*THE HON’BLE SRI JUSTICE SANJAY KUMAR + WRIT PETITION NOS.12563, 15138 AND 24732 OF 2010 % -02-2011 # Dr.N.Vinatha Naini and others …Petitioners Vs. $ The State of Andhra Pradesh, Rep. by its Secretary, Department of Higher Education, Secretariat, Hyderabad and others …Respondents <GIST: >HEAD NOTE: ! Counsel for petitioners : Sri D.Prakash Reddy, learned senior counsel representing Smt.G.Jaya Reddy, learned counsel; Sri G.Vidya Sagar, learned counsel; Sri Ghanshyamdas Mandhani, learned counsel; ^ Counsel for respondents : Sri C.V.Mohan Reddy, learned senior counsel representing Sri A.Muneendhar Reddy, learned counsel; Sri N.Sridhar Reddy, learned counsel representing Sri A.Santosh Kumar, learned counsel; Sri CVR Rudra Prasad, learned counsel. Sri Deepak Bhattacharjee, learned standing counsel for Kakatiya University; ? CASES REFERRED: 1) (2003) 3 SCC 472 2) AIR 1965 SC 491 3) (1979) 2 SCC 339 4) (1980) 3 SCC 418 = AIR 1980 SC 2141 5) (1990) 1 SCC 305 6) (1990) 2 SCC 746 7) (2008) 14 SCC 306 8) (2010) 8 SCC 372 9) (1992) 2 SCC 220 10) (1994) 1 SCC 169 11) (1993) 3 SCC 663 12) AIR 2005 SC 325 13) AIR 2001 AP 57 14) (1993) 4 SCC 10 15) 1923 All ER Rep.233 16) (1998) 5 SCC 513 THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.12563, 15138 AND 24732 OF 2010 DATED FEBRUARY, 2011 BETWEEN Dr.N.Vinatha Naini and others …Petitioners And The State of Andhra Pradesh, Rep. by its Secretary, Department of Higher Education, Secretariat, Hyderabad and others …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.12563, 15138 AND 24732 OF 2010 COMMON ORDER: Selection and appointment to two posts of Assistant Professor in Zoology in Kakatiya University, Warangal, are called in question. Writ Petition Nos.12563 of 2010 and 24732 of 2010 are filed by Dr.Vinatha Naini and Dr.Damayanthi respectively challenging the appointment of Dr.Ch.Sravanthy to one such post under Open Competition (Women) (OC-W) reserved category, while Writ Petition No.15138 of 2010 is filed by Dr.M.Radha Krishna assailing the appointment of Dr.Gowda Rajender to the other post reserved for Backward Classes – Group B (BC-B) category. The matters were listed before this Court for hearing on the interlocutory applications. However, as copious and comprehensive arguments covering the merits of the main cases were advanced by the learned counsel for the parties, the writ petitions were taken up for disposal with their consent. The Kakatiya University, Warangal, issued Notification No.2/2009 dated 31.12.2009 calling for applications from qualified candidates for appointment to various posts of Assistant Professor and Associate Professor in its faculties. In so far as the discipline of Zoology is concerned, two posts of Assistant Professor were notified – one, reserved for OC-W category and the other, for BC-B category. Twenty five applicants aspired for these two posts and twenty two of them were found eligible. Interviews by the Selection Committee for filling up the two posts were conducted on 20.04.2010. Out of the twenty two eligible candidates called for the interviews, five candidates failed to appear. Thus, five candidates were interviewed for the post reserved for OC-W category and twelve candidates for the post reserved for BC-B category. The Selection Committee, by its proceedings dated 20.04.2010, recommended the names of Dr.Ch.Sravanthy and Dr.Gowda Rajender for appointment to the two posts. The Executive Council of Kakatiya University in its 87th Meeting held on 30.04.2010 resolved to approve these recommendations. Accordingly, appointment orders dated 30.04.2010 were issued by the Kakatiya University through its Registrar to Dr.Ch.Sravanthy and Dr.Gowda Rajender. They joined duty as Assistant Professors in Zoology on 01.05.2010. Unsuccessful in their bid for the posts, Dr.Vinatha Naini, Dr.M.Radha Krishna and Dr.Damayanthi are before this Court challenging the above selection and appointments. The case of Dr.Vinatha Naini is founded on the charge that Dr.Ch.Sammaiah, the Chairman of the Board of Studies in Zoology of Kakatiya University, who is no other than the father of Dr.Ch.Sravanthy, misused his office to get his daughter appointed. It is her allegation that Dr.Ch.Sammaiah was a member of the Selection Committee which chose Dr.Ch.Sravanthy for the post. Dr.M.Radha Krishna, on the other hand, challenged the appointment of Dr.Gowda Rajender on the ground that the meeting of the Executive Council held on 30.04.2010 was short of the required quorum as stipulated under the A.P. Universities Act, 1991 (for brevity, ‘the Act of 1991’) and therefore, the appointment based on the approval by the Executive Council in such a defective meeting was legally invalid. Dr.Damayanthi raised various grounds in support of her challenge to the appointment of Dr.Ch.Sravanthy. According to her, the evaluation of candidature by the Selection Committee was unjust, arbitrary and illegal. She also attributed mala fides to the members of the Selection Committee in the award of marks under the head ‘interview performance’. She alleged that the Selection Committee was biased in favour of Dr.Ch.Sravanthy owing to her relationship with Dr.Ch.Sammaiah, Chairman of the Board of Studies, Zoology, Kakatiya University. She further alleged that the constitution of the Selection Committee itself was not valid being in violation of the relevant statutory provision. The Kakatiya University, the appointed candidates and Dr.Ch.Sammaiah, Chairman, Board of Studies, Zoology, Kakatiya University, filed separate counters contesting the petitioners’ claims. Heard Sri D.Prakash Reddy, learned senior counsel representing Smt.G.Jaya Reddy, learned counsel for Dr.Vinatha Naini; Sri G.Vidya Sagar, learned counsel for Dr.M.Radha Krishna; Sri Ghanshyamdas Mandhani, learned counsel for Dr.Damayanthi; Sri Deepak Bhattacharjee, learned standing counsel for Kakatiya University; Sri C.V.Mohan Reddy, learned senior counsel representing Sri A.Muneendhar Reddy, learned counsel for Dr.Ch.Sravanthy; Sri N.Sridhar Reddy, learned counsel representing Sri A.Santosh Kumar, learned counsel for Dr.Gowda Rajender and Sri CVR Rudra Prasad, learned counsel for Dr.Ch.Sammaiah. On a conspectus of the pleadings and the arguments advanced, the issues that arise for consideration in these cases may be summarized under the following heads: 1) Maintainability of Writ Petition Nos.12563 of 2010 and 24732 of 2010 on the issue of mis-joinder. 2) Evaluation of the comparative merits of the candidates by the Selection Committee. 3) Bias and/or mala fides, if any, of the Committee in the process of selection. 4) Invalidity of the appointments owing to the alleged lack of requisite quorum in the Executive Council meeting held on 30.04.2010. 1) Maintainability of Writ Petition Nos.12563 of 2010 and 24732 of 2010 on the issue of mis-joinder. No specific objection as such was raised in any of the counters filed by the contesting respondents as to the maintainability of these two writ petitions on the ground of mis-joinder of parties. Relevant to note, the University itself did not choose to raise this issue. However, as the issue turns upon the interpretation of the statutory provision and arguments were advanced on this aspect by Sri C.V.Mohan Reddy, learned senior counsel, this Court deems it necessary to consider and deal with the same. It is the contention of Sri C.V.Mohan Reddy, learned senior Counsel, that as per Section 3(3) and (4) of the Act of 1991, the University ought to have been impleaded represented by its Registrar and as in these two writ petitions, it was impleaded represented by its Vice-Chancellor, the writ petitions would not be maintainable. The learned senior counsel placed reliance on CHIEF CONSERVATOR OF FORESTS, GOVERNMENT OF ANDHRA PRADESH v. COLLECTOR[1], wherein the Supreme Court, while stating that a legal entity – a natural person or an artificial person – can sue or be sued in his/its own name in a Court of law or Tribunal, observed that there are special provisions with regard to how juristic persons can sue or be sued. The Court affirmed that it is not merely a procedural formality but is essentially a matter of substance and considerable significance. In giving description of a party, it would be useful to remember the distinction between misdescription or misnomer of a party and mis-joinder or non-joinder of a party suing or being sued. The Court was of the opinion that misdescription of a party would not be fatal to the maintainability of the proceeding. In the two writ petitions, the Kakatiya University, Warangal, is named as a respondent and it is shown to be represented by its Vice- Chancellor. Section 3(3) of the Act of 1991 reads to the effect that a University shall be a body corporate having perpetual succession and a common seal and shall sue and be sued by the said corporate name. Sub-section (4) of Section 3 states that in all suits and other legal proceedings by or against the University, the pleadings shall be signed and verified by the Registrar and all processes in such suits and legal proceedings shall be issued to and served on the Registrar. There is thus no stipulation in either sub-section to the effect that the University must only be sued through the Registrar. As long as it is sued in its corporate name and all processes in such proceedings are issued to and served on the Registrar, there is no violation of the statutory provision. In the two writ petitions, the Kakatiya University, Warangal, was sued in its corporate name and the Registrar is independently made a party. There is thus no violation of the statutory provision. The contention urged by Sri C.V.Mohan Reddy, learned senior counsel, as to the maintainability of these two writ petitions is therefore rejected. 2) Evaluation of the comparative merits of the candidates by the Selection Committee. Though arguments were advanced at length on either side as to the merits of the selection, touching upon the award of marks by the Selection Committee under the heads of assessment pertaining to teaching experience, publications and interview performance, this Court is not inclined to venture into an examination of the marks awarded and the correctness thereof. Trite to state, this Court would not sit in appeal over the deliberations of a Selection Committee. All the more so while dealing with complaints against appointments made by academic bodies. I n UNIVERSITY OF MYSORE v. C.D.GOVINDA RAO[2], a Constitution Bench of the Supreme Court observed: “13. ……… Boards of Appointments are nominated by the Universities and when recommendations made by them and the appointments following on them are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. ……… In this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No. 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified.” Similar was the view taken in DR.M.C.GUPTA v. DR.ARUN KUMAR GUPTA[3] where the Supreme Court was dealing with the appointment of a Professor in Medicine in the State Government Medical College upon selection by the Public Service Commission. The Court observed that when selection was made by the Commission, aided and advised by experts having technical experience and high academic qualifications in the specialist field, the Courts should be slow to interfere with the opinion expressed by such experts unless there are allegations of mala fides against them. The Court was of the opinion that it would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face. The Court was however quick to add that if such a body were to contravene rules and regulations binding upon it in making the selection and recommending selectees for appointment, the Court in exercise of extraordinary jurisdiction in a writ petition may interfere. In DR.J.P.KULSHRESTHA v. CHANCELLOR, ALLAHABAD UNIVERSITY[4], the Supreme Court, while observing that any administrative or quasi-judicial body clothed with powers and left unfettered by procedure is free to devise its own pragmatic, flexible and functionally viable processes of transacting business, added that the same would be subject to the basics of natural justice, fair play in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping within the leading strings of law. Dealing with the contention that Courts should not substitute their judgment for that of academicians when a dispute relates to educational affairs, the Supreme Court observed that while there was no absolute ban, it is a rule of prudence that Courts should hesitate to dislodge decisions of academic bodies but added that University organs are also bound by rule of law and cannot be a law unto themselves. The Court went on to enunciate that to respect an authority is not to worship it unquestioningly. In short, while dealing with legal affairs which had an impact on academic bodies, the Court held that the views of educational experts are entitled to great consideration but not exclusive wisdom. DALPAT ABASAHEB SOLUNKE v. DR.B.S.MAHAJAN[5] upheld the proposition that it is not the function of the Court to hear appeals over the decisions of Selection Committees and to scrutinize the relative merits of the candidates. It is however to be noticed that the Court again pointed out that the decision of a Selection Committee can be interfered with on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection or proved mala fides affecting the selection etc. I n NEELIMA MISRA v. HARINDER KAUR PAINTAL[6], the Supreme Court was dealing with the appointment of a Reader in the Department of Psychology, Lucknow University. The Court observed that when appointments are based on recommendation of experts nominated by the Universities, the High Court has only got to see whether the appointment had contravened any statutory or binding rule or ordinance and that due regard had to be shown to the opinion expressed by the experts constituting the Selection Committee and their recommendation on which the Chancellor had acted. I n B.C.MYLARAPPA v. DR.R.VENKATASUBBAIAH[7], the post of a Professor in Bangalore University was the bone of contention. The High Court set aside the appointment made by the University on the ground that the appointee did not have the requisite qualifications. The Supreme Court disagreed with the High Court holding that once the Board of Appointment, comprising experts in the field, considered the candidature of the appointee and came to hold that he was the candidate who could satisfy the conditions for appointment to the post of Professor, the High Court ought not to have interfered with it when there were no mala fides attributed to the members of the expert body which selected the appointee. The Court observed that such selection was made by the assessment of relative merit of rival candidates determined in the course of the interview of the candidates and after thoroughly verifying their experience and service. I n BASAVAIAH (DR.) v. DR.H.L.RAMESH[8], the Supreme Court was dealing with appointment to the post of Readers in Sericulture in the University of Mysore. The Court found that the Selection Committee appointed by the University thoroughly scrutinized the qualification, experience and published works of the candidates and made its recommendations. That being so, the Court was of the opinion that as the Committee, comprising experts, had evaluated the qualification, experience and published works of the candidates and thereafter made recommendations, the Division Bench of the High Court ought not to have sat as an appellate body on such recommendations. Referring to case law on this aspect, the Supreme Court concluded that Courts have a very limited role to play in academic matters, all the more so when no mala fides are alleged against the experts constituting the Selection Committee. I n BHUSHAN UTTAM KHARE v. DEAN, B.J.MEDICAL COLLEGE[9], the Supreme Court reiterated the principle that in dealing with orders passed by the authorities of educational institutions, the Court should normally be slow to interfere with matters falling within the jurisdiction of educational authorities which should normally be left to their decision and the Court should interfere only when it thinks that it must do so in the interest of justice. By and large, as laid down in the above decisions, it would be wise for this Court to leave the decisions in academic matters to experts in the field who would be more familiar with the problems they face than this Court can be. The scope of judicial review would therefore not extend to evaluation of the comparative merits of the candidates who aspired for appointment in the present case. However, as spelt out by the Supreme Court in DR.J.P.KULSHRESTHA3, t h e functional freedom allowed to academic bodies in such matters would be subject to the basics of natural justice, fair play in action, reasonableness in collecting decisional material and avoidance of arbitrariness and extraneous consideration and otherwise keeping within the leading strings of law. Thus, within these parameters, this Court would not be chary of treading this hallowed territory. It is in the context of this legal environment that the rival contentions of the parties will have to be considered. Voluble arguments were advanced by the learned counsel appearing for the defeated and the successful job aspirants as to the demerits and merits of the evaluation by the Selection Committee under the various heads of assessment. Sri Ghanshyamdas Mandhani, learned counsel for Dr.Damayanthi, contended that marks were not awarded as per the prescribed procedure in so far as the head ‘publications’ is concerned. The learned counsel pointed out that the University Grants Commission (UGC), New Delhi, communicated its Regulations on ‘Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education’ on 23.09.2009 (for brevity, ‘the UGC Regulations of 2009’) and that Notification No.2/2009 dated 31.12.2009 issued by the Kakatiya University categorically referred to the applicability of the said Regulations to the subject selection. He further pointed out that as per these Regulations, specific norms on ‘Academic Performance Indicators’ (APIs) were set out, including as to how marks were to be awarded for publications, depending upon the impact factor of the journal, the nature of the journal and the number of authors. Applying these norms, learned counsel argued that the award of marks under this head of assessment in the present case was unsustainable. He relied upon Clause 6.2.0 of the UGC Regulations of 2009 in support of his contention that the APIs under Tables I to III of the said Regulations would be applicable not only to career advancement promotions but also direct recruitments. Refuting these contentions, Sri Deepak Bhattacharjee, learned standing counsel, and Sri C.V.Mohan Reddy, learned senior counsel, pointed out that the letter dated 23.09.2009 addressed by the UGC itself made it clear that the Regulations communicated were only the recommendations of the Expert Committee constituted by the UGC. They relied upon the letter dated 19.02.2010 addressed by the UGC to the Kakatiya University clarifying that it may go ahead with the recruitment and promotion of teachers as per the UGC Regulations of 2000 as amended from time to time and that the Universities would be required to follow the new Regulations upon notification in the Gazette of India. They pointed out that the new Regulations came into effect only from 28.06.2010 upon publication in the Gazette of India as ‘The University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010’. They therefore contended that the Regulations of 2009 had no application to the subject selection which was set in motion prior to the supersession of the UGC Regulations of 2000. Sri C.V.Mohan Reddy, learned senior counsel, advanced the alternate argument that even if the UGC Regulations of 2009 were taken to be applicable to the subject selection, Notification No.2/2009 dated 31.12.2009 made it clear that the said Regulations were adopted only to the extent of the qualifications prescribed therein for the posts advertised and no further. Learned senior counsel submitted that the selection procedures relating to APIs relied upon by Sri Ghanshyamdas Mandhani, learned counsel, were not made applicable as was clear from the Notification itself and therefore, the norms relating to evaluation of publications stipulated in such Regulations had no role to play in the subject selection. This Court finds merit in this contention. The subject selection commenced with the issuance of the Notification on 31.12.2009. As is clear from the UGC’s own letter, by that time the new Regulations had not superseded the existing UGC Regulations of 2000. The new Regulations were therefore merely recommendatory in nature. The Notification made it clear that these recommendatory Regulations were adopted only for a limited purpose. Clause (3) of the Information Brochure appended to the Notification reads as under: “3. The qualifications prescribed for the posts advertised are as per the UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations-2009/A.I.C.T.E. The relevant documents available on the websites of UGC (www.ugc.ac.in) and AICTE (www.aicte.ernet.in) may be referred for any additional information on qualifications and other conditions.” Thus, the selection procedures specified from Clause 6 onwards in the new Regulations did not have any role to play in the subject selection. To that extent, the old UGC Regulations of 2000 continued to prevail. That being so, the APIs introduced under the new Regulations with regard to evaluation of publications had no relevance or applicability in the subject selection. It appears that the Government of Andhra Pradesh, while implementing the UGC Revised Pay Scales, 2006 for the Teaching Staff in Universities and Colleges under G.O.Ms.No.14, (UE.II) Department, dated 20.02.2010, took note of the recommendatory UGC Regulations of 2009 dated 23.09.2009 and provided therein that the service conditions of the Teachers, including recruitment and qualifications, selection procedure, etc., shall be as indicated in the said regulations. The G.O. therefore includes extracts from the recommendatory UGC Regulations of 2009. The Universities were directed to implement the same within a time frame of 3 months from the date of issuance of the G.O. by duly amending their Statutes, Ordinances, etc. Relevant to note, this G.O. was also issued after the commencement of the subject selection process under Notification No.2 dated 31.12.2009. Therefore, this G.O. could have had no retrospective application in so far as the subjection selection was concerned. The argument of Sri Ghanshyamdas Mandhani, learned counsel, in this regard must therefore fail. Crystallized by the weight of judicial precedent, the scope of judicial review in matters of this nature would empower this Court to verify whether fair play in action and avoidance of arbitrariness and extraneous consideration has been maintained during the process of selection. The requirement of fair play in action would enjoin this Court to examine whether the process of selection was vitiated by any infraction of rules or settled norms. Sri Deepak Bhattacharjee, learned standing counsel for the University, produced the records pertaining to the subject selection for perusal of the Court. The file reflects that a single consolidated assessment sheet signed by all the members of the Selection Committee is the only record of the proceedings of the selection for both posts. Upon a query from the Court, the learned standing counsel submitted that there was no separate individual assessment by each of the six members of the Selection Committee. He further submitted that except for this consolidated assessment sheet, there was no other record of the deliberations of the Selection Committee during the process of