IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 2153/2008 Reserved on 22.10.2009 Decided on:21.12. 2009 _____________________________________________ Dr. Kahan Bassi and others. …Petitioners. Versus CSK Himachal Pradesh Krishi Vishva Vidyalaya and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Ajay Mohan Goel, Advocate. For the Respondents: Mr. Rakesh Jaswal, Advocate for respondent No.1. Mr. Vikas Bhardwaj, Advocate for respondents No. 2 to 5. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the respondent-University issued advertisement vide Annexure A-4 whereby applications were invited for filling the posts of Director of Research, Director, Extension Education, Dean, Postgraduate Studies and Dean, College of Agriculture. Petitioners No.1 and 2 applied for the four posts. Petitioner No.3 applied for the post of Director, Extension Education. They were interviewed 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 on different dates post-wise. The recommendations made by the Selection Committee were accepted by the Board of Management on 2.11.2006 and thereafter the appointments of respondents No. 2 to 5 were made vide Annexures A-9/A to A-9/D. Mr. Ajay Mohan Goel has vehemently argued that the Selection Committees have not been constituted in accordance with law. In other words, his submission is that the Selection Committees were to be constituted on the basis of existing Statues since according to him new Statues have come into force when they were published. Mr. Rakesh Jaswal has strenuously argued that the petitioners have appeared in the interviews and now they are estopped from challenging the appointments of respondents No.2 to 5. He then contended that the constitution of the Selection Committees was in accordance with law. Mr. Vikash Bhardwaj has adopted the arguments of Mr. Rakesh Jaswal. I have heard the learned counsel for the parties and have perused the pleadings carefully. It will be pertinent at this stage to refer to salient features of the Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986 (hereinafter referred to as ‘the Act’ for brevity sake). Expression Statutes has been defined in section 2 (y) of the Act, which reads thus: “Statutes” means the Statutes of the university governing matters of policy and procedure as set forth in section 53 of the Act. 3 Section 54 of the Act postulates the manner in which the Statutes are to be made. Section 54 reads thus: “54. (1) The Board may, from time to time, make new or additional Statutes and may amend or repeal the Statutes in the manner hereinafter provided in this section. (2) The Academic Council may propose to the Board the draft of a Statute and such draft shall be considered by the Board at its next meeting; provided that the Academic Council shall not propose the draft of any Statute or any amendments of a Statute affecting the status, powers or constitution of any authority of the university until such authority has been given an opportunity to express shall be considered by the Board. (3) The Board may consider any such draft as is referred to in sub-section (2) and pass the proposed Statute or reject or return it to the Academic council for re-consideration, either in whole or in part, together with any amendment which it may suggest. (4) Any member of the Board may propose to the Board the draft of any Statute and the Board may either accept or reject the proposal if it relates to a matter not falling within the purview of the Academic council. (5) In case such a draft relates to a matter within the purview of the Academic Council, the Board shall refer it for consideration to the Academic Council which may either report to the Board that it does not approve the proposal, which, then, shall be deemed to have been 4 rejected by the Board as submit the draft to the Board in such form as the Academic Council may approve, and the provisions of this action shall apply in the case of a draft so submitted as they apply in the case of a draft proposed to the Board by the Academic Council. (6) A new Statute or additions to the Statute or any amendment or appeal of a Statute shall required the approval of the Chancellor who may accord his assent thereto or withhold his assent or return the same to the Board for consideration. (7) A new Statute or Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Chancellor. (8) All Statutes made under this Act shall be published in the Official Gazette.” Chapter 3 of the Statutes deals with designation, the manner of appointment, duties and qualifications of the Officers of the University. The manner of the appointment is stipulated in Statute 3.10. The qualifications and composition of Selection Committee are laid down in Statute 3.11. The amendment has been carried out in the Statutes, which was assented to by the Hon’ble Chancellor on 20.5.2006 vide notification 31.5.2006. The same was published in the official gazette on 2.11.2006. The interviews were held on 20.8.2006, 23.7.2006, 27.7.2006 and 31.7.2006 for posts of Director of Research, Director, Extension Education, Dean, Postgraduate Studies and Dean, College of Agriculture respectively. Respondents No.2 to 5 have been appointed to the respective posts. 5 The Court will first deal with the preliminary submission of Mr. Rakesh Jaswal on the question of locus standi of the petitioners to file the petition after appearing before the Selection Committees. The petitioners were always under the impression that since amendments carried out in the Statues have not been published as yet in the official gazette as required under the Statutes, they will be interviewed by the Selection Committees to be constituted as per the old Statutes. It is only when they appeared for interviews, they came to know that the Selection Committees have been constituted on the basis of the amended Statutes, which have not been published in the official gazette. Accordingly, the petitioners have the necessary locus standi to assail the appointment of respondents No.2 to 5, who have been selected by the Selection Committees constituted on the basis of Statutes, which were published on 2.11.2006. There is a detailed procedure laid down as per section 54 of the Act reproduced verbatim in the opening portion of the judgment. Sub-section (8) of section 54 of the Act clearly reveals that all the Statutes made under the Act shall be published in the official gazette. In the case in hand, the Hon’ble Chancellor had assented to the amendment on 20.5.2006. These were notified on 31.5.2006. However, the fact of the matter is that the amendments were published in the official gazette on 2.11.2006. This was not permissible under the law. Once a particular procedure is required to be adopted in accordance with law, the same has to be adhered to strictly. 6 Their Lordships of the Hon’ble Supreme Court in a recent judgment in Rajendra Agricultural university versus Ashok Kumar Prasad and others, 2009 (14) Scale 237 have held in a similar situation as under: “12. We have carefully considered the contention of the respondents. Many of the statutes which the University is empowered to frame deal with topics which fall in public domain, affecting or relevant to general public. For example, Item (4) of Section 35 relates to classification, qualification and manner of appointment of teachers and other non-teaching staff. Item (9) relates to the manner of appointment and selection of officers other than Vice-Chancellor, and their powers, terms and conditions of service. Item (16) relates to entrance or admission of students to a University and their enrolment and continuance as such and the conditions and procedure for dropping student from enrolment. Item (17) relates to fees which may be charged by a University. Item (21) relates to maintenance of discipline among students of a University. Item (26) relates to conditions and mode of appointment and the duties of examining bodies and examiners. Any person interested in appointment in the University service as a teacher or non-teaching staff or officer is entitled to know the qualifications prescribed for the post and the manner/mode of selection and appointment. The students or prospective students are entitled to know the fees which may be charged by the University. The statute made for maintenance of discipline amongst the students concerns the large body of the student community which keeps changing periodically. If the Statutes made on these topics are not published in the Official Gazette, the concerned persons may never come 7 to know about them. Therefore, the provision contained in Section 36(4) requiring publication of Statutes in the Official Gazette, which applies to all statutes framed by the University, has to be treated mandatory. The fact that a particular statute may not concern the general public, but may affect only a specified class of employees, is not a ground to exclude the applicability of the mandatory requirement of publication in the Official Gazette, to that statute in the absence of an exception in Section 36(4) of the Act. 13. The question can be looked at from another perspective also. The contentions urged by the respondents may be good grounds for the legislature to conclude that there need not be a provision in the Act for publication in the official Gazette, when they relate to a small section of employees of the University and consequently, amend Section 36(4) providing for a simpler mode of publication in such cases. But the contentions are not relevant grounds for holding that a statutory enacted mandatory requirement relating to publication in official Gazette, is directory. The respondents cannot by importing the reasons for making a statutory provision, or the object of making a statutory provision, attempt to defeat the specific and unambiguous mandatory requirements of that statutory provision. As noticed above, several reasons might have contributed to making of a statutory provision providing for publication of all statutes in the official Gazette. All those reasons may not apply or exist in regard to making of an individual statute. But once the law lays down that publication of a statute in the Official Gazette is a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the other hand, fulfilment of the requirement to 8 make public the statute by publication in the Official Gazette becomes mandatory and binding. We may illustrate the position by an example: If a Two-way Street is declared as a One-way Street, the reason for such declaration may be that the traffic was heavy and the two-way traffic was causing chaos, creating bottlenecks and impeding smooth flow of traffic. The object of declaring the street to be a One- way Street may be to ease the traffic and provide road safety and traffic discipline. But once the street is declared to be a one-way, a car driver charged with the offence of driving on the wrong way, cannot defend his wrong act by contending that when he was going the wrong way, there was not much traffic on the road, and therefore, there was no need for the street to be a one- way and the declaration of the street as one-way should be treated as directory or optional. Once the street is declared to be a one-way street, even if there is no heavy traffic, vehicle drivers should use it as one-way street. The remedy if any is not to treat the requirement as directory or optional, but to require the authority concerned to restrict the declaration to peak hours. 4. In B. K. Srinivasan vs. State of Karnataka - 1987 (1) SCC 658, this Court explained why publication in the Gazette was mandatory and necessary in regard to sub-ordinate legislations : "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientious bad man' seeking to avoid the law, law must be known, that 9 is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary Legislation which is publicly made, delegated or subordinate legislation is often made, unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed." (emphasis supplied) However, if the parent law had been silent about the manner of publishing or notifying the statute, and had not prescribed publication in the official Gazette as the mode of publication, the contentions of respondents might have merited some consideration. But when the Act clearly provided that the statute required publication in the Gazette, the requirement became mandatory. In fact, in B.K. Srinivasan, this Court explained the position, if the parent Act was silent about publication in the Gazette : "Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published 10 through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation, which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient." 16. In view of the above, it is not possible to accept the contention that the statute contained in the notification dated 4.9.1991 came into effect or became enforceable even in the absence of publication in the official Gazette. The High Court committed an error in holding that the teachers became entitled to the benefit of the statute relating to time-bound promotion scheme, when the said statute made by the Board of Management was assented to by the Chancellor even though it was not published in the Gazette. The High Court also committed an error in observing that the non- publication was unreasonable and arbitrary, as it ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete statute, in his order dated 19.3.1996.” Accordingly, in view of the law laid down by their Lordships of the Hon’ble Supreme Court, it is held that the publication of the Statutes was sine qua non for bringing the Statutes to come into force. Mr. Ajay Mohan Goel has also argued that the petitioners and respondents No.2 to 5 were required to be interviewed by the Selection Committees to be constituted under the old Statutes. He has drawn the attention of the Court to the relevant Statutes. A bare perusal of the Statutes reveals that the Committee was to be 11 comprised of Vice Chancellor, three Scientists or Educationists with experience of work in scientific, educational or administrative capacity from outside the university, out of which two were to be nominated by the Chancellor, one by the Vice Chancellor, one to be nominated by the Indian Council of Agriculture Research. Now, the Court will advert to the constitution of the Selection Committees post-wise. As far as the post of Dean, College of Agriculture is concerned, the Vice Chancellor, Dr. Ranjodh Singh, Dr. M.R. Thakur and one Sh. Safari Ram (retired Chief Engineer HPPWD) were the members of the Committee. The quorum as per the Statutes is that there should be five members, including Vice Chancellor. Sh. Safari Ram (retired Chief Engineer HPPWD) had been included in the Selection Committee as per the Statutes, which had not come into force on the date of interview. His presence has definitely vitiated the selection process. The constitution of the Selection Committee for the post of Dean College of Agriculture is also not in conformity with the old Statutes. There were only two scientists instead of three scientists and one nominee of Indian Council of Agriculture Research. Since the Committee was not validly constituted, the recommendations made by it for the post of Dean College of Agriculture, were illegal. The Committee was required to be constituted strictly as per the-then existing Statutes. The constitution of the Selection Committee for the post of Director of Research was also not valid since again Sh. Safari Ram (Retired Chief Engineer HPPWD) had been included in it. There 12 was also one member short in the Selection Committee since besides three scientists, one nominee of the Indian Council of Agriculture Research was also required to assess the suitability of the candidate. The recommendations made by this Selection Committee are also ultra vires Statutes and are illegal. As far as the constitution of the Selection Committee for the post of Dean, Postgraduate Studies is concerned, the same was also illegal. There were only two scientists and there was no nominee of the Indian Council of Agriculture Research. Mr. S.S. Negi could not participate in the deliberations of the Committee. Lastly, the Court will advert to the constitution of the Selection Committee for the post of Director Extension Education. The same was also not in conformity with law. In this Committee two scientists were nominated instead of three and there was no nominee of Indian Council of Agriculture Research. Sh. S.S. Negi had been nominated as member of the Committee being Scheduled Tribe. This was also not permissible under law. The constitution of the Committee is also not in accordance with law and the recommendations made by it are also illegal. Their Lordships of the Hon’ble Supreme Court in State of Andhra Pradesh and another versus Dr. Mohanjit Singh and another, 1988 (Supp) SCC 562 have held that where presence of a member of the Selection Committee is recorded as essential for completing the quorum, absence of that member in the Selection Committee would render the selection invalid. Their Lordships have held as under: 13 “3. The Government Order dated September 21, 1976, as far as relevant, provided: To ensure that the colleges do not suffer for want of teachers till the College Service Commission is set up and starts its work, the managements shall be given the option to employ on a stop gap basis Lecturers and Princpals other than those who are recruited bny the Central Recruitment Agency. In those cases, the teachers must be selected by a selection committee (and not by the Managing Committee itself) consisting of two representatives of the Management, two Professors or Readers representing the University to which the college is affiliated and a representative of the Director of Higher Education. The presence of at least one representative of the Univessity and the representative of the Director of Higher Education in the Selection Committee meeting should be regarded as essential for completing the quorum. The government order being clear as to the constitution of the committee to function as the selection body, in the absence of the representative of the Director of Higher Education, it cannot be said that there was a poroper selection committee constituted on the date when respondent No. 1 was selected. Ratification by the District Education Officer at a later point of time cannot validate the proceedings of the selection committee as there was no quorum and in its absence, the committee was not entitled to transact business. The government 14 order makes it clear that the selection committee is intended to function as a body. In case all the members were present at the selection there would have been scope for exchange of views when the candidates appeared and the selection would have been in terms of the scheme. Once a decision is taken and the absentee member is called upon to ratify the conclusion already reached, it becomes a very different type of activity. We are, therefore, not prepared to accept the decision of the Administrative Tribunal on principle that the subsequent ratification constituted valid selection.” Their Lordships of the Hon’ble Supreme Court in G.N. Nayak versus Goa University and others, (2002) 2 SCC 712 have held with the absence of expert the quorum would have been incomplete. However, in this case the Registrar has filed the affidavit stating that this was a typographical error as Dr. Chandramohan had participated and signed the report. Their Lordships have held as under: “31. The High Court, however, held that there was a further defect in the proceedings. The Selection Committee was constituted by the following persons: 1. Prof. N.C. Nigam, Vice- Chancellor Chairman 2. Prof. S. Mavinkurve, Dean of the Faculty Member 3. Prof. U.M.X. Sangodkar, Head of Department Member (Respondent 2) 4. Prof. D.J. Bhat, nominee of the VC Member 5. Ex- Admiral Dr Menon, nominee of the VC Member 6. Prof. K.T. Damodaran, subject expert Member 7. Prof. J. Samant, subject expert Member 8. Dr Chandramohan, subject expert Member but the 15 report of the Selection Committee records, "Shri/Dr D. Chandramohan regretted his/her ability to be present at the meeting." With the absence of Dr Chandramohan the quorum would have been incomplete. According to the Registrar's affidavit, this was a typographical error as Dr Chandramohan had in fact participated and signed the report. The statement of the Registrar on oath should have been accepted by the High Court, particularly when there was no allegation even on the part of Respondent 5 that Dr Chandramohan did not in fact sit on the Selection Committee. ” The affairs of the respondent-University are to be regulated strictly as per the Act, Statutes and the Regulations framed therein. The posts involved in this lis are very important to maintain high standards of the academics in the university. However, it is evident from the discussion hereinabove, that these posts have been filled up by respondents No.2 to 5 on the basis of the recommendations of the Selection Committees, constitution of which was not in conformity with law. The very presence of two members i.e. SC/ST on the basis of the Statutes, which had not come into existence, has also vitiated the selection process. The Court had directed the University to produce the records to look into the matter deeply. However, the university has not produced the relevant record for the perusal of the Court. In these circumstances, the Court has no alternative but to draw adverse inference against the university under the Evidence Act. The Court does not approve the manner in which the records have been 16 withheld from the Court. The production of the records was necessary for complete and effective adjudication of the matter. The Court reiterates that the constitution of the Selection Committees was required to be on the basis of the existing Statutes at the time of interviews held for four posts. The Statutes have only come into force when these were published in the Himachal Pradesh Extraordinary Gazette. Accordingly, the writ petition is allowed. The appointments of respondents No.2 to 5 vide Annexures A-9/A to A-9/D are quashed and set aside. The respondents No.2 to 5 shall cease to hold the posts forthwith. However, it shall be open to the