Mohd. Sohrab Khan Vs.
Aligarh Muslim University & Ors.  INSC 376 (20 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1130 OF 2009 (Arising
out of SLP (C) No. 17481 of 2006) Mohd. Sohrab Khan ...Appellant Versus Aligarh
Muslim University & Ors. ...Respondents WITH
CIVIL APPEAL NO. 1131 OF 2009 (Arising out of SLP(C) No. 6718 of 2007)
present appeals are directed against the judgment and order dated 3.7.2006
passed by the Division Bench of the High Court of Allahabad. By the common
judgment and order, we propose to dispose of both the said appeals.
High Court by the said order allowed the Writ Petition filed by Mohd. Sohrab
Khan and set aside the Office Memo dated 20.05.2004 issued by the University
regarding appointment of Merajuddin Ahmed, as a Lecturer in Chemistry in
University Polytechnic, Aligarh Mulsim University, Aligarh.
Sohrab Khan filed the said Writ Petition challenging the aforesaid appointment
and also seeking for a direction that he be appointed to the said post on the
basis of his selection by the Selection Committee. Since by the said judgment
and order the High Court set aside the appointment of the appellant Merajuddin
Ahmed but, however, as High Court did not grant a direction as sought for by Mohd.
Sohrab Khan, therefore, two appeals came to be filed in this Court on which we
have heard the counsel appearing for the parties.
We have also heard
the learned counsel appearing for the Aligarh Muslim University. In order to
deal with the contentions raised in both the appeals, it would be necessary to
deal herein with some of the relevant facts leading to the filing of the writ
Muslim University issued an advertisement through Advertisement No. 2 of 2004
dated 6.2.2004 whereby it called for applications for filling up about 79 posts
in the University. One of Page 2 of 15 the said posts which was advertised was
the post of Lecturer in Chemistry in University Polytechnic, Aligarh Muslim
was laid down by the University as essential qualification was a First Class
Masters' Degree in the appropriate branch of teaching post in Humanities and
Sciences. Both Mohd.
Sohrab Khan as also
Merajuddin Ahmad submitted their applications to be considered as against the
aforesaid post which was advertised namely Lecturer in Chemistry. Mohd. Sohrab
Khan had a First Class Masters' Degree in Chemistry (Pure) whereas Merajuddin
Ahmad was holding a First Class Masters Degree in Industrial Chemistry.
The University Authority,
however, called both of them for the interview. The Selection Committee which
was constituted for the purpose of selecting the suitable candidate selected
Merajuddin Ahmad on the ground that he would be more suitable to the aforesaid
post as he holds a Masters Degree in Industrial Chemistry which according to
them would be best suited to teach the particular subject for the University
Polytechnic, Aligarh Muslim University. The University Authority accepted the
aforesaid recommendation of the Selection Committee and issued an order of
appointment in favour of Merajuddin Ahmad.
Sohrab Khan, being aggrieved by the aforesaid order passed by the Aligarh
Muslim University filed a writ petition in the High Court of Allahabad.
Division Bench of the High Court of Allahabad heard the aforesaid Writ Petition
and by a judgment and order dated 3.7.2006 allowed the aforesaid writ petition
holding that the aforesaid appointment of Merajuddin Ahmad to the said post is
not legal as he did not possess the minimum qualification. The High Court
consequently set aside the order of appointment with a direction to the
respondent-University to initiate fresh selection process for the aforesaid
post giving liberty to the University to reconsider the essential qualification
for the post, in question. The High Court while coming to the aforesaid
conclusion clearly recorded that the University award degrees separately in
both subjects Chemistry as well as Industrial Chemistry and that both the subjects
are distinct and separate.
By referring to the
course structure of Graduate and Post Graduate classes in Chemistry and
Industrial Chemistry, the High Court came to the conclusion that the courses of
the aforesaid two subjects are quite different and distinct and in the light of
the aforesaid findings, it also recorded that degree of M.Sc. in Industrial
Chemistry cannot be equated with the degree of M.Sc. in Chemistry.
The High Court
referred to the decision of this Court in Dr. Bhanu 8 SCC 532] for coming to
the conclusion that the eligibility qualifications cannot be ignored. The High
Court of Allahabad held that the facts of the present case are similar to that
of the abovementioned case wherein there was an advertisement for the post of
Lecturer in Political Science and it was held that the person having degree in
Public Administration cannot be appointed.
contention that is raised on behalf of Merajuddin Ahmad is that the selection
committee being constituted of experts on the subjects was the only competent
authority to decide that the person holding Masters Degree in Industrial
Chemistry is best suited for teaching the subject for which advertisement was
issued and the High Court acted illegally and without jurisdiction in interfering
with the aforesaid opinion of the experts by substituting its own decision.
It was also submitted
that the Masters Degree in Industrial Chemistry is as good as Masters Degree in
Chemistry for the post for which the advertisement was issued and that a person
having Masters Degree in Industrial Chemistry was better suited for teaching
the said subject. Learned counsel also invited our attention to the course
contents which the teacher appointed to the said post was required to teach.
Relying on the same,
he submitted that a candidate having Masters Degree in Industrial Chemistry
would have been better suited to teach the said subjects constituting the
Counsel appearing for Mohd. Sohrab refuted the aforesaid submissions and
contended that for teaching Chemistry to Diploma students only the basic
knowledge of Chemistry is required and therefore a person holding a Masters
Degree in pure Chemistry is better suited to teach the said subject. It was
also submitted by him that Masters Degree in Industrial Chemistry is quite
distinct and separate from pure Chemistry which is a separate subject
altogether and therefore recommendation made by the Selection Committee and the
appointment made by the University was against the requirements and norms laid
down in the advertisement issued by the University and therefore the same was
rightly set aside by the High Court.
Learned Counsel also
submitted that since Mohd. Sohrab Khan was placed at serial No. 2 and the
appointment of Merajuddin Ahmad was found to be illegal and therefore non est
and nullity, Mohd. Sohrab Khan who was placed at serial No. 2 could have
directly been appointed.
It was submitted that
as the same has not been done the second part of the judgment of the High Court
be set aside and a direction by this Court to appoint Mohd. Sohrab Khan on the
said post be issued.
to the advertisement issued by the University, post in Chemistry had fallen
vacant and in order to fill up the said post, applications were invited. In the
advertisement it is clearly stated that what is advertised is a post of
lecturer in Chemistry. Therefore, it would be necessarily assumed that
candidates possessing a Masters Degree in pure Chemistry should submit their
application as against the aforesaid post.
have gone through the aforesaid advertisement which was issued for filling up
various posts and on scrutiny, we find that whenever and wherever the
University desired to fill up a post at variance with the main subject, it is
specifically notified and indicated in the said advertisement. For example,
advertisement which find place at Serial No. 59 was for filling up the post of
Lecturer in Civil Engineering (Environmental Engg.) for University Polytechnic
for which qualification which was necessary and essential was mentioned as First
Class Bachelor's Degree in Environmental / Civil Chemical / Petroleum /
Biochemical Engineering/ Architecture.
more posts advertised in the said advertisement specifically indicate that
whenever the University desired to have a post filled up in a particular branch
of the Humanities and Science Department, it specifically indicated as such in
the said advertisement. If it was necessary for the University to fill up the
post from the stream of Industrial Chemistry, it would have so indicated in the
advertisement itself for in subsequent years, we find specific advertisement
has been issued by the same University for filling up the post of Lecturer in
Industrial Chemistry by issuing an advertisement specifically in that regard.
is no doubt with regard to the fact that it is the University Authority who
knows best as to what is their requirement. Aligarh Muslim University was
founded by Central Act called the Aligarh Muslim University Act. It also has a
statute made under Section 28 (1) of the said Act. Statute 22 of the University
deals with the Boards of Studies. One of the functions of the said Board of
Studies is to recommend to the Faculty in the manner prescribed in the
ordinances, the field of study of each post at the time of its creation.
21 on the other hand deals with the powers and functions of the Faculties. The
aforesaid recommendation of the Board of Studies is to be decided by the
Faculties at Statute 21 of the University and therefore, it is confirmed by the
Academic Council under Statute 19 of the University, and therefore it is to be
approved by the Executive Council under Statute 17(2)(1) of the University.
After such a repeated multi-tier exercise, the essential qualification is
earmarked for a particular post and then it is advertised. It is also
established from the records and there is no dispute with regard to the fact
that pure Chemistry and Industrial Chemistry are two different and separate
counsel appearing for Merajuddin Ahmad strongly relied upon the course
contents. A bare look at the same would indicate that what is dealt therein is
not Industrial Chemistry but Engineering Chemistry. We are not informed as to
whether Engineering Chemistry is considered to be at par with Industrial
Counsel appearing for the University on our enquiry fairly stated before us
that the aforesaid post which was advertised to be filled up in the aforesaid
manner is at present vacant and the same is Page 9 of 15 being manned by
appointing a Guest Lecturer who holds a Masters Degree in pure Chemistry.
the requirement was to have a person having Masters Degree in Industrial
Chemistry, then in that event the post would have been manned through a Guest
Lecturer from the Industrial Chemistry stream. Therefore, it cannot be accepted
that the person holding a Masters Degree in Industrial Chemistry would be
better suited for appointment as against the said post.
post advertised was meant for a person belonging to the pure Chemistry
Department for if it was otherwise, then it would have been so mentioned in the
advertisement itself that a person holding a Masters Degree in Industrial
Chemistry should only apply or that a person holding such a degree could also
apply alongwith other persons. It was not so mentioned in the advertisement and
therefore, except for Merajuddin Ahmad, no other degree holder in Industrial
Chemistry had applied for becoming a candidate as against the aforesaid post.
to us, the Selection Committee as also the University changed the rule in the
midstream which was not permissible. The University can always have a person as
a Lecturer in a particular discipline that it desires to have, but the same
must be specifically stated in the advertisement itself, so that there is no
confusion and all persons who could be intending candidates, should know as to
what is the subject which the person is required to teach and what essential
qualification the person must possess to be suitable for making application for
filling up the said post.
are not disputing the fact that in the matter of selection of candidates,
opinion of the Selection Committee should be final, but at the same time, the
Selection Committee cannot act arbitrarily and cannot change the criteria/qualification
in the selection process during its midstream. Merajuddin Ahmad did not possess
a degree in pure Chemistry and therefore, it was rightly held by the High Court
that he did not possess the minimum qualification required for filling up the
post of Lecturer Chemistry, for pure Chemistry and Industrial Chemistry are two
advertisement which was issued for filling up the post of Lecturer in Chemistry
could not have been filled up by a person belonging to the subject of
Industrial Chemistry when the same having been specifically not mentioned in
the advertisement that a Masters Degree Page 11 of 15 holder in the said
subject would also be suitable for being considered.
There could have been
intending candidates who would have applied for becoming candidate as against
the said advertised post, had they known and were informed through
advertisement that Industrial Chemistry is also one of the qualifications for
filling up the said post. The Selection Committee during the stage of
selection, which is midway could not have changed the essential qualification
laid down in the advertisement and at that stage held that a Masters Degree
Holder in Industrial Chemistry would be better suited for manning the said post
without there being any specific advertisement in that regard. The very fact
that the University is now manning the said post by having a person from the
discipline of pure Chemistry also leads to the conclusion that the said post at
that stage when it was advertised was meant to be filled up by a person
belonging to pure Chemistry stream.
Secy., A.P. Public Service Commission v. B. Swapna, [(2005) 4 SCC 154] at para
14 it was held by this Court that norms of selection cannot be altered after
commencement of selection process and the rules regarding qualification for
appointment, if amended, during continuation of the process of selection do not
affect the same.
Further at para 15 it
was held that the power to relax the eligibility condition, if any, to the
selection must be clearly spelt out and cannot be otherwise exercised. The said
observations are extracted herein below:
"14. The High
Court has committed an error in holding that the amended rule was operative. As
has been fairly conceded by learned counsel for Respondent 1 applicant it was
the unamended rule which was applicable. Once a process of selection starts,
the prescribed selection criteria cannot be changed. The logic behind the same
is based on fair play. A person who did not apply because a certain criterion
minimum percentage of
marks can make a legitimate grievance, in case the same is lowered, that he
could have applied because he possessed the said percentage. Rules regarding
qualification for appointment if amended during continuance of the process of
selection do not affect the same. That is because every statute or statutory
rule is prospective unless it is expressly or by necessary implication made to
have retrospective effect. Unless there are words in the statute or in the
rules showing the intention to affect existing rights the rule must be held to
be prospective. If the rule is expressed in a language which is fairly capable
of either interpretation it ought to be considered as prospective only. (See P.
Mahendran v. State of Karnataka (1990) 1 SCC 411 and Gopal Krushna Rath v.
M.A.A. Baig (1999) 1 SCC 544.)
15. Another aspect
which this Court has highlighted is scope for relaxation of norms. Although the
Court must look with respect upon the performance of duties by experts in the
respective fields, it cannot abdicate its functions of ushering in a society
based on rule of law. Once it is most satisfactorily established that the
Selection Committee did not have the power to relax essential qualification,
the entire process of selection so far as the selected candidate is concerned
gets vitiated. In P.K.
Ramachandra Iyer v.
Union of India (1984) 2 SCC 141 this Court held that once it is established
that there is no power to relax essential qualification, the entire process of
selection of the candidate was in contravention of the established norms
prescribed by advertisement. The power to relax must be clearly spelt out and
cannot otherwise be exercised."
In Krushna Chandra
Sahu (Dr) v. State of Orissa, [(1995) 6 SCC 1], at para 34 it was held by this
Court the Selection Committee does not even have the inherent jurisdiction to
lay down the norms for selection nor can such power be assumed by necessary
implication. In the said case reference was made to the decision in P. K.
Ramachandra Iyer v. Union of India [(1984) 2 SCC 141], wherein at para 44 it
inference, there was no such power in the ASRB to add to the required
qualifications. If such power is claimed, it has to be explicit and cannot be
read by necessary implication for the obvious reason that such deviation from
the rules is likely to cause irreparable and irreversible harm."
analysing the present issue in the light of the above said legal proposition laid
down by this Court we hold that the High Court was justified in rejecting the
candidature of Merajuddin Ahmad as against the said post which was advertised
for pure Chemistry stream.
However, with the
appointment of Merajuddin Ahmad to the said post, the list recommended by the
Selection Committee and approved by the other competent authority has lapsed.
We, therefore, uphold the order passed by the High Court giving liberty to the
University to lay down the qualification necessary for filling up the aforesaid
The University shall
now advertise the said post by laying down exact essential qualification
indicating the particular subject and subjects- stream which is required to be
possessed for making an application to fill up the said post and therefore
proceed to appoint a Lecturer suitable for the aforesaid post.
terms of the above said both the appeals are disposed of.