S.N. Jha, J.@mdashIn this batch of 11 writ petitions which have been heard together the petitioners have challenged the validity of the recruitment process leading to the appointment of 1378 Lecturers in different constituent colleges in the State of Bihar. While admitting the writ petitions by common order on 21.3.97 this Court directed that CWJC Nos. 11958 and 12382 of 1996 shall be treated as the representative cases. Observing that the appointees are entitled to opportunity of hearing, they were directed to be added as respondents in those two cases and in view of their number, a general notice in two newspapers was ordered to be published at the cost of the petitioners in lieu of individual notices by ordinary process which would have been very time consuming. Out of 1378 appointees, we were told, 973 have appeared and filed their counter affidavits. No grievance has been made as to the service of notice, or the mode thereof, from any quarter. Affidavits-in-opposition etc. have been filed in CWJC Nos. 11958 and 12382 of 1996 alone. However, as the leading argument was made with reference to CWJC No. 12382 of 1996 I shall aver to the facts of the case and the documents as described in that case except as indicated otherwise in this judgment.
2. Before stating the facts and indicating the ground of challenge, a brief introduction of the case may be made. The appointment of Lecturers in the constituted colleges, that is, in colleges maintained or controlled by the Universities in the State of Bihar, is made under the Bihar State Universities Act, 1976 (''the BU Act'' for short) and the Patna University Act 1976 (''the PU Act'') for short). There are 11 universities in the State, besides two Agricultural Universities. While the Patna University is governed by the PU Act, the remaining 10 universities are governed by the BU Act, and the respective statutes framed thereunder. The provisions relating to appointment of the lecturers are contained in sections 57 and 58 of the BU Act and sections 56 and 57 of the PU Act. Reference to the provisions of BU Act would suffice as the corresponding provisions of the PU Act are pari materia the same. While section 57 of the Act lays down that the Bihar State University (Constituent Colleges) Service Commission (in short the Commission'') shall select the candidates and make recommendation, section 58 provides that the appointment shall be made on the recommendation of the Commission. There is a College Service Commission for making similar selection and recommendation for appointment of lecturers in the affiliated colleges u/s 57(4) but in these cases we are not concerned with the same. I shall refer to the relevant provisions of these two sections later in this judgement.
3. On 23.11.93 the Commission invited applications, vide Advt. No. 1/BUSC/93, for appointment of Lecturers in different subjects in different universities from candidates possessing "Master''s Degree in the relevant subject with at least 55% marks or its equivalent grade (B+) and uniformly good academic records". M. Phil and Ph. D Degree in the relevant subject was to be treated as an additional qualification; however, the minimum qualification of Master''s Degree with at least 55% marks and uniformly good academic records was not to be relaxed even in respect of such candidates, that is, candidates who had egress like M. Phil/Ph. D. The advertisement came in under challenge in writ petitions at the instance of Bhagalpur University Research Scholars Association and UGG/CSIR(NET qualified) Fellows Association. By judgment and order dated 3.3.94, reported in 1994(2) PLJR 168, a Division Bench of this Court allowed the writ petitions with a direction to the Commission to consider the applications of only such candidates who had passed the NET examination in terms of the Regulations framed by the UGC. It was held that in terms of the provisions of the University Grants Commission Act, 1957 it is the UGC alone which can lay down the standard of education in Higher Education in the country and for that purpose lay down the qualification for appointment of the lecturers. The State Acts, namely, the BU/PU Acts and the Bihar Inter University Board Act were held to be subject to UGC Act. The said judgment dated 3.3.94 was, later modified by order dated 27.4.94 in Civil Review Nos. 77 and 78 of 1994 at the instance of the Commission, to the extent that the Commission could also consider the candidature of such persons who were otherwise eligible to be considered in terms of the Regulations framed by the UGC, that is to say, candidates who possessed qualifications other than the NET pass as mentioned in the Regulations.
4. At this stage reference may be made to the Regulations framed by the UGC. The University Grants Commission Act, 1957 (''the UGC Act'', for sort), empowers the Commission i.e. the UGC to make Regulations consistent with the Act and the Rules made thereunder defining the minimum standards of instructions for the grant of any degree by any University and regulating the maintenance of standards and the co-ordination of work or facilities in the Universities, vide clauses (f) and (g) of section 26 thereof. In exercise of the said powers the UGC made the Regulations entitled The University Grants Commission (Qualifications required of a person to be appointed to the teaching staff of a University and institutions affiliated to it) Regulations, 1982". The said Regulations were superseded by new Regulations with the same title in 1991 vide notification No. F. 1-11/87 (CPP) dated 19.9.91, (hereinafter referred to as ''the Regulations''). Clause 2 of the said Regulations provides that no person shall be appointed to a teaching post in a University or in any of the institutions including constituent or affiliated colleges recognised u/s 2(f) of the UGC Act or in an institution which is deemed to be a University u/s 3 of the Act in a subject if he does not fulfil the requirement as to the qualifications for the appropriate subject as provided in schedule I. The qualifications as mentioned in the schedule so far as it relates to the post of Lecturer came up for reference several times in course of hearing of the case and considering its significance the same may be quoted at this stage itself as hereunder:--
Good academic record with at least 55% marks or an equivalent grade at Master''s level in the relevant subject from an Indian University or an equivalent degree from foreign University.
Candidates besides fulfilling the above qualifications should have cleared the eligibility test for lecturers conducted by UGC, CSIR or similar test accredited by the UGC.
5. It was this provision which was held to be mandatory by this Court in Bhagalpur University Research Scholar Association''s case (supra). It is relevant to mention here that the UGC later granted certain exemptions from appearing in the eligibility test by circulars dated 10.2.93 and 15.6.93 to candidates (i) who had passed the UGC/CSIR/JRF Examination, (ii) who had already been awarded Ph.D degree, (iii) who had been awarded M. Phil degree upto 31.12.92 and (iv) who would submit their Ph.D thesis upto 31.12.93. By notification dated 21.6.95 qualification part of the 1991 Regulations (supra) was amended by UGC by adding a proviso as hereunder:--
Provided that candidates, who have submitted Ph.D thesis or passed the M. Phil examination by 31st December 1993 are exempted from the eligibility test for lecturers conducted by UGC, CSIR or similar test accredited by the UGC.
6. In the light of the aforementioned judgment of this Court [
7. Continuing with the narration of events, after completing the exercise relating to eligibility test, the Commission on 18.12.95 issued a fresh advertisement being Advt. No. 2/BSUSC/94 inviting applications, to be submitted by 20/31.1.96, for appointment of Lecturer in 47 subjects from candidates possessing the requisite eligibility and qualifications as mentioned in the advertisement. Pursuant to the said advertisement, it is said, as many as 8131 candidates were called for interview in different subjects. The interviews were held between 22.2.96 and 28.8.96. The list of 1378 successful candidates was published in a newspaper, namely, ''Prabhat Khabar'' on 4.11.96. On 5.12.94 (sic) the first writ petition in the present batch of petitions, namely, CWJC Nos. 11598 of 1996 was filed in this Court.
8. Shri Ravi Shanker Prasad, who made the leading argument in CWJC No. 12382 of 1996, submitted that the entire selection process was vitiated on account of (a) participation of ineligible experts, (b) allocation of excessive marks for the interview, which itself was a farce, (c) violation of the UGC regulations regarding good academic record, (d) omnibus selection for all the universities without ascertaining the vacancies and without preparing subject-wise panel for each university separately, and (e) bias. I shall refer to the details of the arguments at the proper place later. It was submitted that in making the selection the Commission not only gave a go-bye to the statutory provisions but also ignored the merit of the deserving candidates and in this way ineligible and undeserving candidates many of whom are related to the VIPs including the Chairman and the Secretary of the Commission, were appointed.
9. Shri Chandrashekhar, who appeared for the petitioners in CWJC Nos. 11958 of 1996, challenged the validity of the two ordinances promulgated on 8.8.96, namely, Bihar Ordinance No. 66 amending section 58(2) (kha) (i) of the BU Act and Bihar Ordinance no. 76 amending the corresponding section 57(2) (kha) (i) of the PU Act, making Readers also eligible to act as experts in case of non-availability of University Professors, with retrospective effect from 1.1.96. He submitted that in any view the ordinance did not cover the period when the advertisement was made on 18.12.95 and the selection process thus commenced, and since recruitment is to be made in accordance with the rules in vogue at the time of commencement of the selection process the ordinances do not remove the defect in the selection process. Counsel invited this Court to make a judicial review of the circumstances in which the ordinances were promulgated.
10. Shri Basant Kumar Choudhary, who appeared in CWJC Nos. 11963 and 12704 of 1996, made the following submissions. The Commission has no authority to amend or relax the. UGC Regulations or the University statutes. The appointment of the external experts was not in accordance with the provisions of section 58(8) of the BU Act, which envisages such appointment by the Chancellor from the panel maintained by the Inter-State University Board. In view of the provisions of section 58(2) of the BU Act primacy should be given to the opinion of the experts; but the merit of the candidates was evaluated taking the ''mean'' of the marks awarded by the experts as well as the Chairman/Member of the Commission.
11. Shri Sunil Kumar, who appeared in CWJC No. 12877 of 1996, also challenged the validity of the ordinances calling it a colorable piece of legislation and submitted that although selection was being made for appointment in academic field due weightage was not given to the good academic record'' which not only violates the UGC Regulations but also makes the selection irrational. He urged that allocation of 60% marks for interview practically makes the academic attainment of the candidates redundant.
12. Counsel appearing for the petitioners in the remaining cases virtually adopted the submissions made by their predecessors as mentioned hereinabove.
13. On behalf of the respondents leading argument was made by Shri P.P. Rao on behalf of the Commission. Sri R.K. Jain also made detailed submissions on behalf of the selected candidates. Shri T.K. Jha, appearing on behalf of the Ranchi University as well as some selected candidates, and Dr. Sada Nand Jha on behalf of the Chairman and the Secretary of the Commission (in their personal capacity) as well as some selected candidates, also made separate arguments. They were followed by a host of counsels, who adopted the arguments made earlier. I am not referring to the arguments nor stating the case of the concerned respondents pleaded in their respective counter affidavits at this stage. I propose to do so as and when necessary while dealing with the points raised on behalf of the petitioners.
14. The arguments advanced by the counsels for the petitioners fall under different heads. I shall first consider the effect of the participation of Readers in the interview and together with it the validity of the Ordinances. It is not in dispute that as per the unamended section 58(2) (kha) (i) of the BU Act and section 57(2) (kha) (i) of the PU Act only University Professors were eligible to act as internal experts. It is by virtue of the proviso inserted by the said amendment/ordinances that the Readers also became eligible. Thus, if the ordinances are found to be valid no error can be attributed to the selection process on this score. It is only when they are found to be invalid or unconstitutional, that question may arise as to whether the entire selection process is vitiated on that count.
15. At this stage section 58(2) (kha) of the BU Act, as it stood prior to the ordinance, may be noticed as under--
(2) Recommendation for appointment of teachers and officers of colleges and the Universities shall be made subject to the following proviso; the following experts shall advise the Commission.
(ka)............
(kha) For appointment of Professor/Reader/Principal of the Reader''s grade/University Librarian/Lecturers--
(i) Senior most teacher of the subject concerned not below the rank of University Professor:
Provided that if there is no such teacher in the University, the Head of the Department of the subject concerned of any other University not below the rank of University Professor,
Provided further that.......
(ii) Two distinguished scholars/experts of another University not below the rank of Professor nominated by the Chancellor.
Minimum of two experts mentioned in (i) and (ii) above must be present in the meeting of the Commission.
It would appear that white sub-clause (i) refers to internal experts, sub-clause (ii) refers to external experts. Nomination of external experts has also been challenged and I shall deal with that point separately later. As regards internal experts, by the aforesaid ordinances the following proviso was added after the first proviso in sub-clause (i) :--
Provided further that in the case of appointment of lecturer if teacher in the concerned subject of the rank of Professor (University Professor) of that University or any other University is not available, teacher of the concerned subject of that University or any other University not below the rank of Reader.
16. From a bare reading of the above provisions it is clear that the Readers in no case were eligible to act as experts for selection/appointment of Lecturer, amongst others, and, therefore, it would appear at the first instance that the ordinances were promulgated on 8.8.96 with the sole object of validating the interviews, that is, the selection process after the interviews were almost over.
17. The power to make law-- whether through enactment of legislation or through an ordinance with retrospective effect is not, and cannot be, disputed. A submission nonetheless was made by Shri Chandrashekhar that as during the intervening period the State legislature met, it must be deemed to have fictionally lapsed six weeks after the re-assembly of the legislature under Article 213(2) (a) of the Constitution. Counsel tried to make distinction between a legislation duly made by the legislature and an ordinance terming it as executive legislation, and submitted that such legislation is subject to riders regarding period as well as the Assembly, and where there is legislative Council, also before it. Counsel submitted that in view of the law laid down by the Supreme Court in
18. On behalf of the Commission Shri P.P. Rao stated that there was sudden dearth of Professors by reason of automatic cessation of the time bound promotion to the Professor''s grade in view of the provisions of sub-section (10) inserted in section 58 of the BU Act and section 57 of the PU Act by Bihar Acts 17 and 18 of 1993. He referred to decisions of the Supreme Court in Patna University v. Awadh Kishore Prasad Yadav, 1994 (2) SCC 250 : 1994 (2) PLJR (SC) 11 upholding the validity of the aforesaid provisions and cessation of promotion of the Readers to the Professor''s grade. Shri Rao submitted that it was in order to meet the exigency of situation that proposal was mooted to make the Readers also eligible to participate as internal experts for appointment of Lecturers by making suitable amendments in the two Acts. No motive, therefore, could be imputed and in any view the ordinance being a legislative Act, cannot be faulted on the ground of malafide. In this regard he placed reliance on
19. I have perused the relevant file of the Higher Education Department bearing No. 15-A/1-01/94 and I am sorry to say that major part of the submissions as aforesaid relating to the promulgation of the ordinances and the effect of expiry of temporary statutes made by the counsel for both the petitioners and the respondents are based on incomplete instructions. The following facts emerge from the file.
20. On 22.3.96 the Chairman of the Commission wrote a letter to the Secretary/Director, Higher Education, Government of Bihar, informing about the dearth of University Professors, who could be nominated/appointed to act as internal experts and suggesting to them in the circumstances that the relevant Acts be amended to make them workable. On 23.3.96 the letter was received in the Department. The Director, Higher Education, put up a note suggesting amendment in section 58(2) (kha) (i)/ section 57(2) (kha) (i) of the BU/PU Act. On 25.3.96 the Secretary gave his note to the Minister Incharge i.e. Chief Minister agreeing with the note of the Director. He however, expressed the view that as the election had been announced, the advice/consent of the Election Commission might be necessary. Further, as in view of the relevant provisions of the two Acts, the quorum of two internal experts to be nominated by the Chancellor u/s 58(2) (kha) (ii) of the BU Act and section 57(2) (kha) (ii) of the PL) Act could serve the purpose, no immediate action was required. The Chairman of the Commission wrote a reminder letter on 8.6.96. On 11.6.96 the Secretary put up a fresh note agreeing with the suggestion of the Chairman for making amendments in the two Acts with retrospective effect. It appears that the file during this period had remained pending with the Chief Minister and it was on his direction that a fresh note was given. The Secretary, however, opined that since the Assembly had been summoned, amendment should be made through Bill and not ordinance. On the same day, however, he put up another note saying that since the House was not in session this could be done by Ordinance as well. Ordinance could not be promulgated in view of the objection of the Chief Secretary contained in his note dated 19.6.96 to the effect that the Assembly session was scheduled to commence from 24.6.96. On 8.8.96 two ordinances were finally promulgated. Post facto approval of the Council of Ministers was obtained on 9.11.96. The two ordinances were re-promulgated four times, being Ordinance nos. 1 and 2 of 1997 on 24.1.97, Ordinance nos. 4 and 5 of 1997 on 4.4.97, Ordinance nos. 8 and 9 of 1997 on 23.8.98 and Ordinance nos. 3 and 4 of 1998 on or about 9.2.98. They were finally replaced by Bihar Acts 7 and 8 of 1998 duly enacted by the State Legislature.
21. Inasmuch as the impugned Ordinances were ultimately replaced by Acts of Legislature it may not be necessary to consider the arguments relating to the validity of the Ordinances and their effect. In R.C. Cooper v. Union of India (supra), better known as the Bank Nationalisation case, while considering similar situation the Court observed, in paragraph 27 of the judgment at page 556 of the report, that as the Ordinance had been repealed by the Act the question of its validity was now academic, it could assume significance only if the Act is held to be valid. And since the Act was invalid it was not necessary to express any opinion on the point of extent of jurisdiction of the Court to examine whether the condition relating to satisfaction of the President was fulfilled. Whether it is possible to hold the amendment Acts i.e. Acts 7 and 8 of 1998 to be invalid?
22. The two Acts like their predecessor Ordinances are made effective from 1.1.96. Section 1 (2) thereof lays down, "it shall be deemed to have come into force with effect from 1st January 1996". More important thing is that while repealing the predecessor ordinance(s), things done and actions taken in exercise of powers conferred by or under the ordinance(s) have been saved. Section 3(2) of the Acts provides, "notwithstanding such repeal, anything done or any action taken in exercise of any power conferred by or under the said ordinance, shall be deemed to have been done or taken in exercise of powers conferred by or under this Act as if this Act were in force on the day on which such thing or action was done or taken. (empasis added)
23. The validity of the Bihar Acts 7 and 8 of 1998 has not been challenged. From the Objects and Reasons appended to the Bills it appears that the amendments were made as only five Professors in different subjects in different Universities were available and on account of non-availability of the University Professors it would not have been possible for the University to nominate University Professor rank teachers to advise the Commission as experts. The correctness of the statement that only five Professor rank teachers were available has been challenged on behalf of the petitioners. A few certificates granted by some Professors have been brought on record to show that they were never approached by the Commission to act as expert. According to me the statement that only five Professor rank teachers were available in different Universities does not appear to be quite accurate. In the counter affidavit of the Commission it has been stated that in 15 subjects only the University Professors were available out of which in 9 subjects, they were appointed. In Urdu subject the Chairman of the Commission was the only Professor available, two others declined while the remaining three could not be contacted. Apart from the above explanation it does prima facie appear that adequate number of Professor rank teacher might not be available. The fact that by reason of automatic cessation of time bound promotion, in view of provisions of section 58(10) of BU Act and section 57(10) of PU Act, several teachers who were in the grade of University Professors lost their promotion overnight is not in dispute. There being 47 subjects in all for which appointments were proposed to be made it does appear plausible that Professor rank teachers in all subjects were not available. The desirability/necessity of making amendments, therefore, cannot be questioned. Moreso, now after it found acceptance with the State Legislature. The following observations in the case of
The ordinance making power being a legislative power, the argument of malafides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those stated in the Objects and Reasons and if, none are so stated, as appear from the provisions enacted by it. Even assuming that executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law malafide. This kind of ''transferred malice'' is unknown in the field of legislation.
Reference may also be made to Lalit Narayan Mishra Institute v. State of Bihar, AIR 1988 Supreme Court, 1136 at pages 1149-50 : 1988 PLJR (SC) 45.
24. As noted above, like their predecessor ordinances the Acts have been made effective from 1.1.96. In Raj Kumar v. Union of India, AIR 1975 Supreme Court 1116 at page 1118, it has been stated:-
Once a law is given retrospective effect as from a particular date, action taken under the Act even before amendment was made would be deemed to have been taken under the Act as amended and there could really be no question of having to validate any action already taken provided it is subsequent to the date from which amendment is given retrospective effect.
Notwithstanding the legal position enunciated above, and as if to remove any doubt or difficulty, the Savings clause contained in section 3(1) of the Act(s) saves all things done and actions taken as if the Acts were in force on the day such things were done or actions taken on or after 1.1.96. If the Legislature in its wisdom has considered it appropriate to amend the law making Readers also eligible in case of non-availability of University Professor in the concerned subject, and with retrospective effect, that should be end of the matter so far as the question of eligibility of Readers is concerned, as it is not open to the courts to question the collective wisdom of the Legislature, and an enactment cannot be invalidated except on the ground of legislative competence. The BU Act and PU Act are enactments made under entry 25 of List III of the seventh schedule to the Constitution and the competence of the State Legislature has not been questioned.
25. In the above premises, the challenge to the ordinance(s) and effects thereof must be rejected as being totally misconceived. It would thus follow that Readers cannot be treated as strangers or ineligible to advise the Commission as experts and, therefore, their participation in the selection process did not render the process illegal. The contentions, in this regard are accordingly rejected.
26. In the above view of the matter it is not necessary to consider the applicability of the ''de facto'' doctrine in this case.
27. Before I move to the next point I must deal with the argument that since the amendment does not relate back to the date of the advertisement i.e. 18.12.95 the selection should have been made in accordance with the earlier existing provisions. In support of this submission reliance has been placed on
27A. I have gone through the judgments and I do not think they are of any help to the petitioners. In Calton''s case the High Court had earlier directed the Director of Education to make a fresh appointment. In the meantime power of the Director to make appointment was taken away. The Supreme Court held that the selection made by the Director was not illegal. In Rangaiah''s case, the question was whether appointment could be made from the panel against vacancies which had occurred prior to the amendment of the rules. In P. Mahendran''s case, the amendment sought to change the eligibility criteria for appointment to the post of Motor Vehicles Inspectors. The decisions were rendered in different context and the ratio laid down therein cannot be applied in these cases. In this connection, I may refer to the decision in the case of
28. The nomination/appointment of external experts has also been challenged and I propose to deal with the point now. The provision is contained in sub-clause (ii) of section 58(2) (kha) of the BU Act which has already been quoted in paragraph 16 above. A related provision is contained in sub-section (8) of section 58. It lays down that for assisting the Commission in the selection of the teachers and officers of the University, the Chancellor shall nominate persons from the panel maintained by the Bihar Inter University Board. Thus while section 58(2) (kha) (ii) provides for the nomination/appointment of the external experts from amongst distinguished scholars/experts not below the rank of Professor, section 58(8) provides for such nomination from the panel maintained by the Inter University Board. The argument on behalf of the petitioners is that the Chancellor did not follow the above provisions and external experts were appointed arbitrarily. This aspect of the matter has been dealt with by the Commission as well as the Chancellor and the Inter University Board in their affidavits. In paragraph 50 of its affidavit the Commission has stated that all external experts are eminent Professors of their respective subjects and all of them were appointed by the Chancellor. It has been pointed out therein that the panel of experts prepared by the Bihar Inter University Board, is required to be approved by the Chancellor. In the affidavit filed on behalf of the Chancellor, it has been stated that the experts nominated by the Chancellor are those approved by the Bihar Inter University Board. Necessary details have been given in paragraph-7 of the affidavit. It has further been stated therein that while furnishing the panel of names to the Commission, discretion was given to the Commission to contact the experts and ascertain their willingness and availability for participating on the specified dates of interview. In a few subjects it so happened that on the date of interview, the experts nominated by the Chancellor were not available. On receipt of communication regarding such cases, the Chancellor made alternative arrangements within a short time after ascertaining the availability of the persons in consultation with the Commission and the Board. In paragraph 4 of its affidavit, the Inter University Board has stated that the panel of experts was sent to the Chancellor after complying with the provisions of section 58(8) of the BU Act and section 57 (8) of the PU Act. In view of the above categorical stand taken by the concerned respondents including the Chancellor, I do not find any substance in the challenge to the nomination/appointment of the external experts.
29. I shall now consider the validity of the selection criteria. The selection has been made on the basis of marks awarded by the academic qualifications and the interview. It is significant that ''good academic record'' with at least 55% marks or equivalent grade at the Master''s level in the concerned subject (besides NET/BET pass etc.) is a condition of eligibility laid down in the UGC Regulations, and the same record i.e. academic qualifications have also been taken into account for evaluation of merit. I shall discuss this aspect a little later while considering the question of weightage to the interview marks vis-a-vis the academic qualifications. At this stage I may only point out that the qualifications laid down in the UGC Regulations are the ''minimum qualification'' in the nature of condition of eligibility. Clause 2 of the Regulations mandates that "no person shall be appointed to a teaching post in University or any of the Institutions including constituent or affiliated colleges.... in a subject if he does not fulfil the requirements as to qualifications for the appropriate subjects as provided in Schedule-1". If a person does not possess laid down qualifications, he is not eligible for appointment, that is to say, he cannot be considered for appointment. Selection, thus has naturally to be made from the eligible candidates. The Supreme Court in University of Delhi v. Raj Singh, 1994 Supp (3) SCC 516, has made it clear that there is no element of selection in the eligibility test and it is for the University to select its lecturers from amongst the eligible candidates who have passed such eligibility test. It would be useful to quote the relevant observations occurring at page 535 of the report, as under:
Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and therefore, all who have cleared it stand at the same level. There is, therefor, no element of selection in the process. The University''s autonomy (to make appointment) is not entrenched upon by the said Regulations. (The words within bracket added).
This Court also in
30. On behalf of the petitioners it is contended that the selection has been made on the basis of the marks awarded both for the academic qualification and the interview but inasmuch 60 marks out of 100 were allocated for the interview the selection process must be held to be vitiated. It is submitted that allocation of more marks for interview than the academic record amounts to giving weightage to the interview part of the selection and makes the selection prone to nepotism and favouritism. It is said that the allocation of marks earlier was 35% for the interview and 65% for the academic qualification vide counter affidavit filed by the Commission in CWJC No. 1157 of 1992, marked Annexure-17 in CWJC no. 12382 of 1996. This was so even after the UGG Regulations of 1991 had come into force which was arbitrarily changed to make the selection process more convenient and pliable so that the candidates who would not have been otherwise selected because of their poor academic record could be taken in. It has been contended that where the oral marks is the determinative of the merit of the candidate the selection process must be held to be arbitrary and violative of Articles 14 and 16 of the Constitution. Shri Prasad stated that this was the argument of Shri P.P. Rao appearing for the unsuccessful candidates in Mahmood Alam Tarique v. State of Rajasthan, AIR 1988 Supreme Court 1451. Shri Prasad relied on Ashok Kumar Yadav v. State of Haryana, AIR 1987 Supreme Court 454. Reference was also made to
31. On behalf of the respondents it was pointed out that section 57(2) of the BU Act as amended by Bihar Act 12 of 1995 and section 56(2) of the PU Act as amended by Act 13 of 1995, provide for selection on the basis of interview alone and there is no challenge to the validity of this provision. Support was also drawn from the observations of the Supreme Court in University of Delhi v. Raj Singh (supra) and of this Court in Bhagalpur University Research Scholars v. State of Bihar (supra), and it was submitted that it is permissible to make selection on the basis of interview alone. It was submitted that unlike selection made on the basis of written test as well as interview, where selection can be made only on the basis of interview, the question of inter se weight to be attached to the interview marks becomes insignificant. In this regard reliance was placed on
32. The argument that a high allocation of marks for interview is likely to make the selection process vulnerable to arbitrariness, as a general principle, is well founded. Higher the allocation, greater would be the chance of nepotism and favouritism. But, I am afraid, the argument has to be finally rejected for more than one reason mentioned hereinafter.
33. At this stage, Section 57(2) (b) of the BU Act as amended, (the corresponding provision of the PU Act is identical) may be quoted, so far as relevant, as under:--
For appointment of Lecturers in the University and the constituent colleges the Commission shall invite applications from candidates who have passed.... and on the basis of interview shall prepare subject wise merit list against the vacancies notified by the University/constituent colleges and such list shall remain valid for a period of one year from the date of its approval. The subject wise merit list shall consist of twice the number of vacancies, but the Commission shall send in order of merit only one name at a time to the University for appointment against a single vacancy..... (emphasis added)
34. Speaking generally, a provision laying down the norms of selection can be challenged as being arbitrary and unreasonable i.e. ultra vires Articles 14 and 16 of the Constitution. This is true of statutory provision as well. It is significant, however, to mention, and to be kept in mind, that the validity of the aforequoted provisions of section 57(2) (b) of the BU Act and section 56(2) (b) of the PU Act providing for selection on the basis of interview has not been challenged by the petitioners; not even in course of hearing by way of amendment although this was specifically pointed out on behalf of the respondents. It would be futile to say what would have been result of such challenge. Nevertheless, I consider it proper to deal with the point because the fact remains that notwithstanding the above provision, selection has been made on the basis of both interview as well as academic qualifications. This was specifically put to Shri Rao to which he agreed.
35. Before discussing the matter in its legal perspective I may refer to certain factual aspects of the decision to allocate 60% marks for the interview and 40% marks for the academic qualification. The circumstances under which the change was brought about and 60 marks were allocated for interview as against 35 marks allocated earlier, are not very inspiring. The perusal of the Proceeding Book of the Commission, particularly the minutes dated 18.2.96 containing the said decision, makes certain disquieting disclosures. The relevant part of the proceeding Book is not paginated, and the so called decision dated 18.2.96 to allocate 60 marks has been written on separate sheet and pasted in the Proceeding Book marked Resolution no. 26. It is significant that there is another resolution of the same date i.e. 18.2.96 written on the next page of the Book. The next resolution dated 31.10.96 also is written on the same page, which shows that between 18.2.96 and 21.10.96 the Commission did not take any policy decision in the shape of resolution. While the preceding resolutions have been described as "resolution no. so and so", as it should be, subsequent resolutions starting from resolution no. 26 have been given serial nos. like "(26)", "(27)" and so on, some of them in the same ink and impression. It appears to me that the impugned resolution was written later and then pasted on the blank pages because there was no space available. Curiously, I found several blank sheets/pages in the Proceeding Book which could be easily utilised by pasting antedated resolutions. This raises a lurking suspicion about the bonafide of the decision making process. However, as is often said, suspicion howsoever strong cannot take the place of proof and, therefore by itself cannot be ground to invalidate the selection process. The validity or otherwise of selection process would necessarily depend on the methodology evolved in making the selection.
36. What weightage should be given to the interview marks has been subject matter of debate. Reference may be made to R. Chitralekha v. State of Mysore, AIR 1964 Supreme Court 1823:
37. While some of the decisions, such as, Periakaruppan v. State of Tamil Nadu and Ajay Hasia v. Khalid Mujib relate to admission to educational institutions, others relate to selection for employment. The latter category of cases can be classified in two sub-categories selection for first recruitment and selection for promotion.
38. In Ajay Hasia v. Khalid Mujib (supra) which was a case relating to admission to educational institution decided by a Constitution Bench, the Supreme Court observed:--
The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse.
The Court held that under the existing circumstances the allocation of more than 15% of total marks for oral interview would be arbitrary and unreasonable and liable to be struck down as Constitutionally invalid.
39. In Lila Dhar v. State of Rajasthan (supra) which was a case of recruitment for the Judicial service, the Supreme Court after noticing Periakaruppan''s and Ajay Hasia''s cases, observed :--
If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to college, for instance, where the candidate''s personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview test must be minimal. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. (emphasis by me)
Continuing, the Court further observed,
There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview-test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great weight, to the interview-test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview-test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives.
The decision in Lila Dhar''s case has been cited with approval in Ashok Kumar Yadav v. State of Haryana (supra), rendered by a Bench of Four-Judges, and, in fact, in all the subsequent cases on the point and thus may be regarded as a decision of unanimous acclaim.
40. Amongst the list of cases cited above, the case of Anzar Ahmad v. State of Bihar was referred to several times. In that case selection was made for the posts of Unani Medical Officer on the basis of academic qualifications and interview. 50% marks were allocated for the academic qualification and the interview each. This Court struck down the selection on the ground of excessive allocation of marks for the interview. Setting aside the decision the Supreme Court pointed out the distinction between selection made on the basis of written examination followed by interview and interview alone. The Court observed:--
These observations would indicate that the matter of weight to be attached to interview and the allocation of marks for interview vis a vis marks for written examination can arise when written examination as well as viva voce tests are both accepted as essential features of proper selection and there also no hard and fast rule regarding the precise weight to be given to the viva voce test as against written examination can be laid down and the said weight must vary from service to service according to requirement of the service. The question of weight to be attached to viva voce would not arise where the selection is to be made on the basis of interview only.
The Supreme Court held that on the basis of certain letter of the State Government, the selection could have been made wholly on the basis of marks obtained in the interview but academic qualifications were also taken into account in accordance with the past practice and, therefore, it cannot be said that the procedure adopted by the Commission was arbitrary. The Court observed that by giving equal weight to academic performance the Commission had rather reduced the possibility of arbitrariness. The decision in Anzar Ahmad''s case lends support to the respondents'' contention and naturally, therefore, strong reliance was placed on it by Shri P.P. Rao, followed by other counsels on behalf of the respondents.
41. Shri Rao also placed heavy reliance on University of Delhi v. Raj Singh, 1994 Supp (3) SCC 516 and it would be useful to refer to the relevant observations. After discussing the nature of Regulations framed by the UGC and while considering the question of their binding effect on the power of the University to make appointment of Lecturers the Court observed:--
The provisions of clause 2 of the said Regulations are, therefore, recommendatory in character. It would be open to a University to comply with the provisions of clause 2 by employing as Lecturers only such persons who have fulfilled the requirement as to qualification for the appropriate subjects provided in the schedule to the said regulations. It would also be open, in specific cases, for the University to seek the prior approval of the UGC to relax these requirements. Yet, again, it would be open to the University not to comply with the provisions of clause 2, in which case, in the event that it failed to satisfy the UGC that it had done so for good cause, it shall lose its grant from the UGC. The said regulations did not impinge upon the powers of the University to select its teachers. The University may still select its Lecturers by written test and interview or either (emphasis added).
This Court also, it was pointed out, in
It is, however, made clear that it would be open to the respondents to hold written examination and/or viva voce test for judging the respective merits of the case.
42. Shri Ravi Shanker Prasad submitted that the decision in Raj Singh''s cannot be read as an authority on the point of selection on the basis of interview. According to the counsel, the issue raised in that case was whether UGC recommendations were recommendatory or mandatory in nature and, thus, whether the University could select Lecturers on its own. The mode of selection of Lecturers was not an issue and, therefore, the decision cannot be read as an authority regarding mode of selection. The submission, if I may say, is quite specious. But it is to be kept in mind that the BU/PU Acts also contemplate selection on the basis of interview. It is another matter that the selection has really been made not on the basis of interview alone but also taking into account the academic record of the candidates. The observations of the Supreme Court in Raj Singh''s case (supra), therefore, cannot be ignored as being out of place or irrelevant. If the Statute provides that the selection can be made on the basis of interview atone which mode is held to be permissible by the Supreme Court, it is not possible to ignore or dilute the observations as being obiter.
43. Now coming to the core issue as to whether the allocation of 60% for the interview is in accordance with law laid down by the Supreme Court, it is well settled that the question as to what weight should be given to the interview would depend on the requirement of service, the minimum qualifications prescribed, the age group from which the selection is to be made and so on. Shri Rao submitted that the candidates who participated in the selection were persons of mature personality, many of whom had been teaching in colleges for 10-12 years. He pointed out that there is no maximum age limit prescribed for appointment of Lecturers in the BU/PU Acts or the statutes framed thereunder or under any law with the result that the persons of any age subject to age of superannuation are eligible for appointment. For persons of mature personality, therefore, it was permissible to attach more importance to interview vis a vis the academic qualification. The submission was seriously countered on behalf of the petitioners. It was submitted that as held by the Supreme Court, the percentage allocation of marks for interview is to be determined according to the requirement of the service and since selection was being made for appointment in the field of academics for teaching job, the academic attainments of the candidates should have been given more weightage. But not only lesser percentage of marks was allocated for academic performance, the candidates possessing poor academic record were selected in this manner.
44. There appears to be unanimity of opinion on the point that in the matter of selection for admission to educational institutions and/or selection for appointment to the service at a relatively younger age where the candidate''s personality is yet to develop and it may be too early to identify the personal qualities which assume importance in latter part of one''s life, greater weight should be given to the academic performance than the written test the emphasis on interview test in such cases should be minimum. But where recruitment is to be made for employment from amongst persons of relatively mature personality, greater weight may be given to the interview part of the selection. From the scheme of the UGC Regulations if is clear that those who appear for selection for the post of Lecturers are not freshers from University. Whereas a person in his early 20''s possessing the graduation degree is eligible to appear for recruitment to the Civil Services, for the post of Lecturer, apart from the Post Graduate Degree the candidate is also required to clear the eligibility test conducted by the UGC, CSIR or similar test accredited by the UGC or obtain doctorate or to have submitted Ph.D thesis or passed the M. Phil examination by 31.12.93. Thus, the candidates who participated in the selection were persons who had done their post graduation and thereafter cleared the eligibility test and/or obtained Ph.D/M.Phil. etc. There were also candidates who had been teaching in colleges. I am, therefore, inclined to think that they were persons of relatively mature personality for assessing whose merit the interview could not be said to be inappropriate or unsafe mode. In Lila Dhar v. State of Rajasthan the Supreme Court observed that while written examination assesses a candidate''s knowledge and intellectual ability, an interview test is valuable to assess a candidate''s overall intellectual and personal qualities. While a written examination has certain distinct advantages over the interview test there are yet no written tests which can evaluate a candidate''s initiative, alertness, resourcefulness, dependableness co-operativeness, capacity for clear and logical presentation, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity, adding, "Some of these qualities may be evaluated, perhaps with some degree of error, by an interview-test, much depending on the constitution of the Interview Board".
45. No direct decision dealing with the case of selection for Lecturers for employment in the field of academics has been brought to our notice. The argument that since the selection was being made for appointment in the field of academics greater weight should have been given to the academic record as a general proposition is quite attractive. The point for consideration, however, is to what extent weightage should be given to the same academic record on the basis of which the candidates have acquired the eligibility to participate in the selection. In terms of the UGC Regulations in order to become eligible for appointment it is mandatory to have good academic record with at least 55% marks or an equivalent grade at the Master''s degree level in the relevant subject, besides pass at the Eligibility Test (NET/BET etc.) or Ph.D/M. Phil. etc. As I have pointed out above, the conditions laid down in the Schedule to the Regulations are in the nature of eligibility condition, and those who do not fulfil those conditions are not eligible to be considered for appointment at all, selection has to be made from such eligible candidates. Now if possessing good academic record is already a condition of eligibility whether giving the same academic record primacy in the matter of selection would be in consonance with the spirit of the UGC Regulations? That appears to be the reason why in Raj Singh''s case the Supreme Court held that the University is free to select its teachers from the eligible candidates either by holding written test or interview or either.
46. The relevant part of the UGC Regulations of 1991 as regards the University Lecturers has been quoted above. In order to appreciate the nature of the change brought about it may be apposite to refer to the relevant provisions of the 1982 Regulations. The minimum qualifications for the post of University Lecturers thereunder were:--
(a) A Doctorate''s degree or research work of an equally high standard; and
(b) Good academic record with at least Second Class (O in the seven point scale) Master''s degree in a relevant subject from an Indian University or an equivalent degree from a foreign University.
Those qualifications were subject to relaxation clause which may not be mentioned herein. In the 1991 Regulations, while retaining ''good academic record'' clause, the qualification of "at least second class Master''s degree" or ''O'' grade (where such grade system is in vogue), was raised to "at least 55% marks or an equivalent grade". Besides a new requirement of passing ''eligibility test'' subject to certain exemptions which came later, was introduced (As regards exemptions, it may be recalled, its validity has been upheld by the Supreme Court in
47. Shri Ravi Shanker Prasad, submitted that in both the University Acts prior to 1993 amendments, there was a similar provision for appointment of Lecturers on the basis of interview but, still, appointments used to be made on the basis of academic qualifications and interview both--the former being the more determining factor. He pointed out that even after 1991 Regulations came into force, the allocation of marks for the interview was 65% which is evident from the counter affidavit filed by the Commission in CWJC No. 1157 of 1992.
48. As regards the above submissions it may be stated that in 1993 by Acts 17 and 18 of 1993 provision was made for appointment on the basis of the written test and interview but no appointment could be made. Came the judgment in
49. It would appear that the real villain of the piece is the 65% allocation of marks for the interview. Considering the increasingly deteriorating values of public life and denuded standards of probity in the discharge of public offices, I must say, it is advisable to limit the interview marks upto level at which the charges of nepotism and favouritism can be reduced to the minimum, even if their possibility cannot be absolutely ruled out. And if I were to take an administrative decision in this regard, I would surely opt for lesser percentage at least in the matter of first recruitment. But considerations in taking administrative decisions and making judicial review of the administrative decisions are not the same. While there is a scope for play-in-the-joints in administration, in making judicial review, the Court is not supposed to examine the correctness of such decisions. As is sometimes said, the judicial review is made not of the correctness of the decision but of the decision making process. If the views of the matter can be taken the Court is not supposed to substitute its own view as being better view. Similarly, where there can be more than one way of doing the same thing the Court has to see whether the thing done or action taken is permissible in law without considering as to whether that thing could have been done in some better way. There cannot be a foolproof system, some margin of error--deliberate or otherwise--has to be given. As observed by the Supreme Court in
50. It was, however, submitted on behalf of the petitioners that interview itself was a complete farce. It was pointed out that total number of candidates called for the interview was 8131, and considering the number of candidates admittedly interviewed per day, the interview would not have lasted for more than 2/3 minute. Heavy reliance was placed on a decision of this Court in
51. In paragraph 46 of its counter affidavit, the Commission has taken the stand that the time factor of the interview is not the sole/first important factor in judging the merit of the candidates. If a person does not know about the title of his thesis and about the method adopted for completing his thesis, then the Commission is not required to make further query from him. Similarly if a person does not know the fundamentals of his post graduate subject, then also it does not need any further query for judging his merit. The allegation that about 2/3 minutes time was spent in judging the merit of each candidates has been denied. It has been stated that the Commission held interview from 10.30 A.M. and sometimes it continued till 5.30 to 6.00 P.M. Though it may be that few candidates who showed their ''profound ignorance'' of their subjects might have been allowed 2/3 minutes, but the candidates showing some promise and exhibiting knowledge of the subject were given 10-12 minutes or even more. "After all the interviews are held by the professionals and experts and not by mechanics".
52. Shri R.K. Jain while dealing with this branch of submission referred to Sardara Singh v. State of Punjab, AIR 1991 Supreme Court 2248. It was submitted that although the Court found that on an average three minutes were spent on each candidate, the selection was not interfered with. The reliance on the above decision, according to me, is not very appropriate. This selection was being made for appointment to the post of Patwaris for which matriculates were eligible for appointment. Under the rules knowledge of Hindi and Punjabi upto the middle standard and good knowledge of rural economy and culture alone were the requirements. The court accordingly held that under the circumstances much time need not have been spent in selection excepting asking some questions of general knowledge and aptitude for work as Patwari.
53. What should be the normal duration of interview would vary from post to post and nature of functions and duties of the post concerned. No uniform rule or formula can be laid down. The point to be kept in mind is that except in individual cases where it is proved by cogent evidence that the candidates were denied proper opportunity at the interview for oblique reasons to push him out of the competition, it would be very difficult for the court to interfere with the result of interview. In Lila Dhar v. State of Rajasthan (supra) the Supreme Court observed that while written examination assesses a candidate''s knowledge and intellectual ability, interview test is necessary to assess a candidate''s overall intellectual and personal qualities, but added (at page 166 of SCC), "it is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless, as we have said, it is proven or obvious that the method of marking was chosen with oblique motive".
54. The above observations would also answer the submission of Shri Basant Kumar Choudhary that the opinion of the experts should nave been given primacy as laid down in Section 58(2) of the BU or Section 57(2) of the PU Act, but what was done was that the Commission awarded ''mean mark''. I may in this connection mention that perusal of the Master Register shows that while in some cases, the members of the Interview Board gave their separate marks and a ''mean'' was worked out, generally, they gave same marks which shows that they awarded the marks after discussion. In any view, it is a peripheral issue which does not go to the root of the matter and not much turns on this.
55. I may now deal with the argument regarding good academic record. It is submitted that although in terms of the UGC regulations the candidates are required to possess ''good academic record'' as a condition of eligibility, in the impugned advertisement dated 18.12.95 the clause ''good academic record'' was omitted, and all candidates who had cleared the Eligibility Test either at State level i.e. BET or at the National level i.e. NET/CSIR/JRF, or had obtained Ph.D/M. Phil degree or submitted Ph.D thesis by a certain date were made eligible to apply for the post. The only condition was that they should have 55% marks at the Master''s level examination. But as per the UGC Regulations they were required to have ''good academic record'' besides at least 55% marks at the Master''s level. It was pointed out that although in the 1991 Regulations, the explanation of the clause ''good academic record'' occurring in the 1982 Regulations has been omitted, upon reference made to it the UGC vide its letter dated 2.3.93, Annexure-32 in CWJC No. 12382 of 1996, left it to the wisdom of the University and the college to define the term. Counsel stated that in the State of Bihar there already exists a definition of the term in the University Statutes framed by the Chancellor. I referred to the Chancellor''s letter Nos. BSU-25/83-2377 GS(1) dated 12.12.1983, BSU-25/83-3038-G.S. (1) dated 9.9.1988 and BSU-11/89-3748 GS(1) dated 15.12.1990 containing the definition of the term ''uniformly good academic record''. Although it may not be really necessary to refer to the first two inasmuch the impugned selection/appointments were made later. I consider it proper to quote them as well, so far as relevant. The relevant part of the statutes dated 12.12.83 was as follows:--
(3) Lecturer:
Lecturers in the service of the University.
Qualification.--(a) A Doctorate degree or research work of an equally high standard; and
(b) Good academic record with at least second class (C in the seven point Scale) Master''s degree in a relevant subject from an Indian University or an equivalent degree from a foreign University.
Having regard to the need for developing nter-disciplinary programmes, the decrees in (a) and (b) above may be in relevant subjects:
Provided that if the Selection Committee/Public Service Commission is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very high standard, it may relax any of the qualifications prescribed in (b) above:
Provided further that if a candidate possessing a Doctorate degree or equivalent research work is not available or is not considered suitable, a person possessing a good academic record (weightage being given to M. Phil or equivalent degree or research work of quality) may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory organisation on the condition that he will have to obtain Doctor''s degree or give evidence of research of high standard within eight years of his appointment, failing which he will not be able to earn future increment until he fulfils those requirements.
The above Article 3 was replaced by Statutes dated 9.9.98 (sic) as follows:-
Lecturers Qualification:
(i) The minimum qualification required for appointment to the post of lecturer shall be Master''s Degree in the relevant subject with at least 55% marks or its equivalent grade (B+) and uniformly good academic record.
(ii) M. Phil, and Ph.D. degrees in the relevant subject may be considered as an additional qualification.
(iii) The minimum qualification shall not be relaxed even in respect of candidates who have research degrees like M. Phil., Ph.D.
By the Statutes dated 15.12.90 the definition was amended as follows:--
A candidate, who has secured uniformly at least second division/class in Secondary, Intermediate and degree examination be considered to possess good academic records:
Provided that if he has secured 3rd division/class in one of the above three examinations but has secured first division/class in at least one of three examinations, he should also be considered to have good academic records.
56. Some argument was made to point out distinction between ''uniformly good academic record'' and ''good academic record''. However, in view of the precise definition of the phrase occurring in the statutes dated 15.12.90 I do not think any meaningful distinction can be drawn between the two phrases. As per the definition given in the Statutes a candidate who had secured at least second division/class uniformly in the Secondary, Intermediate and Degree examination has to be treated as possessing good academic record. A candidate who secured Third division/class in one of the three examinations but had secured First division/Class in at least one of the rest two, thus compensating the poor performance in the other examination, has also to be treated as having good academic record. Thus, a candidate who secured second division/class in all the three examinations has to be treated as having uniformly good academic record; a candidate who secured third division/class in one examination but secured first division/class in another one is also to be treated as having good academic record. Thus, both mean the same thing. The more important point is that in the UGC Regulations the phrase used is ''good academic record'' and not ''uniformly good academic record'', which means that even such candidate who had secured third division/class in one of the three examinations (other than Master''s examination) would be treated as eligible provided he had secured first division/class in one of the other two examinations, than Master''s examination. The 1982 Regulations were less stringent, if I may say so. What was required to constitute good academic record earlier was "(i) a candidate holding a Ph.D. degree should possess at least a second class Master''s degree; or (ii) a candidate without a Ph.D. degree should possess a high second class Master''s degree and second class in the Bachelor''s degree; or (iii) a candidate not possessing Ph.D. degree but possessing second class Master''s degree should have obtained first class in the Bachelor''s degree".
57. Submission was made by Shri Ravi Shanker Prasad to the effect that out of 1378 selected candidates only 973 have filed their counter affidavits and 458 of them only have furnished the details of their academic record, which, according to the counsel, means that the remaining candidates did not possess a good academic record and, they were not eligible to appear. As regards the said 458 selected candidates, in response to our query, he stated that they have good academic record. The dispute is only regarding the rest.
58. It is pertinent to point out here that out of 47 subjects for which advertisement was issued, selection/appointments have been made in only 35 subjects. For remaining subjects, it was stated that appointment could not be made as eligible/suitable candidates were not available. The petitioners in this batch of cases being candidates for appointments in only 16 out of the abovesaid 35 subjects, it would follow that the selection/appointment in the remaining 19 subjects is not under challenge. This seems to be one of the reasons why all the selected candidates have not appeared and/or filed their counter affidavits. I must mention here itself that in course of hearing Shri Rao emphasised the fact that even if the submissions made on behalf of the respondents are not accepted and the selection/appointments are struck down, it would not affect selection/appointments made in the remaining 19 subjects. I find sufficient force in this submission and I must say that this aspect of the matter has throughout been in my mind while considering the impugned selection. Shri Chandrashekhar pointed out the CWJC No. 11059 of 1996 has been filed on behalf of the Association representing all unsuccessful candidates and not only candidates for the 16 subjects who individually figure as petitioners in these batch of cases. The submission does not impress me. May be that a self-styled Association is a co-petitioner in one of these cases but selection being made subject-wise, at least one or two of them affected by the selection/appointment in the remaining 19 subjects could have in representative capacity approached this Court.
59. The contention of Shri Prasad that only 458 selected candidates possess ''good academic record'' has been seriously controverted by Shri R.K. Jain, appearing on behalf of selected candidates. A compiled statement containing the particulars of the selected candidate was filed in course of hearing and it was submitted that from the statement it would appear that more than 98% of the candidates had the necessary qualifications, that is, they had good academic record. I wish to deal with this part of the case a little later in this judgment.
60. Before I move to the next point, I may briefly refer to the decisions cited on behalf of the petitioners on the point of mode of selection. I have already referred to Lila Dhar v. State of Rajasthan (supra) and Ashok Kumar Yadav v. State of Haryana (supra). The cases of
61. The case of
62. The criticism that the Commission permitted Ph.D. or M. Phil, or even those who had submitted Ph.D thesis to appear without insisting on ''good academic record'' is without any substance. Individual cases apart, if the successful candidates possess good academic record as per the University statutes, the fact that no such clause was specifically mentioned in the advertisement does not take the matter far. It was strenuously contended on behalf of the respondents that if according to the petitioners, the advertisement was defective, they should have challenged the advertisement on this score. Having participated in the selection process and taken chance of selection, they cannot turn round and start challenging the very process itself. I find force in the submission. As regards permitting Ph. D/M. Phil. etc. to appear, as seen above, these came later by way of exemption to the requirement of ''pass'' at the Eligibility Test, and the same has been upheld by the Supreme Court in
63. In the above premises, the criteria laid down by the Commission cannot be said to be illegal or arbitrary.
64. It is relevant to mention here that the Commission evaluated the academic performance of the candidates in different subjects (other than Engineering subjects) by sub-dividing the allocation of 40% in the following manner:-
|
|
1st Divn. |
II Divn. |
III Divn |
|
Matriculation |
4 |
3 |
3 |
|
Intermediate |
5 |
4 |
3 |
|
Honours |
10 |
8 |
6 |
|
Post Graduate - |
15 |
13 |
� |
Besides the above, 6 marks were awardable for higher degrees, paper publication, experience etc. to make 40 marks.
65. In
When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of malafides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problem they face than the Courts generally can be.
In State of Andhra Praesh v. V. Sadanandam, AIR 1989 Supreme Court 2060, the Court observed.
The mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decisions falling exclusively within the purview of the executive.
66. On behalf of the petitioners reliance was placed on
67. It is pertinent to note that in the above noted cases or other cases on the point, the Supreme Court ultimately did not interfere with the selection or appointment, except where the administration itself cancelled the selection like Dilbag''s case or case like
68. In fairness to the respondents I must notice the alternative argument made by Shri P.P. Rao to the effect that appointment of unqualified teachers per se would not amount to contravention of the UGC Regulations, and it is open to the University to appoint a person whose qualifications are not in conformity with the Regulations. He referred to the relaxation clause contained in clause 2 of the 1991 Regulations and placed reliance on Raj Singh''s case, 1994 (3) SCC 516. It was submitted that it is open to the University to seek relaxation prior or post facto of the requirements from the UGC, and as held by the Supreme Court, even if it fails to satisfy the UGC in this regard, it is still open to it to make the appointment, the only consequence being that in such an event it may lose its grants from the UGC, but the appointment per se does not become invalid for the non-observance of the Regulations.
69. The submission, in my opinion, is beside the point. Firstly, as I understand, a requirement can be relaxed for doing justice in an individual case or cases to mitigate hardship. This is true of Clause 2 of the 1991 Regulations as well. There cannot be a general relaxation of the requirements save by way of policy decision like the one which came in 1995 in the shape of exemptions. Secondly, what is basically under challenge in these cases is the validity of selection process and not the individual appointments made by the respective universities. If the selection process were to be held illegal, the consequential appointments would also become illegal because in view of the provisions of sections 58/57 of the BU/PU Acts the University can make appointment only on the recommendation of the Commission. The ratio of Raj Singh''s case would apply where relaxation is sought from the UGC in individual cases and notwithstanding the UGC''s refusal to relax the requirements, appointment is made by the University. In such a situation, it is open to the UGC to withhold its grants. In the present case, it is not necessary to discuss this aspect of the matter further in view of my conclusions already arrived at on the main issues relating to the selection process.
70. I shall now consider the effect of the omnibus or common selection. It has been submitted on behalf of the petitioners that in terms of express provisions of section 57(2) (b) of the BU Act and the corresponding section 56(2) (b) of the PL) Act, the Commission is required to prepare "subjectwise merit list against the vacancies notified by the University/Constituent Colleges" which means that the Commission can make selection only against the particular vacancy notified by the particular University and/or the constituent college(s), but what was done in the present case was to prepare a general or common merit list, without taking into consideration the existing or anticipated vacancies. In fact, according to the petitioners, the vacancies were not intimated by the Universities or the constituent colleges to the Commission.
71. The above argument can be divided into two parts; the first relating to making common selection and preparing a common merit list with respect to all the Universities, the second part involving the question as to whether the selection has been made against the existing and anticipated vacancies or also against future vacancies. The first part need not detain us long. In the counter affidavit stand has been taken that in view of the amendment in the Commission Act they were required to prepare a single panel. Shri P.P. Rao submitted that making vacancy and university/college-wise selection had proved to be a cumbersome exercise as experience showed that the same candidates applied for different vacancies in different Universities/Colleges resulting in duplication of the recommendation. In order to remove the resultant difficulties, the Bihar State University (Constituent Colleges) Service Commission Act, 1987 was amended by Bihar Act 22 of 1992 and sections5 and 9 of the Act were deleted. Section 5 contemplated making recommendation for appointment to "each post" of officer or teacher of a University or of a constituent college, while section 9 contemplated preparing panel for appointment to "each grade.... for each University separately". Shri Rao referred to the Objects and Reasons of the aforesaid amendment and it may be useful to notice the same as under:--
It has been provided in the Bihar State University (Constituent Colleges) Service Commission Act, 1987 to hold separate interviews and to make recommendations for appointment of teachers in different Universities of the State. It has resulted in repetition of the same process and it is also time taking. Holding interviews and preparation of panel simultaneously for vacancies in a subject in all the Universities will facilitate disposal. Thereafter (sic for therefore), necessary provisions have been made in this Bill to delete the provisions of separate interviews and separate panels and provide for simultaneous interviews and common panel the enactment of which is the object of this Bill.
72. In my opinion, though it is not necessary to say so, sections 5 and 9 of the Commission Act were deleted with a laudable object, the correctness and bonafide of which cannot be doubted. In principle I do not find anything wrong in centralised selection. I may mention that appointments of class III staff in the civil courts in the State of Bihar also used to be made at the District level. In order to obviate difficulties experienced in making the selection the Patna High Court made rules making provisions for centralized selection which has gone well. In the matter of appointment of teachers, the Commission Act containing provisions for preparation of separate panels having been deleted there was no legal bar to making a centralised selection, and preparation of common panel, therefore, cannot be said to be illegal or motivated. It is relevant to mention here that all the candidates were allowed option of the University and the selected candidates were finally allotted to different Universities on merit-cum-choice basis.
73. It was contended that in any view the Patna University being governed by a separate enactment i.e. the Patna University Act, 1976, there could not be a common selection or panel for that University and in this connection reliance was placed on Mrs. Vineeta Prasad v. Vice Chancellor, 1991 (2) PLJR 725. The issue in that case was entirely different. The petitioners had challenged the order of transfer from Magadh University to Patna University made u/s 9(7) of the Bihar State Universities Act. The point for consideration was whether the term ''University'' occurring in section 9(7) of that Act includes Patna University as well. This Court held that the term includes the Universities governed by the Bihar State Universities Act while Patna University is governed by the Patna University Act. The matter relating to appointment of teachers or officers, however, stands on different footing. Not only the provisions in the two Acts are identical, all such appointments are to be made on the basis of recommendation of the same Commission i.e. the Bihar State University (Constituent Colleges) Service Commission under the Commission Act. I, therefore, do not find any error of law in making a common or centralised selection of the candidates.
74. Coming to the second limb of the argument regarding preparation of panel against non-existent or future vacancies, it has been contended that in the light of the decisions of the Supreme Court the Commission could make the advertisement and select candidates against only clear vacancies or anticipated vacancies and, therefore, the vacancies should have been notified and against such notified vacancies the selection process could commence. Reliance was placed on Hoshiar Singh v. State of Haryana, 1993 (4) SCC 377; State of Bihar v. Madan Mohan Singh, 1994 (3) SCC 308 : 1994 (1) PLJR (SC) 82 and
75. As a proposition of law, there cannot be a dispute that advertisement as well as selection can be made only for clear vacancies--existing or anticipated, but not for vacancies which may occur in future. If the requisition and advertisement are for certain number of posts, the State cannot make more appointments than the number of posts advertised even though it might have prepared a select list of more candidates. It is, however, a question of fact as to whether in a particular case the advertisement and/or the selection has been made only for existing or anticipated vacancies or also for future vacancies. In the counter affidavit the Commission has stated that the number of vacancies were not notified in the advertisement because the Universities were required to send the particulars of the actual vacancies as well as vacancies likely to occur by 31.12.96, which they failed to do, but this did not mean that the Commission should have stopped performing its statutory functions. A categorical statement, however, has been made to the effect that "the Commission has made recommendations only against vacancies communicated by the concerned universities". It was submitted on behalf of the respondents that in the State of Bihar appointments of lecturers had not been made in universities/constituent college since 1983 and vacancies had piled up and appointments were overdue.
76. The Commission has produced files containing the requisitions received from different universities. Although it is not possible to say with arithmetic precision that the recommendations were commensurate with existing/anticipated vacancies, it appears that the requisitions were, in fact, received from the Universities. The Master Register of the selected candidates, shows that subjectwise merit list i.e. panel was prepared but candidates only upto particular serial in the respective panels were recommended with a note "vacancy ends here". The panels appear to be in conformity with the provisions of section 57(2) (b) of the BU Act which envisages preparation of subjectwise merit list "twice the number of vacancies". The said provision also lays down that the Commission shall send in order of merit only one name at a time to the University for appointment against a single vacancy.
77. In these premises, I do not find any substance in the challenge to the so called omnibus or general selection.
78. I shall now consider the argument regarding bias in making selection. A good amount of argument has been made on behalf of the petitioners and, in reply, on behalf of the respondents in this regard. The argument emanates from the selection of certain candidates related to Ministers, MLAs/MLCs, Vice Chancellors/ Pro-Vice Chancellors of Universities, Professors and Officials of the Education Department and different Universities and above all the Chairman of the Commission and its Secretary. A list of 30 such candidates has been enclosed and it is said that there may be many more. If I may say, selection of these 30 or so candidates appears to be the heart of the grievance. The significance of allocation of 60% marks for the interview also arises from their selection as if this was done to show undue favour to the ''VIP Candidates''. Whatever be the fact, the decision to allocate 60% marks for the interview has been held to be not arbitrary or illegal on legal touchstones. Going by their impressive academic records, the non-selection of some of the petitioners, if not all, their anguish cannot be said to be unjustified and, must say, this made me feel somewhat uneasy. But the court has its limitations. It cannot sit in appeal over selection and assess the comparative merit of the selected and un-selected candidates.
79. Having made these prefatorial remarks, I come to the legal issues involved. It may be observed here that where the number of persons appointed is very large, it may be difficult to annul the entire selection than in individual cases, unless a very large proportion of selection is held to be biased. In the present case the allegation of bias has been made with respect to only 30 candidates. Even if it be assumed that some more candidates related to the so called VIPs were selected, the selection of the rest 1300 or so cannot be said to be the result of bias. No doubt selection of one implies non-selection of the other and there lies the significance from the petitioners'' point of view but then inter se merit cannot be looked into by the Court. A candidate having better academic record may be non-communicative and, therefore, may not prove to be a good teacher. The academic record, therefore, may not be conclusive index of ones merit for appointment as Lecturer. This aspect of the matter has been dealt with at length earlier.
80. What the Court can look into is whether the selection in a particular case is vitiated on account of relationship. The relationship per se is not a disqualification but where it is found to have played the determining role, influencing the selection process, it does become relevant because then it can be said that selection was made on extraneous consideration. Shri Ravi Shanker Prasad submitted that it is not a mere co-incidence that the aforementioned 30 candidates are related to high-ups of the Education Department and/or Universities etc. The submission appears to be attractive for a while but on that ground alone their selection cannot be said to be biased. In
The only circumstances on which the Division Bench relied for raising the inference that such high marks were given to these three candidates, not on merit, but as an act of nepotism with a view to unduly favoring them so that they can come within the range of selection, was that out of these three candidates, two were related to Shri R.C. Marya and one was related to Shri Raghubar Dayal Gaur. This inference, we are constrained to observe, was wholly unjustified. We cannot help remarking that the Division Bench indulged in surmises and conjectures in reaching the conclusion that high marks were given unjustifiably to these three candidates at the viva voce examination with a view to pushing them up and low marks were deliberately given to other more meritorious candidates with a view to pushing them down and thus facilitating the selection of these three candidates who would not otherwise have come within the range of selection. We fail to appreciate what is the basis on which the Division Bench could observe that these three candidates got high marks at the viva voce examination only because they were related to Shri R.C. Marya and Shri Raghubar Dayal Gaur. Can a relative of a member of a Public Service Commission, Central or State, not get high marks at the viva voce examination on his own merit? Must he always get low marks, so that if high marks are awarded to him, that would necessarily be attributed to his relationship with the member of the Public Service Commission?
81. Except general statements regarding relationship of the aforementioned successful candidates, there is nothing on the record to buttress the submission that their selection was on account of undue favour shown to them because of their relationship or proximity with the so called VIPs. A pointed argument was made regarding participation of the Chairman of the Commission Shri S.A. Wahab Asharfi. The respondents do not deny that the son of the Chairman was selected for appointment. It was, however, submitted that he did not participate in the interview of his son and, therefore, no adverse inference can be drawn. The petitioners do not say that the Chairman participated in the interview of his son but contend that as his son was a candidate, he should have withdrawn from the selection process altogether. The submission is not in accord with the decisions of the Supreme Court in the cases of B.N. Nagrajan v. State of Mysore, AIR 1966 Supreme Court 1942;
The procedure adopted by the Selection Committee and the member concerned was in accord with the quite well-known and generally accepted procedure adopted by the Public Service Commissions everywhere. It is not unusual for candidates related to members of the Service Commission or other Selection Committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. We notice that such a situation had also been noticed by this Court in the case of Nagrajan v. State of Mysore where it was pointed out that in the absence of malafides, it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the Selection Committee who had abstained from participating in the interview of that candidate. Nothing unusual was done by the present Selection Committee. The girl''s father was not present when she was interviewed. She was one among several hundred candidates. The marks obtained by her in the written test were not even known when she was interviewed..... In the case before us, the Principal of the Medical College, Srinagar dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates. There was no occasion to suspect his bonafides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principles of natural justice.
The above observations were noticed with approval in Ashok Kumar Yadav''s case, at pages 443-44, and it was said (at pages 442-43 of SCC) :
We do not think that the principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the Selection Committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a constitutional authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission.
Shri R.K. Jain submitted that these observations were made in the context of Public Service Commission but would apply with equal force in the case of statutory Selection Board like the University Service Commission. Reference was made to the provisions of the Commission Act relating to the composition of Commission.
82. Shri Ravi Shanker Prasad cited the cases of Pratap Singh v. State of Punjab, AIR 1964 Supreme Court 72,
83. In view of the law enunciated by the Supreme Court, it is not possible to accept the contention of the counsel for the petitioners and hold that the selection of the aforementioned 30 or so candidates, muchless the entire selection, was vitiated on account of bias.
84. The credentials of 458 candidates are not disputed even by the petitioners. According to the respondents, as submitted by Shri Jain, ninety-eight per cent selected candidates possess the requisite qualifications. I have given my anxious consideration to the question as to whether any positive order could be passed with respect to the remaining two per cent successful candidates. The Commission has produced the records relating to the impugned selection but I find it difficult to make scrutiny of all successful candidates in order to find their eligibility. Considering that selection in 19 subjects out of 35 (for which selections have been made) is not under challenge, I think, it would be a fruitless exercise to do so. If specific challenge had been made with respect to individual cases, it would have been convenient and easier to make such exercise and arrive at conclusions--one way or the other. The challenge is as to the selection process as whole. The grounds of challenge having been held to be without substance, it is not necessary, nor advisable, to go into individual cases with respect to which there is no separate pleadings or argument.
85. Before I close the discussion, I must in fairness to the respondent notice their challenge to the locus standi of the petitioners to impugn the selection process. The submission was that having participated in the selection process and taken chance of selection they cannot challenge the selection process at least on the grounds, which were known to them, relating to centralised selection, selection without vacancies being notified and the defect in the advertisement on account of absence of ''good academic record'' clause. Several judgments were cited for and against by the counsel for the parties. In view of adverse conclusions on merit of the case, it is not necessary to consider the locus standi of petitioners. In the result, I do not find any merit in these writ petitions, which are accordingly dismissed but without any order as to costs.
Gurusharan Sharma, J.
I agree.
