Sanit Debroy vs State Of Tripura And Ors

The petitioner was initially appointed to the post of Deputy Registrar (Planning and Development) in the Tripura University under the order No.F.1(41)-TU/88 dated 09.06.2003 (Annexure-1 to the writ petition). Indisputably, the said post of Deputy Registrar (Planning and Development) was re-designated as the Joint Registrar by the order No.F.TU/REG/Pay-NT/01/2007 dated 22.10.2014 (Annexure-2 to the writ petition) and, hence, the petitioner was at the time of filing the writ petition holding the substantive post of Joint Registrar in the Tripura University.

By the order No.F.TU/REG/NT.Apptt(Gr-A) dated 28.06.2017 (Annexure-3 to the writ petition) the petitioner has been asked to take charge of the post of Registrar until further order or a new Registrar takes charge, whichever is earlier. The petitioner, in the meanwhile, applied for the post of Registrar, Tripura University for which the applications were invited from the eligible Indian nationals by the advertisement No.TU/01/2017 dated 26.12.2018 (Annexure-7 to the writ petition) as sequel to the earlier advertisement for the same purpose. The petitioner filed his application for appointment to the said post on 28.01.2019 with all requisites, but when the list of eligible candidates was published on 08.02.2019 (Annexure-11 to the writ petition), the petitioner found him eliminated.

Now, the petitioner by means of this writ petition has challenged the notification dated 09.01.2019 (Annexure-4 to the writ petition) whereby a Screening Committee was constituted for "screening of application forms to the post of Registrar, Tripura University" with the following persons as Chairman, Members and Convenor:

(1) Prof. S. Poddar, - Chairman Department of History, T.U.

(2) Prof. M.K. Singh, - Member Department of Chemistry, T.U.

(3) Prof. Sandeep Kulshreshtha, - Member Director, Indian Institute of Tourism and Travel Management (IITTM), Gwalior

(4) Dr. B.M. Pandey, - Convenor Assistant Professor, Department of Law, T.U.

The said notification was issued by the Assistant Registrar with approval of the Vice-Chancellor, Tripura University.

The petitioner has challenged the minutes (meaning the decisions) dated 21.12.2018 (Annexure-6 to the writ petition). He has further challenged the advertisement No.TU/01/2017 dated 26.12.2018 (Annexure-7 to the writ petition), whereby the application for selection of Registrar (Tenure post of five years) in the pay band of `37,400-67,000 (unrevised) with grade pay of `10,000 (unrevised) was invited in sequel. The petitioner has also challenged the list of eligible candidates dated 08.01.2019 (Annexure-11 to the writ petition) for interview to the post of Registrar, Tripura University to be held on 25.02.2019 based on the challenge to the formation of the screening committee as stated. Further the petitioner has challenged the communication under No.F.TU/REG/NT.Apptt(Gr-A)/01/2017 dated 11.02.2019 (Annexure-12 to the writ petition) as well as, the communications of even number, being No.F.TU/REG/NT.Apptt(Gr-A)/01/2017 dated 08.02.2019 (part of Annexure-12 to the writ petition).

By those communications the University-respondent or the principal respondent has communicated the date of Selection Committee Meeting, being 25.02.2019 and nomination of Prof. S.K. Srivastava, Dr. Vijay Kumar Karan, Prof. Bimal K. Roy and Prof. Kuldeep Chand Agnihotri respectively as the Members (not in the service of the University) of the Selection Committee for appointment to the post of Registrar, Tripura University.

According to the petitioner, the Registrar, Tripura University shall be appointed in such a manner and on such terms and conditions of service as may be prescribed by the statute, not otherwise. For this purpose, reference to Section 16 of the Tripura University Act, 2006 (Act No.9 of 2007), „the Act‟ for short, has been referred. According to the petitioner, the statutes for the Tripura University have been framed in exercise of the power provided under Section 29 of the Act.

There is no dispute that the post of Registrar, Tripura University fell vacant and as a result the initiative was taken to fill up that vacancy and finally in the 32nd meeting of the Executive Council as would be evident from the minutes dated 21.12.2018 (Annexure-6 to the writ petition) that- "It is decided to keep open the advertisement for the post of Registrar, TU on the University website from 27th December, 2018 till 28th January, 2019 in continuation with advertisement. Candidates can apply for the same. Earlier applicants need not apply again, but they can update their applications. The earlier committee constituted for the appointment of Registrar T.U. will remain valid except that Dr. Vijay Kumar Karan, Visitor's Nominee, in the Executive Council, T.U. will replace Prof. Satyadeo Poddar, former member of the Executive Council, T.U." [Emphasis supplied]

In terms thereof, the new advertisement dated 26.12.2018 (Annexure-7 to the writ petition) was published. According to the petitioner, the Executive Council which took that decision was lacking in quorum inasmuch as in terms of the Statute 11, seven members of the Executive Council form the quorum for a valid meeting of the Executive Council.

From the minutes as circulated vide the communication dated 21.12.2018 (Annexure-6 to the writ petition) the petitioner has made a robust endeavour to show that the Registrar of Tripura University is not the member of the Executive Council. Thus, the presence of the Registrar (ex-officio Secretary) cannot be counted for formation of the quorum. One Rajesh Bhattacharjee has been shown to be the nominee of the Principal Secretary, Higher Education Department, Government of Tripura who, by designation, is the ex-officio Member of the Executive Council. The petitioner has questioned whether by proxy a quorum can be formed. It has been strongly contended by the petitioner that Rajesh Bhattacharjee, the representative cannot be treated as the Member of the Council. Similarly, Sri Saibal Chattopadhayay, former Director, IIM Kolkata has been shown as the Member of the Council as the visitor‟s nominee. Against Sri Saibal Chattopadhayay it has been noted that -"right at the very beginning of the meeting, gave his consent over phone to give his decision in the course of the meeting." The petitioner has questioned whether without physical presence such presence by telephonic conference can be considered for forming a quorum. According to the petitioner, requirement of the statute is „physical‟ presence.

So far the challenge to the formation of the Screening Committee by the notification dated 09.01.2019 (Annexure-4 to the writ petition) is concerned, the petitioner has urged this court to declare that the said committee is incompetent inasmuch as one of the members of the said committee, namely Dr. B.M. Pandey, holding the post of Assistant Professor, a post which is much inferior to the post of Registrar and, as such, he cannot be made a Member of such Screening Committee. The petitioner‟s contention is that the Registrar is entitled to get the equal pay scale with the Professors, whereas Dr. Pandey is getting the scale of Assistant Professor. A person holding a subordinate post in the hierarchy cannot be made a Member of the Screening Committee for purpose of selection and, hence, the said notification dated 09.01.2019 is liable to be set aside and/or quashed. The said Screening Committee had eliminated the petitioner and, accordingly the said elimination, contained in the list dated 08.02.2019 (Annexure-11 to the writ petition), has been challenged.

Thereafter, the petitioner has also questioned the nominations and/or invitations by the communications contained in Annexure-12 to the writ petition, for the reason that Dr. Vijay Kumar Karan is holding a post which is a lower post than the post of the Registrar. Dr. Karan is occupying the post of Reader, which is equivalent to Associate Professor. As such, following the principle of hierarchy his induction as the Member of the Selection Committee suffers from "inherent defect". Further, the petitioner has stated that statute 12A has to be complied for forming a valid quorum. The meeting of the Executive Council held on 13.12.2018 had, therefore, lacked in quorum, for the reason as stated above. However, the petitioner has admitted clearly in para 3.3 of the writ petition that the statute 12(2)(iv) of the Statutes provides that the Executive Council has the power and authority to create administrative, ministerial and other necessary posts and to make appointments in the manner as prescribed by the ordinance, but no prescription whatsoever has been made in the ordinance thereby postulating the method for filling up of the administrative post of Registrar, Tripura University. The statute 12(2)(iv) has vested power on to the Executive Council of the Tripura University to make appointments to the administrative posts. Since there was no such ordinance of Tripura University, the initiative, as taken for filling up the administrative post of Registrar of Tripura University is "a nullity". Thus, the petitioner has challenged as well the consequential actions as stated. Finally, it has been asserted in para 3.5 of the writ petition that - "from a conjoint reading of Section 16(1) & Section 23(2) of the Act and Statute 6(1) of the Statutes, it is evidently clear that the Registrar of the Tripura University shall be appointed, by the Executive Council of the Tripura University, in such manner, as may be prescribed by the Statutes." Moreover, from a further reading of Statute 11 and Statute 12A, it surfaces that unless seven members formed a quorum for the meeting of the Executive Council the meeting cannot be treated as valid or lawful. Finally, it has been reiterated that induction of Dr. B.M. Pandey as the Member of the Screening Committee suffers from inherent defect as Dr. Pandey was holding a lower post vis-à-vis the post of Registrar. Elimination of the petitioner by such committee is, thus unsustainable. Moreover, the administrative experience of the petitioner in Tripura University should have restrained the committee from elimination of the petitioner.

The principal respondents, being the respondents No.5, 6 and 7 have filed their comprehensive reply by traversing the averments made in the writ petition.

The respondents No. 5, 6 and 7 (the principal respondents) have robustly raised serious objection as regards the eligibility of the petitioner for the post of Registrar, Tripura University. According to them, the requirement as per the recruitment rules for the post of Registrar, Tripura University are- (i) Master‟s degree with at least 55% of the marks or its equivalent grade of B in the UGC seven-point scale from a recognized University/Institute; and (ii) At least 15 years of experience as Assistant Professor in the AGP of `7000 and above or with 8 years of service in AGP of `8000 and above including as Associate Professor along with experience in educational administration; Or Comparable experience in research establishment and/or other institutions of higher education; Or 15 years of administrative experience of which 8 years as Deputy Registrar or an equivalent post.

According to the principal respondents, the petitioner himself has produced a copy of the certificate issued by the Indian Institute of Business Management, Patna to the effect that he has passed Post Graduate Diploma in Management. It has been mentioned in that certificate that the said Diploma is equivalent to Master of Business Administration (MBA). But, nowhere in the advertisement or the recruitment rules was it mentioned that the candidates having equivalent degree would be treated eligible for the post of Registrar, Tripura University. Thus, they have contended that it is, therefore, crystal clear that the petitioner does not possess the requisite qualification for appointment in the post of Registrar, Tripura University.

On the basis of that plea, it has been succinctly stated by the principal respondents that unless a person has the essential qualification for appointment to any post, he cannot challenge the selection process for that post and he is not entitled to invoke the jurisdiction for issuing mandamus, certiorari or quo-warranto. Thus, the writ petition shall be dismissed without further consideration.

The principal respondents thereafter have averred that the prayer for quashing the notification dated 09.01.2019, Annexure-4 to the writ petition, the advertisement dated 26.12.2018, Annexure-7 to the writ petition, the list dated 08.02.2019, Annexure-11 to the writ petition and the order dated 11.02.2019 inviting selection committee meeting, Annexure-12 to the writ petition, cannot be maintained in absence of the members of the said committee. It has been further stated that the minutes of 32nd meeting of the Executive Council, Annexure-6 to the writ petition, even though has been challenged by the petitioner, but that challenge is stillborn as the petitioner has acquiesced to the outcome of the said meeting by filing the application dated 28.01.2019. By the advertisement dated 26.12.2018, Annexure-7 to the writ petition, further application was invited from the eligible candidates for filling up the post of Registrar, Tripura University.

In terms of the advertisement dated 27.03.2017, the petitioner did not submit any application for the said post of Registrar, Tripura University and the selection process thus is a continuation of the said advertisement dated 27.03.2017. Therefore, unless the decision recorded in the minutes of the 32nd meeting of the Executive Council for inviting further application was non-existent, the petitioner would not have been in a position to apply for the post of Registrar, Tripura University and, as such, the validity of his application is at stake for challenging the decision taken in the 32nd meeting of the Executive Council. It has been reiterated that though the petitioner has averred in the writ petition that he passed MBA course, but from the certificate that has been produced by him, it has transpired that he had only passed Post Graduate Diploma in Management from Indian Institute of Business Management, Patna. Since the Executive Council is supposed to appoint the post of Registrar, Tripura University and on the basis of the decision taken in the Executive Council the first advertisement dated 27.03.2017, Annexure-R/3 to the reply filed by the principal respondents was issued, the subsequent advertisement would have been issued even by the Vice Chancellor inasmuch as he has the authority to take decision on such matter. The principal respondents have stated that on scrutinizing the records of the applicants, the screening committee was formed. Further, as the petitioner had participated the interview in terms of the interim order as passed by this court, it can alternatively be said that he has not been affected by the decision of the said screening committee. Moreover, the members of the screening committee were not impleaded though the eligibility of one of the members of the said screening committee has been challenged by the petitioner. The principal respondents thereafter have stated clearly that if the selection process is transparent and maintained by following the proper procedure then the respondents may without making any prescription in the ordinance can constitute the screening committee in exigencies. That apart, they have stated that there is no prohibition in the Act and the Statute that an Assistant Professor cannot be the member of the screening committee as the said post is inferior to the post of Registrar, Tripura University. So has been done on the basis of doctrine of necessity.

On the aspects of quorum of the Executive Council, the principal respondents have stated that the Statute of Tripura University nowhere prohibits that the representative of any member or consent of any member obtained over telephone cannot be treated as attendance. The question of quorum becomes inconsequential when the decision of the Executive Council could have been taken by the Vice Chancellor himself without convening the meeting of the Executive Council. The petitioner, by virtue of the interim order of this court had appeared before the selection committee. The petitioner did not challenge that order of this court and as such he is now estopped to raise any question about the outcome of the selection. That apart, the respondents have stated that Dr. Vijay Kumar Karan, the respondent No.11, was the nominee of the Visitor in the Executive Council of the Tripura University and there is no provision in the Statute or the Act that the nominee of the Visitor should have the qualification higher than what is required for the post of Registrar. As such, there is no substance in such plea. It has been quite succinctly asserted by the principal respondents that the petitioner has challenged the advertisement dated 26.12.2018, Annexure-7 to the writ petition, but he has not challenged the advertisement dated 27.03.2017, Annexure-R/3 to the reply filed by the principal respondents, though the selection process was launched by the said advertisement dated 27.03.2017.

The original advertisement was issued on 27.03.2017. By the advertisement dated 26.12.2018 only the time for submission of the application was extended for the post of Registrar, Tripura University. Therefore, without challenging the said advertisement dated 27.03.2017, the entire selection process cannot be challenged, but that is what the petitioner has done.

In response to such reply, the petitioner has filed the rejoinder to demonstrate that the plea raised by him in the writ petition is quite tenable. According to the petitioner, what the respondents have stated that for his participation in the selection process by filing the application, he is estopped from challenging the selection process, is not acceptable as the method of selection as pursued is grossly illegal and there was no estoppels against law. Moreover, a meeting of the Executive Council, bereft of requisite quorum, had taken a decision for extension of time for accepting further applications from eligible candidates. Therefore, the very root of extension of time does suffer from illegality. Moreover, since there was no ordinance for prescribing the method of selection of the post of Registrar, the entire process is illegal. Hence, the doctrine of estoppel by conduct or acquiescence has no application in the context of the present case. The petitioner has stated that as the first advertisement was issued in the year 2017, it is preposterous to say that the subsequent advertisement dated 26.12.2018 which has been issued in pursuance to a meeting, having no quorum as required by the statute cannot be questioned. That apart, the petitioner has asserted that the life of the earlier advertisement was over and as such that plea as raised by the principal respondents is without any substance. In respect of the essential qualification as required for appointment to the post of Registrar of Tripura University, the petitioner has restated that conferring or granting degree is vested only on to a University established or incorporated by or under a Central Act or a State Act. According to the petitioner, since the conferment of the degree is the absolute domain of the University, nobody can question any degree given by the University. The petitioner has asserted that Post Graduate Diploma in Management that the petitioner has acquired, deemed to be treated as having acquired MBA. But, it has not been stated by the petitioner whether there is any due process of determining equivalence, even though the equivalence has not been mentioned in the recruitment rules or in the advertisement dated 26.12.2018. The petitioner thereafter has asserted that Regulation 4.4.5(3) of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other measures for the Maintenance of Standards in Higher Education) Regulations, 2010, „UGC Regulations, 2010‟ for short, has prescribed that a person having a Post Graduate Diploma in Management is to be treated having requisite qualification for appointment to the post of Professor. It has been also asserted by the petitioner that the post of Registrar and the post of Professor are equivalent posts in terms of their pay scales. The petitioner has enclosed the said UGC Regulations, 2010 as Annexure-B to his rejoinder. The petitioner has also asserted that he had all requisite qualification and experience for appointment to the post of Deputy Registrar and he was selected and appointed by the principal respondents. He has categorically submitted that without making prescription in respect of selection and appointment by way of Ordinance for the post of Registrar, Tripura University, the selection process had been carried out under the "doctrine of necessity". The petitioner thereafter has made an attempt to repel the submission made by the principal respondents by restating that the petitioner has got the requisite qualification. It has been asserted that the constitution of quorum of the Executive Council meeting was illegal. Similarly, constitution of screening committee and selection committee was illegal for participation of a person occupying an inferior post.

According to the petitioner, prior to issuance of the advertisement dated 26.12.2018 a meeting of the Executive Council with requisite quorum was a sine qua non and that requirement cannot be maneuvered or manufactured as has been done by the principal respondents. That apart, the petitioner has stated that the action taken on the basis of the interim order cannot be used against him for his participation in the selection process. Further, the petitioner has asserted that the respondent No.11 was ineligible to be a member of the selection committee constituted for selection and recommendation of a candidate for the post of Registrar, Tripura University. The petitioner has relied on a hand-out of Indian Institute of Business Management, wherefrom it is gathered that the said Institute of Business Management from where the petitioner has obtained the PG Diploma in Management (PGDM), is an autonomous institution established in the year 1979. According to them, the said institute is recognized by AICTE, Ministry of HRD, Govt. of India. PG Diploma in Management (PGDM) as conferred by them has been shown equivalent to MBA degree of Indian Universities. However, for the purpose of equivalence no certification or order has been relied on by the petitioner. The petitioner has submitted that while he was appointed in the post of Deputy Registrar, the said educational qualification was treated as sufficient. The qualification for the post of Deputy Registrar (Academic/Administration/ Examination), as evident from Annexure-C to the rejoinder filed by the petitioner, is exactly similar to that qualification of the Registrar, Tripura University. For purpose of reference, the relevant part of the educational and other qualification sought for appointment of Deputy Registrar, Tripura University is extracted hereunder:

"A Master's degree with at least 55% of the marks or its equivalent grade of B in the UGC seven-point scale from a recognized University/Institute"

Thus, according to the petitioner, it cannot be stated by the principal respondents that the petitioner does not have the required qualification when they had appointed the petitioner as the Deputy Registrar, Tripura University with the same qualification.

Mr. Somik Deb, learned counsel appearing for the petitioner has raised questions, viz. (i) whether the 32nd meeting of the Executive Council can be held to be a valid meeting as that meeting was not having the required quorum as mandated by Statute 12A(3), which provides that, seven members of the Executive Council shall form a quorum for a meeting of a Executive Council? (ii) Unless the Executive Council meeting is valid whether the selection process which was launched by the advertisement dated 26.12.2018 can be stated to be legally sustainable? That apart, the formation of the screening committee by including the respondent No.11 is tenable considering that the post of Registrar is in the equal level of the post of Professor whereas the post of Assistant Professor is two steps below the post of Professor. Further, Mr. Deb, learned counsel has raised the question that the exclusion of the petitioner is grossly arbitrary inasmuch as the petitioner has got the eligibility for consideration. In sequel, he has stated that all the orders bearing those decisions are consequentially liable to be quashed. In support of his contention, Mr. Deb, learned counsel has relied on a decision of the apex court in Prof. Yashpal & Anr. Vs. State of Chhattisgarh & Ors., reported in (2005) 5 SCC 420, where the apex court has dwelled upon the right to confer degrees having reference to the university Grants Commission Act, 1956, as amended from time to time that, in view of Section 22 of the said Act the right of conferring or granting degree can be exercised only by a University or an Institution specially empowered by an Act of Parliament to confer or grant degree. A degree conferred by a University is a proof of the fact that a person has studied a course of a particular higher level and has successfully passed the examination certifying his proficiency in the said subject of study to such level. Mere conferment of degree is not enough. What is necessary is that the degree should be recognized. It is for this purpose that the right to confer degree has been given under Section 22 of UGC Act only to a University established or incorporated by or under a Central Act, Provincial Act or State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degree.

According to this court, the said observation of the apex court except for purpose of measuring the nature of Post Graduate Diploma obtained by the petitioner, no other part is relevant for giving answer to the questions as raised.

Mr. Deb, learned counsel has referred to Archana Girish Sabnis Vs. Bar Council of India & Ors., reported in (2015) 4 SCC 498. In that report, the apex court has observed that any equivalent qualification to a graduate degree for purpose of admission has to be recognized by the authority who has power to grant the degree.

In Raj Kumar & Ors. Vs. Shakti Raj & Ors., reported in (1997) 9 SCC 527, while dealing with the estoppel by conduct particularly in the circumstances when the candidate has challenged the selection process having appeared in that process, the apex court having referred to Madan Lal Vs. State of J&K : (1995) 3 SCC 486, has observed that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal. He is estopped to question the correctness of the selection, unless a manifest violation of law is demonstrated. Mr. Deb, learned counsel has submitted that this judgment has been consistently followed by Indian Courts.

Reliance has been placed by the petitioner on a case of this court in Dr. Swapan Bhaumik & Anr. Vs. The Union of India & Ors. [judgment and order dated 07.09,2017 in W.P.(C) No.158 of 2013], where this court having relied on R.K. Jain Vs. Union of India, reported in (1993) 4 SCC 119, had occasion to observe that "in service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvas the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public spirited person". It has also observed in Dr. Swapan Bhaumik (supra) that "the petitioners did not have any locus to move this court challenging the selection and appointment in those posts with which they are not concerned, as there exists no reason for the petitioners to be aggrieved by the selection or appointment of the private respondents".

Mr. Deb, learned counsel has further argued that where presence of a particular number of members of the Executive Council is required or essential for completing the quorum, absence of that number of members in the meeting would render the selection invalid save and except ex post facto ratification. In this regard, Mr. Deb, learned counsel has referred a decision of the apex court in State of Andhra Pradesh & Anr. Vs. Dr. Mohanjit Singh & Anr., reported in 1988 (Supp) SCC 562. In that report, admittedly a case was being critically examined by the apex court, where there was no quorum for absence of the required number of members and accordingly when that absence came to the notice, by the required number of members, the quorum was formed and that decision was ratified. For that reason the apex court did not interfere in the appointment of Dr. Mohanjit Singh.

In the same context, in Kiran Pal Singh Vs. State of Uttar Pradesh & Ors., reported in (2018) 7 SCC 521, the apex court had occasion to observe that what is required to be done by law in a particular manner that has to be carried out only in that manner and in no other manner. The observation as particularly referred to by Mr. Deb, learned counsel appearing for the petitioner may, for purpose of reference, be reproduced below:

"The words "not carried out" as aforesaid are of immense significance. The meeting has to be convened as per the provisions of the said Section. The second part relates to want of the quorum. Though the quorum has not been defined under the Act, yet in the context, it would mean the quorum that requires the number of members to be present for the purpose of voting. For example, if the notice of intention is given to the Collector by more than half of the total members in Kshettra of 40 members but on the date of the meeting, there are only 10 members, indubitably there is a lack of quorum. Similarly, when the quorum is there and voting takes place, but eventually the vote of no confidence fails then the motion is not carried out as per the provisions contained in Section 15."

In reply, Mr. A.K. Bhowmik, learned senior counsel appearing for the principal respondents has categorically stated that the writ petition is not maintainable as the petitioner is estopped to challenge the validity of the decision taken in the 32nd meeting of the Executive Council for the simple reason that in terms of the said decision he had filed the application and wanted his eligibility to be assessed. When he was found ineligible the petitioner has made a turn around and approached this court.

In Ranjan Kumar & Ors. Vs. State of Bihar & Ors., reported in (2014) 16 SCC 187, the apex court has observed as under:

The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla : 1986 Supp SCC 285. in the said case a three-Judge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court.

In this context, we may quote a passage from Madan Lal v. State of J & K : (1995) 3 SCC 486 with profit:

"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 v. Akhilesh Kumar Shukla : 1986 Supp SCC 285 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."

In Chandra Prakash Tiwari v. Shakuntala Shukla : (2002) 6 SCC 127, the Court observed as follows:

"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, 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 there was some lacuna in the process."

In Union of India v. S. Vinod Kumar : (2007) 8 SCC 100, the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. [Emphasis supplied]

Mr. Bhowmik, learned senior counsel thereafter has contended that the persons who have taken part in the selection process and are assessed to be eligible have not been made party in this writ petition, but if any order accepting the plea of the writ petitioner is passed, such order will definitely affect those persons. In this regard, Mr. Bhowmik, learned senior counsel has referred a decision of the apex court in Suresh Vs. Yeotmal District Central Cooperative Bank Limited & Anr., reported in (2008) 12 SCC 558, where the apex court has observed as follows:

Respondent 1 is a cooperative society. It has its own rules and bye-laws. The service rules framed by the Respondent 1 stand approved by the Registrar. We have noticed hereinbefore that in the seniority list published in the year 1995, the position of the appellant was at Sl. No. 4. Those candidates whose names appeared at Sl. Nos. 2 and 3 were not impleaded as parties in the said proceeding. In their absence, the dispute could not have been effectively adjudicated upon.

This Court in Rashmi Mishra v. M.P. Public Service Commission: (2006) 12 SCC 724, observed:

"16. In Prabodh Verma vs. State of U.P. : (1984) 4 SCC 251, this Court held:

"28. .... The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its officers concerned. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties."

(See also All India SC & ST Employees' Assn. v. A. Arthur Jeen : (2001) 6 SCC 380 and Indu Shekhar Singh v. State of U.P. : (2006) 8 SCC 129)"

The dispute raised by the appellant before the Cooperative Appellate Court, therefore, was not maintainable. It was so held also by the High Court also. [Emphasis supplied]

As regards the absence of Ordinance in respect of the mode of selection and appointment in the post of Registrar, Tripura University, Mr. Bhowmik, learned senior counsel has contended that the petitioner who was the In-charge Registrar of Tripura University in the relevant period had full knowledge about the impugned advertisement dated 26.12.2018, how it had come into being and the requisite for launching the selection process etc. Having participated in that process with full knowledge that the recruitment would be made in absence of the Ordinance, the petitioner has waived his right to question the mode in any manner as adopted for purpose of selection. A person who takes part consciously in the selection process cannot thereafter turn round and question the outcome of its selection.

The apex court in Ramesh Chandra Shah & Ors. Vs. Anil Joshi & Ors., reported in (2013) 11 SCC 309, had occasion to observe that the principles laid down in Vijendra Kumar Verma vs. Public Service Commission, reported in (2011) 1 SCC 150, is a sound principle. In Ramesh Chandra Shah (supra), the apex court has laid down the law as under:

"When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction." [Emphasis supplied]

Similarly, Mr. Bhowmik, learned senior counsel has pointed out to this court that knowing fully well the procedure in absence of any Ordinance laid down in those advertisements for the purpose of selection of Registrar of Tripura University, he had applied for that post and on screening when he was not found eligible, he has challenged the decision taken in the 32nd meeting of the Executive Council, formation of the screening committee and the selection thus, has challenged the very legality of the selection process. Mr. Bhowmik, learned senior counsel has submitted that after giving in in the selection process, the petitioner cannot challenge that process after coming to know that he was found ineligible. Mr. Bhowmik, learned senior counsel has quite categorically submitted that this writ petition is unsustainable solely on the ground that the petitioner does not have the eligibility to be appointed as the Registrar of Tripura University as he does definitely lack in the basic qualification required for appointment to the post of Registrar, Tripura University.

The apex court in Dr. Umakant Saran vs. State of Bihar & Ors., reported in (1973) 2 SCC 485, having referred to Dr. Rai Shivendra Bahadur vs. The Governing Body of the Nalanda College : AIR 1962 SC 1012, had occasion to observe that in order that mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved party had a legal right under the Statute to enforce its performance. It was contended on behalf of the State in that case that apart from the fact that respondents No.5 and 6 therein had been validly appointed in accordance with the practice followed by the Government Dr. Saran, who was not eligible for consideration for appointment at the time, had no right to question the appointment since he cannot be termed "aggrieved". It has been further observed in Dr. Umakant Saran (supra) that it is not necessary to consider where a particular post is filled up by promotion or by deputation etc. unless it is shown that the person challenging any action relating to the selection had the requisite qualification for appointment. In other words, if the person seeking appointment is ineligible for appointment cannot challenge the selection. That person will not be allowed to maintain any action against the said selection.

Having referred to Nagaland Public Service Commission vs. State of Nagaland & Ors., reported in (2017) 13 SCC 498, it has been asserted by the principal respondents that the petitioner cannot improve his qualification as the petitioner does not have the qualification required for appointment of the Registrar, Tripura University inasmuch as the said advertisement dated 26.12.2018, Annexure-7 to the writ petition, has categorically provided "Master‟s degree with at least 55% of the marks or its equivalent grade of B in the UGC seven point scale from a recognized University/Institute" was required. The petitioner did not have any Master Degree inasmuch as the certificate that the petitioner has produced has shown that he was conferred that Post-Graduate Diploma with the following description:

Serial No.129/77/81-83

The Board of Governors of the Indian Institute of Business Management, Patna AFFILIATED TO MAGADH UNIVERSITY & (Recognized by Deptt. of Education, Deptt. of Science & Technology, Deptt. Of Labour, Employment & Training, Govt. of Bihar and Aided by the Govt. of India) on the recommendation of the Academic Council has pleasure in certifying that

Sanit Kumar Deb Roy

has successfully completed two years of study at the Institute and having been examined in August 1983 and found qualified, is being awarded the

POST-GRADUATE DIPLOMA IN MANAGEMENT recognized by the Government as equivalent to MASTER OF BUSINESS ADMINISTRATION with all the rights and privileges appertaining thereto. Given at Patna this twentieth day of December nineteen hundred and eighty three

Thus, it transpires that the petitioner has the Post Graduate Diploma in Management and according to that certificate the same has been recognized by the Government as equivalent for Master of Business Administration. But there is no reference which Government had declared such equivalence. Unless a competent authority, such a University, recognized by the University Grants Commission or All India Council for Technical Education or the Central Government or any State Government for their territory has recognized the equivalence, the said equivalence cannot be accepted by the court. For taking the decision in this regard, this court will not travel back how the principal respondents had considered the Post Graduate Diploma issued by the Indian Institute of Business Management, Patna at that time of recruitment made to the post of Deputy Registrar, Tripura University, inasmuch as that selection was not questioned by any person, being aggrieved. Since the petitioner does not have the eligibility, he cannot maintain the writ petition asking for certiorari or mandamus.

The challenge against the formation of the Screening Committee, in the considered view of this court, is that the screening committee does not decide on merit but only makes a mechanical scrutiny whether the persons applied for has got the required eligibility or not. If it is found that a person does not have the required eligibility the screening committee discards such application. The duty of the screening committee, as such, is to scrutiny, not to take any decision on merit.

The writ petitioner, however, was found ineligible by the screening committee. Therefore, the formation of the screening committee by including the respondent No.11 cannot be held improper or illegal inasmuch as that committee was not for the selection.

Further, on the question of quorum this court does not have any hesitation to hold that in absence of the quorum any decision taken by the Executive Council is bound to be illegal. The principal respondents have stated that there was a quorum when the 32nd meeting of the Executive Council was held. There is no prohibition anywhere that an Assistant Professor cannot participate in a selection committee proceeding as its member for his holding the post, inferior to the post of Registrar. Moreover, he was the nominee of the Visitor.

Further, two questions have been posed with all seriousness that whether by proxy an ex-officio member of Executive Council can attend the meeting of Executive Council. Attendance by proxy has become a well-known practice, even if it is not desirable. But unless at the beginning, his (proxy‟s) presence is objected to or there existed the Ordinance prohibiting proxy, any question as regards thereto cannot be subsequently raised. Hence, the objection in the case in hand fails. That apart, in the age of technology, if by "conferencing" with aid of audio-visual media meeting is attended by some member and not objected by the others, that can be treated as the valid presence. The physical attendance unless noted very categorically in the provisions or rules of the business that cannot be insisted, but if that is to be insisted, the objection has to be raised at the outset not afterwards, conveniently. In the context of this case, both the objections are discarded.

The petitioner cannot be allowed to question the procedure after participation in the process after being fully aware of the whole mode as adverted by the advertisements op. cit. Even the action is hit by waiver in view of the decision of the apex court in Ramesh Chandra Shah (supra). It was also espoused by the apex court that the qualification in something which has to be prescribed by the State or the Central Government and at the time of making selection that qualification only to be considered and those cannot be improved upon for purpose of accommodating anyone and, hence, the basic qualification as prescribed in the recruitment rules for the post of Registrar, Tripura University or by the advertisements as stated above, was to be conformed to, to be declared eligible for selection to the post of Registrar, Tripura University.

It is the admitted position from the certificate as produced by the petitioner and as issued by the Indian Institute of Business Management [as reproduced above] that the petitioner had obtained Post Graduate Diploma whereas the requirement is Master of Business Administration (MBA). In the said certificate [at page 73 of the writ petition], it has been clearly stated that Post Graduate Diploma in Management is recognized by the Government as equivalent to Master of Business Administration. Since the equivalent qualification has not been prescribed by the recruitment rules and the advertisements, it has to be observed that the petitioner does not have the basic qualification and hence, he does not have any locus standi to challenge the actions of the principal respondents. In the recruitment rules, the qualification as prescribed is "a Master‟s degree with at least 55% of the marks or its equivalent grade of B in the UGC seven-point scale from a recognized University/Institute". Therefore, it is crystal clear that no equivalent qualification or degree is supposed to be considered for conforming to eligibility for being considered in the post of Registrar, Tripura University. Hence, the petitioner did not have the required qualification and, as such, he cannot be treated as "aggrieved" for any purpose. Hence, the petitioner does not have any locus standi to maintain the writ petition asking for certiorari. That apart, the grounds of objection as raised against the actions of the principal respondents do not persuade this court to interfere, rather those are fragile in nature. Hence, on cumulative appreciation, this writ petition stands dismissed.

Interim order restraining the principal respondents from taking consequential action, based on the recommendation of the Selection Committee stands vacated.

However, in the context, there shall be no order as to costs.

Return the records as produced by the principal respondents.