WP (C) No. 7740 & 8138/2007 nsk Page 1 of 29 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No. 7740 of 2007 and WP (C) No. 8138 of 2007 & CM Nos. 831-32/2009 % Reserved on : April 08, 2009 Pronounced on : July 03, 2009 1. WP (C) No. 7740/2007 Dr. Sridhar Srivastava . . . Petitioner through : Mr. K.K. Rai, Sr. Advocate with Mr. Manish Kumar Saran, Advocate VERSUS Dr. V.P. Singh & Ors. . . . Respondents through : Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Virendra Rawat and Mr. Alok Singh for resp. No.1. Mr. R.K. Singh with Ms. Rumi Chandra and Ms. Deepa Rai, Advocates for NCERT. Mr. Amitesh Kumar, Advocate for the UGC. 2. WP (C) No. 8138/2007 National Council of Educational Research & Training . . . Petitioner through : Mr. R.K. Singh with Ms. Rumi Chandra and Ms. Deepa Rai, Advocates VERSUS Dr. V.P. Singh & Ors. . . . Respondents through : Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Virendra Rawat and Mr. Alok Singh for resp. No.1. WP (C) No. 7740 & 8138/2007 nsk Page 2 of 29 Mr. K.K. Rai, Sr. Advocate with Mr. Manish Kumar Saran, Advocate for respondent No.2. Mr. Amitesh Kumar, Advocate for the UGC. CORAM :- THE HON‟BLE MR. JUSTICE A.K. SIKRI THE HON‟BLE MR. JUSTICE SURESH KAIT 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. Dr. V.P. Singh had filed OA under Section 19 of the Administrative Tribunals Act, 1985 challenging the appointment of Dr. Sridhar Srivastava to the post of Professor in the department of Educational Surveys and Data Processing in National Council of Educational Research and Training („NCERT‟ for short). The applicant Dr. Singh had arrayed NCERT as respondent No.2 and Dr. Sridhar Srivastava, the selected candidate, as respondent No.3. Union of India (UOI) and University Grants Commission (UGC) were impleaded as respondent Nos. 1 & 4 respectively. Appointment of Dr. Sridhar Srivastava was challenged on various grounds, which included the ground that the applicant was wrongly excluded from consideration and that the Selection Committee was not properly constituted. WP (C) No. 7740 & 8138/2007 nsk Page 3 of 29 2. The Tribunal has accepted the plea of Dr. Singh and, thus, allowed his OA partly vide judgment dated 27.8.2007 setting aside the selection process and appointment of Dr. Srivastava and holding fresh selection in which both Dr. Singh and Dr. Srivastava should also be considered. Both Dr. Srivastava as well as NCERT have come up to this Court by means of these two writ petitions challenging the same judgment. 3. For the sake of clarity, we shall refer the parties by their names, i.e., Dr. Singh, Dr. Srivastava, NCERT and so on. 4. Dr. Singh is working as Reader with NCERT. Before his appointment with NCERT, he worked as Research Associate in U.P. State Government with effect from 26.2.1998, which appointment he got by selection through Union Public Service Commission (UPSC). NCERT issued advertisement on 22.4.2006 inviting applications for the post of Professor in the Department of Educational Surveys and Data Processing. Following eligibility requirements were prescribed therein :- “The incumbents must have in-depth knowledge of survey methodology and statistical techniques necessary for large-scale research in social sciences, which have a bearing on education.” 5. It is also not in dispute that NCERT has adopted the qualification norms for the posts of Reader and Professor as prescribed by the UGC in its Regulations, known as the University Grants Commission Regulations, 2000. Qualifications for the post of Professor and Reader as per these UGC norms are as under :- WP (C) No. 7740 & 8138/2007 nsk Page 4 of 29 “1.3.0. HUMANITIES, SOCIAL SCIENCES, COMMERCE, EDUCATION, PHYSICAL EDUCATION, FOREIGN LANGUAGES AND LAW 1.3.1 Professor An eminent scholar with published work of high quality, actively engaged in research, with 10 years of experience in postgraduate teaching and/or experience in research at the University/national Level institutions, including experience of guiding research at doctoral level. OR An outstanding scholar with established reputation who has made significant contribution to knowledge. 1.3.2 Reader Good academic record with a doctoral degree or equivalent published work. In addition to these, candidates who join from outside the University system shall also possess at least 55% of the marks or an equivalent grade of B in the 7 point scale with latter grades O,A,B,C,D,E and F at the Master‟s degree level. Five years‟ of experience of teaching and/or research excluding the period spent for obtaining the research degrees and has made some marks in the areas of scholarship as evidenced by quality of publications, contribution to education innovation, design of new courses and curricula.” 6. A total number of 20 applications were received by the NCERT. Dr. Singh and Dr. Srivastava also applied. These 20 applications were scrutinized by the Screening Committee constituted by the Director, NCERT. This Committee, after scrutiny, shortlisted the candidates and decided to call only six candidates for interview. For the purpose of short-listing, higher standards, as compared to what is laid down in the norms and advertisement, were prescribed, namely:- (a) First Class Master‟s Degree with PHD; (b) 10 years PG Teaching/Research experience as Lecturer/Reader or as an official in the Research Institute in the identical pay- scale against regular vacancy; and WP (C) No. 7740 & 8138/2007 nsk Page 5 of 29 (c) minimum five publications in a journal of repute. On the application of the aforesaid criteria, name of Dr. Singh was eliminated from consideration. After interviewing all the six candidates, Dr. Srivastava was recommended for appointment and was appointed to the post of Professor vide orders dated 7.9.2006. Even before the interviews were held on 23.8.2006, Dr. Singh on coming to know that he was not called for interview, made the representation dated 8.8.2006 to reconsider his candidature. It was, however, turned down on 11.8.2006 on the ground that he did not fulfil the eligibility criteria as laid down while short-listing the candidates. Within few days of the appointment of Dr. Srivastava, Dr. Singh approached the Central Administrative Tribunal and filed OA No. 2064/2006 on 27.9.2006. His challenge to the selection of Dr. Srivastava was predicated on the following :- (a) The Selection Committee constituted by the Director, NCERT, which took the interviews, was not properly constituted and was contrary to the provisions of Regulation 57 of the NCERT Regulations. (b) The Screening Committee constituted for short-listing candidates had no jurisdiction to lay down any criteria contrary to what was provided in the UGC norms or in the advertisement and thereby de-recognises the qualification of Dr. Singh. WP (C) No. 7740 & 8138/2007 nsk Page 6 of 29 (c) In any case, the criteria prescribed by the Screening Committee, namely, 10 years of experience in post-graduate teaching and teaching experience as Reader or Lecturer was alien to the UGC norms. (d) Even Dr. Srivastava was not eligible as per the criteria laid down as he lacked teaching experience of 10 years in Educational Surveys, Data Processing or Statistics. 7. All these contentions have found favour with the learned Tribunal. Both the petitioners in this writ petitions, namely, NCERT and Dr. Srivastava, contend that the reasoning and conclusions of the learned Tribunal on the aforesaid aspects are not valid, legal or justified. In such circumstances, we deem it proper to take up the aforesaid issues one by one and in the process we would be referring to the respective contentions of the parties as well as the discussion of the Tribunal on those issues. 8. CONSTITUTION OF THE SELECTION COMMITTEE : Dr. Singh had challenged the constitution of the Selection Committee on the ground that it was not constituted as per Regulation 57 of the NCERT Regulations. This provision provides that Selection Committee shall consist of Director or his nominee, a person nominated by the President and three persons to be selected from a panel of names prepared by the Establishment Committee, of whom two shall be the specialists and the Secretary as Member/Convener. The objection of Dr. Singh was in respect of WP (C) No. 7740 & 8138/2007 nsk Page 7 of 29 those two members who had been taken as specialists in the subject. His contention in this behalf was that none of the Members taken from the said panel had any specialization in the area of Statistics or Educational Surveys and even Data Processing. The two specialist Members in the Selection Committee were Dr. C.P.S. Chauhan and Professor Dr. R.M. Mehrotra. In the opinion of the Tribunal, since the discipline in question was Educational Surveys and Data Processing and as per the job requirement it was necessary for the incumbent to have indepth knowledge and statistical techniques, it was necessary for specialist member to have expertise in the field of Statistics. However, held the Tribunal, on going through the bio-data of the experts, it was found that Dr. Mehrotra did not have specialization in Statistics. The observations of the Tribunal, on this aspect, read as under :- “27…. We have seen the area of specialization of Dr. Mehrotra, who is a specialist in Research Methods, Educational Measurement and Evaluation as well as Teacher Education. Dr.C.P.S. Chauhan is also a Specialist in Research Methods and Statistics. Dr. R. Govinda has specialization as a Well Known Educational Researcher. 28. In the above view of the matter, admittedly two of the Specialists are Dr. R.N. Mehrotra and Dr. C.P.S. Chauhan. Dr. Chauhan has specialization in Research Methods and Statistics but Dr. Mehrotra is lacking in experience or expertise in Data Processing. It is to be borne in mind that the very purpose of inducting specialists in selection committee is to ensure that an expert who has to evaluate the comparative merits of the candidates should be an expert with a well know-how of the subject and a sound knowledge to adjudge the candidates. More particularly in the present case when the post of Professor through in the NCERT which deals with Education, yet the stress has been made on candidates having in-depth knowledge of survey methodology and techniques required for educational research in social science having a bearing on education. Accordingly, specialists should have vast experience on the aforesaid subject. From the perusal of the bio data of WP (C) No. 7740 & 8138/2007 nsk Page 8 of 29 specialists we do not find that Dr. Mehrotra, who was inducted as a specialist has any experience in this regard and accordingly Regulation 57, which mandates inclusion of two specialists has been violated. A specialist for requirement of regulation and nature of selection should not be a specialist in education or research methods but he should be a specialist like Dr. Chauhan having some specialization in Research Method and statistics. We have no hesitation to rule that the constitution of the selection committee was not in accordance with Regulation 57 of the Council.” 9. The submission of Mr. R.K. Singh, learned counsel who appeared for the NCERT as well as Mr. K.K. Rai, Senior Advocate, who appeared for Dr. Srivastava, was that the approach of the Tribunal in this behalf was clearly erroneous. According to them, the Tribunal failed to appreciate that the post of Professor was in the field of Educational Evaluation and Measurement and Survey. List of experts in this field had been prepared, which was approved by the Establishment Committee in its meeting held on 4.4.2005 and 28.4.2006. Therefore, while constituting the Committee, names were to be taken from this list. Both Dr. Chauhan and Professor Mehrotra were included in the list of experts which had been approved by the Establishment Committee. It was the Establishment Committee/employer, which was competent to decide as to which persons have expertise in the field. This list was never under challenge. Names drawn from such a panel of experts/specialists constituted by the Establishment Committee, therefore, could not have been questioned by the Tribunal. It was also submitted that the Educational Survey is a very expert field and interdisciplinary in nature. It cannot be simply likened to Static as the subject is WP (C) No. 7740 & 8138/2007 nsk Page 9 of 29 understood in academic parlance. Dr. R.N. Mehrotra is a renowned educationist and is considered as an expert in the field of Education and Educational Measurement and Survey not only in this country but worldwide. He has to his credit more than four decades of research experience in the field and his expertise and stature as an expert-academician has no parallel in this country. Therefore, the Tribunal committed a grave error of fact to say that he is not an expert in the concerned field and hence not qualified/competent to be a member of the Selection Committee. 10. Learned counsel appearing for Dr. Srivastava, in addition, also argued that the courts avoid sitting over judgment as to who should be the expert. Dr. Mehrotra is a well-known academician on the panel of specialists of NCERT and even otherwise, Regulation 53 read with Regulation 57, the quorum of Selection Committee is complete even with one expert, viz. Dr. Chauhan, being the other expert. 11. Mr. Sudhir Nandrajog, learned senior counsel appearing for Dr. Singh, on the other hand, highlighted the discussion contained in the impugned judgment on this aspect, which has already been extracted above, and reiterated that Dr. Mehrotra had expertise only in Teacher Education and not in Statistics. His submission was that teaching was not even the exercise undertaken by the NCERT and, therefore, a person having expertise in Teacher Education could not be treated as an expert. He referred to the additional affidavit dated 11.2.2009 filed by Dr. Singh containing the information obtained by WP (C) No. 7740 & 8138/2007 nsk Page 10 of 29 him under the Right to Information Act. These papers include minutes of 11th meeting of the Departmental Advisory Board of the NCERT held on 31.3.2006. Under Agenda Item No.2, role and function of the Department was discussed, as per which the main function of the NCERT was only research and no teaching. He also referred to the list of experts approved by the Establishment Committee, as per which the area of specialization shown against the name of Professor Mehrotra was “Teacher Education” and the discipline was also “Teacher Education”. He submitted that UGC in its letter dated 13.1.2009 addressed to Dr. Singh (enclosed as Annexure R-5 to the additional affidavit) has categorically opined that Dr. Mehrotra and Dr. Chauhan were not eligible to become the Specialist/Special Expert Members in Statistics. 12. After considering the respective submissions, we find it difficult to agree with the opinion of the Tribunal on this aspect. The Tribunal has proceeded on the basis that only that person can be treated as expert for this particular post who has specialization in Statistics. This is too narrow an approach. Post of Professor is in the Department of Educational Surveys and Data Processing. The bio-data of Dr. Mehrotra, which is produced on record and which has not been discussed by the Tribunal at all, would manifest that he is a specialist in research methods, educational measurement and evaluation as well as teacher education. The post is in the NCERT, primary function of which is Educational Research and Training. That apart, WP (C) No. 7740 & 8138/2007 nsk Page 11 of 29 if the contention of Dr. Singh is accepted that there is no educational activity in NCERT and one has to proceed on that basis alone, it would mean that no person who is expert in research methods, educational evaluation or teacher education would be treated as an expert. That cannot be the case having regard to the activities of the NCERT itself. Moreover, what cannot be disputed is that Dr. Mehrotra is included in the list of experts prepared by NCERT and duly approved by the Establishment Committee. While including the names of experts in the list of a particular discipline, it is for the educational body like NCERT to go through the credentials of such persons and decide as to whether they would be expert in particular field or not. The purpose of preparing such a list is not only to identify as to who are the experts in a particular discipline. It also serves as a guide for the competent authority while constituting a Selection Committee, inasmuch as, from such prepared list of experts, particular Member(s) can be picked and included in the Selection List. These academic issues are normally to be left to the educational institutions and courts are slow and reluctant to interfere with such exercises. 13. As noted above, the NCERT has explained that „Educational Survey‟ is a very expert field and inter-disciplinary in nature. It cannot be simply likened to Statistics, as the subject is understood in academic parlance. We feel that the Tribunal not only exceeded its jurisdiction in undertaking the exercise itself to define as to what would be the WP (C) No. 7740 & 8138/2007 nsk Page 12 of 29 field of experts for the post in question, but also took myopic view by confining it to Statistics alone. 14. We also find force in the arguments of learned counsel appearing for Dr. Srivastava that when there is no dispute that Dr. Chauhan, other expert was duly qualified, even as per the Tribunal, the quorum of Selection Committee would be complete with one expert, as provided under Regulation 53. Therefore, we do not subscribe to the view taken by the Tribunal that the Selection Committee was not duly constituted. 15. Power of the Screening Committee to enlist higher criteria and shortlist the candidates on that basis : The ground of attack placated by learned counsel appearing for Dr. Singh was that the Screening Committee was not empowered to change the criteria and fix higher criteria than specified in the UGC norms. According to him, if at all, this could be done only by the appointing authority. Mr. Nandrajog referred to the averments made by the NCERT itself in the counter affidavit filed in the OA before the Tribunal wherein it was conceded that the scope of the Screening Committee was limited to the role of scrutinizing the candidates, documents/certificates relating to their educational qualifications and whether the candidates fulfil the eligibility criteria set by the Council for the post of Professor (in Educational Survey) or not. He pointed out that it was also admitted that at this stage the applicants‟ qualifications, criteria are scrutinized and those possessing WP (C) No. 7740 & 8138/2007 nsk Page 13 of 29 the eligibility criteria are short-listed. He referred to the provisions of Regulations 52, 53, 54 and 57 of the NCERT regulations and on that basis argued that the Screening Committee was not of the same level as the Selection Committee and the only mandate for the Screening Committee was to discharge the ministerial function of scrutinizing the applications to see as to whether the candidates fulfil the eligibility conditions, as stipulated in the advertisement/UGC norms. This contention of learned counsel appearing for Dr. Singh has been accepted by the Tribunal by observing that it is the prerogative of the NCERT, namely, the Council, to alter the criteria and eligibility conditions attached to the post of Professor. 16. Countering the aforesaid submission of Dr. Singh and the reasoning of the Tribunal, learned counsel for the NCERT submitted that the Screening Committee itself is constituted by the Director, NCERT, acting as the appointing authority and the Chairman of the Selection Committee. The process of scrutiny is an integral part of the selection proceedings. Further, the proceedings conducted by the Screening Committee, including the criteria adopted by it, is subject to approval by the Director. On file, the entire proceedings, from constitution of the Committee to its minutes have been approved by the Director. It has been a long established administrative practice in the NCERT to have an independent Screening Committee of experts and academicians from the relevant field to scrutinize the applications of candidates as a prelude to their cases being considered WP (C) No. 7740 & 8138/2007 nsk Page 14 of 29 for Selection Committee. The purpose is to enable the Selection Committee to focus on merits and choose the best talent from amongst the applicants. As a matter of practice and expediency, the Joint Director (C) had always been chairing the Screening Committee. In November 2000, the then Director, NCERT, proposed that “JD(C) may constitute all such (Screening) Committees”. This proposal has been consistently followed in all subsequent recruitment proceedings. 17. We have gone through the entire file comprising of minutes of the Screening Committee and find that the practice, as narrated by the counsel for the NCERT, which is followed by the NCERT while constituting the Screening Committee stands established from the records. In the instant case, after applications were received in response to the advertisement for the post of Professor, the file noting indicates that the matter was referred to the Screening Committee in the following words :- “We may, now, request JD (C) {that is, Joint Director (C)}, as Chairman of Screening Committee, to constitute the Screening Committee for short-listing the candidates”. Learned counsel has produced other file which shows that for appointment against all such posts, general orders were passed for making JD as Chairman of the Screening Committee and other senior officials/professors who could be members of such Screening Committee depending upon the discipline for which the post if advertised. Orders to this effect have been passed by the Director. It is not in dispute that the Director is the appointing authority. WP (C) No. 7740 & 8138/2007 nsk Page 15 of 29 18. Significantly, after receipt of 20 applications, these were scrutinized at the office level as well, before even the matter was referred to the Screening Committee, and it was found that 11 candidates were eligible and 9 ineligible on applying the UGC norms as well. Thereafter, request was made for constituting the Screening Committee for “short-listing the candidates”. The Committee, under these circumstances, prescribed the conditions of eligibility by raising the standards and the minutes of the Screening Committee were sent and signed by the Selection Committee. 19. When the matter is viewed in this backdrop, it would be clear that the appointing authority had given the authorization/mandate for raising the bar in the eligibility criteria. To demonstrate this, learned counsel appearing for the NCERT had produced before us similar and identical exercise done by the Screening Committee in all selections for the last number of years. We may state at the cost of repetition that we are dealing with an educational institution. Though it would have been better to give specific delegation to the Screening Committee for raising the bar insofar as eligibility conditions are concerned, however, in the manner in which the function is being discharged by the Screening Committee for the last number of years, it is clear that the appointing authority intended that the Screening Committee is constituted for the aforesaid purpose. No doubt, at certain places of the counter affidavit of the NCERT, on which reliance is placed by learned counsel appearing for Dr. Singh, it is WP (C) No. 7740 & 8138/2007 nsk Page 16 of 29 indicated that the scope of the Screening Committee was limited to the role of scrutinizing the candidates‟ documents/ certificates and to see whether they fulfil the eligibility criteria for the post or not. However, when those portions are read along with other conditions in the context, it would become abundantly clear that the NCERT is explaining the role of the Screening Committee vis-à-vis that of the Selection Committee. It is nowhere admitted that the Screening Committee could not raise the bar of the eligibility conditions. On the contrary, it is specifically mentioned that the Screening Committee of eminent and highly qualified