1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6771 OF 2008 Dr Kishor Ganpatrao Dhande ...Petitioner v/s Maharashtra Council of Agricultural Education and Research, Pune and anr. ...Respondents Mr V.M. Thorat for Petitioner. Mr S.P. Saxena for Respondent No.1. Mr P.P. Chavan i/b Mr S.K. Sawant for Respondent No. 2. Mr Pramod Kathane for Respondent No.3. CORAM : D.K. DESHMUKH AND K.K. TATED JJ. DATE : 24TH NOVEMBER 2009. 2 P.C. :- 1] Rule, returnable forthwith. Heard finally by consent of the parties. 2] By this petition, the petitioner challenges appointment of respondent No.3 as Professor, Farm Machinery and Power under the respondent No.2. The relevant facts are that an advertisement dated 21st December 2007 was published by the respondent No.1 calling applications from candidates for various posts. One of the posts advertised was Professor, Farm Machinery and Power. The post was to be filled in by direct recruitment. The relevant qualification for the post reads as under :- Professor (concerned Faculties) :- Ph.D. In the concerned subject plus ten years experience in the field of teaching research or education of which at least three years should be in the cadre of Associate Professor or its equivalent OR 3 Masters degree in the concerned subject with twelve years experience in the field of teaching, research or extension education of which at least three years should be in the cadre of Associate Professor or Reader or its equivalent. Perusal of the above quoted portion from the advertisement shows that three years experience in the post of Associate Professor or its equivalent was necessary. The petitioner applied alongwith other candidates including the respondent No.3. By communication dated 20th April 2008 from the respondent No.1, the petitioner was informed that his application has been rejected because his appointment to the post of Associate Professor was made by the respondent No.2  University though he did not have required experience and therefore his appointment as Associate Professor is contrary to the Rules. Thereafter, it appears that the process of selection was undertaken, respondent No.3 was selected and was appointed as Professor. The short 4 submission of the learned counsel appearing for petitioner is that the respondent No.1 is a body which selects candidates for the post of Professor and other posts. While considering applications of the candidates, what it has to see is whether candidates have the required qualifications and experience for the post. While doing that, they have no power to judge whether appointment of the concerned candidate to the post in which he is presently working is valid or invalid or is in accordance with law or contrary to law. In the submission of the learned counsel, the rejection of the application of the petitioner by the respondent No.1 is clearly without authority of law and therefore has to be set aside. We have heard the learned counsel appearing for respondent No.1. He submits that the appointment of the petitioner to the post of Associate Professor was made in violation of the Rules by the Selection Committee and therefore, experience of the petitioner in the post of Associate Professor cannot be taken into consideration. The leaned counsel appearing for 5 respondent No.2 submits that while appointing the petitioner to the post of Associate Professor, it was ignored that he did not have required experience. 3] If in the light of these rival submissions, the advertisement is seen, it becomes clear that at least three years experience in the cadre of Associate Professor was necessary. Perusal of the communication dated 10th April 2008 shows that the application of the petitioner has been rejected only on the ground that he does not have three years experience as Associate Professor. The petitioner was promoted to the post of Associate Professor by the respondent No.2  University on 27 th November 2003 and he was continuously working in that post till he submitted application pursuant to the advertisement dated 21st December 2007. Therefore it is clear that the petitioner had experience of working in the post of Associate Professor for three years but his application has been rejected because according to the respondent No.1, the appointment of 6 the petitioner to the post of Associate Professor in the year 2003 was in violation of the Rules. Therefore, we asked the learned counsel appearing for respondent No.1 to show us any provision of law which empowers the respondent No.1 to judge the validity of the appointments of the candidates to the posts, experience of which has to be taken into consideration for being eligible for promotion to the selection to higher post, the learned counsel could not point any such provision. In our opinion, the respondent No.1 which is only a selecting body does not have power to judge the validity of the appointment of a candidate in a post, experience in which to be counted for the purpose of its consideration. In our opinion, in any case, the respondent No.1 could not have recorded a finding that the appointment of the petitioner to the post of Associate Professor made by the University in the year 2003 is invalid in the year 2008 without giving notice to the petitioner or the University and without giving them an opportunity of being heard. In our opinion, the respondent No.1 has acted 7 clearly illegally and in excess of its authority in rejecting the application of the petitioner. In our opinion, rejection of the application of the petitioner therefore is invalid and non- consideration of the petitioner for the post of Professor and selection of the respondent No.3 is render invalid because of non-consideration of the petitioner for appointment to the post of Professor. It is possible that the respondent No.1 might have selected respondent No.3 for appointment to the post of Professor even after considering the candidature of the petitioner, but as the petitioner was clearly entitled to be considered and he has not been considered, we are left with no option but to set aside the appointment of the respondent and directed that a fresh process of selection be undertaken. This has become necessary because of high handed and without authority of law approach adopted by the respondent No.1 which is the expert body appointed only for the purpose of selection of candidates. In our opinion therefore, in order to avoid the respondent No.1  committing similar mistakes which 8 may result in inconvenience and embarrassment to everybody in future, it will be appropriate to impost exemplary cost on the respondent No.1. We make it clear that the respondent No.1 will be at liberty to hold inquiry to find out which person was responsible for the decision which is contained in the communication dated 10th April 2008 and recover the amount of cost from him. In our opinion, therefore, following order would meet the ends of justice. 4] The communication dated 10th April 2008, copy of which is at Exh. B to the petition is set aside. The consequent appointment of the respondent No.3 to the post of Professor, Farm Machinery and Power is also set aside. The respondent No.1 is directed to undertake the process of consideration of all eligible candidates including the petitioner for selection and appointment to the post of Professor, Farm Machinery and Power under the respondent No.2  University. Though the appointment of the respondent No.3 to the post of 9 Professor, Farm Machinery and Power is set aside, the respondent No.2 may continue him in that post till the name of candidate who is selected pursuant to fresh process of selection by the respondent No.1 is conveyed. The respondent No.1 shall complete the process of selection within a period of ten weeks from today. While continuing in the post of Professor, Farm Machinery and Power hereafter, the respondent No.3 shall not be entitled to claim any equity on the basis of officiation in the post of Professor, Farm Machinery and Power. Rule is made absolute accordingly with a direction to the respondent No.1 to pay as and by way of cost of this petition Rs.15,000/- to the petitioner. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE K.K. TATED )