IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition 1417 of 2009. Judgment Reserved on: 30.8.2010 Date of decision:19.11.2010. Dr.Vijay Singh Thakur … …Petitioner Versus Dr.Y.S. Parmar University & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.M.S. Chandel, Senior Advocate with Mr.Rakesh Jaswal, Advocate. For Respondent No.1: Mr.Onkar Jairath, Advocate. For Respondents No.2 to 4: Mr.Bhupender Gupta, Senior Advocate with Mr.Janesh Gupta, Advocate. Dev Darshan Sud,J. This writ petition has been filed by the petitioner challenging the selection of the three respondents to the post of Director of Research, Director of Extension Education and Dean, College of Horticulture. 2. The allegations made by the petitioner are that after passing his Ph.D. in the specialization of Fruit Pathology from Dr.Y.S. Parmar University, Solan, 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 in the year 1987, he joined as Assistant Professor in the Himachal Pradesh Krishi Vishwavidyalaya, Palampur in the year 1988 and was thereafter selected as Assistant Professor in Dr.Y.S.Parmar University of Horticulture and Forestry, Solan. The petitioner pleads that he has experience of working on more than 23 different Projects and was the most suitable candidate but in his case the mandatory statutory conditions of eligibility and selection criteria have been violated to his disadvantage. 3. It is undisputed that vide advertisement Annexure P-2, applications for a number of posts were invited including those of Director of Research, Director of Extension Education and Dean, College of Horticulture. The qualifications prescribed were:- “1. Director of Research (i) Ph.D. degree or its equivalent in Horticulture/ Forestry or in their allied science. (ii) 10 years’ teaching/research experience in a relevant field out of which at least 5 years’ experience should be as Professor or equivalent rank. (iii) A significant contribution and accomplishment in the field of research/teaching/ extension education as evidenced by publication/ articles in a journal of repute. (iv) Ability to organize, supervise and coordinate research in the field of horticulture, forestry and allied Sciences. 3 2. Director of Extension Education (i) Ph.D degree or its equivalent in Horticulture/ Forestry or in their allied science. (ii) 10 years’ teaching/research experience in a relevant field out of which at least 5 years’ experience should be as Professor or equivalent rank. (iii) A significant contribution and accomplishment in the field of research/teaching/ extension education as evidenced by publication/ articles in a journal of repute. (iv) Ability to organize, supervise and coordiate research in the field of horticulture, forestry and allied Sciences. (v) He/She should preferably be conversant with the conditions of Horticulture and silvi-Horticulture practices of Himachal Pradesh. 3. Dean College of Horticulture (i) Ph.D degree or its equivalent in Horticulture/ Forestry or in their allied science. (ii) 10 years’ teaching/research experience in a relevant field out of which at least 5 years experience should be as Professor or equivalent rank. (iii) A significant contribution and accomplishment in the field of research/teaching/ extension education as evidenced by publication/articles in a journal of repute.” These, according to the petitioner, were in concord with the Act and Statutes of the University beyond which no other conditions or procedure could be prescribed/stipulated. 4 4. Petitioner submits that it was only about half an hour before the interview that Annexure P-3, detailing the criteria on the basis of which marks would be allocated/awarded to judge the suitability of the incumbents, was distributed amongst the candidates. 5. According to Annexure P-3, the suitability of each candidate was to be judged by allocation of marks as provided therein, namely:- Sr.No. Academic qualification Marks 1. Bachelor’s Degree 10 2. Master’s Degree 15 3. Ph.D Degree in relevant Subject 15 4. Award Medals/ fellowship 05 5. Experience 15 6. Publication (iii) Relevant to the post (iv) Quality of Publication (NAAS Rating) 5 10 7. Innovative/special achievements 05 8. Total 80 In addition 20 marks were to be awarded for the interview. 6. The submission of the petitioner is that Statutes 3.10 and 3.11 of Dr.Yashwant Singh Parmar University of Horticulture and Forestry, Solan, 1987 5 (hereinafter referred to as the `Statutes’) provide the eligibility and criteria to be followed for selection/appointment of candidates to these three posts and there can be no variation of any kind whatsoever unless it is introduced by amendment in accordance with law. The petitioner submits that Annexure P-3 is ultra vires the Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986 (hereinafter referred to as the `Act’) and the Statutes. The respondents and more especially respondent No.3, do not possess the basic eligibility qualifications for being considered/selected and Annexure P-4, criteria devised by the Board of Management and approved vide its 76th Meeting hold on 4.2.2008 (Annexures P-4 and P-5) for evaluating the suitability of the candidates, is ultra vires the Statutes and constitutes an amendment carried out in Statute 3.10 and 3.11 without following the mandatory requirement of the Act and Statutes. Learned counsel submits that the conditions stipulated in Statute 3.11 prescribing the qualifications for the appointment of Dean, Director of Research, and Director of Extension Education have been incorporated verbatim in the advertisement and there can be no deviation. 7. Before adverting to the submissions made by the learned counsel for the parties, this Court has been informed by Shri Onkar Jairath, learned consel appearing for the University, that respondent No.3 is 6 no longer working with the University. It is only respondent No.2 whose case has to be considered as respondent No.4, Dr.D.R. Gautam, has left the University and sought employment elsewhere. Learned counsel appearing for the respondents submit that any adjudication so far their appointment is concerned, would only be academic as no effective order would/can be passed against them at this stage. Since the overall legality of the selection procedure is being adjudicated, their cases would also be considered though no order will be passed or can be passed against them. 8. The writ petition has been resisted by the respondents on a number of grounds. One important point urged by respondent No.1-University is that the petitioner, having participated without protest in the entire selection process, cannot now turn around and challenge its legality, validity and constitutionality only because he has been unsuccessful. Mr.Bhupender Gupta, learned Senior Counsel appearing on behalf of respondents No.2 to 4, urged that so far as the question of suitability for the post on the question of academic qualification is concerned, it is not open to the petitioner to urge the same, as he and respondent No.2 possess the same academic qualifications and the petitioner now cannot urge that he is better qualified. 9. Before considering the submissions made on behalf of the parties, the result in the tabular form 7 of all the three candidates including the petitioner may be considered:- “(1) DEAN-COLLEGE OF HORTICULTURE Sr No Name of Candidate Qualifications Awar ds/ Meda ls/ Fell owsh ips Ex pe ri en ce Publication Inno vati ons/ Spec ial Achi evem ents Pr es en ta ti on In te rv ie ws Total Marks Bach elor ’s Degr ee Master’s Degree Ph.D. Degre e in relev ant Subje ct Releva nt to the Post Quality of Publica tions Marks Assigned (10) (15) (15) (05) 15 (05) (10) (05) (80) 1. 2. 3. 4. 5. B.Sc M.Sc Ph.d 6. 7. 8. 9. 10. 11 . 12 . 13. a. Dr.Ramesh Chand 5.92 11.70 12.00 - 15 2.00 10.0 - 3 11 70.62 b. Dr.Vijay Singh 6.36 10.71 11.29 - 10 5.00 9.00 2 2 9 65.35 (2) DIRECTOR OF RESEARCH Sr No Name of Candidate Qualifications Awar ds/ Meda ls/ Fell owsh ips Ex pe ri en ce Publication Inno vati ons/ Spec ial Achi evem ents Pr es en ta ti on In te rv ie ws Total Marks Bach elor ’s Degr ee Master’s Degree Ph.D. Degre e in relev ant Subje ct Releva nt to the Post Quality of Publica tions Marks Assigned (10) (15) (15) (05) 15 (05) (10) (05) (80) 1. 2. 3. 4. 5. B.Sc M.Sc Ph.d 6. 7. 8. 9. 10. 11 . 12 . 13. a. Dr.Satish Kumar 5.78 11.79 13.00 5 15 10.00 1.5 3 11 75.47 b. Dr.Vijay Singh 6.36 10.71 11.28 - 10 14.00 2 3 10 67.35 8 (3) DIRECTOR EXTENSION EDUCATION Sr No Name of Candidate Qualifications Awar ds/ Meda ls/ Fell owsh ips Ex pe ri en ce Publication Inno vati ons/ Spec ial Achi evem ents Pr es en ta ti on In te rv ie ws Total Marks Bach elor ’s Degr ee Master’s Degree Ph.D. Degre e in relev ant Subje ct Releva nt to the Post Quality of Publica tions Marks Assigned (10) (15) (15) (05) 15 (05) (10) (05) (80) 1. 2. 3. 4. 5. B.Sc M.Sc Ph.d 6. 7. 8. 9. 10. 11 . 12 . 13. a. Dr.Dhani Ram 6.64 11.73 11.82 1 15 2.00 8.00 3 4 11 74.19 b. Dr.Vijay Singh 6.36 10.71 11.29 - 10 5.00 9.00 2 3 10 67.35 These have been tabulated from the record made available by the University. Comparison of the performance of the petitioner and the respondents would show that there is a considerable difference/margin in marks between the petitioner and the second respondent in the overall score. On the question of allocation of separate marks for B.Sc. and M.Sc. which, according to the petitioner, cannot be allocated by the University, the position which emerges is this:- “1. Director of Research: Name B.Sc. M.Sc. Total Difference Dr.S.K.Sharma 5.78 11.19 16.97 Dr.Vijay leading by 0.10 marks Dr.Vijay Singh 6.36 10.71 17.07 9 2. Dean-College of Horticulture: Name B.Sc. M.Sc. Total Difference Dr.R.C.Sharma 5.92 11.70 17.62 Dr.R.C.Sharma leading by 0.55 marks Dr.Vijay Singh 6.36 10.71 17.07 3. Director Extension Education: Name B.Sc. M.Sc. Total Difference Dr.D.R. Gautam 6.64 11.73 18.37 Dr.Gautam leading by 1.3 marks” Dr.Vijay Singh 6.36 10.71 17.07 10. Considering these two criterias, the difference at the highest is 1.3 in the case of Director of Extension Education, who has since retired, and lowest being 0.19 in the case of Director of Research. For the post of Director/Dean College of the Horticulture, the difference is 0.55. In case of Director of Research, the petitioner in-fact gets 0.10 more marks under both these criterias, while against post of Dean, College of Horticulture, respondent No.2 is ahead by 0.55 marks and in Director of Extension Education, the selected candidate, got 1.3 more marks. So it is only two posts, namely; Dean of College of Horticulture and Director of Extension Education where the selected candidate is getting more marks which are very marginal. Even if these marks are excluded, it 10 makes no difference to the over all assessment of the candidates which is based on overall evaluation of Ph.D degree, research contribution, interview etc. where the margin is large. 11. Adverting to the first submission made by learned counsel appearing for the petitioner that the criteria of Annexure P-4 is arbitrary and ultra vires the statutes of the University, this submission cannot be accepted. What the Statutes provide for is the basic minimum, educational qualifications. As noticed, statute 3.11 stipulates for (1) degree in Ph.D. or its equivalent in Horticulture/Forestry, (2) 10 years’ teaching/research experience in the relevant field out of which at least 5 years’ experience should be as Professor and (3) a significant contribution and accomplishment in the field of teaching/research/ extension education as evidenced by publications/ articles in a Journal of repute. The composition of the Selection Committee is that of the Vice Chancellor, three scientists or educationists, with experience of work in scientific, educational or administrative capacity from outside the University, two to be nominated by the Chancellor and one to be nominated by the Vice-Chancellor-Members and one nominee of the ICAR as Member. The same criteria is provided for Director of Research and Director of Extension Education with this improvement that for the last post he will have 10 years teaching/research/extension education experience 11 in relevant field out of which atleast 5 years’ experience should be as professor or equivalent rank. 12. It would be evident that the composition of the Selection Committee, which comprises of eminent scientists itself eliminates the element of bias. Adverting to the apportionment of marks, the University has stated in its reply that at the 76th meeting of the Board of Management held on 4.7.2008, the criteria was involved to eliminate the element of bias. In the essential conditions as prescribed by the statute, there was always an element of arbitrariness which could creep in while awarding marks only under these three/five broad heads and nothing else and therefore, the Board of Management took a decision that in order to put the selection beyond the pale of challenge of arbitrariness, the entire educational career profile should be considered and further sub divisions made for award of marks on the basis of educational qualifications research etc. of each of the candidates on a uniform basis spanning their entire career in detail. Learned counsel Shri Onkar Jairath submits that the posts for which the selection were being made involved high academic/administrative responsibility which requires a consistently good performance in academic achievement for which purpose the entire educational/research career graph of a particular candidate is to be considered. He submits that there is no element of bias involved in this evaluation, as 12 awarding of marks on the basis of academic achievement, can be judged objectively. The relevant extract of the meeting of the Board of Management, Annexure R-1, is given hereinunder:- “SUPPELEMENTARY AGENDA Item No.13: To place before the Board of Management the Scorecards devised by the University for evaluating the candidates for recruitment to the posts of Deans/ Directors, Professor/equivalent and Assistant Professor/ equivalent. After detailed discussion, the Board of Management approved the proposed Scorecards devised by the University for evaluating the candidates for recruitment to the posts of Deans/Directors, Professor/Equivalent and Assistant Professor Equivalent with the observation that the marks for interview in all the three score Cards may not exceed 15 marks; and that 5 marks may be kept for Presentation by the candidates.” 13. Learned counsel submits that after the decision of the Supreme Court, striking down award of excessive marks on the basis of oral interview only this criterion was devised. He submits that the application forms required filling up of details of each candidate with respect to minute details. The entire educational profile was required to be detailed amongst other achievements. In these circumstances, it could not be urged that the candidates were taken by surprise immediately before the interview. It is 13 undisputed before me that the detailed forms to be filled in were provided:- “Dr.Y.S. Parmar University of Horticulture and Forestry SOLAN-173230 No.004324 Application form for employment FOR OFFICE USE ONLY Advertisement No…...... Date ……. Postal Order No…… Sr.No.of the post ………………. Date………. Amount …….. Application Form…. Complete/Incomplete Whether applicant called for interview Yes/No. 1. Post applied for: 2. Name in full (IN BLOCK LETTERS): 3. Father’s Name: 4. Date of Birth: 5. Place of birth and nativity (Distt.& State): 6. Present address to which communications shold be sent: 7. Permanent address: 8. Mother tongue: 9. Other languages known: 10. Whether belongs to SC/ST/Backward Class/E.S.M. If so attach certificate in support thereof: 11. Educational Qualifications, beginning with the High School Examination: Sr. No. Certificate/ Diploma or Degree obtained Years of study Class with % of marks obtaine d or Grade Institution/ Board/ University Field of Specia lisati on REMARKS (Attach attested copies of certificates in support of each degree or diploma) 12. Experience regarding previous and present employment: Sr.No. Employer Post held Pay drawn with scale Period of employoment From To Y M D (Attach separate sheet, if space is insufficient) 14 13. List of publications as per classification given below: Sr.No. Research articles Books/Bulletins Miscellaneous (Attach separate sheet, if space is insufficient. Attach one copy of the reprints of papers published). 14. Are you willing to accept the Basic pay in the scale of post? If not, State the minimum pay acceptable giving justification: 15. Name foreign Countries visited with duration and purpose: 1. 2. 3. 4. 16. List three referees not related to you, who can certify your professional competence: Sr.No. Name Address (i) (ii) (iii) 17. Any other information regarding experience etc.not covered above. If the space below is insufficient, the applicant may attach additional sheets. I certify that the information furnished above is true and correct to the best of my knowledge. Signature List of enclosures: Name and designation of the applicant 1. 2. 3. 4. INSTRUCTIONS FOR CANDIDATES 1. The application form should be filled in complete in all respects, giving corrects information. Defective and incomplete applications and those with wrong or false information will be rejected. 2. Any delay in sending the application through proper channel is not the responsibility of the University. Advance copies of the application to reach the Registrar, Dr.Yashwant Singh Parmar University of Horticulture and Forestry, Post Office Nauni-173230, Distt.Solan, Himachal Pradesh (India) within the prescribed time limit will be entertained provided the original forwarded through proper channel reaches the Registrar before the candidate is called for interview or “No Objection Certificate” from the employer is produced at the time of interview. 15 3. Candidates may send copies of testimonials from person well acquainted with their work and character. If a candidate names a referee who resides outside India, he should write to the person direct and ask him to send his recommendation straight to the Registrar, Dr.Yashwant Singh Parmar University of Horticulture and Forestry, Post Office Nauni- 173230, Distt.Solan (H.P.) The report will be treated as confidential. 4. Candidates who fulfill the conditions to be the satisfaction of the University authorities shall be required to appear for interview at the University Headquarters, Nauni (Solan) or such other place as may be decided by the University, at their own cost or at the expense of the University, if so decided. 5. The summoning of a candidate for interview is merely an indication of his suitability for the post but not an assurance that he will be recommended or selected or that his conditions specified in the application accepted. 6. Separate applications are required for each post. 7. Posts/Designations of equivalent pay scale are inter-changeable with the University, at the discretion of the University. 8. The University reserves the right to fill up or not to be fill up any of the posts advertised. 9. Applicatins should reach the Office of the Registrar, Dr.Yashwant Singh parmar University of Horticulture and Forestry, P.O. Nauni-173230, Distt.Solan (H.P.) before 5.00 p.m. on the due date or the next working day, if the due date happens to be a holiday. Registrar, Dr.Yashwant Singh Parmar University of Horticulture & Forestry P.O. NAUNI, Solan-173230.” 14. I have gone through the form which requires replete details. Learned counsel Shri Onkar Jairath submits that the advertisement was issued on 29th November, 2008 and the meeting of the Board of Management was held on 4th July, 2008 and in these circumstances it cannot be said that the criteria Annexure P-4 which is same as Annexure R-1 has been tailor made to suit a particular individual. 16 15. Learned Senior counsel Shri Chandel urges that (a) there is no authority vested with the respondents to alter the conditions/essential qualifications as prescribed in Annexure P-2; (b) that Statute 3.11 has been amended by Annexure P-4 without following the necessary procedure for amendment of the statute including the concurrence of the Chancellor and as such, it cannot be implemented. 16. Considering first the question, as to whether the criteria provided is not in conformity with the statutes, submissions made on behalf of the petitioner cannot be accepted for the reasons that it does not change the basic minimum qualification(s) required for selection to the post in question and therefore Section 54 of the Act cannot be relied upon to urge that without following the necessary procedure, no amendment in the statute can be made. What Annexure P-4/R-1 provides is the method of assessment and not for the prescription of basic minimum qualification. Judging the academic career graph of a person from the graduation level, it can not be said to be to the disadvantage of a candidate, change of the basic eligibility criteria or in any manner providing for an additional criteria not contemplated by the statute. In-fact if Annexure P-4/R-1 is considered in detail it only reduces the element of arbitrariness. 17. It cannot be urged that Annexures P-3, P-4 and P-5 (as also annexure R-1) in any manner alter the 17 basic conditions of eligibility or provide for different criteria for selection. Judging the entire academic career and profiling the candidate for selection on the basis of such achievement, cannot be said to be contrary to what has been provided in the Statutes. 18. Learned counsel refers to the decision of the Supreme Court in N.T. Devin Katti and Others vs. Karnataka Public Service Commission and Others, (1990)3 SCC 157, holding that every candidate has a right for consideration and that no amendment can be made in the Rules, which retrospectively takes away the right of consideration. In particular, he refers to paragraph- 11 of the judgment:- “11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of 'Various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and 18 conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise 19 qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.” (p-165) 19. Learned Senior Counsel submits that in District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another vs. M.Tripura Sundari Devi, (1990)3 SCC 655, the Supreme Court rules that the conditions in the advertisement cannot be altered. The Court holds:- “6. … … … … … when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is