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Judgment
The petitioner is now a Reader in the Post Graduate Department of English, Jammu University. The array of parties as seen in the cause title is
as follows. The first respondent is the ViceChancellor of the University, the second respondent the University of Jammu through its Registrar, the
third respondent Prof of English and the fourth respondent Dr. Jitender Sharma. The prayer in the petitioner is for the issuance of an appropriate
writ quashing the appointment of the third respondent as a Professor of English in the Post Graduate Department of English, for a writ of quo
warranto to show how respondent No. 4 has been appointed as Reader in English and to issue a writ to quash Statute 5 of the Statutes governing
the service conditions of University teachers.
The petitioner's case is that his claim to be appointed as a professor in English was denied to his malafide because of the animosity the first
respondent bore against him. He states that he is more qualified than others who were sent for consideration before the Selection Committee and
that, he is an eminent scholar with distinguished teaching experience of over twenty three years. He was eliminated unjustifiably by the 1st
respondent against whom he had leveled serious charges which were the subject matter of a writ petition before this Court and the Supreme Court.
The screening exercise done by the 1st respondent is tainted with bias.
In the objections filed by the 1st respondent the allegations of malafide against him are denied The second and fourth respondents have also filed
objections. In the rejoinder affidavit filed by the petitioner the allegations against the 1st respondent are reiterated and his achievements are
highlighted again.
The fourth respondent is not interested in the petition now He was offered the post of Reader in English. He declined the offer since his terms
were not acceptable to the University. Therefore, the petition in so far as it relates to him has become infructuous.
Now the facts: The petitioner was appointed as Lecturer in 1961 in Govt. Agriculture College, R. S. Pura. On 29, 4.1966 he joined the post
Graduate Department of English Originally in the University of Jammu and Kashmir and subsequently in the post Gradudate Department of English
in the University of Jammu. The petitioner has been promoted as a Reader. His complaint is that he is fully qualified to be promoted as a professor
and that this post was denied to him for extraneous considerations because of the illwill that the first, respondent harboured against him His case is
that the first respondent did not send up his name to the Selection Committee because of his bias against him. In the light of the past history of illwill
between him and the first respondent reflected in the earlier proceedings before this court and the Supreme Court, the first respondent should have
either desisted from considering his claim to be appointed as a Professor or should have allowed the Selection Committee to consider it after
sending his name along with others. It is in this context that he questions the validity of statute 5 which gives unlimited, uncontrolled and arbitrary
powers on the ViceChancellor to screen the candidates before being sent up before the Selection Committee for interview.
Before considering the grounds of malafides and the complaint of the petitioner against his screening done by the first respondent, IIT ay dispose
of the attack against the validity of Statute 5 which reads as under:
All applications received in response to the advertisement shall be screened in the University office and the ViceChancellor shall finally select
candidates for being invited to appear before the Selection Committee for interview"".
The attack is based on Articles 14 and 16. The petitioner's counsel submits that the power given to the ViceChancellor to screen the applicants is
one without guidelines and hence arbitrary. There is no control over this power. The ViceChancellor will be at liberty to act as he likes and an
aggrieved party will be without his remedy to question his opinion. In this case the petitioner has been excluded from the names sent up for
interview before the Selection Committee solely because the ViceChancellor was prejudiced against him. This exclusion is in exercise of the wide
powers given under Statute 5. The conferment of such naked power violates Article 14 of Constitution.
Beyond stating that the power given under this statute is arbitrary, the petitioner has not supported this submission by any other acceptable
arguments. It is usual to confer certain regulatory powers on high authorities to deal with the certain situations. The law making authorities presume
that such high authorities on whom wide powers are conferred, will exercise them only with great care, circumspection and on objective
considerations. The exalted position of the authority exercising such powers is itself a guarantee against the misuse of such powers. The
ViceChancellor of a University occupies a high place in the achelons of the University. For the smooth running of the University of which he is the
head, it is necessary to confer on him certain powers. The mere conferment of wide powers cannot voilate any law. Therefore, an attack against
the validity of Statute No. 5 in broad terms as seated in the petition cannot pass muster in a court of law unless such an attack is based on reasons
that compel a court to pause for a probe. Instead of considering such an omnibus attack against the vires of a provision, the Courts will be more
inclined to consider whether in a given case the exercise of the power had been based on the whims and fancies of an individual motivated by
extraneous considerations and malafides. I do not find any merit in the contention that Statute 5 is ultra vires the Constitution. It is one of the normal
provisions that one comes across in all University Statutes because of the high position that a ViceChancellor occupies in the scheme of things. The
challenge against the vires of Statute 5 is, therefore, repelled.
It is now necessary to consider whether the petitioner can succeed on the basis of malafides levelled against the first respondent. For this, it is
necessary to read statute 4 which deals with the procedure for the appointment of a University Professor, Reader or a Lecturer and to look into
the facts of this Case:
STATUTE 4 : Whenever there is a vacancy in the post of a University Professor or a University Reader, or a University Lecturer, the post shall
be advertised and applications invited before the vacancy is filled:
Provided that the ViceChancellor shall have the power to place before the Selection Committee the names of suitable persons for their
consideration alongwith the applications received in response to the advertisement, but such persons shall not be amongest those in the service of
the University or those who have retired from its service"".
The petitioner applied for the post of a Professor according to the procedure laid down by the Act and the Statutes. He was not called for
interview He puts forward the case of malafides, based on the alleged hostility between him and the ViceChancellor, as fellows:
This hostility dates back to two decades. In the words of the petitioner it is ""based, on a difference of style of functioning, attitudes and
philosophy of life"", which was accentuated in the past by rivalry of leadership in the University Teacher's Association of which both Prof. Puri and
the petitioner had been leading members. In 1970 the petitioner was involved in a case of alleged misconduct and was placed under suspension
and ""once again he found himself and Prof Puri confronting each other across the trenches"".
The first respondent ViceChancellor has filed a reply affidavit controverting the allegations about malafides. He has stated that the allegations
are without foundation and are as a result of the petitioner's figment of imagination. He has denied the alleged illwill, animosity and hostility.
The petitioner had filed writ petition No. 103 of 1971 before this court against his suspension. He won the case before this Court. The
University filed an appeal before the Supreme Court as appeal No. 1739 of 1973. Before the Supreme Court a compromise was arrived at
between the parties whereby the University dropped the proceeding against the petitioner and the petitioner withdrew his allegations against the
University authorities. According to the petitioner this patchup compromise was guided more by consideration of expediency rather than conviction
and the hostility that the first respondent bad towards the petitioner continued.
The allegations made now are the same as those made before this court and the Supreme Court earlier. The petitioner withdrew all the
allegations because the matter was compromised and his suspension order was revoked. The Supreme Court observed this in AIR 1977 SC 1146
at page 5 as follows:
.....But it is not necessary to examine the arguments advanced on behalf of the parties on these various points, since before the hearing of the
appeal could be concluded, a partial settlement was arrived at between the University and the ViceChancellor on the one hand and the respondent
on the other. It was agreed between the parties as a, result of this settlement that the University should drop the disciplinary proceedings/action
against the respondent and that the respondent should be allowed to join service within fourteen days from the date of the order to be made by this
Court and upon his joining, his pay should be fixed as lecturer taking in view the increments which he would have earned but for the suspension. It
was also declared in the settlement that there shall be no stigma whatsoever attached to the respondent and so far as the personal allegations made
by him against the University authorities were considered, they would stand withdrawn by him.........
The Counsel for the 1st respondent submits that the same allegations of malafide cannot be again made the basis of an attack against the first
respondent's action in excluding the petitioner from being sent up before the Selection Committee for interview. I find force in this submission. The
petitioner obtained an advantage by the compromise and he withdrew the allegations. They cannot be put forward again through the back door to
malign the 1st respondent What is more, the allegation of malafides appear to me to be couched in wide terms which the Court cannot examine
minutely. The allegation is breft of details. To characterise malafides as hostility based ""on difference of style of functioning, attitudes and
philosophy of life,"" is something absolutely vague and cannot be made the subject matter of attack in a proceedings like this. The allegations of
malafides must be concrete, clear and sufficiently articulated for the other side to meet and for the court to appreciate objectively, apart from the
fact that one who makes it has a great burden to discharge. As observed by the Supreme Court in AIR 1975 SC 555 on page 586 page 92 ""the
burden of establishing malafides is very heavy on the person who alleges it. Allegations of malafides is very heavy on the person who alleges it.
Allegations of malafides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of
credibility"". For the aforesaid reasons I hold that the allegation, of malafides are not sufficient to fault the action of the first respondent.
Even so, it is necessary to examine whether the elimination of the petitioner by .the first respondent in not sending him up before the Selection
Committee was proper especially in the context of the past. If the petitioner was singularity discriminated against by the first respondent on
unjustifiable grounds. I would certainly examine the case more closely and if possible grant appropriate relief to the petitioner. Unfortunately for the
petitioner, I find that his case of malafides and exclusion, is not sufficiently persuasive, to make the action of the first respondent suspect so far as
the dispute in this case is involved. The reply affidavit filed by the first respondent contains necessary materials indicative of the propriety of the
action taken by him and to dispel from the mind of this court any possible conclusion of bias on the part of the 1st respondent. The allegation by
the petitioner is that he was unjustifiable and illegally eliminated to facilitate the selection of the third respondent and that the petitioner's name was
not sent up for interview to achieve the selection of respondent No. 3. The facts disclosed speak otherwise. It is seen that seven candidates were
considered by the first respondent at the stage of screening. Only four were sent up for interview. These four had Ph. D. degrees from
distinguished Universities like Wisconsin, New Branswick Utah (USA) and Toronto (Canada). In addition, these who were sent up for interview
had a minimum of five years teaching/research experience after they had done their Ph. Ds. The petitioner did his Ph.D. only in the year 1982 from
Jammu University. He did not satisfy the test adopted by the first respondent in the screening process. The petitioner does not dispute that the four
persons sent up for interview before the Selection Committee possessed the above superior merit. In his rejoinder he has only projected his
superior merit in the publication of various papers and journals He has, in addition, again questioned the capacity of the first respondent who is
himself neither a scholar in English Literature, nor even has any research experience in the field of Mathematics, to be a judge of the petitioner's
merit.
The 4th respondent is no longer interested in this petition. Even so, a reply affidavit has been filed by him stating his superior merit over the
third respondent and to some extent endorsing what the petitioner has said. Counsel for the first and third respondents made a veiled suggestion
that the reply affidavit by a person uninterested in the litigation was caused to be filed through a counsel who is a junior to the counsel of the
petitioner, only to lend support to the petitioner. I note this submission for what it is worth .and do not think it necessary to refer to the reply
affidavit of the 4th respondent in any detail.
In this case the briefs are long and the pleadings prolix I have referred only to such portions in the pleadings as are strictly necessary for the
disposal of this writ petition. From the averments in the reply affidavit filed by the first respondent, it is clear that the petitioner alone was not
eliminated by him at the stage of screening. Two others also fell victims to his guillotine Those who were sent up for interview had to their credit
exemplary performance and better teaching experience after they secured their Ph D. degrees Thus the first respondent set before him a correct,
proper and valid guideline for elimination. Three out of seven applicants were excluded because they did not satisfy the guideline set by him.
Viewed thus, it would be clear that the screening process done by him was on proper and justifiable grounds. The attach of malafides against the
first respondent under these circumstances cannot inspire any credibility. The petitioner did not possess a Ph.D. degree of any prestigious foreign
University. His teaching experience after Ph D. was not equivalent to those of the four candidates sent up for interview For the foregoing reasons, I
hold that the selection made by the first respondent at the screening stage cannot be assailed under Article 226 of she Constitution.
The petitioner's ease has, therefore, to fail. The writ petition is dismissed accordingly.