W.P.(C)/1443/2012 of JOSE MELETH Vs UOI AND ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 18.11.2013Pronounced on: 20.12.2013

+W.P. (C) 1443/2012, C.M. APPL. 3149/2012

JOSE MELETH

...... Petitioner

Through: Sh. Jayant Tripathi, Advocate.versus

UOI AND ORS.

..... Respondents

Through:Sh. Sumeet Pushkarna with Sh.Gaurav Sharma, Advocates, for Resp. No.1.Sh. Rakesh Munjal, Sr. Advocate with Sh.Rakesh Kumar Garg, Advocate, for Resp.No.2.

Sh. Shashank Shekhar, for Sh. AmiteshKumar, Advocate, for UGC.

Sh. R. Venkataramani, Sr. Advocate withSh. Maneesh Goyal, Advocate, for Resp.No.4.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT

1.The petitioner in these proceedings under Article 226 of theConstitution of India, seeks writ of quo warranto declaring that thefourth respondent (Dr. S. Sivakumar, hereafter referred to as

“Sivakumar”) is not entitled to hold his position as ResearchProfessor at the Indian Law Institute, New Delhi (hereafter the “ILI”)as he, in the words of the petitioner, “...................fraudulentlyobtained the post by making false statements and fraudulentmisrepresentation before the selection committee …” The petitioneralleges that Sivakumar’s appointment was contrary to statutory rulesas he did not have the requisite qualifications in terms of theadvertisement issued by the ILI inviting applications for the post ofResearchProfessorandintermsoftheUniversitiesGrantsCommission Regulations (“UGC Regulations”) for appointment.2.The brief facts are that in response to an advertisement issued in2005, Sivakumar, and other candidates, applied to the post ofResearch Professor in the ILI. Sivakumar submitted his application on03.10.2005. The advertised eligibility considerations were that thecandidate had to be an eminent scholar with “good academic record”or have doctoral degree in law or equivalent, “published work ofhigh quality and master’s degree in Law with at least 55% of marks orits equivalent grade” and “10 years post graduate teaching/researchin universities/colleges and other institutions of higher education.”There is no dispute that Sivakumar completed his law graduation in1990 and subsequently completed his LLM from the University ofKerala, proceeding then to complete his Ph.D. in 1999. Afterprocessing the application, and conducting selection process,Sivakumar was offered appointment to the post of Research Professor,and he took charge after the appointment order was issued on20.02.2006. The present petitioner alleged for the first time that

Sivakumar was not entitled to hold the post on 19.05.2010 by arepresentation to the ILI. Later, on 01.02.2012, he preferred writpetition under Article 32 of the Constitution of India, which was laterwithdrawn on 24.02.2012, though the Supreme Court granted libertyto him to approach this Court. Consequently, he preferred the presentwrit petition.

3.It is contended that Sivakumar had made fraudulent statementwhile applying for the post that he had sufficient experience in postgraduate teaching, (one of the essential advertised qualifications)though in reality, alleges the petitioner, the documents issued by theinstitutions in which Sivakumar claims to have taught at earlier clearlydemonstrate that he did not have the requisite experience as stated byhim.The Petitioner argues that although in Annexure I to hisapplication, Sivakumar had stated that he had postgraduate teachingexperience of 11 years and 1 month (8 years and 9 months in KeralaLaw Academy College, Thiruvananthapuram, 5 months in NationalUniversity of Juridical Sciences, Kolkata, and 1 year and 11 months inHidayatullah National Law University, Raipur), he had no suchteaching experience and falsely represented before the selectioncommittee. For this, the petitioner relies on responses received fromthe three institutions under the Right to Information Act, 2005, whichhave been brought on record. As regards the National University ofJuridical Sciences, the petitioner argues that Sivakumar did not teachany post-graduate course in that University, and in fact, committed abreach of contract; as regards the Hidayatullah National Lawuniversity, Raipur, the petitioner argues that Sivakumar was working

at the university only on an ad hoc basis; as regards the Kerala LawAcademy, the petitioner argues that Sivakumar did not teach anypostgraduate course, and the term of his employment was 6 years, 11months and 19 days, as against his claim of 8 years and 9 monthspostgraduate teaching experience. In view of these facts, the petitionerargues that various fraudulent representations were made, whichmisled the selection committee into confirming his appointment as aResearchProfessor.This,atanyrate,justifiesdisciplinaryproceedings and removal from the post occupied by Sivakumar.4.The petitioner also argues that Sivakumar is liable to beremoved from his post for another reason, i.e. he was not qualified tobe appointed to the post of Professor as per the UGC (MinimumQualificationsRequiredfortheAppointmentandCareerAdvancement of Teachers in Universities and Colleges) Regulations,2000 (hereafter “2000 UGC Regulations”). The petitioner submits thatas per these regulations, the minimum qualifications to be appointedto the post of Professor in law are that the candidate shall be/have: (i)an eminent scholar with published work of high quality, (ii) activelyengaged in research; (iii) 10 years’ experience in postgraduateteaching and/or (iv) experience in research at the University/Nationallevel institutions including experience of guiding research at doctorallevel; or (v) an outstanding scholar with established reputation whohas made significant contribution to knowledge. The petitionerargues that Dr. Sivakumar:

“certainly did not have any of the above qualifications atthetimeofhisappointmentandtherefore,hisappointment is contrary to statutory rules.”

5.Tosubstantiatethissubmission,itisarguedthattheSivakumar’s application shows that: (i) He was not an eminent scholarwith published work of high quality. No document was submitted byhim at the time of interview to show that he was an eminent scholarwith published work of high quality; (ii) He was not actively engagedin research. No document was submitted by him at the time ofinterview to show that he was actively engaged in research; (iii) Hehad no sufficient experience in postgraduate teaching. In fact, in theapplication, he made fraudulent and misleading statement that hehad 11 years and 9 months experience in postgraduate teaching; (iv)He had no experience in research at the University/National levelinstitutions including experience of guiding research at doctoral level;(v) He was not an outstanding scholar with established reputation whohas made significant contribution to knowledge. No document wasproduced by him to show that he was an outstanding scholar withestablished reputation who has made significant contributions toknowledge at the time of the interview.

6.The petitioner contends that he had also sent representation tothe Director of the ILI on 19.05.2010, on which no action has yet beentaken (as is clear from the response to query under the Right toInformationAct,2005,bytheILIdated10.10.2011,(No.ILI/RTI/2011/4469).

7.In response to the allegations levelled by the petitioner,

Sivakumar’s counsel firstly urged that the present proceedings aremotivated. It was submitted that the writ petition, as it claims writ ofquo warranto, cannot be maintained, because Sivakumar’s selectionand appointment was not to statutory post. Without any locus standi,thepetitionercannot,itwasargued,claimquashingoftheappointment, since he was not candidate. It was further argued thatSivakumar’sselectionwaswithintherules,andmadeafterpresentations from each of the five candidates regarding their teachingand research experience. Learned counsel submitted that due to thepetitioner’scomplaints,Sivakumarwasaskedtosubmitauthenticated/attesteddocumentstoprovethedesiredteaching/research experience as mentioned, and he did so by makingthe following documents available to the Selection Committee: (a) aKerala University Order dated 03.10.1994, appointing Sivakumar as alecturer; (b) certificate dated 25.02.2005 issued by Dr. N. NarayananNair, Secretary of the Kerala Law Academy College, noting the periodof service of Dr. Sivakumar from 01.08.1994 to 19.05.2003; (c) aKerala University Order dated 01.01.2001 granting recognition toSivakumar as Research Guide for Ph.D. students. (d) certificatedated 18.10.2003/19.10.2003 issued by the Registrar, WB NationalUniversity of Juridical Sciences showing Prof. Sivakumar havingjoined it since 20.05.2003; (e) an Office Order dated 20.10.2003issued by the Vice-Chancellor, Hidayatullah National Law Universityshowing the appointment of Sivakumar as an Associate Professor witheffect from that date.

8.Based on these documents, learned counsel argued that the

documents sought to be relied upon by the petitioner by way of anRTI application from the Kerala Law Academy is contrary to thedocument provided by Sivakumar to the Selection Committee, andcannot be made the basis for any decision. It is argued that these RTIresponses were manipulated, and are, therefore, to be ignored. Further,learned counsel argued that the UGC has no role to play in theselection process, and as such, the selection criteria are determined bythe advertisement for these posts. For this learned counsel placedreliance on letter from the UGC dated 13.01.2010, where the UGCindicated that it would have no role to play in the process of selection.Moreover, it was argued that the 2000 UGC Regulations were adoptedin May, 2006, whereas the post was filled up in 2005 itself, and thus,the question of application of those regulations does not come into thepicture.9.Finally, it was submitted that the ILI is an institute engaged inresearch-based teaching, which is different from other universities,and thus, norms of the UGC may have to be looked at differentlywhen it comes to the ILI. In this light, learned counsel also submittedthat the application submitted by Sivakumar clearly reveals that hewas an eminent scholar with published work of high quality, and thathe had an established reputation as an individual who has made asignificant contribution to knowledge of law. Accordingly, given Dr.Sivakumar’s track record, learned counsel submitted that his selectionby the ILI as Research Professor was not only within the terms ofthe advertisement issued, and the bye-laws of the ILI, but merited.

10.Before addressing the questions that arise in this writ petition,

some background is important. First, it is established that the ILI wasgranted Deemed University status on 29.10.2004, under Section 3 ofthe University Grant Commission Act, 1956 (vide GovernmentNotification No. F.9-9/2001-U.3), and hence, UGC Regulations areapplicable to the ILI. The 2000 UGC Regulations were framed by theUGC under Section 26(1) of the UGC Act, 1956. These regulationsprescribe the minimum qualifications required for appointment ofteachers in universities and intuitions affiliated to the UGC, i.e. the ILIin this case. This is clear from Section 1(ii) of the 2000 UGCRegulations, which states that these regulations:

“shallapplytoeveryuniversityestablishedorincorporated by or under Central Act, Provincial Act ora State Act, every institution holding constituent or anaffiliated college recognized by the Commission, inconsultation with the University concerned under Clause(f) of Section 2 of the University Grants Commission Act,1956 and every institution deemed to be Universityunder Section 3 of the said Act.” (emphasis supplied)

11.In 2005, by an advertisement (DAVP 1439(4) 2005), the ILI,through its Registrar, advertised for the post of Research Professor, inthe following terms:

“Applications are invited latest by 17.10.2005 in theprescribed form for filling up of the following posts in theIndian Law Institute.

(1) Research Professor (2 posts) – UR: 16400-450-20900-500-22400. Age limit up to 62 years.

Essential Qualifications: An eminent scholar with goodacademic record or Doctoral degree in law or equivalentpublished work of high quality and master’s Degree inLaw with at least 55% of marks or its equivalent grade

and10yearsofexperienceofpostgraduateteaching/researchinuniversities/collegesandotherinstitutions of higher education.” (emphasis supplied).

12.In his application form, Sivakumar entered the following detailsas against the heading “Teaching Experience at University or DegreeColleges”, in Annexure I: (1) Undergraduate and postgraduate classestaught as permanent lecturer at the Kerala Law Academy, between01.08.1994 and 19.05.2003, for period of 8 years and 9 months. (2)Undergraduate and postgraduate classes taught as permanent lecturerat the National University of Juridical Sciences, between 20.05.2003and 19.10.2003, for period of 5 months. (3) Undergraduate andpostgraduate classes taught as permanent Associate Professor at theHidayatullah National Law University, since 20.10.2003, for periodof 1 year and 11 months. Thus, the application records, under Entry17, total of 11 years and 2 months of teaching experience.

13.As against the heading “Research Experience”, Sivakumarclaimed that he worked for 4 years and 9 months as “recognizedresearch guide” on “Additional Duty” (i.e. the “Nature of theAssignment”) at the University of Kerala; 1 year and 10 months as a“Project Coordinator” on “Additional Duty” at the HidayatullahNational Law University. Further, in his “Academic Profile” attachedto his application, Sivakumar entered details of twelve researchpublications,fourbookreviews,elevenpaperspresentedinternationally, along with three papers submitted and presented(though not personally present), various papers presented nationally, alistofotherpublications,includingfourbookcontributions,

programmes organized by him and academic assignments taken.Points for consideration

14.Two questions arise for consideration on this case. First,whether the petitioner has the locus standi to agitate this matter, andsecondly, if so, do the facts warrant the issuance of writ of quowarranto.

15.Addressing the first question, the proposition that writ of quowarranto lies for violation of statutory provisions/rules is no longerres integra. As the Supreme Court noted in Hari Bansh Lal v.Sahodar Prasad Mahto and Ors., (2010) 9 SCC 655:

“20. From the discussion and analysis, the followingprinciples emerge:

(a) Except for writ of quo warranto, PIL is notmaintainable in service matters.

(b) For issuance of writ of quo warranto, the High Courthas to satisfy that the appointment is contrary to thestatutory rules.

(c)Suitabilityorotherwiseofacandidateforappointment to post in Government service is thefunction of the appointing authority and not of the Courtunlesstheappointmentiscontrarytostatutoryprovisions/rules.”

Indeed, that writ of quo warranto may be issued for appointmentscontrary to statutory rules is an established principle of law underArticle 226 is clear from the decisions in The Mor ModernCooperative Transport Society Ltd. v. Financial Commissioner andSecretary to Govt. Haryana and Anr., (2002) 6 SCC 269 and recentlyin Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and

Ors., 2013 (13) SCALE 477.

16.The rules alleged to be violated in this case, i.e. the 2000 UGCGuidelines, were framed by the UGC under its governing statute, i.e.Section 26(1) of the UGC Act, 1956, and thus, possess statutoryflavour. Specifically, Section 26 states that:

“[t]he Commission may, by notification in the OfficialGazette, make regulations consistent with this Act and therules made thereunder defining the qualifications thatshould ordinarily be required of any person to beappointed to the teaching staff of the University, havingregard to the branch of education in which he is expectedto give instruction.”Gazette, make regulations consistent with this Act and therules made thereunder defining the qualifications thatshould ordinarily be required of any person to beappointed to the teaching staff of the University, havingregard to the branch of education in which he is expectedto give instruction.”

17.Therefore,the2000UGCRegulationspresentlyunderconsideration strictly trace their authority to Section 26 of the UGCAct, and as the Supreme Court recognized in Co-Operative CentralBank Ltd. and Ors v. Additional Industrial Tribunal and Ors., [1970]40 Comp Cas 206 (SC), that:

“10...........… if statute gives power to Government orother authority to make rules, the rules so framed have theforce of statute and are to be deemed to be incorporated asa part of the statute.”(emphasis supplied)

18.Similar conclusions have been reached, in varying contexts, bythe Madhya Pradesh High Court, in Kashi Prasad v. District CentralCo-operative Bank Ltd., Timakgarh and Ors., 1992 (1) MPJR 362 (“Itis well settled that where statute authorises either the Governmentor any other authority to frame rules and the rules are so framed, therules would have the force of statute....................”). Further, the letterof the UGC (D.O. No. F.3-1/2000(PS), dated 4[th]April, 2000)

introducing the 2000 Regulations specifically notes that:

“[t]he Regulations issued by the UGC are mandatory innature and all the universities are advised to strictly complywith them. It shall be necessary for the universities and themanagement of colleges to make the necessary changes intheirstatutes,ordinances,rules,regulationsetc.toincorporate these Regulations.”

19.The fact that the UGC Regulations are mandatory, and notrecommendatory, on the statutory authority vested in the UGC underSection 26 further lends credence to the proposition that the 2000Regulations carry the force of statute, and are thus, liable to beenforced through writ of quo warranto. In fact, this question of locusstandi in cases of writs of quo warranto for the violation of UGCRegulations came before the Madras High Court in D. Ganesan v.State of Tamil Nadu, 2012 (2) CTC 177, where the petitionerquestioned the appointment of an individual to the post of Principal ofDr. Ambedkar Government Law College by way of writ of quowarranto, on the ground that the UGC Regulations applicable (i.e. theUGC Regulations on Minimum Qualifications for Appointment ofTeachers and other Academic Staff in Universities and Colleges andMeasures for the Maintenance of Standards in Higher Education 2001,which are, in principle, identical to the 2000 UGC Regulations inquestion in this case) were violated. In setting aside the appointmentin that case, the Court held that the writ petition was maintainable:

“19. Contending that public interest litigation does not liein service matters, the counsel for the third respondentrelied upon the decision of the Supreme Court in HariBansh Lal vs. Sahodar Prasad Mahto 2010 (9) SCC 655.But the said decision goes against the third respondent, as

seen from the principles of law summarised in para 34 ofthe decision, which read as follows:-

“34. From the discussion and analysis, thefollowing principles emerge:

(a) Except for writ of quo warranto, PIL is notmaintainable in service matters.maintainable in service matters.

(b) For issuance of writ of quo warranto, theHigh Court has to satisfy that the appointment iscontrary to the statutory rules.

(c) Suitability or otherwise of candidate forappointment to post in Government Service isthe function of the appointing authority and not ofthe Court unless the appointment is contrary tostatutory provisions/rules.

20.The present writ petition is not public interestlitigation. It is filed for the issue of Writ of QuoWarranto. The appointment of the third respondent iscontrary to the UGC Regulations 2010, which has beenadopted by the Tamil Nadu Dr. Ambedkar LawUniversity and accepted by the Bar Council of India inthe Rules of Legal Education, 2008. The adhoc rulesframed by the Government should only be read in tunewith UGC Regulations 2010. Therefore, the writpetition is maintainable and the appointment of thethird respondent is liable to be set aside. Accordingly,the writ petition is allowed and the order in G.O.Ms.No. 241, Law (LS) Department, dated 17.6.2011,promoting the third respondent to the post of Principalof the Government Law College is set aside. There willbe no order as to costs. Consequently, connectedmiscellaneous petition is closed.”

20.The petitioner in the opinion of this court, despite being anoutsider, possesses the necessary locus standi to question anappointment in violation of the UGC Regulations, which have the

force of statute.

21.On merits, it is useful to extract the relevant portion of the 2000UGC Regulations, i.e. Clause 1.3.1, the violation of which is allegedin this case:

“1.3.1 HUMANITIES, SOCIAL SCIENCES, SCIENCES,COMMERCE, EDUCATION, PHYSICAL EDUCATION,FOREIGN LANGUAGES AND LAW.

1.3.1 Professor:

An eminent scholar with published work of high quality,actively engaged in research, with 10 years of experience inpostgraduate teaching, and/or experience in research at theUniversity/National Level institutions, including experienceof guiding research at doctoral level.

An outstanding scholar with established reputation who hasmade significant contribution to knowledge.”

The advertisement (DAVP 1439(4) 2005), through which the post ofResearchProfessorwasannounced,followedthisminimumrequirement, and echoes Clause 1.3.1. Therefore, no question of aninconsistency between the requirements advertised by the ILI and the2000 UGC Regulations arises. Nor is it disputed that the relevantclause applicable to the present case is Clause 1.3.1 that prescribes thenecessary requirements for appointment as Professor in Law.Though the post currently under consideration is titled ‘ResearchProfessor’, as the ILI is research, rather than teaching-basedinstitution, the norms of the UGC apply uniformly across the board toall Professors in Law appointed in institutions to which the UGCRegulations apply, i.e. the ILI in this case. While particular

institution may, based upon its internal peculiarities, choose to lay adifferent emphasis on particular requirements inter se candidates, thefact remains that all minimum qualifications prescribed in the 2000UGC Regulations must necessarily be complied with. Indeed, neitherlearned counsel for Mr. Sivakumar nor the ILI have advanced theargument that the UGC Regulations are inapplicable on this count.

22.Clause 1.3.1, which is controlling in this case, provides twoparallel paths: either one is to be “an eminent scholar with publishedwork of high quality, actively engaged in research, with 10 years ofexperience in postgraduate teaching, and/or experience in research atthe University/National Level institutions, including experience ofguiding research at doctoral level, OR An outstanding scholar withestablished reputation who has made significant contribution toknowledge.” The disjunctive ‘or’ within Clause 1.3.1 allows for eitherof the two requirements to be met. While some requirements aresubject to an objective inquiry (i.e. whether the minimum requirementof 10 years of experience of teaching/research), other factors (i.e.whether the candidate is an eminent scholar with published work ofhigh quality, or an outstanding scholar with established reputationwho has made significant contribution to knowledge) are subjective,in that the primary decision lies with the Selection Committee, and thescope of judicial review in this regard is limited. Thus, as the SupremeCourt recognized in Hari Bansh Lal v. Sahodar Prasad Mahto andOrs., 2010 (9) SCC 655, the

“15....................suitability or otherwise of candidate forappointment to post is the function of the appointing

authority and not of the court unless the appointment iscontrary to statutory provisions/rules.”

23.The limited inquiry to be conducted by the Court whileconsidering writ of quo warranto is not whether Sivakumar was themore qualified candidate for the post, but rather, whether he wasdisqualified by Clause 1.3.1, i.e. whether his credential fell below theminimum statutory bar imposed by the UGC Regulations.

24.The Court is cognizant of the fact that Sivakumar’s application,under the details filed against Entry 17(A), indicates that he has totalof 11 years and 1 month of postgraduate teaching experience, andunder Entry 17(B), indicates that he has research experience of 6 yearsand 7 months, in addition to the details of his research activitiesprovided in Annexure II to the application, wherein various researchpublications and papers presented at international conferences arerecorded, from 1992 till the year of the application process, i.e. 2005.

25.Under the various responses from the institutions that Dr.Sivakumar has been employed in, under the RTI Act, the followingdetails emerge:

a. The RTI response from West Bengal National Universityof Juridical Sciences, in letter dated 03.02.2010, statedthat Dr. Sivakumar did not teach any postgraduatecourse, and further, that he was employed as “lecturer”from 20.05.2003 to 19.10.2003.of Juridical Sciences, in letter dated 03.02.2010, statedthat Dr. Sivakumar did not teach any postgraduatecourse, and further, that he was employed as “lecturer”from 20.05.2003 to 19.10.2003.

b. The RTI response from Hidayatullah National LawUniversity, in letter dated 15.02.2010, states that Dr.Sivakumar was employed as an Associate Professor onUniversity, in letter dated 15.02.2010, states that Dr.Sivakumar was employed as an Associate Professor on

an ad hoc basis from 20.10.2003 till 18.02.2006, and didteach postgraduate courses.

c. The RTI response from Kerala Law Academy, in letterdated 26.03.2010, states that he was employed as a“lecturer” from 01.06.1996 till 19.05.2003, and did notteach any postgraduate course.

26.These facts are contested by Dr. Sivakumar, who has producedseveral documents on record to contradict these facts. First, letterfrom the Kerala Law Academy dated 01.08.1994, was producedbefore the Court stating that

“Shri S. Sivakumar … is appointed as Lecturer underthis Educational Agency on pay of Rs. 2,200/- p.m. inthe scale of Rs. 2200-75-2800-100-4000 in the KeralaLawAcademyCollege,Thiruvananthapuramfrom1.8.1994 …”

27.This is corroborated by letter, dated 01.08.1994, from thePrincipal of the Kerala Law Academy College to the Registrar of theUniversity of Kerala

“forwarding … documents [specifically, the office orderNo. Staff/Approval/94, dated 15.7.1994] relating to theLecturer appointed in this college for favour of approvalof the University”.

This is followed by letter from the University of Kerala, dated03.10.1994, No. Ac.F.I.1/3159/94, stating that:

“XXXXXXXXXXXXXXXXX

As per the recommendations of the Standing Committeeon Teaching/Non-teaching staff of Private College heldon 31.8.1994, sanction has been accorded for the

appointment of Sri S. Sivakumar as Lecturer in the LawAcademyLawCollegeThiruvananthapurambeingapproved with effect from 1.8.1994 …”

This is also corroborated by two certificates dated 20.08.1997 and13.03.1998, stating that Sivakumar was full-time lecturer since01.08.1994. Finally, Dr. Sivakumar has produced letter dated25.02.2005 stating that “[o]n accepting his resignation letter he hasbeen relieved from our service with effect from 19.5.2003.”

28.These letters, if accepted facially, (and the validity of which hasnot been impugned by the petitioner), clearly contradict the KeralaLaw Academy’s RTI response that Dr. Sivakumar taught from01.06.1996 till 19.05.2003. Rather, these letters and certificatesindicate that Dr. Sivakumar was appointed on 01.08.1994. Moreover,Dr. Sivakumar has produced letter dated 15.05.1999, from theController of Examinations, University of Kerala addressed to him,stating:

“I am forwarding for first valuation files nos. 1832 to1838 answer books in Rule ___ Law ___ of II year/LLMDegree Examinations April 1999. Kindly value theanswer books and forward the mark sheets to theChairman before 2.6.99 …”

29.Again, taking this letter to be true facially, and no reason tosuspect its authenticity has been brought forward by the petitioner,this letter contradicts that statement in the RTI response from KeralaLaw Academy that Sivakumar did not teach any postgraduate course,since the letter directs Sivakumar to correct LLM Degree (i.e.

postgraduate) papers. The Court is aware that precondition toworking as examiner would be that the concerned member of theteaching staff would be entitled to either set the paper, or at least toteach the subject or course. Indeed, another request to markpostgraduate papers has been brought on record in the form of letterfrom the Controller of Examinations dated 10.06.2002, for theAdministrative Law course for the April/May, 2002, LLM DegreeExaminations. Indeed, this claim is reinforced substantially by anothercertificate, which has remained unchallenged in these proceedings, byDr.V.Sobha,FormerProfessorandHead,DepartmentofEnvironmental Sciences, University of Kerala, dated 19.06.2012,stating that:

“Dr. S. Sivakumar, Lecturer, Kerala Law Academy LawCollege,Thiruvananthapuram had been engaged inteaching the paper on EnvironmentalLegislationsforM.Sc.(EnvironmentalSciences)andM.Phil(Environmental Sciences) courses in the Department ofEnvironmentalSciences, University of Kerala fromAugust, 1995 to March, 2003.”

30.Furthermore, certificate dated 24.12.2012 from Prof. S.Nagappan Nair, Guest Faculty at the Kerala Law Academy, alsoconfirms that he taught the paper ‘Legislative Process’ to LLMstudents at the college with Dr. Sivakumar from 1994 to 2003; factwhich is confirmed further by the Preliminary Minutes of the 9[th]Meeting of the Syndicate of the University of Kerala on 21.08.1996,which records in Appendix XI, as regards Item No. 75 on the Agenda(i.e. “University Department of Environmental Science – Approval ofthe Panel of names on Guest Lectures and their Remuneration

Regarding”) the name of Sivakumar at Serial No. 12 for the teachingof M. Sc. and M. Phil courses, i.e. both post-graduate courses.

31.As regards Sivakumar’s tenure at the National University ofJuridical Sciences in Kolkata, he has brought on record ‘Certificateof Service’ from Dr. Surajit C. Mukhopadhyay, dated 17.05.2012,stating:

“This is to certify that Dr. S. Sivakumar was teachingfaculty in the West Bengal National University ofJuridicalSciences,Kolkatafrom20.5.2003till19.10.2003 as Assistant Professor in Law.

He taught both LLB and LLM students of this universityduring his stay at this university.”

32.This letter, thus, contradicts the RTI response that claim that Dr.Sivakumar did not teach any post-graduate courses.

33.As far as the tenure at Hidayatullah National Law Universitygoes, the details entered by Sivakumar in his application, as regardshis appointment from 20.10.2003 till 18.02.2006 as an AssociateProfessor who did teach post-graduate courses, is borne out by theRTI response itself, as also by certificate by the Registrar of theUniversity dated 18.02.2006, that confirms his appointment from20.10.2003. Likewise, with respect to the details entered by Dr.Sivakumar under Entry 17(B), against the heading “ResearchExperience”, the petitioner has produced no document to contradictthe claims that Dr. Sivakumar was, for period of 4 years and 9months, “recognized research guide” on “Additional Duty” at theUniversity of Kerala, and for period of 1 year and 10 months a“Project Coordinator” on “Additional Duty” at the Hidayatullah

National Law University. Neither have any of the other detailsprovided by Dr. Sivakumar in his “Academic Profile” attached to hisapplication(i.e.variouspublicationsandconferences)beencontradicted by the petitioner. Thus, his cumulative 6 years and 7months of research experience at those two universities remainsestablished.

34.Having regard to the above background and the documentaryproof available before the Court, the limitations upon the Court’sauthority to review such actions is important and requires to berecollected. In its Article 226 jurisdiction, the Court must not becomethe “primary decision maker” (Union of India and Another v. G.Ganayutham (Dead) by LRs, AIR 1997 SC 3387), but rather, remaindeferential in its assessment. In Rajesh Awasthi v. Nand Lal Jaiswaland Ors. 2013 (1) SCC 501 it was reiterated that the Court isconcerned only with eligibility and legality of appointments to publicoffices, not suitability of individual candidates, in proceedings underArticle 226 of the Constitution of India. Other decisions (R.K. Jain v.Union of India & Ors. 1993 (4) SCC 119; Dr. Duryodhan Sahu &Ors. Etc. Etc. v. Jitendra Kumar Mishra & Ors. 1998 (7) SCC 273,Dattaraj Nathuji Thaware v. State of Maharashtra & Ors., 2005 (1)SCC 590, and Ashok Kumar Pandey v. The State of West Bengal andOrs., 2004 (3) SCC 349) have declared that there can be no publicinterest litigation in service matters. Thus, barring clear cases where awrit of quo warranto can be issued, Courts cannot take uponthemselves the task of “merits review” of appointments to public orsuch like offices (Centre for Public Interest Litigation and Anr. v.

Union of India (UOI) & Anr., 2011 (4) SCC 1.

35.In this case, the Selection Committee constituted under the bye-laws of the ILI was properly seized of the matter, and tasked to fill theposition of Research Professor. In doing so, the Committeerequested for various details (as were submitted by Sivakumar andfour other candidates), and the candidates appeared before theCommittee in order to make their presentations on their research andteaching experience. Based on this, and on an appreciation of theevidence before the Committee, the decision was taken to appointSivakumar as Research Professor. Indeed, the petitioner does notclaim, nor is there any material on record, to indicate that theSelection Committee did not apply its mind to the facts present beforeit, or that any extraneous or irrelevant considerations played part inthe decision-making process, such that the interference of this Court iswarranted under Article 226. Rather, the claim is that the factspresented before the Selection Committee were false, and that theminimum statutory requirements, or more accurately, the requirementsin the UGC Regulations, were not met. This point was recognized bythe Supreme Court in Centre for Public Interest Litigation and Anr.(supra) where the Court noted that:

“42.................judicial review is concerned with whethertheincumbentpossessedqualificationsfortheappointment and the manner in which the appointmentcame to be made or whether the procedure adopted wasfair, just and reasonable..........................

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45...............................WereiteratethattheGovernment is not accountable to the courts for thechoice madebut the Government is accountable to thecourts in respect of the lawfulness/legality of its decisionwhenimpugnedunderthejudicialreviewjurisdiction.”(emphasis supplied).

36.The question, thus, is whether Dr. Sivakumar satisfied the basicminimumrequirementsspecifiedunderClause1.3.1.Ifthedocumentary proof provided by the petitioner is to be believed, Dr.Sivakumar did not have the cumulative ten years’ teaching or researchexperience required under the 2000 Regulations, whilst if Dr.Sivakumar’s documentary proof is considered, that requirement isclearly satisfied. Specifically, as in this case, when questions of factcome before the Court, and contradicting versions of fact arepresented, the Court must tread with caution. This was considered bythe Supreme Court in M/s. Shri Sitaram Sugar Co. Ltd. and Another v.Union of India and Others, 1990 (3) SCC 223:

“47. Where question of law is at issue, the Court maydetermine the tightness of the impugned decision on itsown independent judgment. If the decision of theauthority does not agree with that which the Courtconsiders to be the right one, the finding of law by theauthority is liable to be upset. Where it is finding offact, the Court examines only the reasonableness of thefinding. When that finding is found to be rational andreasonably based on evidence, in the sense that allrelevant material has been taken into account and noirrelevant material has influenced the decision, and thedecision is one which any reasonably minded personacting on such evidence, would have come to, thenjudicial review is exhausted even though the finding may

not necessarily be what the Court would have come to asa trier of fact.”

37.The primary decision making authority in this case was theSelection Committee, which considered the certificates and otherdocumentary evidence presented by Dr. Sivakumar, and reached theconclusion that he met the basic minimum requirements. Whileundoubtedly proceedings under Article 226 relax the rules of evidenceand pleadings, and the Court may consider the evidence liberally, anddespite the limits on judicial review observed above, the question oflack of eligibility undoubtedly lies within the realm of judicial review,the rigours attached to reaching correct finding of fact cannot bewashed away by not considering the details of the documentaryevidence produced before the Court. Indeed, the limitations inherent isconsidering disputed questions of fact, under an Article 226 petition,stems not only from the limited nature of judicial review as regardsfindings of fact, but equally, and as importantly, from the fact that the:

“12..................issuance of writ of quo warranto isdiscretionary and such writ should be issued only upona clear finding that the appointment to public office wascontrary to the statute.” (Arun Singh @ Arun KumarSingh v. State of Bihar and Ors., (2006) 9 SCC 375)

38.At best, the present case represents dispute as to whether theteaching/research experience detailed by Sivakumar in his applicationis correct, and thus, meets the basic minimum requirements underClause 1.3.1. Facially, and given that no reason to disbelief thedocuments produced by Sivakumar has been brought to light, as alsothe fact that majority of the documents are contemporaneous with

his appointment at the respective institutions, clear and convincingfinding that Dr. Sivakumar did in fact not possess the necessaryqualifications does not appear from the record. The contradictingdocuments in the present case were sourced by the Petitioner muchafter the selection committee’s recommendations and appointment ofSivakumar. Indeed, the nature of certificates issued and filed, by theKerala Law Academy in 2010 in the present proceedings in somemeasure contradict the letters and certificates issued by it earlier.While there is no dispute that the said Academy issued the earlierletters which Sivakumar relies on much prior to the present case, andin the early 2000s and late 1999, the documents (supported by itsaffidavit of 17.02.2013) now seem to suggest that Sivakumar wasworking as Guest Faculty. The Court no doubt had issued notice tothe said Academy and it has filed its affidavit. However, the Court isconscious of the fact that subsequent explanations, in respect ofprevious documents issued in Sivakumar’s favour, particularly in thecourse of proceedings, would not present an accurate picture. TheAcademy’s equivocating documents, particularly the materials soughtto be placed (perhaps with view to discredit Sivakumar) should notbe considered, because doing so would be needlessly entering into thearena of merits review, prohibited zone. Not only does this Court, inthe present proceedings, not have the benefit of testing the veracity ofthese documents through cross- examination, but as importantly, thefindings of the Selection Committee, in the absence of any graveimpropriety, are to be deferred to.The duty of the Court in suchcases, as recognized in Central Electricity Supply Utility of Odisha v.

Dhobei Sahoo and Ors., 2013 (13) SCALE 477, is to consider “themanner in which the appointment came to be made or whether theprocedure adopted was fair, just and reasonable …”, rather thanengage in roving inquiry to reconsider the decision reached by theSelection Committee in this case. Quite apart from reaching itsdecision through an arbitrary or irrational process, the publicadvertisement calling for applications to the post, the two stageapplication process (a written application, with documentary proof ofthe details, followed by an oral/visual presentation), and considerationby specially constituted Selection Committee comprising judges,lawyers and academics (i.e. those versed in the field in which theappointment is to be made) all clearly establish just and fair processof appointment, absent any irregularities or impropriety.

39.Considering the allegations levelled by the petitioner, it is alsopossible that while some of the documents may be proven true, othersmay not, and the cumulative research and teaching experience maymeet the ten year threshold (since the 6 years and 7 months ofresearch experience is not denied, but only the details as to theteaching positions held at the Kerala Law Academy and the NationalUniversity of Juridical Sciences (and not the Hidayatullah NationalLaw University) are contradicted. Whether in such case thecumulative total amounts to ten years, and whether this is sufficient tomeet the threshold under Clause 1.3.1 is indeed matter for theSelection Committee to decide and consider.

40.In fact, another aspect in this matter weighs heavily in favour ofSivakumar’s appointment. After the ILI received the representation

from the petitioner, and he withdrew the writ petition filed before theSupreme Court, report was called for by the Chief Justice of India.This resulted in an examination of the records and materials gone intoby the Selection Committee in 2006 (which had comprised Hon’bleDr. Justice Arijit Pasayat, Hon’ble Mr. Justice M.J. Rao; Shri. G.E.Vahanvati,AttorneyGeneral;ProfessorParmanandSinghandProfessor K.N.C. Pillai). This Committee was headed by Hon’ble Dr.Justice Arijit Pasayat (Retired), and in its report of 04.04.2012, itstated that there was no infirmity in the decision taken and thatSivakumar was eligible to hold the post of Research Professor. On13.12.2013, the Executive Committee of ILI accepted the said report.These materials were considered by this Court since the relevantrecords were produced by ILI during the course of hearing, and theydemonstrate that the question of the alleged falsification of documentswas specifically considered by the ILI and rejected.

41.Equally, the Court is cognizant of the fact that Clause 1.3.1locates an alternative qualification, i.e. “[a]n outstanding scholar withestablished reputation who has made significant contribution toknowledge.”Thisstandardclearlyincorporatesasubjectivedetermination by the Selection Committee based on objectivefactors/material placed before it. While learned counsel for thepetitioner has urged that Sivakumar did not place any material so as todemonstrate his satisfaction of this criterion, and did not specificallyapply under this head, this line of argument is unpersuasive. Not onlydid Sivakumar, in his “Academic Profile” attached to his application,enter comprehensive details which speak as to his contribution to the

law, such as details of twelve research publications, four bookreviews, eleven papers presented internationally, along with threepapers submitted and presented (though not personally present),various papers presented nationally, list of other publications,including four book contributions, programmes organized by him andacademic assignments taken, but also, there is no requirement, eitherunder the 2000 UGC Regulations or in the advertisement issued by theILI, to specifically apply under that head. Rather, fair reading of thetext of Clause 1.3.1 leads to the inevitable conclusion that theSelection Committee may, in its wisdom, and on consideration ofthe relevant factors, decide that candidate falls under either of thoseheads. Sivakumar’s publications and engagement with academia, froma reading of his academic profile, spans from 1992 to 2005 (i.e. thetime of the application), while covering variety of legal issues. Theprecise and detailed evaluation of these activities, i.e. Dr. Sivakumar’sacademic inputs and research, and whether it qualifies him as an“outstanding research scholar with established reputation who hasmade significant contribution to knowledge”, however, is matterproperly reserved for the Selection Committee’s decision-makingauthority, which the Court cannot enter. Indeed, this breadth ofauthority granted to the Selection Committee is particularly apt giventhat it sits as an expert body to consider the suitability of the academicqualifications of the candidates, which this Court should not and, as amatter of law, cannot review on merits. Once it is admitted, and thepetitioner does not dispute this fact, that the Selection Committeeapplied its mind to the relevant factors to determine the candidate

which, in its opinion, was best suited for the post of ResearchProfessor(i.e.purelyasillustrativeexamples,hisacademicqualifications, previous research experience, quality of researchpublications, reviews etc.), and did not base its decision on irrelevantmaterial, this Court’s limited judicial review is satisfied. In fact, aDivision Bench of the Supreme Court echoed this precise sentiment inRameshwar Dass Mehla v. Om Prakash Saini and Ors., JT 2002 (2)SC 403, in considering writ of quo warranto directed against theincumbent university librarian by Kurukshetra University:

“5......................It is also pointed out that the equivalenceof the two qualifications is question which pertainspurely to an academic matter and courts would hesitateto express definite opinion, particularly, when itappears to the experts that candidate fulfils thequalification ….....................

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7..................... We do not think the view taken by theselection committee can be the subject matter of thejudicial review as was held by this Court in Govind Rao'scase. In academic matters, particularly pertaining toqualifications, the view taken by the experts would befinal. If this approach had been adopted by the HighCourt, the High Court could not have interfered with theactiontakenbytheuniversityinthiscaseatall......................” (emphasis supplied)

42.At the very least, the various details disclosed in the academicprofile, which are detailed above, render Sivakumar eligible for thepost of Research Professor under the second alternate criterion, andthat being the case, his further selection lies at the discretion of theSelection Committee.

43.In view of the above discussion, this Court holds that there is noinfirmity in the appointment of Dr. Sivakumar as Research Professorat the ILI. The petition, therefore, fails and is dismissed. The costs ofthese proceedings are quantified at ` 50,000/, which shall be paid inequal shares to the ILI and Dr. Sivakumar within four weeks.

S. RAVINDRA BHAT(JUDGE)

DECEMBER 20, 2013

NAJMI WAZIRI(JUDGE)