Dr. J. P. Kulshreshtha & Ors Vs.
Chancellor, Allahabad University, Raj Bhawan & Ors [1980] INSC 101 (30
April 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
KOSHAL, A.D.
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 2141 1980 SCR (3) 902 1980
SCC (3) 418
CITATOR INFO :
F 1990 SC1402 (32)
ACT:
Ordinance 9(2) of the University of Allahabad
issued under section 32(2) (f) of the Allahabad University Act, 1921-Whether
strict compliance regarding the qualifications etc. prescribed for appointment
of teachers is necessary- whether non- complain serviettes the selection.
HEADNOTE:
Six posts of Readers in the English
Department of the University fell vacant and applications were invited by
advertisement. The appellants and respondents 5 to 10, among others were applicants
and they were all serving as lecturer in the University at that time. Since
section 29 of the Allahabad University Act, 1921 stipulates that teachers of
the University shall be appointed by the Executive Council on the
recommendations of the Selection Committee, a Selection Committee was
constituted. The selection committee has to do the statutory exercise of
choosing the best among the applicants in conformity with the minimum
qualifications prescribed under ordinance 9(2) of the University. But the
committee chose to interview the candidates who were otherwise eligible for
consideration. 13 applicants turned up for interview. Respondent 9, Dr.
Rhattacharya and appellant Skand Gupta resented the viva voce test as
unauthorized and did not care to appear for the interview.
However Dr. Bhattacharya. On being persuaded,
did later turn up, was interviewed and eventually included in the Select List.
Skand Gupta did not enjoy the benefit of a second pursuation to present himself
for interview, did not appear before the Selection Committee and missed the
bus.
Respondents S to 10 were chosen and on the
recommendation, the Executive Council made their appointment. The appellants
thereupon moved the Chancellor under section 42 of the Act requesting him to
cancel the appointments of respondents 5 to 10. But by an order dated November
22, 1973 he upheld the selection and appointment. The appellant, therefore,
moved the High Court under Article 226 of the Constitution and impugned the
selection process and the appointments on various grounds. The learned single
judge considered the merits of the contentions and concluded that the
selections and the consequent appointments were bad in law except in regard to
respondents 7 and 10 and directed the University to make fresh selection and
fill UP the vacancies.
Respondents 5 to 6 and 8 and 9 went in appeal
to the Division Bench which accepted their appeals and reversed the judgment of
the single judge in its entirety and hence the appeal by special leave.
Allowing the appeal the Court,
HELD: 1. Any Administrative or quasi-judicial
body clothed with powers and left unfettered by procedures is free to device
its own pragmatic, flexible and functionally viable processes of transacting
business subject, of course, to the basics of natural justice, fair play in
action, reasonableness in collecting decisional materials, avoidance of
arbitrariness and extraneous considerations and 903 other vise keeping within
the leading strings of the law.
Though there is no flaw in the methodology of
interviews, certainly, cases arise where the art of interviewing candidates
deteriorates from strategy to stratagem and undetectable manipulation of
results is achieved by remote control tactics masked as viva voce tests. This,
if allowed is surely a sabotage of the purity or proceedings, a subterfuge
whereby legal means to reach illegal ends is achieved. So, it is that Courts
insist on recording of marks at interviews and other fair checks like
guidelines for marks and remarks, about candidates and the like. If the Court
is skeptical, the record of the Selection proceedings, including the notes
regarding the interviews may have to be made available. Interviews, as such,
are not bad but polluting it to attain illegitimate ends is bad [908 H, 909
A-C]
2. Social scientists and educational avant
garde may find pitfalls in our system of education and condemn the unscientific
aspects of marks as the measure of merit, things as they now stand. But,
however imperfect and obtuse the current system and however urgent the
modernization of our courses culminating in examinations may be, the fact
remains that the Court has to go by what is extent and cannot explore on its
own or ignore the measure of merit adopted by universities. Judges must not
rush in where even educationists fear to tread. So the criterion of marks and
class, the Allahabad University bas laid down is sound, although to swear
religiously by class and grade may be exaggerated reverence and false scales if
strictly scrutinized by progressive n criteria. [909,E-G]
3. The prescription of a high second class in
ordinance 9 is a mandatory minimum. A glance at the relevant portion of
ordinance 9 reveals that wherever relaxation of qualifications is intended, the
ordinance specifically pelfs it out and by necessary implication, where it has
not said so, the possession of such qualification is imperative. The ordinance
has a purpose when it prescribes at least a high second class for a Reader's
post. It is obligatory. [909 H, 91 O A. C-D]
4. "High" is the antithesis of
"low" and a high second class is, therefore, a contrast to a low
second class. When the range of a second class marks is wide of the candidate
who gets that Class with marks within the lower half bracket it cannot be said that
he gets a high second class. If he manages to get 48 marks he gets a second
class not a high second class. And commonsense, which is not an enemy of
Courtsense, points clearly to the meaning, of high second class as one where
the marks fall a little short of first class marks and he narrowly misses first
class. In the context of ordinance 9 and its purpose and the collection of
words used viz. 'first class or a high second class', the interpretation will
misfire if the Court disregard the intent and effect of the adjective, 'high'
and indifferently read it to mean merely the minimum marks needed to bring the
candidate within the second class. High is high and a superior second class
denotes marks somewhere near first class marks. Even by relaxing, diluting and
liberalizing the rigour clearly imported by the draftsman by using the
expression "high second class", still it is impermissible to render
the word 'high' nugatory or make, by construction, that intensive adjective
redundant. Nor did the University has all these years treat a high second class
to mean a mere second class and English has not lost its potency in he
Allahabad University so 25 to include low in high. The utmost construction
would be: Draw a line at mid-point, and marks above and below that line will be
high and low second class respectively. In the instant case, the mid-line 904
being 54 those who have not secured above 54 cannot claim to have obtained a
high second class and are ineligible. [910 D-H, 911 A, D]
5. It is true that the Selection Committee is
in expert body. But their expertise in not in law, but in other branches of
learning and the final interpretation of an ordinance is a legal skill outside
the academic orbit.[911 E-F]
6. While there is no absolute ban, it is a
rule of prudence that courts should hesitate to dislodge decisions of academic
bodies. But university organs, for that matter any authority in our system, is
bound by the rule of law and cannot be a law unto itself. If the Chancellor or
any other authority lesser in level decides an academic matter or in
educational question, the court keeps its hands off; but where a provision of
law has to be read and understood, it is not fair to keep the could out. To
respect in authority is not to worship it unquestion illegal since the bhakti
cult is inept in the critical field of law. In short, while dealing With legal
affairs which have an impact on academic bodies, the views of educational
experts are entitled to great consideration but not to exclusive wisdom. [911
G-H, 912 B-D] The University of Mysore and Anr. v. C. D. Govinda and Anr.,
[1964] 4 SCR 575 @ 586; followed.
7. An illegal act cannot be deemed to be
legal by reading a legislative function into an executive action.
Were this dubious doctrine applied to
Governmental affairs and confusion between executive and legislative functions
juries prudently sanctioned, the consequence could well be disastrous to the
basics of our democracy. Shall gains in some case should not justify the urging
of propositions which are subversive of our constitution. [912 E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1524 of 1977.
Appeal by Special Leave from the Judgment and
order dated 21-9-1976 of the Allahabad High Court in S.A.Nos. 26,66 and 37/76.
S. P. Gupta and Pramod Swaroop for the
Appellants.
Yogeshwar Prasad and Mrs. Rani Chkabra for
the Respondents 5 and 6.
U. R. Lalit and Manoj Swarup, Miss Lalit
Kohli for the Respondent (University.) The Judgment of the Court was delivered
by KRISHNA IYER J.-The core controversy in this appeal by special leave rages
round the legality of the selection of Readers by the Allahabad University. The
fortunes of the litigation, pending for seven years have been fluctuating from
court to court. The fine line of distinction between internal autonomy for
educational bodies and insulation of their operations from judicial
interference on the one hand and the constitutional obligation of the court to
examine the legality of academic 905 actions and correct clear injustices on
the other is jurisprudentially real and the present appeal illustrates the
demarcation between the two positions. While legal shibboleths like
"hand-off universities" and meticulous forensic invigilation of
educational organs may both be wrong, a balanced approach of leaving
universities in their internal functioning well alone to a large extent, but
striking at illegalities and injustices, if committed by however high an
authority, educational or other, will resolve the problem raised, by counsel
before us in this appeal from a judgment of the Division Bench of the High
Court.
Once We recognize the basic yet simple
proposition that no islands of insubordination to the rule of law exist in our
Republic and that discretion to disobey the mandate of the law does not belong
even to university organs or other authorities the retreat of the Court at the
sight of an academic body, as has happened here, cannot be approved. On the
facts and features of this case such a balanced exercise of jurisdiction will,
if we may anticipate our ultimate conclusion, result in the reversal of the
appellate judgment and the restoration, in substantial measure, of the learned
single Judge's judgment quashing the selections made by the University bodies
for the posts of Readers in English way back in 1973.
A perception in perspective of the facts
which are brief and the law which is clear, persuades us to narrate the
circumstances which have led a number of lecturers of the Allahabad University
to fighting forensic battles over the selection of some as Readers in English
by the selection Committee and their opportunity by the Executive Council
Nearly a decade ago, six posts of Readers in the English Department of the
University fell vacant and applications were invited by advertisement. The
petitioners and respondents 5 to 10 among others, were applicants. These
parties were all serving as lecturers in the university at that time. A
selection committee was constituted as contemplated by the statutes and
ordinances harmed under the Allahabad university Act, 1921 (for short,
hereinafter called the Act.) Section 29 of the Act, stipulates that teachers of
the university shall be appointed by the executive council on the
recommendations of the selection committee. There are statutory provisions
regulating the functions of the selection committee section 32(2)(f) of the
Act. provides for the issuance of ordinances prescribing qualifications for
appointment of teachers. Ordinance 912) lays down the qualifications for
teachers in the various faculties. We are concerned with ordinance 9 with
special reference to the prescription of qualifications for Readers and it runs
thus:
9. The following qualifications are
prescribed for the appointment of teachers in the Faculties of Arts, Science,
Commerce and Law (2) For Readers: (i) First or high Second Class Master's
degree in the Subject concerned and good academic record.
(ii) Established reputation for sound
scholarship and be competent to teach upto Master's degree and guide research
(iii) A doctor's degree, or equivalent published work.
(iv) At least 5 Years' teaching 'experience
of the subject concerned in post-graduate classes in a University recognized by
law, or research experience in a Research Institute recognized by the.
University or' the State, or the Central Government.
Provided that the selection 'Committee may
relax the qualifications contained in clause (iii) for the post of Readers in
the case of candidates whose total length of service as tea cheers in this
University is not less than the period' required to teach the maximum of the
Lecturer's grade and who shall have established a reputation as teachers.
Provided further that in the case of women-
teachers of this (i.e. Allahabad University), in place of qualification No.
(IV) requiring 5 years' teaching experience in post graduate classes a minimum
of 5 Years teaching experience of the subject in the graduate classes in this
University may also be considered adequate for the post of Readers.
The statutory exercise of choosing the best
among the applicants in conformity with the minimum qualifications is done by
the selection committee which recommends to the 'executive' council its panel.
While there is no specific legislative provision regarding the procedure to be
adopted by the selection committee there is no doubt that arbitrariness is
anathema, violation of natural justice vitiates and subject to this,
self-created rules, flexible and pragmatic, fair and functionally viable, may
well be fashioned by the selection committee. In this case the committee chose
to interview the candidates who were otherwise eligible for consideration. 13
applicants turned up for interview. But respondent No, 9, Dr. Bhattacharya, and
petitioner No. 2, Skand Gupta, apparently resented the viva voce test as
unauthorized and did not care to appear for the interview. However, Dr.
Bhattacharya (R. 9), on being persuaded, did later turn up, was interviewed and
eventually included in the 'select list'. The 907 second Petitioner did not
enjoy the benefit of a second persuasion to present himself for interviews did
not appear before the Selection Committee and missed the bus.
The Committee, which consisted of academic
experts prepared a panel and forwarded it to the Executive Council.
As is inevitable in situations of oversupply,
many are called but few are chosen and Respondents 5 to 10 (Dr. Mrs. Hem Lata
Joshi, R-5, Shri H. S Saxena, R-6 Dr. R. R. Dutt, R-7, Shri I. N. Agarwal, R-8,
Dr. A.N.Bhattacharyya, R-9,and Dr. L.M. Upadhayaya, R-10) were lucky to be
chosen while the Petitioners were luckless and lost. Petitioner No. 2
represented against the propriety of the selection to the executive council,
but the latter overruled the objection and accepted the recommendation.
Respondents 5 to 10 were thus appointed Readers. The Petitioners thereupon
moved the chancellor under s.42 of the Act and urged in their Petition, that
the selection was illegal, but were disappointed because the chancellor, by
this order of November 22, 1973, upheld the selection and the appointments. The
last refuge of those with lost causes is the writ jurisdiction of the High
Court. The Petitioners invoked Art. 226 of the Constitution and impugned the
legality of the selection process and the appointments on various grounds. The
learned single Judge considered the merits of the contentions and concluded
that the selections and the consequent appointments were bad in law except in
regard to respondents 7 and 10 and directed the university, in January 1976, to
hold fresh selections . for filling the vacancies of long years ago.
Inevitably, the vanquished respondents rushed
to the appellate Bench of the High Court where success greeted them; for, the
appeals were allowed in reversal of the single Judge's reasoning and the writ
petition was dismissed in entirety. The final sanctuary of those who F. fancy
that they are victims of judicial injustice of other forms of iniquity is the
Supreme Court in its misleadingly immense and self defeatingly multiform
jurisdiction under Art. 136, The appellants are here hopefully invoking our
power to heal their alleged in jury.
With this backdrop, it will be easy to
appreciate the few submissions urged by the appellants in substantiation of
their case that although the selection committee was legally constituted, the
process of selection and the criteria for selection Were illegal, If the
selecting were invalid dated by any lethal vice the council's action in
accepting the commendees cannot survive. Nor can the chancellor's dismissal of
the objections of the appellants lend life to what otherwise is non est. Thus,
the crucial issue is whether the grounds of attack levelled against the
selection have substance.
908 A few basic facts must be remembered
before We discuss the merits. All the parties with whom we are concerned as
candidates, have acquired their master's degree from the Allahabad University.
In tune with the hierarchical ethos of Indian society which does not spare the
academic there is a pyramidal structure with lecturers at the bottom, Readers
above them and professors at the top, speaking simplistically. Our concern in
this appeal is with Readers;
and the eligibility qualifications mentioned
in ordinance 9 are the minimum, not the maximum. We may straight get into the
meat of the matter, The substantial con tension urged by the appellant with
success before the single Judge and failure before the Division Bench is that
the contesting respondents are not even qualified for consideration because
they do not have a first class or a high second class in the Master's degree.
It is common ground that none of them has a first class. It is undisputed that
the Allahabad University awards first class to those who obtain 60 % and above
and second class to those who secure anything between 48 % to 59 ^. For the
nonce, we are not concerned with the other qualifications itemized in ordinance
9. The marks obtained by the appellants show that they are recipients of first
class or high second class. The controversy is not about their eligibility but
that of the contesting respondents.
Dr. Mrs. Joshi (R. S) has secured 52.2 marks;
Shri Saxena (R. 6) has scraped through with 49 .3 marks; Dr. Dutt (R. 7) has,
however, obtained a first class while Shri Agarwal (R.8) is slightly below the
middle line in the second class range having got only 53 .8, marks; Dr.
Bhattacharya (R9.) has fared a little better with 54 .5 marks. Dr. Upadhyaya
(R. 10) also has a better performance record in the Master's degree examination
since he has 55.1 marks to his credit.
From these figures it is obvious that Dr.
Dutt (R.7) has the 'distition of being the holder of a first class. It is
beyond one's comprehension how his selection can be challenged on the score of
ineligibility. Indeed, the appellants have accepted the findings of the learned
single Judge who has disallowed the writ petition vis-a-vis R. 7 and R. 10. We
agree. Even in regard to the conclusion arrived at so far as R. 10, Dr.
Upadhyaya, is concerned who has secured marks above the middle line in the
range between 48 % and 59 %, we are not disposed to disagree with the single
Judge. Thus, the appointments of. 7 and R.10 do not call for any interference.
The rest will, right now, be exposed to the actinic light of legal scrutiny.
We may dispel two mystiques before we debate
the real issued. Did the selection committee act illegally in resorting to the
interview process to pick out the best ? We think not. Any administrative or
quasi judicial body clothed with powers and left unfettered 909 by procedures
is free to devise its own pragmatic, flexible and functionally viable processes
of transacting business subject, of course to the basics of natural justice
fair play in action, reasonableness in collecting decisional materials,
avoidance of arbitrariness and extraneous considerations and otherwise keeping
with in the leading strings of the law. We find no flaw in the methodology of
`interviews.' Certainly, cases arise where the area of interviewing candidates
deteriorates from strategy to stratagem and undetectable manipulation of
results is achieved by remote control tactics masked as viva voce tests. This,
if allowed, is surely a sabotage of the purity of proceedings, a subterfuge
whereby legal means to reach illegal ends is achieved. So it is that courts
insist, as the learned single Judge has, in this very case, suggested on
recording of marks at interviews and other fair checks like guidelines for
marks and remarks about candidates and the like. If the court is skeptical, the
record of the Selection proceedings, including the notes regarding the interviews,
may have to be made available. Interviews, as such, are not bad but polluting
it to attain illegitimate ends is bad. Dr. Martin Luther King Jr. was right
when be wrote.
"So I have tried to make it clear that
it is wrong to use immoral means to attain moral ends. But now I must affirm
that it is just as wrong, or even more, to use moral means to preserve immoral
ends." The second obscurantism we must remove is the blind veneration of
marks at examination as the main measure of merit. Social scientists and
educational avant garde may find pitfalls in our system of education and
condemn the unscientific aspects of marks as the measure of merit, things as
they now stand. But, however imperfect and obtuse the current system and
however urgent the modernization of our courses culminating in examinations may
be, the fact remains that F he court has to go by what is extent and cannot
explore on its own or ignore the measure of merit adopted by universities.
Judges must not rush in where even educationists fear to tread. So, we see no
purpose in belittling the criterion of marks and class the Allahahad University
has laid down, although to swear religiously by class and grade may be
exaggerated reverence and false scales if strictly scrutinized by progressive
criteria.
We have stated earlier that the prescription
of first class or high second class is part of the ordinance as a qualification
for a Reader's post. is this condition mandatory or directory ? The High Court
at the two tiers has taken contrary views. But we are inclined to 910 hold that
a high second class is a mandatory minimum. A glance at the relevant portion of
ordinance 9 reveals that wherever relaxation of qualifications is intended, the
ordinance specifically spells it out and by necessary implication, where it has
not said so, the possession of such qualification is imperative. We must
remember that a Reader is but next to a Professor and holds high responsibility
in giving academic guidance to post-graduate students. He has to be a creative
scholar himself capable of stimulating in his students a spirit of enquiry and
challenge, intellectual ferment and thirst for research. If the teacher is
innocent of academic excellence, the student, in turn, will be passive,
mechanical, negative and memorizing where he should be innovative, imaginative
and inventive. The inference is irresistible that a Reader who guides the
students and raises his faculties into creative heights is one who himself has
had attainments to his credit. Putting aside for a moment the value of
examinations and marks as indicators of the student's potential], we must agree
that the ordinance has a purpose when it prescribes atleast a high second class
for a Reader's post. It is obligatory Now we come to close grips with the Principal
point- debated before us. When is a second class high, going by marks? For any
layman the meaning is clear. For any purpose- oriented interpretation the
decoding is simple. High is the antithesis of low and a high second class is,
therefore, a contrast to a low second class. When the range of second class
marks is wide, of the candidate who gets that class with marks within the lower
half bracket you cannot say he gets a high second class. If he manages to get
48 marks he barely gets a second class-not a high second class. And commonsense
which is not an enemy of court sense, points clearly to the meaning of high
second class as one where the marks fall a little short of first class marks
and he narrowly misses first class. In the context of ordinance 9 and its
purpose and the collocating of words used viz.
'first class or a high second class', the
interpretation will misfire if we disregard the intent and effect of the
adjective 'high' and indifferently read it to mean merely the minimum marks
needed to bring the candidate within the second class. High is high and a
superior second class denotes marks some where near first class marks. Assuming
we relax, dilute and liberalize the rigour clearly imported by the draftsman by
using the expression 'high second class', still it is impermissible to render
the word 'high' nugatory or make, by construction, that intensive adjective
redundant. Nor are we impressed with the strange submission that the University
has all these years treated a high second class to mean a male . second class,
and, therefore English has lost its potency in the Allahabad University and
high includes low. Such bathetic semantics 911 must be rejected sucre
continuing commission cf wrong does not right it.
The utmost we may reiuctantly accept is the
construction that the learned single Judge has adopted. Draw a line at
mid-point, and marks above and below that line will be high and LOW second
class respectively.
It was urged that marks for the second-class
grade vary from university to University and start sometimes with 40 % and so,
even 48 % must be regarded as high second class for Allahabad University. Here
we are concerned only with holders of second class from the Allahabad
University and so the complication of other universities does not rise. Even
otherwise, will reference to and particular university, the marks for second
class may be from X to Y and 'high' with reference to that university will be
the superior half between X and Y. Lexically, logically, legally,
teleologically, we, find the conclusion the same. We regretfully but
respectfully disagree with the Division Bench and uphold the sense of high
second class attributed by the learned single Judge. The mid line takes us to
54 and although it is unpalatable to be mechanical and mathematical, we have to
hold that those who have not secured above 54 marks cannot claim to have
obtained a high second class and are ineligible. In the instant case, Dr.
Mrs. Joshi, Shri Saxena and Shri Agarwal do
not fill the bill, their marks being below 54 in the Master's degree
examination. We have earlier held that the power to relax, as the ordinance now
runs, in so far as high second class is concerned, does not exist. Inevitably,
the appointment of the 3 respondents violate the ordinance and are therefore,
illegal. It is true, as counsel for the respondent urged, that the 'selection
Committee is an expert body. But their expertise is not in law, but in other
branches of learning and the final interpretation of an ordinance is a legal
skill outside the academic orbit.
Rulings of this Court were cited before us to
hammer home the point that the Court should not substitute its judgment for
that of academicians when the dispute relates to educational affairs. While
there is no absolute ban, it is a rule of prudence that courts should hesitate
to dislodge decisions of academic bodies. But university organs, for that
matter any authority in our system, is bound by the rule of law and cannot be a
law unto itself If the Chancellor or any other authority lesser in level
decides an academic matter or an educational question, the Court keeps its
hands off; but where a provision of law has to be read and understood, it is
not fair to keep the Court 912 out. In Govinda Rao's case (1) Gajendragadkar, J
(as he they was) struck the right note:
"What the High Court should have
considered is whether file appointment made by the Chancellor Had contravened
any statutory or finding rule or ordinance, and in doing so, the High Court
should have shown due regard to the opinions expressed by the Board and its
recommendations on which the Chancellor has acted." (Emphasis added) The
later decisions cited before us broadly conform to the rule of caution sounded
in Govinda Rao. But to respect an authority is not to worship it
unquestioningly since the bhakti cult is inept in the critical field of law. In
short, while dealing with legal affairs which have an impact on academic
bodies, the views of educational experts are entitled to great consideration
but not to exclusive wisdom.
Moreover, the present case is so simple that
profound doctrines about academic autonomy have no place here.
A strange submission was mildly made that the
Executive Council has also the power to make ordinances and so, by accepting a
low second class has equal to a High second class in the case of the three
respondents, the Council must be deemed to have amended the ordinance and
implicitly re- written it to delete the adjective 'high before 'second class.
This argument means that an illegal act must be deemed to be legal by reading a
legislative function into an executive action. Were this dubious doctrine
applied to governmental affairs and confusion between executive and legislative
functions juris prudentially sanctioned, the consequences could Well be
disastrous to the basics of our democracy We mention this facet of the argument
not only to reject it but to emphasize that small gain in some case should not
justify the urging of propositions which are subversive of our Constitution Be
that as it may, we are satisfied that respondents 5, 6 and 8 do not possess a
high second class in their Master's degree.
The second condition successfully urged
before the single judge of the High Court relates to Dr. Bhattacharya (R. 9).
The point is that R. 9 and petitioner No. 2 for selection the second Petitioner
lost his chance of being considered because he did not appear for the interview
and Dr. Bhattacharya averted that fate because he was sent for a second time.
The equivocal version of Dr. Bhattacharya 913 has not been accepted by the
learned single Judge and we are unhappy that an academic has been put to the
necessity of this dubiety which suggests that taking liberties with truth for
getting a temporary advantage is a tendency which does not spare highly
educated and gifted persons. In this connection, even the terminological
inexactitude indulged in by Dr. Hem Lata Joshi (R. 5) is not complimentary,
when she says that in her application she gave 54 marks as against the actual
figure of 52.2 and when challenged, she excused herself by saying that her
memory, working in a hurry, let her down. We are satisfied that if the
Selection Committee had chosen to give an opportunity to the 2nd petitioner,
even as they did to R. 9, he might well have turned up and having regard to his
high marks, might also have stood a good chance of being selected. The
criticism is not that the Selection Committee's action was mala-fide or
biassed, but that there has been unequal treatment between equals. For this
reason, the selection of R. 9 deserves to be struck down as violative of Art.
14.
Other minor points which have been urged and
countered do not deserve serious consideration and we decline to deal with
them. The conclusion we reach is that the selection and appointments of
respondents 7 and 10 are good; but the selection and appointment of respondents
5, 6, 8 and 9 are bad in law.
The tragic sequel cannot be dismissed as none
of our concern because the Court, by its process, must, as far as possible, act
constructively, minimising the injury and maximising the benefit. Indifference
to consequences upon institutions and individuals has an imperial flavour and
we wish to make it clear that the fact that since 1973 the respondents 5, 6, 8
and 9 have been functioning as Readers without blemish is a factor which
distresses us when we demolish their appointments. They have gained experience
of several years in the Reader's post. They are otherwise well qualified on the
academic side. The short-fall in the matter of a high second class, while some
of them have been doctorates, should not have such disastrous consequences as
to throw out the appointees 7 years after. We think that these special
circumstances may well justify the appropriate authority in the University
resorting to alternatives which may mitigate their misfortune. We have been
informed by counsel Mr. Manoj Swarup that the University is inclined to take an
accommodative attitude to mitigate the hardship that may flow from the
adjudication. Of course, they are free to take such steps as they deem just and
necessary. We do not think there was anything wrong in Dr. Bhattacharya having
been persuaded to come to the interview, but we regard it as improper that such
a facility was not extended to the 2nd petitioner.
914 In conclusion, we allow the appeal and
direct a fresh selection from among those candidates who are qualified for
Readership in the light of our interpretation of Ordinance
9. We make it clear that the appointments of
respondents 7 and 10 sustained by the High Court, will remain untouched.
The appeal is allowed subject to the
observations made above.
S.R. Appeal allowed.
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