IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 13586 of 2008. Reserved on: 07.07.2010. Decided on: 20.07.2010. __________________________________________________________ Satya Bhama. … Petitioner. Versus H.P. Krishi Vishvavidyalaya and Another. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner : Mr. Jagdish Thakur, Advocate vice Mr. N.K. Thakur, Advocate. For the Respondents : Mr. Rakesh Jaswal, Advocate for respondent No.1. Respondent No.2 exparte. Rajiv Sharma, J.: Petitioner has assailed the appointment of respondent No.2 to the post of Assistant Extension Specialist (Home Science). Respondent-University has issued advertisement No.1 of 2005 on 3.2.2005 whereby applications were invited for filling up the posts of Assistant Extension Specialist (Home Science) on or before 9.3.2005. The minimum qualification for filling up the post of Assistant Extension Specialist (Home Science) was that the candidate should be M.Sc. in the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - concerned subject having qualified NET from UGC/CSIR/ICAR or similar test accredited by UGC/State in the subject/discipline. The petitioner applied for the post of Assistant Extension Specialist (Home Science) and was called for interview on 6.2.2006. The same was postponed to 22.2.2006 vide letter dated 16th January, 2006. Petitioner participated in the selection process. However, the Selection Committee recommended the name of respondent No.2 for appointment to the post of Assistant Extension Specialist (Home Science). The appointment letter was issued on 7th April, 2006 to respondent No.2. 2. Notice was issued to the respondent-University and respondent No.2 on 5.5.2006. Notice was issued to respondent No.2 by registered notice AD on 9.5.2006 and undelivered envelope or AD was not received back. There is a presumption attached under Section 27 of the General Clauses Act that the respondent No.2 has received the registered letter. Respondent No.2 in these circumstances was proceeded ex-parte on 29.6.2006 by the learned Himachal Pradesh Administrative Tribunal. 3. Mr. Jagdish Thakur, Advocate appearing vice Mr. N.K. Thakur, learned counsel for the petitioner has strenuously argued that his client was more meritorious vis-à-vis respondent No.2. He then argued that his client was more experienced and has 41 publications to her credit. Mr. Rakesh Jaswal, learned counsel for respondent No.1 has argued that the Selection Committee has assessed the suitability of the candidates who appeared for interview strictly as per University Statute. 4. I have heard learned counsel for the parties and gone through the pleadings carefully. - 3 - 5. The respondent-University was directed to produce the records. Mr. Rakesh Jaswal, learned counsel for respondent No.1 had produced the records. 6. Petitioner was appointed Research Associate on 15th March, 2001. She has worked as Research Associate in the respondent-University with effect from 19th March, 2001 and was continuing in the same capacity on the date of interview. She has also worked in Brahm Rishi School, Jarar. 7. Primarily, it is the function of the Selection Committee to evaluate the merits of the candidates. It is not the function of the Court to sit in appeal over the decision of the Selection Committee. The role has been assigned to the Selection Committee to see whether a candidate is suitable for appointment or not. The job is discharged by the experts on the subject. However, it is equally true that the decision of the Selection Committee can be interfered with where the Selection Committee is not constituted legally or the procedure adopted by the Selection Committee is actuated with malafides. It is in rarest of rare cases that the Court scrutinizes the merits of each candidate where the parameters with regard to qualification, experience have been ignored by the Selection Committee and a candidate who is less meritorious is selected to the post in question. In the present case there is no dispute that the Selection Committee was duly constituted. However, there is an averment made in the petition that respondent No.2 was unduly favoured by the Selection Committee. In order to ascertain whether the Selection process was just and fair, it will be relevant to take into consideration the biodata of the petitioner and respondent No.2. Petitioner has secured 58.9% marks in matriculation examination, 52% marks in 10 + 2, 66.7% - 4 - marks in B.Sc., 65.3% marks in M.Sc. and has also qualified NET. She has also worked as teacher in Brahm Rishi Mission School, Jarar with effect from 1.4.2000. She was selected as a Research Associate in the pay-scale of Rs.11500 on 19.3.2001. She was working as Research Associate on the day of interview. Respondent No.2 has secured 52% marks in matric, 53% marks in +2, 64% marks in B.Sc. and 65% marks in M.Sc. She has also qualified NET. She has worked as Lecturer in Government Girls Senior Secondary School, Chaba with effect from May, 2000 to March, 2001 in the consolidated salary of Rs.1000/- and thereafter in UHF, Solan in the consolidated salary of Rs.1300/- with effect 1.8.2001 to 31.12.2001, 20.7.2002 to 19.8.2002 and as Lecturer again in the consolidated salary of Rs.500/- with effect from 1.4.2002 to 28.2.2003. She has worked as Assistant Professor with effect from 14.11.2003 to 30.6.2004 in the pay-scale of Rs.11,500/-. This biodata has been produced by Mr. Rakesh Jaswal during the course of hearing. A bare perusal of biodata of petitioner and respondent No.2 reveals that petitioner’s academic career is better vis-à-vis respondent No.2. She has secured more marks in B.Sc. and M.Sc. than respondent No.2. She was more experienced than respondent No.2. She was appointed as Research Associate on 19.3.2001 and was continuing in the same capacity on the date of interview, i.e. 6.2.2006. 8. The petitioner has to her credit 41 publications. Respondent No.2 has only 5 publications to her credit. Publication of Articles in standard journals is one of the bench-marks to determine the academic caliber of a candidate. 9. The Apex Court in Badrinath versus Government of Tamil Nadu and others, (2000) 8, SCC 395 have held that Courts and - 5 - Tribunals cannot interfere with assessments made by the Departmental Promotion Committees in regard to merit or fitness for promotion unless there is a strong case for applying the Wednesbury doctrine or there are mala fides. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one’s career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed. Their Lordships of the Hon’ble Supreme Court have held as under:- “Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material - and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, - then the powers of Judicial review under Article 226 of the Constitution are not foreclosed. While the Courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to the scrutinised by Courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that - 6 - Courts or tribunals may not by quoting this case as an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precendent only in rare cases.” 10. The principles laid down by their Lordships in the above cited case are equally applicable to the procedure adopted by the Selection Committee for making appointments in the present case. 11. Their Lordships of Hon’ble Supreme Court in Guman Singh versus State of Rajasthan and others, 1971(2) SCC 452 have held that no doubt the term “merit” is not capable of an easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his official duties. Their Lordships have further held that objective of introducing the idea of merit in the procedure of promotion is to serve public interest and not the personal interest of the official group concerned. The principles applicable in determining the merit for promotion are equally applicable when the candidates are selected in the Universities. Their Lordships have held as under:- “Rule 32 in essence adopts what is stated in Rule 28-B. The latter rule provides for two methods of selection: one based on merit and the other based on seniority-cum-merit. In other words, the rule provides that the promotion based on merit in contra distinction to that based on seniority-cum merit shall strictly be on the - 7 - basis of merit. The Selection Committee and the Promotion Committee consist of very responsible and senior officers of the State and being persons of experience they can be trusted to evaluate the merits of a particular officer. No doubt the term 'merit' is not capable of an easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his official duties. Allied to this may be various other matters or factors such as his punctuality in work, quality and outturn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in the service. We are only indicating some of the broad aspects that may be taken into account in assessing the merits of an officer. In this connection it may be stated that the various particulars in the annual confidential reports of an officer, if carefully and properly noted, will also give a very broad and general indication regarding the merit of an officer. Therefore) it cannot be stated that Rules 28-B and 32 are in any manner vague or do not give any guide line for assessing the merit of an officer. No doubt, sub-rule (2) of Rule 27 dealt with certain factors which are to be taken into account for considering the claims for promotion, but when it comes to a question of merit, not only those factors but also certain additional factors and circumstances will have to be taken into account and such an evaluation of merit has been left under the rules to a Committee consisting of responsible, senior and experienced officers of the State.” 12. Consequently, in view of the observations made above, the Court is of the considered opinion that the Selection Committee has not determined the merit of the petitioner and respondent No.2 in a just and fair manner. The petitioner, as per the observations made hereinabove, was more - 8 - meritorious and her name has not been recommended for appointment to the post of Assistant Extension Specialist (Home Science). 13. Accordingly, in light of the above discussion and observations, made hereinabove, the petition is allowed. Annexure A-7 dated 7th April, 2006 is quashed and set aside. Respondent-University is directed to re-do the entire selection process in accordance with law, within a period of four weeks from today. There will be no order as to costs. (Rajiv Sharma), Judge. July 20, 2010. (sck).