PRADEEP SINGH DEHAL versus STATE OF HIMACHAL PRADESH & ORS.

[2019] 13 S.C.R.

PRADEEP SINGH DEHAL

STATE OF HIMACHAL PRADESH & ORS.

(Civil Appeal Nos. 7211-7212 of 2019)

BSEPTEMBER 17, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Service Law:

Appointment/Selection – To the post of Asstt. Professor – InCone advertisement (Adv. No. 3 of 2010) selection process notcompleted – Subsequent advertisement (Adv. No.3 of 2011) requiringthat the candidates who had applied pursuant to previousadvertisement need not apply afresh – Appellant (OBC candidate)and respondent (General Category candidate) did not apply afreshin response to subsequent advertisement – Appointment of appellantD– Challenged by respondent contending that he was not given anycredit for the “publications” in the subsequent selection process,whereas credit was given for the “publications” in the previousselection process – High Court allowed the writ petition directingto add to the score-sheet of the respondent five marks on theEparameters of “publications” – In review petition High Court orderwas affirmed – Plea of appellant that such “publications” were notbefore the Search Committee as the respondent had not submittedany “publications” – Held: In the facts of the case, it cannot besaid that the “publications” were not before the Search Committee– However, it is for the experts to award marks for “publications”–FThe Court, in exercise of its power of judicial review, cannot awardmarks for “publications”.

Selection Process – Process of conducting separate interviewsfor the posts under General Category and OBC Category – Held:Such process is not fair and reasonable – Every person is GeneralGCategory candidate – If reserved category candidate is in merit,he will occupy the General Category seat.

Allowing the appeals, the Court

HELD : 1.1 As per the conditions pertaining toadvertisement No. 3 of 2011, (subsequent advertisement) theapplications submitted earlier were to be considered. This showsthat the “publications” of the writ petitioner were with theUniversity when the writ petitioner was granted marks for“publications”. Even if the Selection Committee has undergonea change as well as norms of selection as per the Regulations,the Selection Committee was within its jurisdiction not to awardany marks for “publications”, if it was not meeting the requisiteconditions. It cannot be said that the writ petitioner has notsubmitted any “publications”. Such “publications” were beforethe Search Committee when the writ petitioner was interviewedon May 13, 2012. [Para 12] [346-D-F]

1.2. However, it is for the experts to award marks for“publications”. The High Court, while exercising the power ofjudicial review, does not sit in the arm chair of the experts toaward the marks for publications, that too, on the basis of anearlier selection process. The marks obtained by the writpetitioner under the heading “publications” on May 13, 2012were not before the High Court. The appellant was granted threemarks for “publications” in the earlier selection process initiatedvide advertisement No. 3 of 2010. Such “publications” were alsorequired to be taken into consideration by the SelectionCommittee. [Para 13] [346-G-H; 347-A]

University Grants Commission & Anr. v. Neha Anil Bobde(Gadekar) (2013) 10 SCC 519 : [2013] SCR 521– relied on.

2. The process of conducting separate interviews for theposts of Assistant Professor under general category and OBCcategory is wholly illegal. Though, none of the parties have raisedany dispute about it but since the same is inherently defective,the Court is constrained to observe so. Every person is generalcategory candidate. The benefit of reservation is conferred toScheduled Castes, Scheduled Tribes and OBC category

Acandidates or such other category as is permissible under law. Ifa reserved category candidate is in merit, he will occupy generalcategory seat. Therefore, the selection process conducted by theUniversity cannot be said to be fair and reasonable. Consequently,the University is directed to re-examine the selection processby constituting an Expert Committee who shall consider theB“publications” of the candidates who were being considered inpursuance of advertisement No. 3 of 2011 and make suitablerecommendations accordingly by having joint merit list of allthe categories of candidates who applied for appointment to thepost of Assistant Professor. However, in such selection process,Cthe appointment of candidates already selected will not bedisturbed, except the appellant whose appointment shall besubject to the decision of the University on the basis ofrecommendation of the Expert Committee. [Paras 14 and 17][347-B-C; 348-B-C]

DIndra Sawhney & Ors. v. Union of India & Ors. (1992)Supp. (3) SCC 217 : [1992] 2 Suppl. SCR 454 – followed.

Vikas Sankhala v. Vikas Kumar Agarwal(2017) 1 SCC350 : [2016] 7 SCR 639 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7211-7212 of 2019.

From the Judgment and Order dated 24.06.2015 of the High Courtof Himachal Pradesh, Shimla in CWP No. 4060 of 2014 and order dated30.07.2015 in Rev. Pet. No. 92 of 2015.G

Abhijat P. Medh, Adv. for the Appellant.

Rameshwar Singh Malik, Harikesh Singh, Satyendra Kumar, AjayDig Paul, Surender Kumar Gupta, Piyush Beriwal, Ms. N. Annapoorani,Ashwani Kumar Dubey, Pankaj Sharma,Advs. for the Respondents.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

1. The challenge in the present appeals is to orders passed by theHigh Court of Himachal Pradesh, Shimla on June 24, 2015 and July 30,2015 whereby, the Himachal Pradesh University[1] was directed to addfive marks on the parameter of “publications” in favour of the respondentNo. 3[2] in respect of appointment to the post of Assistant Professor in theDepartment of Education in the International Centre for DistanceEducation and Open Learning, Shimla.

2. Initially, an advertisement No. 3 of 2010 was published invitingapplications for seven posts of Assistant Professor viz. four posts underUnreserved category, one post under Other Backward Classes[3] category,one post under Scheduled Castes category and one post in ScheduledTribes category. The appellant and the writ petitioner were the applicantsfor such posts. However, none of the candidates were appointed to suchposts. Thereafter, another advertisement No. 3 of 2011 was published.This time, advertisement was published for the post of Assistant Professorinviting applications for six posts under Unreserved category, one postunder OBC category, one post under Scheduled Castes category andone post under Scheduled Tribes category. One of the conditions in theadvertisement was that the candidates who have applied earlier as perrevised UGC guidelines and also with reference to previousadvertisements need not to apply again. However, they may sendadditional information, if any.

3. The appellant and the writ petitioner did not apply again norsaid to have furnished any additional information. In such selectionprocess, the appellant was recommended by the Expert Committee forappointment against the post meant for OBC category, having obtained60.83 marks.

4. Such appointment was challenged by the writ petitioner, interalia, on the ground that he has not been given any credit of “publications”whereas, for such “publications”, he has been given credit when he wasconsidered in pursuance of the post applied in response to advertisement

1 for short, ‘University’

2 hereinafter referred to as ‘writ petitioner’

3 for short, ‘OBC’

ANo. 3 of 2010. The High Court accepted the claim of the writ petitionerwith the following directions:

“The writ petition is accepted and respondents No. 1 and 2 aredirected to add to the score-sheet of the petitioner five marks onthe parameter of “publications”. In case the petitioner then isBranked first, then subject to completion of all necessary formalitiesthe respondent concerned shall proceed to in accordance withlaw appoint him to the post of Assistant Professor, Education.”

5. The appellant filed review petition which came to be summarilydismissed on July 30, 2015. Still aggrieved, the appellant filed the presentCappeal.

6. The argument of the appellant is two-fold. First, it is for theexperts to assess the marks for “publications”. Since the writ petitionerhas not sent any “publications” along with his application form, therefore,he has not been granted any marks under the heading “publications”. ItDis also argued that decision of the experts as to how much marks shouldbe awarded cannot be interfered with by the High Court, while exercisingthe power of judicial review under Article 226 of the Constitution ofIndia. Even if, the Court finds that certain marks under heading“publications” have not been granted, the only course of action open tothe Court is to remit the matter to the experts to examine the grant ofEmarks under the heading “publications”, if any. The reliance is placedupon judgment of this Court in University Grants Commission & Anr.v. Neha Anil Bobde (Gadekar)[4]wherein this Court held as under:

“31. We are of the view that, in academic matters, unless thereis clear violation of statutory provisions, the regulations or theFnotification issued, the courts shall keep their hands off since thoseissues fall within the domain of the experts. This Courtin University of Mysore v. C.D. Govinda Rao [AIR 1965 SC491] , Tariq Islam v. Aligarh Muslim University [(2001) 8 SCC546 : 2002 SCC (L&S) 1] and Rajbir Singh Dalal v. ChaudharyGDevi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S)887] , has taken the view that the court shall not generally sit inappeal over the opinion expressed by the expert academic bodiesand normally it is wise and safe for the courts to leave the decisionof the academic experts who are more familiar with the problem

4 (2013) 10 SCC 519H

they face, than the courts generally are. UGC as an expert bodyAhas been entrusted with the duty to take steps as it may thinkfit for the determination and maintenance of standards of teaching,examination and research in the university. For attaining the saidstandards, it is open to UGC to lay down any “qualifying criteria”,which has rational nexus to the object to be achieved, that is, forBmaintenance of standards of teaching, examination and research.The candidates declared eligible for Lectureship may be consideredfor appointment as Assistant Professors in universities and collegesand the standard of such teaching faculty has direct nexuswith the maintenance of standards of education to be imparted tothe students of the universities and colleges. UGC has onlyCimplemented the opinion of the experts by laying down the qualifyingcriteria, which cannot be considered as arbitrary, illegal ordiscriminatory or violative of Article 14 of the Constitution of India.”

7. Learned counsel for the University refers to the policy andprogramme for recruitment of Lecturers in the University includingcontemplating marks for “publications”, which is as under:

(vi)Publications5International, National referred Journals: 1 Mark each. Authored books*: 1 Mark each. Chapter in Books* (Excluding proceedings of seminars/ conferences): 0.5 Marks each. Edited books*: 0.5 Marks each. Publications in popular magazines, newspapers etc.: Nil. *On the relevant subject only.

8. It may be noticed that the post of Lecturer has been renamedas Assistant Professor and that the norms of the appointment to theposts of Assistant Professor are prescribed by the UGC (MinimumQualifications for Appointment of Teachers and other Academic Staffin Universities and Colleges and Measures for the Maintenance ofStandards in Higher Education) Regulations, 2010[5].

9. Learned counsel for the University submitted that the discretionas to whether any marks for “publications” are to be awarded or notfalls within an exclusive domain of the experts. It is argued that marksobtained in the earlier selection process which was not completed cannot

5 for short, ‘Regulations’

Abe directed to be taken into consideration as not only the SelectionCommittee is different but also the selection in response to advertisementNo. 3 of 2011 is being conducted after framing of the Regulations forappointment to the post of Assistant Professor.

10. On the other hand, learned counsel for the writ petitionerBpointed out that not only the writ petitioner was granted five marks in theearlier selection process but also five marks were granted to the post ofAssistant Professor in Education against the general category post. Suchdocument has been appended with Annexure R-3/5.

11. In this background, we examine the respective contentions ofCthe parties.

12. As per the conditions pertaining to advertisement No. 3 of2011, the applications submitted earlier were to be considered. Thisshows that the “publications” of the writ petitioner were with theUniversity when the writ petitioner was granted marks for “publications”.DEven if the Selection Committee has undergone change as well asnorms of selection as per the Regulations, the Selection Committee waswithin its jurisdiction not to award any marks for “publications”, if it wasnot meeting the requisite conditions. But surprisingly, the writ petitionerhas not been granted any marks under the heading “publications” in theinterview held on May 12, 2012, when the candidates for under OBCEcategory were interviewed but the writ petitioner was granted five marksfor “publications” when the interview was being conducted for the postof Assistant Professor under general category on May 13, 2012. Though,the writ petitioner has not appeared in the interview but the fact remainsthat he has been granted five marks for “publications”. It is the sameFSelection Committee who conducted interview on May 12, 2012 and onMay 13, 2012. Therefore, the stand of the appellant that the writ petitionerhas not submitted any “publications” does not merit acceptance. Such“publications” were before the Search Committee when the writpetitioner was interviewed on May 13, 2012.

G13. But it is equally true that it is for the experts to award marksfor “publications”. The High Court, while exercising the power of judicialreview, does not sit in the arm chair of the experts to award the marksfor publications, that too, on the basis of an earlier selection process.The marks obtained by the writ petitioner under the heading “publications”on May 13, 2012 were not before the High Court. The appellant wasH

granted three marks for “publications” in the earlier selection processinitiated vide advertisement No. 3 of 2010. Such “publications” werealso required to be taken into consideration by the Selection Committee.

14. We find that the process of conducting separate interviewsfor the posts of Assistant Professor under general category and OBCcategory is wholly illegal. Though, none of the parties have raised anydispute about it but since the same is inherently defective, we areconstrained to observe so. Every person is general category candidate.The benefit of reservation is conferred to Scheduled Castes, ScheduledTribes and OBC category candidates or such other category as ispermissible under law. It is consistent view of this Court starting fromIndra Sawhney & Ors. v. Union of India & Ors.[6] that if reservedcategory candidate is in merit, he will occupy general category seat.In Indra Sawhney’s case, the Court held as under:

“811. In this connection it is well to remember that the reservationsunder Article 16(4) do not operate like communal reservation.It may well happen that some members belonging to, say, ScheduledCastes get selected in the open competition field on the basis oftheir own merit; they will not be counted against the quota reservedfor Scheduled Castes; they will be treated as open competitioncandidates.”

15. In judgment reported as Vikas Sankhala v. Vikas KumarAgarwal[7] one of the questions examined was whether reserved categorycandidate who obtains more marks than the last general categorycandidate is to be treated as general category candidate. It was heldthat such reserved category candidate has to be treated as unreservedcategory candidate provided such candidate did not avail any other specialconcession. The Court held as under:

“84.2. Migration from reserved category to general category shallbe admissible to those reserved category candidates who securedmore marks obtained by the last unreserved category candidateswho are selected, subject to the condition that such reservedcategory candidates did not avail any other special concession. Itis clarified that concession of passing marks in TET would not betreated as concession falling in the aforesaid category.”

6 1992 Supp. (3) SCC 217

7 (2017) 1 SCC 350

A16. The concessions which were availed by the reserved categorycandidates are in the nature of age relaxation, lower qualifying marks,concessional application money than the general category candidates.

17. In view of the said fact, we find that the selection processconducted by the University cannot be said to be fair and reasonable.BConsequently, the University is directed to re-examine the selectionprocess by constituting an Expert Committee who shall consider the“publications” of the candidates who were being considered in pursuanceof advertisement No. 3 of 2011 and make suitable recommendationsaccordingly by having joint merit list of all the categories of candidateswho applied for appointment to the post of Assistant Professor. However,Cin such selection process, the appointment of candidates already selectedwill not be disturbed, except the appellant whose appointment shall besubject to the decision of the University on the basis of recommendationof the Expert Committee.

18. We hope that University will be able to finalise the revisedDselections within period of six months from today.

19. The appeals are, thus, allowed in the above terms.

Kalpana K. Tripathy

Appeals allowed.