitioner particularly when the imputations are grave and they are made against the holder of an office-which has high responsibility in the administration. 11. The Supreme Court in case of Tara Chand Khatri v. Municipal Corporation of Delhi 1997(1) SCC 472, has observed that no investigation into allegation of' malafide can be directed by the Court if detail of the particulars and supporting documents are not brought on the record by the petitioner. 12. In the case of Utkal university v. Dr. Narsinghcharan Sarangi (1999) 2 SCC 193 , the Apex Court has held that: "allegations of bias must be carefully examined before any selection can be set aside. In the first place, it is the joint responsibility of the entire selection committee to select a candidate who is suitable for the post. 12. In the case of Utkal university v. Dr. Narsinghcharan Sarangi (1999) 2 SCC 193 , the Apex Court has held that: "allegations of bias must be carefully examined before any selection can be set aside. In the first place, it is the joint responsibility of the entire selection committee to select a candidate who is suitable for the post. When experts are appointed to the committee for selection, the selection is not to be lightly set aside unless there is adequate material which would indicate a strong likelihood of bias to show that any member of selection committee had a direct personal interest in appointing any particular candidate." 13. Similar view was again taken by the Supreme Court in case of Purushottam Kumar Jha v. State of Jharkhand and others (2006) 9 SCC 458 . The relevant part of the order reads as under: "It is well-settled that whenever allegations as to mala fides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In absence of material particulars, the Court is not expected to make 'fishing' inquiry into the matter. It is equally well-established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is 'very heavy', Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be made than made out' and hence it is necessary for Courts to examine it with extreme care, caution and circumspection. It has been rightly described as "the last refuge of a losing litigant." 14. In the case of M.V. Thimaiah v. UPSC (2008) 2 SCC page 119,. the Apex Court has held that "The allegation of mala fide is very easy to be leveled and it is very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision making process. People are prone to make such allegations but the Courts owe a duty to scrutinize the allegation meticulously because the person who is making the allegation of animus does, sometimes mala fide due to his non-selection. He has a vested interest. People are prone to make such allegations but the Courts owe a duty to scrutinize the allegation meticulously because the person who is making the allegation of animus does, sometimes mala fide due to his non-selection. He has a vested interest. Therefore, unless the allegations are substantiated beyond doubt, till that time the Court cannot draw its conclusion." 15. From perusal of the same it is clear that the law is well settled by the Supreme Court that the Court are refrain themselves from expressing opinion on points not raised or not fully and effectively argued by Counsel on either side. 16. Applying the aforesaid principle in the present case we find that the petitioner has made wild and reckless allegations of malafides without any particular or materials. 17. The only argument raised by the Counselor the petitioner before the Court is that the petitioner is more meritorious than respondent No. 3 and as such the selection and appointment of respondent-No. 3 is bad in the eyes of law. 18. Before we advert to the submissions on the scope of the judicial review in respect of selection and appointment of holder in office which carries high responsibility in the administration, following legal authorities are relevant in this regard. 19. In the case of University of Mysore AIR 1965 SC 491 , the Constitution Bench of the Supreme Court has laid down as under: "Boards of appointments are nominated by the universities and when recommendations made by them and the appointments following on them, are challenged before Courts/normally the Courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about malafides against the experts who constituted the present board; and so, we think, it would normally be wise and safe for them to leave the decisions of academic matters to experts who are more familiar with the problems they face then the Courts generally can be". 20. In the cases of R.S. Dass v. Union of India AIR 1987 SC 593 National Institution of Mental Health v. Dr. K. Katyana Raman AIR 1992 SC 1806 ; and UPSC v. Hiranyalal Dev AIR 1983 SC 1069, the Apex Court has held that the principles of natural justice do not require an administrative authority or a selection committee or an examiner to record reasons for the selection or non-selection of a person. K. Katyana Raman AIR 1992 SC 1806 ; and UPSC v. Hiranyalal Dev AIR 1983 SC 1069, the Apex Court has held that the principles of natural justice do not require an administrative authority or a selection committee or an examiner to record reasons for the selection or non-selection of a person. In the absence of the statutory provision, the administrative authority is under no legal obligation to record reason in support of its decision. It is held that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. 21. In the case of The Chancellor v. Dr. Bijayanand Kar (1994)1 SCC page 169, the Apex Court has emphasized that the decisions of the academic authorities should not ordinarily be interfered with by the Courts. Whether a candidate fulfills the requisite qualification or not is a matter, which should be entirely left to be decided by the academic bodies and the concern selection committees which invariably consists on the experts of subjects relevant to the selection. 22. In the case of B.C. Mylarappa v. Dr. R. Venkatasubbaiah (2008)14 SCC page 306, the Apex Court has reiterated that: "this Court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the Courts. Whether a candidate fulfills the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees, which invariably consist of experts on the subjects relevant to the selection." 23. These principles have been again reiterated and reaffirmed by the Apex Court in the case of Basavaiah (Dr.) v. Dr. H.L. Ramesh 2010 (127) FLR 888 (SC), wherein it is held that: "it is the settled position that the Courts have to show deference and consideration to the recommendation of an expert committee consisting of distinguished experts in the field. In the academic matters, the Courts have a very limited role particularly when no malafides have been alleged against the experts constituting the selection committee. It would normally be prudent, wholesome and safe for the Courts to leave the decisions to the academicians and experts. As a matter of principle, the Courts should never make an endeavour to sit in appeal over the decisions of the experts. The Courts must realize and appreciate its constraints and limitations in academic matters." 24. It would normally be prudent, wholesome and safe for the Courts to leave the decisions to the academicians and experts. As a matter of principle, the Courts should never make an endeavour to sit in appeal over the decisions of the experts. The Courts must realize and appreciate its constraints and limitations in academic matters." 24. In the case of Transport and Dock Workers Union v. Mumbat Port Trust 2010 (127) FLR 1095 (SC), the Apex Court has held that "Excessive interference by the judiciary in the functions of the executive is not proper. In several decisions, we have held that there must be judicial restraint in such matters." It was further held that Judges must maintain judicial self-restraint while exercising the powers of judicial review of administrative of judicial decisions. Adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges' preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the filed of administration while the Court does not. In the administrative matters the Court should, therefore, ordinarily defer to the judgment of the administrators unless the decision is clearly violative of some statutes or is shocking arbitrary. ' 25. From perusal of the aforesaid judgments it is clear that the parameters of the judicial review are therefore well defined and it is well-settled that the Court cannot sit in appeal over the decision taken by the experts in academic field or interfere with the decision on specious grounds of malafides or bias. Nonetheless, the judicial restraint does not confer unfettered and unbridled powers on the selection committee to act arbitrarily or illegally in total violations of statutory rules. In such situations, it is within the jurisdiction of the Court to scrutinize the decision-making process and test the decision on the touch stone of illegality, irrationality or procedural impropriety. In so far this case is concerned, from perusal of the facts as narrated above, we are of the opinion that no illegality or irregularity whatsoever has been committed by the selection committee in respect of selection and appointment of the respondent No. 3 on the post of Director of the Institution in question. No material whatsoever has been brought on record neither any argument has been made regarding malafide or bias in respect of the selection of the respondent No. 3. No material whatsoever has been brought on record neither any argument has been made regarding malafide or bias in respect of the selection of the respondent No. 3. In the absence of the same, no relief can be granted to the petitioner, in so far as the present writ petition is concerned. 26. For the reasons mentioned above, we find that the writ petition lacks merit and is liable to be dismissed. 27. Accordingly the writ petition is dismissed. 28. No order as to cost.