K. Kusuma Kumari Vs.
N. Ananthaiah & Ors.  INSC 1693 (3 October 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6045 OF 2008 (Arising out
of SLP(C) No.14863 of 2007) B.C. Mylarappa @Dr. Chikkamylarappa ..Appellant
VERSUS Dr. R. Venkatasubbaiah and Ors. ...Respondents
TARUN CHATTERJEE, J.
appellant herein along with two other persons was appointed to the post of
`Research Assistant' in Sociology Department, Bangalore University (In short,
"the University") on or about 18th of October, 1988. The initial
appointment was for a period of three years provided however that the
continuance of the appointment will be on an year to year basis 1 subject to
the report of the Head of the Department concerned testifying to the
satisfactory work and conduct of the research during the year of review.
the appointment letter, it was also made clear that the appointment may be
extended by one year at a time for a further period of two years, depending
upon the progress of the research work.
The Clause 4 of the
appointment letter states as under :- "They will be required to do
tutorial work for 3 to 4 hours a week in addition to the research work approved
by the University."
9 of the appointment letter states as under :- "They should produce all
the original certificates pertaining to their qualifications, date of birth,
experience etc. at the time of reporting for duty to the Heads of the
Department concerned, for verification.
They should apply for
registration for the Ph.d. Degree to the Registrar, Bangalore 2 University,
Bangalore within two months after reporting for duty to do research work on a
selected subject and also abide by the regulations for the Ph.d Degree."
or about 12th of February, 1987, some persons, whose tenure appointment as
Research Assistants was coming to an end in 1986-87, made a representation on
12th of February, 1987 to the Chancellor, Bangalore University to regularize
them by promoting/upgrading the post of Research Assistants. In their
representation, the said persons submitted that during the tenure appointments
(three years extended to five years) have acquired sufficient experience in the
field of research and also teaching and they would be rendered jobless and put
to hardships if their appointments were terminated at the end of their tenures.
31st of October, 1988, the University framed a draft statute thereby providing
for absorption of Research Assistants as Lecturers as a one-time measure and
submitted it to the State Government for approval. By an order dated 19th of
October, 1991, the University directed that in regard to Research Assistants
who were appointed for three years and continued beyond that period, status quo
would be maintained by continuing their services until further orders or until
the Government takes a decision in regard to proposals of their absorption as
lecturers in the University. By a communication/order dated 3rd of November,
1992, the State of Karnataka returned the draft statute to the University
suggesting some changes. Again on 17th of February, 1993, the University
resubmitted the draft Statute after making necessary changes as instructed by
the State Government. On 4th of October, 1993, the Chancellor of the University
4 gave his assent to the said Statute and the Statute was called as the
"Conversion of certain posts of Research Assistants to that of Lecturers
and abolition of vacant posts of Research Assistants in various Departments of
Bangalore University (for short "Statute")".
aforesaid Statute was notified by the Registrar of the University on 8th of
November, 1993. The clauses which are relevant for the purpose of proper
decision of this appeal are as follows :- "3.1. As from the date on which
these Statutes shall come into force the posts of Research Assistants as
mentioned in Annexure `A' to these Statute shall stand converted to the posts
3.2. As from the date
on which these Statutes shall come into force all posts of Research Assistants,
which are vacant as on 13.11.1992, shall stand abolished and there shall be no
further appointment of Research Assistants in any of the Departments of the
3.4. The Research
Assistants holding the post as such and as mentioned in Annexure `A' to these
Statutes as on the 5 date on which these Statutes shall come into force shall
be eligible to be absorbed and appointed as Lecturers.
3.6. The Research
Assistants absorbed and appointed under the Statutes as Lecturers for the
purpose of seniority as Lecturers will rank below the Lecturer already working
in the University as on the date on which these Statutes shall come into
pursuance of the Statute, the Syndicate of the University passed a Resolution
on 18th of March, 1994 thereby absorbing 22 Research Assistants.
pursuance thereof, a common appointment order was issued on 21st of March, 1994
from which the relevant conditions are as follows :- "1. For the purpose
of seniority as Lecturers, they will rank below the lecturers already working
in the University and temporary lecturers now regularized.
2. Such of the
Research Assistants, who are absorbed as lecturers not possessing
Ph.D./Net/M.Phill qualification shall acquire Ph.D. /Net within a period of 3
years, failing which 6 they shall not earn their future increments, till they
acquire above qualifications.
6. The services as
Research Assistants will not be counted for the purpose of granting senior
scale and selection scale of pay."
an order dated 4th of August, 1994, the University ordered that the date of
appointment of the present appellant as Lecturer in Sociology be read as
`effective from 21.3.1994'. In the year 1995, the present appellant and some
other Research Assistants filed writ petitions before the High Court of
Karnataka, which were registered as Writ Petition Nos. 41710-41786 of 1995, in
which the writ petitioners made the following prayer :- "The petitioners
therein interalia sought for a declaration that Clause 3.6 and 3.8 of the
Statute are illegal and ultra-vires Article 14 of the Constitution; and also
for a declaration that Condition Nos. 1 & 6 of the appointment order dated
21.3.1994 are illegal and void.
therein also sought for a direction to the University to give the benefits if
their past services as Research 7 Assistants for the purpose of seniority in
their past services as Research Assistants for the purpose of seniority in the
cadre of lecturer and accord them consequential benefits...."
aforesaid writ petitions were taken up for final disposal by a learned Single
Judge of the High Court of Karnataka, who by his Judgment and order dated 12th
of April, 2000 allowed the writ petitions in part inter alia upholding the
validity of Clauses 3.6 and 3.8 of the Statute as well as Condition No. 1 of
the appointment order dated 21st of March, 1994. Further, it would be evident
from the Judgment of the learned Single Judge of the High Court that the
Condition No. 1, as noted here in earlier, of the appointment order dated 21st
of March, 1994 was cancelled.
aggrieved by the aforesaid Judgment and Order passed by the learned Single
Judge, the writ petitioners as well as the University and the State had
preferred appeals before the Division Bench of the High Court. By a Judgment
and order dated 7th of March, 2002, the Division Bench of the High Court
dismissed the appeal and allowed the appeals preferred by the State as well as
by the University. While passing such Judgment, the Division Bench made the
following conclusions :- "(i) It has been amply demonstrated that the
posts of Research Assistants are lower to the post of lecturers; and ii) A
Research Assistant's post cannot be equated with that of lecturers."
University thereafter issued a notification on 30th of September, 2002,
inviting various persons to apply for the post of Professor, Reader and
Lecturer in the University. In the said notification, the University invited
candidates for the post of Professors in which the following qualifications
were required :- 9 "An eminent scholar with published work of high
quality, actively engaged in Research with :
10 years of
experience of Post-Graduate teaching, and/or experience in research at the
University/National Level Institutions (including experience of guiding
research at Doctoral Level).
Or An outstanding
scholar with established reputation who has made significant contribution to
response to the said notification, various candidates including the appellant
and the Respondent Nos. 1 and 2 applied for the said post.
The last date of
submission of application was 23rd of October, 2002 on which date, the
appellant had completed 8 years, 7 months and 2 days i.e. from 21st of March,
1994 to 23rd of October, 2002. The Chairman, Department of Sociology, submitted
a "Scrutiny and Verification Report". In the said report, it was
stated as under :- 10 "....on my scrutiny, I am satisfied that the
candidate under reference fulfills all the requirements, as laid down in the
University Notification under reference and the candidate may be invited for
If the candidate is
not eligible, please furnish the details."
this Scrutiny and Verification Report, it appears that the Chairman found only
four persons eligible for the post and invited the appellant, respondent Nos. 1
and 2 and one other person for interview. A Board of Appointment in Sociology
Department of University was constituted by a notification dated 30th of
September, 2002 and the Board assembled for selection of candidates for the
post of Professor in Sociology. The Board of Appointment selected the following
persons in the order of merit :-
Chikkamylarappa (appellant herein)
Dr.R.Venkatasubbaiah (respondent No.1 herein)
3. Dr. C. Somashekar
(respondent No.2 herein)
4. Dr. I. Maruthi 11
this selection, the respondent Nos. 1 and 2 filed a writ petition before the
High Court seeking for a writ declaring the selection and appointment of
appellant to the post of Professor in the Department of Sociology. In the said
writ petition, the appellant filed its written objection and University also
had filed its objection. On or about 18th of June, 2003, the appellant was
appointed by an appointment order as a Professor in the Department of
Sociology. It would be pertinent to mention that although during the pendency
of the writ petition, the appointment order of the appellant was issued by the
University, but such appointment order was, however, never challenged in the
writ application even by way of an amendment to the writ petition in which the
only challenge was against the selection of the appellant.
By a Judgment and
order dated 31st of July, 2007, the learned Single Judge of the High Court had
allowed the writ petition filed by the respondent Nos. 1 and 2 herein and
thereby directed the University to readvertise the post and fill the vacancy in
accordance with law within a period of three months from the date of reply of
While setting aside
the selection of the appellant, the learned Single Judge, inter alia, concluded
as follow:- (1) The writ petitioners/respondent Nos. 1 and 2 confined their
challenge only to one aspect i.e. whether the appellant possessed the minimum
qualification as required.
(2) The appellant
could claim to be a Lecturer only with effect from 21st of March, 1994 and not
prior to it.
(3) In view of the
Judgment and order dated 7th of March, 2002, it would not be permissible to 13
reckon the services/experience rendered by the appellant as Research Assistant
in the University as a Lecturer in the same.
(4) Taking the said
dates into account, the appellant did not possess the stipulated qualification
set out in the notification i.e. 10 years of experience in post-graduate
teaching or the alternative. The appellant was selected with reference to the
number of years of teaching and not with reference to the qualification that he
was an eminent scholar with research experience and publications etc.
(5) The appellant was
ineligible for appointment to the post of Professor in the Sociology Department
of the University and hence could not have been appointed. His selection and
appointment, therefore, was arbitrary and illegal.
(6) The writ petition
survived for consideration despite the superannuation of the respondent 14 No.
1 herein and non-short listing of respondent No. 2.
is in this view, the learned Single Judge came to the conclusion that the
selection was improper, arbitrary and illegal and, therefore, his appointment
ought to be cancelled. Being aggrieved by the Judgment and order dated 31st of
July, 2007, the appellant preferred a writ appeal before the Division Bench of
the High Court. The Division Bench of the High Court, by its Judgment and final
order dated 6th of August, 2007 dismissed the appeal preferred by the appellant
inter alia on the following findings:- "(i) The question whether the
appellant's experience can be treated as research experience was not considered
by the Board of Appointment. It was not clear how the Board of Appointment
found the appellant eligible.
(ii) The question was
whether the experience of the appellant as Research Assistant can be treated as
equivalent to post-graduate teaching experience.
(iii) The High Court
in its Judgment and order dated 7.3.2002 had taken the view that the post of
Research Assistants was not equal to the post of Lecturer.
experience as Research Assistants could not be treated as equivalent to
post-graduate teaching experience."
on the aforesaid grounds, the Division Bench, by the aforesaid order, dismissed
the appeal of the appellant against which, the appellant filed this Special
Leave Petition in respect of which leave has already been granted and the
appeal was heard in presence of the learned counsel for the parties.
have heard Mr.Rama Jois, learned senior counsel appearing for the appellant and
Mr.Hrishikesh Baruah, learned counsel appearing for the respondents and also
examined the impugned judgment of the Division Bench as well as of the learned
Single Judge passed in the writ application in depth and in detail. Before us,
Mr. Rama Jois, learned senior counsel at the first instance submitted that the
High Court ought not to have interfered with the decision of the Board of
Appointment which comprised of experts for selection to the post of Professor
in the University as it was not for the court to go into the question whether
such selection was proper or not in the absence of any pleading that either the
Expert Body of the University or the University Authorities had acted mala fide
in the matter of selection of the appellant. Secondly it was argued by Mr.Rama
Jois, learned senior counsel for the appellant that the High Court also erred
in allowing the writ petition of the respondents by holding that having regard
to the wording of the prescription both the periods of experience in teaching
as Lecturer for a period of 8 years 7 months and 2 days and experience as
Research Assistant for a period of 5 years 5 months and 10 days ought to have
been taken into account and after taking into account the aforesaid period, the
High Court ought to have held that the appellant was eligible for being
selected as a Professor in the Sociology Department of the University and by
not doing so, the High Court erred in setting aside the appointment of the
appellant. In support of this contention, learned senior counsel for the
appellant had drawn our attention to a decision of this Court in the case of
Dr.Kumar Bar Das vs. Utkal University & Ors. [1999 (1) SCC 453] and argued
that this case squarely covered the case of the appellant which was also relied
on by the appellant before the High Court, but the High Court had failed to
take notice of that decision. Reliance was also placed by the learned senior
counsel for the appellant in the case of The University of Mysore vs.
C.D.Govinda Rao & Anr. [AIR 1965 SC 491] and National Institute of Mental
Health & Neuro Sciences vs. Dr.K.Kalyana Raman & Ors. [1992 Supp (2)
SCC 481]. Accordingly, learned senior counsel for the appellant concluded that
in view of the settled law and the law laid down by this Court particularly in
Dr.Kumar Bar Das (supra), the judgments of the Division Bench as well as of the
learned Single Judge are liable to be set aside. The learned counsel appearing
for the respondents, however, refuted the submissions so made on behalf of the
appellant. According to the learned counsel for the respondent, the Division
Bench as well as the learned Single Judge of the High Court were perfectly
justified in holding that the experience of the appellant as Research Assistant
could not be treated as equivalent to Post Graduate teaching experience and the
question whether the experience of the appellant could be treated as Research
experience was not considered by the Board of Appointment of the University.
Let us now deal with the question raised by the learned counsel for the
parties. As quoted herein earlier that requirement for selection in the post of
Professor in the Sociology Department of the University, 10 years experience in
Post Graduate teaching and/or experience in Research in the University was
necessary. It is not in dispute that the appellant had 9 years of service as
Lecturer and had done Research work for 5 years. Therefore, there cannot be any
dispute that he had satisfied that he had got the experience of 10 years in
Post Graduate teaching experience in Research in the University. It is also not
in dispute that the Board of Appointment of the University consisted of the
persons, who were experts academician as Head, found the appellant eligible for
such appointment, after scrutinizing the experience required for appointment to
the post of Professor in the said Department. He was interviewed along with
others by the Board of appointment of the Expert Body and found to be eligible
for appointment. The Syndicate of the University, which also consisted of
Academic experts had passed a resolution approving the appointment of the
appellant as Professor. This appointment of the appellant was challenged on two
grounds. Before we go into the two grounds, we may keep it on record that it
was the stand of the University before the High Court as well that the
appellant was duly qualified for appointment to the post of Professor. The
learned Single Judge while allowing the writ petition of the respondents,
however, reckoned the service of the appellant as Lecturer, but ignore to
consider the experience of the appellant as Research Assistant. It cannot be
disputed that these two experiences, namely, experience as Lecturer and
experience as Research Assistant, if counted, the eligibility of the appellant
for appointment to the post of Professor could not be questioned. In Dr. Kumar
Bar Das (supra), this court in detail had considered this aspect of the matter
and in the said decision, this Court observed that the opinion of experts in
the Selection Committee must be taken to be that the appellant's teaching and
Research experience satisfied the above conditions of 10 years as mentioned for
appointment to the post of Professor. In that case, this Court at para 27 at
page 462 observed as follows :
" In our 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
expert's views are entitled to great weight as stated in University of Mysore's
Para 28 of the said decision, this Court also observed :
"In our 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 case above-referred to, this
Court observed, referring to the powers of the Chancellors in matters of
appointment of Professors/Readers as 22 being purely administrative and not
the principles laid down in Kumar Bar Das vs. Utkal University (supra), this
Court also in the case of G.N.Nayak vs. Goa University & Ors. [2002 (2) SCC
712] considered this aspect of the matter and held at para 27 which are as
"A candidate can
club together his qualification of teaching and research to cover the 10 years'
period as has been held in Kumar Bar Das (Dr.) vs. Utkal University."
view of the aforesaid two decisions of this Court, as noted herein earlier,
which extensively dealt with the requirement to the post of Professor in the
University, we need not dwell in depth and in detail any further and therefore,
we must hold that the appellant had satisfied the qualifications required for
appointment to the post of Professor in the University. There is another aspect
of this matter which is also relevant for proper decision of this appeal. We
have already indicated earlier that the Board of Appointment was constituted
with experts in this line by the University Authorities.
They have considered
not only the candidature of the appellant and his experience as a Lecturer and
Research Assistant along with others came to hold that it was the appellant who
was the candidate who could satisfy the conditions for appointment to the post
of Professor. Such being the selection made by the expert body, it is difficult
for us to accept the judgments of the High Court when we have failed to notice
any mala fides attributed to the members of the expert body in selecting the
appellant to the said post. In University of Mysore vs. C.D.Govinda Rao &
Anr. [AIR 1965 SC 491], this Court while dealing with the selection of
candidates for academic matters by a Board of Experts appointed by the
University for the post of Readerand the recommendation of the Board, this
Court at Para 13 of the aforesaid decision observed:- "Boards of
Appointments are nominated by the Universities and when recommendations made by
them and the appointments following on them, are challenged before courts,
normally the court should be slow to interfere with the opinions expressed by
the experts. There is no allegation about mala fides against the experts who
constituted the present Board; and so, we think, it would normally be wise and
safe for the court to leave the decisions of academic matter to experts who are
more familiar with the problems they face that the courts generally can be.
The criticism made by
the High Court against the report made by the Board seems to suggest that the
High Court thought that the Board was in the position of an executive
authority, issuing an executive fiat, or was acting like a quasi- judicial tribunal,
deciding disputes referred to it for its decision. In dealing with complaints
made by citizens in regard to appointments made by academic bodies, like the
Universities, such an approach would not be reasonable or appropriate. In fact,
in issuing the writ, the High Court has made certain observations which show
that the High Court applied tests which would legitimately be applied in the
case of writ of certiorari. In the judgment, it has been observed that the
error in this case is undoubtedly a manifest error. That is a consideration 25
which is more germane and relevant in a procedure for a writ of certiorari.
What the High Court should have considered is whether the appointment made by
the Chancellor had contravened any statutory or binding rule or ordinance, and
in doing so, the High Court should have shown due regard to the opinion
expressed by the Board & its recommendations on which the Chancellor has
acted. In this connection, the High Court has failed to notice one significant
fact that when the Board considered the claims of the respective applicants, it
examined them very carefully and actually came to the conclusion that none of
them deserved to be appointed a Professor. These recommendations made by the
Board clearly show that they considered the relevant factors carefully and
ultimately came to the conclusion that appellant No. 2 should be recommended
for the post of Reader. Therefore, we are satisfied that the criticism made by
the High Court against the Board and its deliberations is not justified."
there is nothing on record to show any mala fides attributed against the
members of the Expert Body of the University. The University Authorities had
also before the High Court in their objections to the writ petition taken a
stand that the appellant had fully satisfied the requirement for appointment.
In this view of the matter and in the absence of any mala fides either of the
expert body of the University or of the University Authorities and in view of
the discussions made herein above, it would be difficult to sustain the orders
of the High Court as the opinion expressed by the Board and its recommendations
cannot be said to be illegal, invalid and without jurisdiction.
in M.V.Thimmaiah & Ors. vs. Union Public Service Commission & Ors.
[2008 (2) SCC 119], this Court clearly held that in the absence of any mala
fides attributed to the expert body, such plea is usually raised by an
interested party (in this case the unsuccessful candidate) and, therefore,
court should not draw any conclusion on the recommendation of the expert body
unless allegations are substantiated beyond doubt. That apart, the challenge to
the selection made by the expert body and approved by he University Authorities
was made by the respondent Nos. 1 and 2 who were unsuccessful candidates and
were not selected for appointment to the post of Professor in the Department of
National Institute of Mental Health & Neuro Sciences vs. Dr.K.Kalyana Raman
[1992 Supp (2) SCC
481], this Court considered in detail the role of an expert body in deciding
the candidature for selection to a particular post. While doing so, this Court
at Para 7 at P. 484 of the said decision observed as follows:
"In the first
place, it must be noted that the function of the Selection Committee is neither
judicial nor adjudicatory. It is purely administrative. The High Court seems to
be in error in stating that the Selection Committee ought to have given some
reasons for preferring Dr. Gauri Devi as against the other candidate. The
selection has been made by the assessment of relative merits of rival
candidates determined in the course of the interview of candidates possessing
the required eligibility. There is no rule or regulation brought to our notice
requiring the Selection Committee to record reasons.
In the absence of any
such legal requirement the selection made without recording reasons cannot be
found fault with. The High Court in support of its reasoning has, however,
referred to the decision of this Court in Union of India v.
Mohan Lai Capoor.
That decision proceeded on a statutory requirement.
Regulation 5(5) which
was considered in that case required the Selection Committee to record its
reasons for superseding a senior member in the State Civil service.
The decision in
Capoor case was rendered on 26 September, 1973. In June, 1977, Regulation 5(5)
was amended deleting the requirement of recording reasons for the supersession
of senior officers of the State Civil services. The Capoor case cannot,
therefore, be construed as an authority for the proposition that there should
be reason formulation for administrative decision.
authority is under no legal obligation to record reasons in support of its
decision. Indeed, even the principles of natural justice do not require an
administrative authority or a Selection Committee or an examiner to record
reasons for the selection or non-selection of a person in the absence of
statutory requirement. This principle has been stated by this Court in R. S. Dass
v. Union of India in which Capoor case was also distinguished."
this observation in our mind and considering the facts and circumstances of the
present case, we find that there was no dispute in this case that the selection
was made by the assessment of relative merit of rival candidates determined in
the course of the interview of the candidates and after thoroughly verifying
the experience and service of the respective candidates selected the appellant
to the post of the Professor in the said Department. It is not in dispute that
there is no rule or regulation requiring the Board to record reasons.
Therefore, in our view, the High Court was not justified in making the
observation that from the resolution of the Board selecting the appellant for
appointment, no reason was recorded by the Board. In our view, in the absence
of any rule or regulation requiring the Board to record reasons and in the
absence of mala fides attributed against the members of the Board, the
selection made by the Board without recording reasons cannot be faulted with.
we conclude, at the risk of repetition, we may reiterate that the Chairman,
Department of Sociology, University of Bangalore submitted his scrutiny and
verification report in which it was stated as under:
"On my scrutiny,
I am satisfied that the candidate under reference fulfils all the requirements
as laid down in the University Notification under reference and the candidate
may be invited for the interview. If the candidate is not eligible, please furnish
reading of the scrutiny report which was extracted by the learned Single Judge
in his order would clearly show that the Chairman found only four persons
eligible for the post and invited the appellant and the respondent Nos. 1 and 2
and one more candidate for interview. After being satisfied and after verifying
the report of the eligibility and the requirements for appointment to the post
of Professor in the Sociology Department of the University, the scrutiny and
verification report was filed by the Chairman and on the basis of which the
appellant was selected and appointed in the post of Professor in the
University. That being the position and in view of our discussions made herein
above, we are of the view that the Division Bench as well as the learned single
judge ought not to have exercised the writ jurisdiction and interfered with the
selection of the expert committee of the University for the reasons made in the
order and particularly when the selection of the appellant was not challenged
on the ground of mala fides.
the reasons aforesaid, we are inclined to set aside the orders of the High
Court. Accordingly the impugned orders of the High Court are set aside and the
writ petition filed by the respondents is hereby rejected. In view of the fact
that we have already found that the appointment of the appellant is legal, the
University is directed to re-instate the appellant within two months from the
date of supply of a copy of this order. The appeal is allowed. There will be no
order as to costs.
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