Ms. Naila Khanday vs Islamic University and Others

Mansoor Ahmad Mir, J.—The instant appeal has been filed to seek reversal of the judgment dated 19th May, 2010, hereinafter as

impugned judgment, inasmuch as it upholds the stand of the Respondent-University to exclude the appellant from being selected for the post of

Lecturer in Business Studies. The appellant believes and portrays the impugned judgment as bad in law, therefore, has come in appeal. To see the

appeal in context a brief retook of the controversy requires to be made, thus:

An Advertisement Notice dated 30th June, 2007, was issued by respondent No. 1, for filling up, amongst others, four posts of Lecturers in the

discipline of Business Studies. The eligibility prescribed in the Notice was Masters Degree. The Advertisement Notice, is reproduced below:

ISLAMIC UNIVERSITY

OF SCIENCE AND TECHNOLOGY

Invites applications for one Professor and one Reader each for the Department of Computer Science & Engineering, Electronics &

Communication Engineering.

Applications are also invited for four Lecturers in Business Studies and one Lecturer each in Mechanical Engineering, Electronics &

Communication/Electrical Sciences or the equivalent, Physics and Applied Mathematics.

Eligibility: Communication and leadership skills, a multi-disciplinary approach plus:

For Professor:--A Ph.D with First Class Master's and Bachelor's degrees and at least 10 years teaching, research or industrial experience,

including administration (5 out of which must be at the level of Reader or equivalent).

For Reader:--A Ph.D in the appropriate field, with First Class Master's and Bachelor's degrees proven research ability (preferably with

publications) and at least two years relevant (preferably teaching) experience.

For Engineering Lecturers--First Class Master's or Bachelors degree in appropriate branch of Engineering and Technology (with high GATE score

for those with Bachelor's degrees).

For other Lecturers:--Master's degree with at least 55% or equivalent GPA with NET/SLET or Ph.D.

Payscale: 16,400 - 22,400 for Professors, 12,000 - 18,300 for Readers and 8,000 - 13,000 for Lecturers.

The Advertisement Notice was followed by Addendum which reads as under:

APPLICATIONS FOR

MBA LECTURERS

ADDENDUM

In addition to what has been mentioned in our advertisement dated 30th June, 2007, with regard to the eligibility criteria for the lecturers in

Business Studies, candidates having Masters Degree with at least 55% or equivalent GPA in IT, Computer Applications, M. Tech (Computer

Engg/IT/Computer Sciences), Finance/MFC, Chartered Accounts or equivalent qualifications may also apply for Lecturers' post in Business

Studies.

The Appellant/Petitioner having to her credit Masters Degree in the discipline of Personal Management, applied for the post of Lecturer in

Business Studies. Her application was entertained and she was interviewed also.

The Appellant pleads that on the strength of her performance in the interview and as per her information she had been figuring in the select list

formulated for appointment against the post in question at serial number 2.

Thereafter, to her exclusion, respondents issued select list which gave her reason to agitate the matter, therefore, a writ petition being SWP No.

1201/2007, was filed before this court.

During the pendency of the writ petition the respondent-University, as stated by them, in order to overcome the shortage of teachers in the

University, issued advertisement notice for filling up certain posts.

Admittedly petitioner opted to stay out of the selection process which culminated into selection of respondent No. 7, who was later on

appointed too.

Appellant/petitioner felt constrained and laid a motion seeking leave to amend the writ petition which was granted. It is apt to reproduce the

relief sought for by the petitioner in the amended writ petition herein, thus:

i. Writ in the nature of Certiorari, or any other appropriate Writ to quash impugned appointment order bearing No. 110(Est) of 2007 dated 30-

10-2007 issued by Respondent University in favour of Respondent No. 7 be issued in favour of the petitioner and against the Respondents.

ii. Writ in the nature of Mandamus or any other appropriate Writ declaring the impugned action of the Respondents 1 to 3 in denying the petitioner

appointment to the post of Lecturer in Business Studies in the Respondent University, advertised for such appointment vide Advertisement Notice

dated 30th of June, 2007 read with addendum thereto inspite of superior of the Petitioner on the basis of merit position in the Select List vis-a-vis

Respondent Nos. 5 & 6, the beneficiaries of the order of appointment issued by the Respondent University on or around 5th/6th of August, 2007,

appointing Respondents 5 & 6 to the post of Lecturer in Business Studies in the Respondent Islamic University of Sciences & Technology, totally

arbitrary and invidiously discriminatory and as such violative of Constitutional guarantees enshrined in Articles 14 and 16 of the Constitution of

India, be issued in favour of the Petitioner and against the Respondents.

iii. Writ in the nature of Mandamus or any other appropriate Writ commanding the Respondents in particular, Respondents 1 to 3 to give the

petitioner treatment in the matter of appointment to the post of Lecturer in Business Studies advertised vide Advertisement Notice supra, similar

and on part as has been given by the Respondents 1 to 3 vide appointment Order issued by the Respondent No. 1 on or around 5th/6th of

August, 2007 to the selectees including the petitioner, adjudged by the Selection Committee suitable for appointment against the post of Lecturers

in the Discipline of Business Studies in the Respondent University and to offer the petitioner appointment against one of the advertised posts of

Lecturer in Business Studies, in due regard of the position achieved by the petitioner on the basis of merit in the Select List vis-Ã -vis the

Respondents 5 & 6, the beneficiaries of appointment order issued by the respondent University on or around 5th/6th of August, 2007 appointing in

acceptance of the recommendations of the Selection Body/Committee, the selectees including Respondents 5 & 6, with the only exception of the

petitioner to the post of Lecturer in Business Studies in the Respondent University, be also issued in favour of the petitioner and against the

respondents;

iv. Writ Order or Direction including one in the nature of Mandamus commanding the Respondents in particular Respondents 1 to 3 to admit the

Petitioner to all the consequential service benefit accruing due in law by granting the petitioner her legitimate due in terms of treatment deserved in

view of superior merit position in the Select List, by the petitioner in law, by reason of the mandate of the Constitutional guarantee of equality of

opportunity and equality of treatment in the matter of appointment to the post of Lecturer in Business Studies and such other Writ, Order or

Direction which this Hon'ble Court deems just and proper to issue in the attendant facts and circumstances of case.

v. Costs of the petition be also awarded to the Petitioner.

After filing amended writ petition, appellant/petitioner prayed for withdrawals/of the writ petition with liberty to file fresh one which was

allowed vide order dated 14th July, 2008. It is apt to reproduce order dated 14th July, 2008, herein, thus:--

For the reasons detailed in the application coupled with the submissions made at the bar, it is allowed. SWP No. 1201/2007 is dismissed as

withdrawn along with connected CMPs with liberty to file afresh provided cause accrues. Interim direction, if any, shall stand vacated.

Appellant/petitioner thereafter filed fresh writ petition being SWP No. 1005/2008 with the following reliefs:--

i. Writ in the nature of Mandamus, or any other Writ declaring the impugned action of the Respondents 1 to 3 in denying the Petitioner

appointment to the post of Lecturer in Business Studies in the Respondent University, advertised for such appointment vide Advertisement Notice

dated 30th June, 2007 read with addendum thereto in spite of superior/preferential claim of the petitioner on the basis of merit position in the

Select List vis-Ã -vis Respondent Nos. 5 and 6, the beneficiaries of the order of appointment issued by the Respondent University on or around

5th/6th of August, 2007, appointing Respondent Respondents 5 & 6 to the post of Lecturer in Business Studies in the Respondent Islamic

University of Sciences & Technology, totally arbitrary and invidiously discriminatory and as such violative of Constitutional guarantees enshrined in

Articles Hand 16 of the Constitution of India be issued in favour of the petitioner and against the respondents.

ii. Writ in the nature of Mandamus, or any other writ commanding the respondents in particular respondents 1 to 3 to give the petitioner treatment

in the matter of appointment to the post of Lecturer in Business Studies advertised vide Advertisement Notice 30-6-2007, similar and on par as

has been given by the respondent No. 1 on or around 5th/6th of August 2007 to the selectees including the petitioner, adjudged by the Selection

Committee suitable for appointment against the post of Lecturers in the Discipline of Business Studies in the Respondent University and to offer the

petitioner appointment against one of the advertised posts of Lecturer in Business Studies, in due regard of the position achieved by the Petitioner

on the basis of merit in the Select List vis-Ã -vis the Respondents 5 and 6, the beneficiaries of appointment order issued by the Respondent

University on or around 5th/6th of August 2007 appointing in acceptance of the recommendations of the Selection Body/Committee the selectees

including Respondents 5 and 6, with the only exception of the Petitioner to the post of Lecturer in Business Studies in the Respondent University

be also issued in favour of the petitioner and against the Respondents.

iii. Writ in the nature of Mandamus, or any other Writ commanding the Respondents in particular Respondents 1 to 3 to admit the petitioner to all

the consequential service benefit accruing due in law by granting the petitioner her legitimate due in terms of treatment deserved in view of superior

merit position in the Select List, by the petitioner in law by reason of the mandate of the Constitutional guarantee of equality of opportunity and

equality of treatment in the matter of appointment to the post of Lecturer in Business Studies be also issued in favour of the petitioner and against

the respondents.

iv. Writ in the nature of Certiorari, or any other writ to quash the impugned selection and appointment of the Respondents 7 and 8 made vide

impugned Appointment Order dated 2.4.2008 in pursuance to the impugned Selection Process initiated in pursuance to Advertisement Notice No.

01 of 2008 dated 20.2.2008 be also issued in favour of the petitioner and against the respondents.

v. Writ in the nature of Mandamus, or any other Writ commanding the Respondents in particular Respondent No. 1 to desist and refrain from

initiating in violation of Constitutionally guaranteed rights of the petitioner, selection process and or making appointment against the post of Lecturer

Business Studies in the Respondent Islamic University of Science and Technology in pursuance to the Advertisement Notice No. 6 of 2008 dated

2-7-2008 and taking in regard the superior merit position of the petitioner vis-Ã -vis the appointees namely Respondents 5 and 6 the petitioner in

due compliance with the Constitutional mandate enshrined in equality clause be offered appointment and be appointed against the said post of

Lecturer Business Studies with effect from the date the Respondents 5 and 6 have been appointed to the post of Lecturer Business Studies be also

issued in favour of the petitioner and against the respondents.

vi. Any other Writ, Order or Direction which this Hon'ble Court deems just and proper to issue in the attendant facts and circumstances of the

case, be also issued in favour of the Petitioner and against the respondents.

vii. Costs of the petition be also awarded to the petitioner.

The learned writ court, after examining the pleadings, dismissed the writ petition vide impugned judgment.

Feeling aggrieved appellant challenges the impugned judgment and this is how the instant appeal has come into being.

We have heard learned counsel for the parties and considered the matter.

The factual matrix of the controversy makes apparent the issues, sought to be dealt with by this court viz., a) as to whether the qualification at

the credit of appellant is equivalent to the one sought for by the Respondent-University? b) as to whether the Respondent-University was

competent in judging the equivalence of the degree at the credit of appellant?

Mr. Jan learned senior counsel, while arguing, contended that, appellant/petitioner was having the qualification equivalent to the requisite

degree and in this respect he refers to a communication addressed to the Member Secretary, All India Council for Technical Education, New

Delhi, by Bharati Vidyapeeth University Institute of Management & Research, New Delhi, annexed with the Appeal.

The only stance of the respondent-University in support of exclusion of the appellant/petitioner from selection is that the qualification possessed

by the appellant/petitioner is neither the one sought for nor even equivalent to that.

The respondent-University in its reply states that an exercise was undertaken to establish, as to whether the degree of Masters obtained in the

discipline of Personal Management is equivalent to the degree of Masters in the discipline of Business Administration and in this behalf an

Equivalence Committee, for short as Committee, was also constituted.

They further state that the Committee held the corresponding degrees to be not equivalent.

At the very outset it is stated that the academic affairs are best left to be decided by the experts of the field and this Court or any other body

has no domain to sit as an untutored expert. My view is fortified by the Apex Court judgment reported as Sanjay Kumar Manjul Vs. The

Chairman, UPSC and Others, : (AIR 2007 SC 254) : 2007 AIR SCW 881 & 2008 AIR SCW 1560 : (AIR 2008 SC (Supp) 1321).

The reliance placed on the fact of appellant/petitioner having been enlisted as one of the aspirants for the post in question and thereafter

provisionally interviewed also does not provide refuge to the appellant/petitioner to make up her chances of selection. Nor can she find any help

from the communication of Bharati Vidyapeeth University Institute of Management & Research, New Delhi, placed on record, for, it does not

anywhere say that the degree at the credit of appellant/petitioner is equivalent to the one sought for by the Respondent-University. It is apt to

mention the last paragraph of the said communication herein, thus:

You are requested to kindly consider the proposal and grant the equivalence of Master of Personnel Management Programme with Master of

Business Administration-HR.

The perusal of the said communication makes it abundantly clear that parity between the two degrees is being requested for from the

Competent Authority in the month of December, 2007, when in comparison the selection process for the post in question begun in June-July,

2007. Therefore, as on the date of filing of application in response to the Advertisement Notice read with the Addendum, the appellant/petitioner

was, as per her own showing, ineligible for the post. This communication also makes it clear that the degree at the credit of appellant/petitioner and

the degree of Masters in Business Administration-HR are neither treated equivalent by the University which has issued the qualification certificate

to the appellant/petitioner nor is it certified to be so by the Competent Authority. : Therefore, the Respondent-University has rightly examined the

papers of the appellant/petitioner and dropped her from the select list.

It is beaten law of the land that enlisting of an aspiring candidate for appearing in the interview and even figuring in the select list, does not

create any right in favour of such aspirant to seek appointment. The concerned authority is within its powers to examine the papers, relied upon by

the candidates while participating in the selection process and the eligibility criteria has to be satisfied in all material particulars. And if at any point

of time, the examining authority feels that eligibility prescribed has not been satisfied in full, they are within their powers to nullify the exercise

undertaken until that time.

This also needs a mention here that while filing a fresh writ petition viz. SWP No. 1005/2008, the appellant/petitioner has sought writ of

certiorari to the extent of quashing the appointment of respondent No. 7, when in fact the said selection has been made in pursuance to the

selection process of which appellant/petitioner opted to remain out.

In the circumstances a question gets a chance to arise, as to whether a person, who never participates in a particular selection process, can

question the same?

Mr. Jan replies the question in affirmative as according to him there was absolutely no problem in doing that because the fresh writ petition has

been filed after proper permission of the Court.

The argument appears to be weak, for, the permission granted to the appellant/petitioner had a rider to the effect, that the appellant can do so

only if cause accrues and in our opinion the appellant/petitioner had no further cause available to agitate. Thus the writ petition is caught by the

principle laid down in Order II Rule 2 of the Code of Civil Procedure, for short CPC. My view is fortified by the Apex Court judgment reported in

M/s. Upadhyay and Co. Vs. State of U.P. and Others, .

Apex Court in another case reported as K.S. Bhoopathy and Others Vs. Kokila and Others, has taken the same view.

Wrapping the discussion up, we dismiss the appeal. The dismissal of the writ petition is maintained also, but as per our own reasons. Send

down the record.