Kumar Bar Das Vs. Utkal University & Ors  INSC 589 (3 December 1998)
V.Manohar, K.Venkataswami, M.Jagannadha Rao M.Jagannadha Rao.J.
appellant, Dr.Kumar Bar Das has filed this appeal against the judgment of the
High Court of Orissa dated 30.9.1993 in O.J.C. No. 1910. By that judgment, the
High Court dismissed the said writ petition filed by the appellant challenging
the orders of the Chancellor of the Utkal University dated 21.5.1990. The Chancellor, by
the said order, had set aside the appointment of the appellant dated 3.2.1990
as Porfessor of Economics (State Bank of India chair) (hereinafter called SBI
Chair), holidng that the recommendation of the Selection Committee dated
29.2.1984 was invalid. The said order was passed by the Chancellor on a
representation filed by the 5th respondent, Dr. (Mrs.) Bedabati Mohanty. The
Chancellor, after setting aside the appointment of the appellant further
directed that the Vice-Chancellor/Syndicate shall re-advertise the post and conduct
the selection afresh to fill up the vacancy to the post of Professor (SBI
Chair). The 5th respondent, being aggrieved by the order of the Vice-Chancellor
dated 21.5.1990 in so far as it directed re-advertisement, filed OJC No. 2144
of 1990 of 1990. The High Court by the same common judgment, while upholding
the order of the Chancellor to the extent it set aside the appointment of the
appellant allowed the 5th respondent's writ petition OJC No. 2144 of 1990 and directed
that she, being the next person in the panel prepared by the Selection
Committee, be appointed as Professor of Economics (State Bank of India Chair).
appellant, therefore, filed a separate SLP)Civil) No....(CC 7855 of 1998)
questioning the judgment of the High Court dated 30.9.1993 in OJC No.2144 of
1990 to the extent it set aside the orders of the Chancellor directing
re-advertisement and directing the appointment of the 5th respondent. There is
also an application for condonation of delay. In that SLP notice had not been
issued but it has been pasted before us.
facts of the case are as follows. The State Bank of India (hereinafter called
the 'SBI') created an Endowment for creation of a Chair called "State Bank
Chair in Rural Economics", with an investment of Rs.6 lakhs in favour of
the Utkal University so that with the interest accruing from the said amount,
the salary of a professor and 2 Research Associates to the Chair, could be met.
We are not concerned with the various terms of the endowment except those
relating to the selection and appointment of the aprofessor and a few toher
relevant provisions. It is stated in clause 2 of the amendment that the main
objective of the endowment is 'to promote research' in the applicability in the
field of Rural Economics which can be utilised for development of rural and
tribal areas. Clause 13 of the endowment is titled 'Emphasis on Research' and
states that as the main objective in creating the Chair is to promote research
in the fields mentioned above, the professor's teaching and other assigments in
the University shall be such as to provide him sufficient time for independent
research. Clause 14 is titled 'Selection of topics of Research' and states that
the topics for research work to be undertaken by the Chair will be selected in
consultation with the Bank. Thus, the emphasis for the Chair is mainly
'research' in Economics.
to the mode of appointment of Professor to the Chair, this is contained in
clauses 8, 9, and 10 of the endowment. They read as follows:
8: Appointment of Professor to the Chair: The University shall take steps to
ensure that the Chair does not remain vacant ordinarily for more than six
months at a time.
9: Selection Procedure of Professor and other Staff: The procedure for
selection of the Professor to the Chair would be made as followed by the
University in other cases for appointment of Professor of similar status. The
Bank shall be associated with the selection of the Professor. Regarding the 2
Research Associates, the University would advise the Bank their names and
10: The initial terms of the incumbent of the Chair will not exceed five years
and will be renewable for further periods as may be decided by the
University." clause 11 deals this terms of appointment of the Professor.
It says that the Professor would be subject to all the rules and regulations of
the University as any other Professor in the University etc.
after creation of this Endowment by the SBI, the Utkal University advertised the post on 18.5.87. clause
10 of the advertisement, upon whose interpretation the entire case depends,
reads as follows:
10: Essential Quallifications:
: An eminent scholar with prescribed work of high quality, actively engaged in
ten years experience of teaching and/or research and experience of guiding
research at doctoral leave OR An outstanding scholar with established requtation
who has made significant contribution to knowledge.
For the post of Professor (SBI Chair), 14 candidates applied, 13 candidates
were called for interview and 8 of them appeared at the interview. The
appellant and the 5th respondent were among them. The appellant's application
is dated 30.6.1987. The selection Committee's proceedings dated 29.12.1989
stated that "Taking into consideration the academic record, teaching
experience, research activities, teaching experience of the candidates and
their performance at the interview, the Committee recommends in order of
preference:-- (i) Dr. Kumar Bar Das (ii) Dr. (Mrs.) Bedabati Mohanty." In
other words, the appellant was placed at No. 1 while the 5th respondent was
placed at NO. 2.
the Syndicate of the University approved the same on 2.2.1990 and directed
appointment of the appellant. Consequently the appellant was appointed as
Professor (SBI Chair) on 3.2.1990. The appellant gave his joining report on
it appears that the 5th respondent filed a representation before the Chancellor
of the University in February, 1990 stating that the appellant was not eligible
to be considered for the post of Professor as he had only 7 years and 7 months
of teaching experience on the date of his application though the required
period was 10 years. On that a show-cause notice was issued in April, 1990 by
the chancellor to the appellant stating that on a "preliminary enquiry and
on scrutiny of the papers, it was found that the appellant had only 7 years and
8 months of teaching experience by the last date of application and no
outstanding academic career and, as such, the appellant could not be said to be
eligible for consideration to the post of professor as per qualification
prescribed in the advertisement for the post and in the UGC (qualification
requires of a person to be appointed to the teaching staff of a University and
other institutions affiliated to it) Regulations. 1982 which stipulates the
minimum qualification for appointment to the post of Professor as follows:
eminent scholar with published work of high quality, activity engaged in
research, About ten years of experience of teaching and/or research and
experience of guiding research at doctoral level; or An outstanding scholar
with established reputation who has made significant contribution to
knowledge." The show-cause notice further stated that the appellant was
awarded 4 marks under the heading 'teaching experience' which was not in
conformity with the provisions contained in Schedule 'A' of the Orissa
Universities Employees (Conditions of Service) Statutes, 1988 and had he not
been awarded such marks deviating from the principles of marking provided in
the Statute above-stated, the merit list of the candidates would have been
materially affected. The Chancellor, in exercising his powers under section 5(10)
of the Orissa Universities Act, 1983 asked the Syndicate to show cause why its
decision appointing the appellant should not be annulled. A copy of the same
was sent to the appellant for his statement in writing.
the Syndicate sent its detailed explanation and so did the appellant. We shall
advert to the details thereof at the appropriate stage.
Chancellor rejected these replies and passed orders on 21.5.1990 annulling the
appellant's appointment on the ground that the appellant was ineligible. He
the appellant was not eligible to be considered for the post inasmuch as by the
date of application as per the essential qualifications mentioned in the
advertisement and the minimum qualifications set out in UGC Regulations 1982.
that in contravention of the provisions mentioned in the Schedule 'A'
prescribed under Statute 5 of the Orissa Universities Employees (Conditions of
Service) Statutes, 1988 (then in force), the appellant had been awarded 4 marks
under the heading 'teaching experience'.
that had the illegality mention in para (ii) above was not committed, the
select list of the candidates would have been materially affected." The
further reason (iv) given by the Chancellor concerns the 5th respondent. It
says that there was lapse in "awarding marks to the candidates including
the candidate in the 2nd position" i.e. 5th respondent", under the
heading "teaching experience" without reference to the Honours and PG
teaching experience as provided in Schedule A of the Statutes. Thus the
Chancellor found that the mistake was common to the selection of the appellant
as well as the 5th respondent. Consequently the Chancellor set aside the
appointment of the appellant and directed fresh advertisement. It may be
noticed that the Chancellor did not conclude that, in addition, the appellant
did not have an 'outstanding career', though such a reason was mentioned in the
earlier show-cause notice.
the above order of the Chancellor, the appellant filed OJC No. 1910 of 1990
while the 5th respondent filed OJC No. 2144/90 in so far as the direction for
fresh advertisement was concerned. As already stated, the High Court by
judgment dated 30.9.1993, dismissed the appellant's writ petition and allowed
the one filed by the 5th respondent.
appellant contended in the High Court that his experience was in fact 9 years
and 1 month and not 7 years and 8 months as stated in the show cause notice.
The award of 4 marks to the appellant was right inasmuch as the appellant had
research experience at the pre-doctoral stage as Junior research scholar from
June 1978 to November 1979, teaching experience from November 1979 to
September, 1984, and as Reader from September 1984 till date of application,
30.6.1987. The total Research experience by date of application was 1 year, 5
months and 14 days and teaching experience by that date was 7 years, 7 months
and 14 days in all 9 years and 28 days, which came within the word "about
10 years teaching and/or research experience" as mentioned in the
Division Bench of the High Court held that assuming that the appellant had
experience of 9 years and 1 month, which assertion was disputed by the
University and the 5th respondent- it could not be said that the appellant had
'about' ten years of experience. On the contrary, at the most, it could be said
that he had 'about 9 years' of teaching experience on the date of application
but not 'about 10 years'. The High Court further held that "there is no
material in support of Kumar Bar's plea that he had acquired 9 years and 1
month experience. ON the contrary, materials considered by the Selection
committee and the Chancellor would show that it was 7 years and 8 months and
hence appellant was 'not eligible'.
held that the appellant was not eligible, the Division Bench of the High Court
proceeded to go into the teaching experience of the 5th respondent. There was a
difference of opinion between the two Judges. The matter was then referred to
the third Judge. He held that the 5th respondent had enough teaching experience
and the Chancellor was not right in holding her ineligible and that too without
giving notice to her. Consequently, the High Court held that the 5th respondent
was eligible and her writ petition OJC No. 2144/90 stood allowed.
this appeal against the judgment of the appellant's writ petition OJC 1910/90
we have heard elaborate submissions of Sri Rakesh Dwivedi, learned senior
counsel for the appellant and of Sri Pramod Dayal and Sri Vinoo Bhagat, learned
counsel for the respondents.
points that arise for consideration are:
the appellant was not eligible to be appointed as Professor (SBI Chair) on the
basis of the qualifications possessed by him as on the last date for filing
1:- It will be seen
from the statement of facts that the show-cause notice issued in April, 1990
proceeded on the footing that
appellant had only 7 years, 8 months as teaching experience as on the last date
for filing application and also that
did not have an 'outstanding career' and therefore was not eligible to be
appointed as Professor. But in the impugned order of the Chancellor, it is not
stated that the appellant was ineligible on the ground that he had no
'outstanding career'. In our opinion, it is clear that in view of the elaborate
explanation given by the Syndicate and the appellant before the Chancellor and
the material produced by them, the Chancellor was satisfied that the appellant was
possessing an 'outstanding career'. Learned counsel appearing for the
University and the Chancellor made some attempt to contend that the appellant
did not have an 'outstanding career' but we cannot permit them to raise this
question in this appeal. It does not arise out of the Chancellor's order. We
may also state to the credit of the learned counsel for the 5th respondent that
he stated that he was not arguing that the appellant did not possess an
leaves us to consider the sole question whether the appellant was not having
"about ten years experience of teaching and/or Research" as mentioned
in clause 10 of the advertisement which qualifications, as per the show cause
notice, are also the qualifications required by the UGC Regulations, 1982. We
may here point out that the show cause notice refers to the UGC regulations as
also the advertisement as requiring about 10 years experience.
the course of arguments, learned counsel for the University sought to raise a
point that the candidates must have a minimum of 'full 10 years' of teaching
experience as per the "qualifications prescribed for Recruitment to the
teaching posts" accepted by the University Administration on 29.1.1976,
which in its turn was based on the recommendations of a Committee of Professors.
We find that no such point was argued in the High Court and therefore we cannot
allow this point to be raised for the first time in this appeal.
the order of the Chancellor in para (i) referred to earlier, speaks of
ineligibility of the appellant as per the "advertisement and the UGC
Regulations, 1982 " regarding the need to have 'about 10 years etc.'
experience. So far as the mode of awarding a marks towards 'teaching marks' is
concerned, the chancellor stated that that was in contravention of Schedule A
prescribed under Statute 5 of the Orissa Universities Employees (conditions of
Service) Statute, 1988 (then in force). This is another reason as to why we
should not permit the learned counsel for the university to arise a question
that the requirement is of 'full ten years' experience (and not 'about 10
we advert to the reasons as to why, according to us, the order of the
Chancellor is bad in law, we have to refer to the constitution of the Selection
Committee and the high qualifications of the experts. We shall then also refer
to the elaborate reply submitted to the Chancellor by the Syndicate on
the Selection Committee consisted of eminent persons, namely, Dr. T.Pradhan,
Vice-Chancellor; Dr. G.S.Das, director; Higher Education, (who is an eminent
Economist); Dr. (Mrs.) Shiela Balla, Expert (Chancellor's nominee) J.N.U.
University; Prof. P.Kumar; Export and Former V.C. of Calcutta Unitersity and
Mr. N.Muranjan, Representative of S.B.I., Bombay, Obviously it was their view
that the appellant was eligible and that he satisfied all the requirements for
selection and that he should be placed at Serial No. 1.
reply of the Syndicate, the basis of the eligibility and reasons which must
have prompted the selection Committee to select the appellant have been
explained, - namely that the experience of the appellant was not 7 years and 8
months but was 'about 10 years' i.e.9 years and 1 month. The Syndicate pointed
out in its reply that so far as this Chair was concerned, the emphasis was more
on 'research'. It stated that the Selection Committee, on the basis of the
Schedule 'A' under Statute 5 of University Statutes, had issued a proforma
under six heads namely General career, Research degree, Teaching experience,
Research publications, Viva-voce and CCR carrying 90 marks in the aggregate.
These headings did not correspond to the qualifications laid down in clause 10
of the advertisement because there was no column there regarding experience in
research. But, as per the advertisement, the essential qualification in the
advertisement was 'about 10 years experience of teaching and/or research",
that is both research and/or teaching. The proforma did not assign any marks to
research experience though the advertisement required that the candidates could
be selected on the basis of their research experience also. The proforma
proceeded on the assumption that 10 marks were meant only for teaching
experience, likewise the Schedule 'F' under Statute 258 referred to teaching
experience covering only Honours and P.G. classes. There was no division of
marks as between Honours and for P.G. In addition for the SBI chair in Rural
Economics, experience in Institutional Finance, publication of some research
works of high standard in the field and experience of guiding research work in
the subject of institutional finance, were also desirable qualifications.
Syndicate pointed out that the Selection Committee awarded to the appellant, 16
out of 19.5 marks in General career, 8 out of 10 in Research publications, 18
out of 25 in Viva voce. The 5th respondent was awarded only 15,6 and 12 in
respect of these items. All candidates were awarded 10 marks out of twelve for
research degree. The 5th respondent got 10 out of 10 for 'teaching experience'
whereas appellant got 4 marks only. The Syndicate pointed out that the
contention of the 5th respondent that the appellant should have been awarded
zero marks for 'teaching experience' was based on a misinterpretation of the
conditions of the advertisement. It was not stated in the advertisement that a
candidate for the post of professor should possess a minimum of 10 years'
other hand, the advertisement stated that one should have 'about 10 years'
teaching and/or research experience.
appellant was admittedly doing research as Junior Research Fellow in Presidency
College, Calcutta from June 1978 to Nov. 1979 (for one year, 5 months and 14
days) and adding the same to the teaching experience of 7 years 7 months and 14
days, the total experience in teaching and research would come to 9 years 1
month and this the experts opined was about 10 years. The formate speaks of
teaching experience for Honours and P.G. classes. The appellant had 4 years
teaching experience in P.G. classes at Ravishankar University, Raipur and thereafter in the Department of Economics, Utkal University. He had Honours teaching experience of about 4 years in Spat College, Rourkela. On the other hand, the 5th
respondent had given on details of her teaching experience in the application
form. She had merely stated she had experience of about 23 years under the
Government of orissa in Education Department. She had not specifically stated
the names of institutions in which she had taught or whether, during this period,
she had thought only at the Intermediate level or at the Honours and Post
Graduate Stages. Again the appellant had Research experience and was guiding
research work for Ph.D degree while the 5th respondent had left col. 14 blank.
Further, the 5th respondent gave only a list of 5 publications in local papers
and she published only and paper in the Indian Cooperative Review. On the other
hand, the appellant had given a list of 28 publications most of which were
published in Standard All India Journals. The appellant had specialised in
international and Regional Economics and did his Ph.D in 'Economics of Indian
Cement Industry'. The 5th respondent had not indicated her specialisation nor
the subject of her Ph.D thesis. She merely stated that she had published a
special paper in 'International Trade in M.A.Career and that she specialised in
Small Scale Industries at the Research stage. According to the Syndicate, all
these facts obviously weighed with the Selection Committee. Further, in all 8
candidates were interviewed and the Selection Committee must have got an
overall view of comparative merit. The appellant had secured M.A. in Economics
in 1977, he joined as a Lecturer in Nov. 1979, he attended Summer Institutions,
and Conferences and Workshops in Holland in 1980, in UK in 1981 and in Germany & Italy in 1984. The Syndicate observed
that there was defect in the proforma. It observed:
view of the that the advertisements wanted about 10 years experience in
teaching and/or research and the Proforma in Schedule 'F' under Statute 258
wanted only Honours and P.G.Teaching, award of four marks for experience
wrongly headed as "teaching experience" in the proforma does not
appear to be an improper assessment........ The Selection Committee might have
clubbed there two items under teaching experience." The Syndicate stated
that the subjective considerations which weighed with the experts in assessing
teaching/research experience were known only to the Vice-Chancellor and the
Director of Higher Education. They referred to the Judgment of the Supreme
Court in University of Mysore vs. Govinda Rao [1964 (4) SCR 575] which stated that the
views of experts in the subject ought not to have been lightly interfered with.
view, having regard to the high qualifications of the experts and the reasons
furnished by the Syndicate as being the obvious basis of the experts' opinion,
the Chancellor ought not to have interfered with the view of the experts. The
experts' views are entitled to great weight as stated in University of Mysore vs. Govinda Rao (supra), J.P.Kulshrestha vs. Chancellor. Allahabad University [1980 (3) SCC 418], Neelima Misra vs. Harinder Kaur Paintal
[1990 (2) SCC 746], Osmania University vs. Abdul Rajees Khan [1997 (3) SCC 124].
opinion, the Chancellor cannot normally interfere with the subjective
assessment of merit of candidates made by an expert body unless mala fides or
other collateral reasons are shown. In Neelima Misra's case, above referred to,
this Court observed, referring to the powers of the Chancellors in matters of
appointment of Professors/Readers as being purely administrative and not
quasi-Judicial. It was further stated:
Chancellor, however, has to act properly for the purpose for which the power is
must take a decision in accordance with the provisions of the Act and statute.
He must not be guided by extraneous or irrelevant considerations. He must not
act illegally, irrationally or arbitrarily. ........ any such illegal,
irrational or arbitrary action or decision .... is liable to be quashed as
being violative of article 14 of the Constitution of India." In the
present case, the Chancellor falled to notice that the advertisement and the
UGC Regulations - even as pen the show cause notice - referred only to
"about 10 years experience in teaching and/or research". Hence, it
was necessary to take into account not only the teaching experience but also
the research experience. The proforma which mentioned the marks under each of
the six heads did not unfortunately refer to the research experience though the
advertisement did. Hence the Chancellor committed an illegality in omitting the
research experience of 1 year and 5 months out of consideration. If the
research experience of 1 year and 5 months and 14 days were added, the total
teaching & research experience of the appellant would come to 9 years 1
month. It was not sufficient for the chancellor to just go by the proforma
inasmuch as the advertisement did refer to research experience also apart from
the teaching experience.
doubt, in clause 9 of the Endowment, it was stated that the procedure for
selection would be the same as followed for Professor's selection. This in our
view was referable merely to the procedure. If the advertisement stressed on
the research experience also and not merely the teaching experience, the column
in the proforma for awarding marks when it referred to 'teaching experience'
has to be treated as one meant to cover teaching and research experience. The
Selection Committee and the Syndicate followed the right procedure but the
Chancellor's went wrong in confining himself to the actual language of the proforma
and in omitting to give effect to the words and/or research experience
contained in the advertisement and the UGC Regulations. This, in our view, is a
clear illegality in the order of the Chancellor. The High Court ought to have,
therefore, come to the rescue of the appellant and set right the illegality.
as the contention the even 9 years and one month does not amount to "about
10 years" We are of the view that this cannot and should not, as contended
by the learned senior counsel for the appellant, be measured on the basis of a
purely mathematical formula. The High Court has referred to Cross vs. Eglin
 (2) B. & Ad. 106 and The Re Harrison and Micks, Lambert & Co.
1917 (1) KB 755 as to the meaning of the word 'about'. These are cases dealing
with contracts of sale of goods and deal with the meaning of the word 'about'
in connection with quantity of goods to be supplied. The High Court has also
referred to Morris vs. Levison  CPD 155 [34. L.T.576]. That case again
deals with the amount of Cargo to be carried out the matter of carriage of
goods by sea and as to what extent the carrier can be said to have performed
his contract. These cases, in our view deal with the usage in commercial
transactions and cannot be of any relevance to interpret the condition of
eligibility of a candidate for appointment of a 'Professor in a University.
Here we are concerned with view taken by experts in the Selection Committee and
as to whether experience of 9 years and 1 month falls within the word 'about 10
years'. On the facts of the case, it was for the Selection Committee to
consider whether the appellant's case fell on the right side of 'about 10
years'. After all they were considering the total length of experience both in
teaching and research and in conjunction with his other qualifications to find
out whether he can occupy the post of Professor, a post which was merely one
concerned with research in Economics.
view, the opinion of the experts in the Selection Committee must be taken to be
that the appellant's teaching and research experience satisfied the above
condition of about 10 years". In fact the chancellor in his final order
did not expressly say that the period was not "about 10 years",
though such a view was expressed in the show-cause notice. He merely stated
that award of 4 marks towards 'teaching experience' was not justified. The
appellant did have teaching experience of 7 years 7 months and 14 days and
Research experience of 1 year 5 months and 14 days - in all 9 years 26 days and
the Selection Committee gave him 4 marks out of 10 on this score. Even
otherwise, if the view of the Chancellor was that the experience must be a
minimum of 10 years and therefore Zero marks ought to have been awarded to the
appellant toward 'teaching experience' we cannot agree. That would, in our
view, amount to ignoring altogether the words in the advertisement 'teaching
and/or research experience' and to exclude the period of 1 year 5 months and 14
the above reasons, we are unable to sustain the judgment of the High Court or
the order of the Chancellor.
judgment of the High Court is liable to be set aside and the writ petition OJCNo.
1910 of 1990 is entitled to be allowed and the order of the Chancellor quashed,
restoring the appointment of the appellant as Professor (SBI Chair).
1 is decided accordingly in favour of the appellant and against the 5th
2:- The question is about the nature of the relief to be granted to the
the above, it is clear that there is no question of the 5th respondent, who was
at serial No.2 in the Selection list, being continued as Professor (SBI Chair).
Obviously, she could not have been appointed unless the appellants' appointment
was cancelled. Now that we are restoring the appellant's appointment, the 5th
respondent's appointment in his place automatically falls to the ground as an
immediate consequence. It is not necessary for us to decide whether, if there
was a vacancy, a fresh advertisement was necessary or No. 2 in the select list
could be appointed.
argument was advanced by the learned counsel for the 5th respondent that even
if the appellant's appeal was allowed, the respondent's appointment would still
stand inasmuch as that was made pursuant to a mandamus issued in the
respondent's writ petition No. OJC 2144 of 1990. This argument cannot be
accepted in as much as once the appellant's appointment is restored, the
consequence is that there will be no vacancy. The mandamus in OJC No.2144 of
1990 automatically ceases to operate as a consequence of allowing the Civil
therefore, set aside the Judgment of the High Court and quash the Chancellor's
order and direct the restoration of the appellant as Professor (SBI Chair) and
also declare that, as a consequence, the 5th respondent ceases to be Professor
(SBI Chair) forthwith. In the circumstances, there will be no order as to costs
in the Civil Appeal. Point 2 is decided accordingly.
In as much
as the Civil appeal is allowed and the appellant restored to office and as a
consequence the 5th respondent is to vacate the office, there is no need to
pass any orders in the SLP filed by the appellant against the orders in OJC No.
2144 of 1990 because the mandamus granted therein automatically ceases to be
operative. Therefore, the orders of the High Court in OJC NO.2144 of 1990
automatically stand vacated as a consequence of allowing the Civil Appeal against
the judgment in OJC No. 1910 of 1990 and our quashing the order of the
Chancellor. No orders are necessary in the SLP. SLP is dismissed as
unnecessary, after condoning delay.