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Judgment
Honourable Mr. Justice Vinod K. Sharma
The Petitioner prays for issuance of a Writ, in the nature of Certiorari, to quash the appointment of the third Respondent, as Professor in Microbiology Department in Bharathidasan University, being arbitrary, illegal and unconstitutional, with a consequential prayer of issuance of a writ, in the nature of Mandamus, directing the Respondents 1 and 2 herein, to appoint the Petitioner with effect from Syndicate approval, and date of announcement of Selection i.e., 08.07.2005 with all monetary, and service benefits, and consequential relief.
The consequential prayer made by the Petitioner, is absolutely misconceived, this Court cannot direct appointment of a person, but can only direct, the State Authorities to consider for appointment, that too with prospective effect, in case Petitioner is eligible for such an appointment.
The Petitioner was working as Professor and Head in Mother Teresa Women''s University, Kodaikanal, while retaining her lien with Bharathidasan University.
The Petitioner applied for faculty position of Professor of Biotechnology. The qualification prescribed for the post in the advertisement were; an eminent scholar with public work of high quality actively engaged in research with ten years of experience in 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 service reputation who had made significant contribution to knowledge.
The Petitioner passed B. Sc., Special Botany in 1978, and completed her M. Sc., Botany in 1980, and M. Phil., in 1983, and thereafter was awarded Doctorate degree in Microbiology in 1988, and FABMS in Biomedical Science in 2001.
The Petitioner joined as Lecturer in 1991 in Madurai Kamaraj University. In 1994, she joined as Lecturer with the Bharathidasan University, and was designated as Senior Lecturer in 1998.
The Petitioner, thereafter, joined as Professor, and Head in Mother Teresa Women University in 2004, while retaining her lien with the Bharathidasan University. During the period of lien, she joined back the Bharathidasan University again.
In the advertisement, it was directed, that employed candidate was to submit applications through proper channel. The Petitioner, treating herself to be an employee of the Respondent University, having lien on the post, applied directly to the University. The Petitioner also applied through Mother Teresa University, but, the application form was not forwarded to the Selection Committee.
The Petitioner was under the impression, that her candidature for appointment was not considered, for want of application through proper channel, but, it is not disputed now, that her application was accepted; she was interviewed, and considered for appointment, but could not be selected, as the third Respondent was selected and appointed to the post.
The Petitioner challenges the selection of the third Respondent on the following grounds:
i. that the Petitioner has better merit than the third Respondent;
ii. that the Constitution of Selection Committee was not according to Section 44(A) of the Bharathidasan University Act, 1981;
iii. thataction in selecting the third Respondent is totally arbitrary and therefore, violative of Article 14 of the Constitution of India.
In the counter to the writ petition, a preliminary objection, was raised, that the writ petition is not competent, on the ground of availability of alternative remedy, u/s 10(3) of the Bharathidasan University Act, 1981.
On merit, the writ petition is contested, on the ground, that the case of the Petitioner was considered along with others, by a duly constituted Committee. She could not make the grade, and now is estopped to challenge the constitution of the Selection Committee or criterion fixed for selection.
The Selection Committee was constituted, as per the provisions of Section 44(A) of the Bharathidasan University Act 1981, which reads as under:
There shall be Selection Committee for making recommendations to the Syndicate for appointment to the posts of Professor, Assistant Professor, Reader, Lecturer and Librarian of institutions maintained by the University.
The Selection Committee for appointment to the posts specified in column (1) of the Table below shall consists of the Vice-chancellor, a nominee of the Chancellor a nominee of the Government and the persons specified in the corresponding entry in column (2) of the said Table and in the case of appointment of a Professor, Assistant Professor, Reader or Lecturer in a Department. Where there is no Head of the Department, shall also consist of a person nominated by the Standing Committee on Academic Affairs from among its members.
THE TABLE
(1)
(2)
Professor, Assistant, Professor or Reader
(i) the Head of the Department if he is a Professor;
(ii)One Director or a Dean or a Professor to be nominated by the Vice Chancellor
(iii) Three persons not in the service of the University, nominated by the Syndicate, from out of a panel of names recommended by the Standing Committee on Academic Affairs for their special knowledge of or interest in, the subject with which the Professor, Assistant Professor or Reader will be concerned.
In support of the grounds, the learned Senior Counsel for the Petitioner contended
i. that the Petitioner passed M. Sc., M. Phil., and Ph.D., whereas the third Respondent passed M. Sc., and Ph.D., and thus, the Petitioner has a better qualification;
ii. that the Petitioner developed work in two technologies one for HBV detection and other for leprosy detection, whereas the third Respondent did not develop any such technology;
iii. that thepetitioner was one of the Member of the investigated group under the leadership of Dr. S.P. Thyagarajan, for development of patent and product commercialization (Plant Product for jaundice cure);
iv. that the Petitioner is recipient of two Awards and one Fellowship title given by Indian Association of Biomedical Scientists, which is not possessed by the third Respondent;
v. that the Petitioner as a Principal Investigator held a project for approximately one Crore funded by Department of Ocean Development, Government of India, New Delhi, whereas the third Respondent did not hold any project;
vi. that thepetitioner was guiding three research students whereas the third Respondent was guiding only one student and nobody under her guidance had submitted any synopsis;
vii.that the Petitioner had written a book and more than dozen articles in journals, whereas the third Respondent had less articles in journals with no book;
viii.that the Petitioner had an administrative experience having Professor and Head, Department of Biotechnology, whereas the third Respondent had none;
ix. that thepetitioner holds the additional administrative exposure and experience and the Petitioner had also been abroad for academic visits to three countries, whereas the third Respondent had been to only one country.
It is also pleaded that the third Respondent gave false information about the guiding two Ph.D., candidates under her guidance.
It is not necessary, to go to the comparative merit of the candidates, as the comparative merit of both the candidates is almost identical, and in any case, it was for the Selection Committee to evaluate respective merit.
It is well settled law, that this Court cannot substitute its opinion for the Experts. The Hon''ble Supreme Court in Dr. Basavaiah Vs. Dr. H.L. Ramesh and Others, , was pleased to lay down, that the Courts should show deference to recommendations of Expert Committee, particularly when no mala fides are alleged against experts constituting Selection Committee. The Court cannot sit in Appeal over decisions of experts, when the experts evaluated qualifications, experience and published work of candidates, and thereafter, recommended them for appointment.
In this case, the experts'' evaluated score sheet shows that the Selection Committee awarded marks under different heads i.e., Qualification, Additional qualification, including Special Training, PDF, Research Awards / Honours, experience of Teaching, Industry, Research Guidance for M. Phil., Ph.D., Publication of Papers, Major Research, Projects and Funds, Seminars i.e., National and Inter-national etc., and thereafter while evaluating the different works, awarded 42 marks out of 100 to the Petitioner, as against 56 earned by the third Respondent.
The contention of the learned Senior Counsel for the Petitioner, that marks was not correctively given cannot be gone into in this writ petition, nor it is for this Court, to see the comparative merit of each candidate, as this Court cannot substitute its opinion for that of experts.
The learned Senior Counsel for the Petitioner, thereafter, vehemently contended, that the post advertised was that of Microbiology and whereas, three persons to be nominated u/s 44(A) of the Bharathidasan University Act, 1981, were required to be of the same subject, as the Statute requires the persons to be nominated to have special knowledge or interest in the subject, with which the Professor / Assistant Professor or Reader is to be appointed.
The contention of the learned Senior Counsel, was that the special knowledge or interest has to be interpreted to mean the persons qualified in subject, as any other interpretation to Section 44(A) of the Act would render it unconstitutional. The Court therefore should endeavour to give the interpretation to Section, so as to be constitutionally valid. If this interpretation is followed, then no other conclusion than the one that the Selection Committee was not validly constituted can be arrived at.
The learned Senior Counsel for the Petitioner contended, that the members of the Selection Committee were not qualified, to conduct the interview, for the post of Professor of Microbiology, as Dr. Arun Balakrishnan was working at Center for Bio Technology, Anna University, Chennai, Dr. S. Karuthapandian is Professor and Head, Department of Bio Technology in Alagappa University, Karaikudi and Dr. P.P. Mathur is the Professor and Head, Department of Bio Chemistry and Molecular Biology and Co-ordinatory, Bio Informatics Center, Pondicherry University, Pondicherry, therefore, they cannot be said to be having special knowledge or interest in the subject of Microbiology. The Selection Committee was thus constituted, in violation of the Statutory Provisions of law. The selection made by the Committee, which was not as per Statute cannot be sustained in law.
In support of the contention, the learned Senior Counsel for the Petitioner placed reliance on the judgment of the Hon''ble Supreme Court in Dr. Triloki Nath Singh Vs. Dr. Bhagwan Din Misra and others, , wherein the Selection Committee consisting of panel of experts in Hindi Literature and not in Linguistics, was held to be bad in law in view of Section 31(5) and 66 of U.P. State Universities Act 1976.
The contentions of the learned Senior Counsel for the Petitioner were controverted to by the Learned Counsel for the Respondent Nos. 1 and 2, by contending, that Dr. Arun Balakrishnan was an outstanding Microbiologist and also Biotechnologist as per academic credentials and publications. Similarly, Dr. S. Karuthapandian though an eminent Biotechnologist is equally competent in Microbial studies. In fact, his own Ph.D., thesis was based on Microbiological studies from the reputed Microbiologist / Biotechnologist namely Dr. K. Dharmalingam of Madurai Kamaraj University. The other expert viz., Dr. P.P. Mathur is a specialist in Bioinfomatics, a field encompassing microbiology and Computational biology. Therefore, all the three experts were competent, to interview, and select the candidate for the post of Professor in Microbiology.
It was also the contention of the Learned Counsel for the Respondent Nos. 1 and 2, that the Petitioner though applied for the post of Professor in Microbiology, but was holding the post of Head of Department in Biotechnology at Mother Teresa Women University. This proves that these subjects are interchangeable.
It was also the contention of the Learned Counsel for the Respondent, that the Legislature in its wisdom used the word "Special Knowledge or Interest" u/s 44(A) of the Act. In case, the intention of the Legislature was to have experts in the subjects concerned, it could easily have been so mentioned, in the Section itself.
On consideration, I find force in the contentions raised by the Learned Counsel for the Respondent.
The Legislature in its wisdom used the word "Special Knowledge or Interest" to give scope to the Syndicate to constitute a Board / Selection Committee of experts having special knowledge, and interest in the subject concerned to properly assess the candidates.
The word used cannot be given restrictive meaning, as contended by the learned Senior Counsel for the Petitioner, nor the interpretation given by the University, in selecting the expert can lead to the conclusion that Section is ultra vires the Constitution, as contended.
It cannot be said, that the Constitution of Selection Committee of the persons having special knowledge of an interest in the subject, would defeat the object of selecting the right candidate. The legislative provision has to be given simple ordinary meaning, unless it leads to absurdity. If the ordinary English meaning to words is given, Section 44(A) of the Act does not lead to any absurd result, as contended.
The very fact, that the Petitioner was holding the post of Head of Department in Biotechnology, with qualification in Microbiology, can only strengthen the view of the Respondent, that no fault can be found with the constitution of the Experts Committee. The contention of the learned Senior Counsel for the Petitioner, therefore, that the Committee was in violation of the Statutory provisions of law cannot be sustained.
The Learned Counsel for the Respondent is right in contending, that the Petitioner, having participated in the interview, and having taken a chance, and after being unsuccessful, cannot challenge the selection on the principle of estoppel.
This finds support from the judgment of the Hon''ble Supreme Court in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , wherein it was held as under:
Before dealing with this contention, we must keep in view the salient fact that the Petitioners as well as the contesting successful candidates being Respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The Petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the Petitioners as well as the contesting Respondents concerned. Thus the Petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, it has been clearly laid down by a Bench of three learned Judges of this Court that when the Petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a Petitioner.
Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the Petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee
The learned Senior Counsel for the Petitioner also challenged the selection, by contending that the selection of the third Respondent, by ignoring the merit of the Petitioner, is arbitrary, and amounts to colourable exercise of power.
The contention of the learned Senior Counsel for the Petitioner, was that the allocation of mark was not properly done, as the Petitioner was wrongly given less marks, than the third Respondent, though she had better academic and professional qualification.
This contention of the learned Senior Counsel for the Petitioner, again, deserves to be noticed to be rejected, as already observed above, it is not in dispute, that the third Respondent is fully qualified, to hold the post, for which she has been selected. It is also not in dispute, that the Petitioner was interviewed, and considered along with the third Respondent. Merely because the Petitioner could not make the grade, cannot be a ground to hold, that the selection is arbitrary or stood vitiated. There are no allegations of mala fide against any of the members of the Selection Committee, and therefore, it is not for this Court, now, to assess the comparative merit of the candidates, to come to a different conclusion or to hold the selection to be arbitrary.
For the reasons stated above, there is no merit in the writ petition, which is ordered to be dismissed.
No costs.