{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1364 OF 2009 Sharfun Nihar Syed Ali Zafar Roomi Age-47 years, Occ-Service R/o Flat No.C-2, Super Apartment, Jaisingpura, Aurangabad PETITIONER VERSUS 1. State of Maharashtra Through Secretariat Department, Mantralaya, Mumbai 2. Dr.Babasaheb Ambedkar Marathwada University, Aurangabad Through its Registrar 3. Vice Chancellor Dr.Babasaheb Ambedkar Marathwada University, Aurangabad RESPONDENTS ....... Mr.J.R.Shaikh, Advocate for the petitioner Mr.V.H.Dighe, AGP for respondent No.1 Mr.S.S.Thombre, Advocate for respondents No.2 and 3 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] Reserved On : 25th August 2009 Pronounced on : 7th September 2009 ORDER (PER A.V.POTDAR, J.): {2} 1. By the present petition, under Article 226 of the Constitution of India, the petitioner challenges the order dated 09.09.2008 passed by the Vice Chancellor of Dr.Babasaheb Ambedkar Marathwada University, Aurangabad by which the selection of the petitioner to the post of Reader in Urdu subject has been rejected. The petitioner has further prayed for directions to the respondents for issuance of appointment order in favour of the petitioner. 2. Before adverting to the submissions advanced across the bar, it is necessary to narrate some undisputed facts- Respondent No.2 University had issued an advertisement on 04.01.2008 inviting application for the posts of Professors, Readers and Lecturers in various subjects. The petitioner had applied for the post of Reader in Urdu subject in response to the said advertisement. The petitioner was called for the interview on 05.05.2009 along with other candidates. The petitioner claimed that she was selected for the post of Reader in Urdu. According to the petitioner appointment letters/orders were issued to the candidates who were interviewed for different subjects, on the same day or on the next day. However, no such appointment order was issued to the petitioner. Therefore, she made inquiries with the authorities of respondent No.2 University and requested to declare the result of her interview. As no information was provided to her, {3} she had filed a writ petition No.3948/2008 in this Court seeking directions to declare the result of her interview. It appears that respondents No.2 and 3 had filed their affidavit in reply. Relying on the said affidavit in reply this Court had disposed of the writ petition by observing that the cause, based on which petitioner has approached this Court, no longer survives. It further appears that review application No.171/2008 was also filed by the petitioner in which affidavit in reply was filed by respondents No.2 and 3 contending that though the name of the petitioner was recommended by the Selection Committee, yet the Vice Chancellor, vide order dated 09.09.2008, has rejected the same. Hence, the present writ petition challenging the order dated 09.09.2008 passed by the Vice Chancellor, respondent No.3. 3. In response to the notice, respondents No.2 and 3 appeared and filed their affidavit in reply. The respondents have denied all the averments of the petitioner. It is specifically contended that after the selection committee recommended the name of the petitioner, it transpired that after the interview was held on 05.05.2008 and faced by the petitioner she was invited to assess the papers of M.A. Urdu (I & II) examination held in the month of March / April 2008 where she reported on 13.05.2008 and assessed the papers till 15.05.2008 and on 15.05.2008 it came to the notice of the University that younger sister of the petitioner has also appeared for the said M.A. (I) Urdu examination. It also {4} came to the notice of the University that the petitioner was the paper setter of M.A. Urdu examination, however when she was invited for examination of the papers, she had not disclosed the fact that her younger sister had also appeared for the said examination. Therefore, according to respondent No.2 University, the petitioner is guilty of misconduct, because as per regulations of the University, the petitioner was suppose to give an undertaking and to intimate that none of her close relatives has appeared for the examination for which she is setting or assessing the papers. After this fact came to the notice of the University, the Vice Chancellor, under his powers, rejected the recommendations of the selection committee. 4. In this background, heard learned counsel for the parties. 5. During the course of arguments, advanced on behalf of the petitioner, our attention is drawn towards section 76 of the Maharashtra Universities Act, 1994, which deals with the selection and appointment of the University Teachers. Section 76 (1) of the Universities Act reads as under - 76. (1) Subject to the provisions of this Act, Statutes and Ordinances, the Vice Chancellor shall, till the University Grants Commission’s scheme of recruitment becomes operative, appoint according to the order of merit and recommendations made by the Selection Committee, a university teacher.” {5} 6. Further our attention is drawn by the learned counsel appearing for the petitioner towards section 14 of the Universities Act, which deals with the powers and duties of the Vice Chancellor. Sub Section (9) of section 14 mandates that the Vice Chancellor is the appointing and disciplinary authority for the university teachers. Sub sections (5) and (6) of section 14 deal with the powers of the Vice Chancellor in respect of decision taken by the selection committee and in case the Vice Chancellor defer with the recommendations. For clarity it is necessary to reproduce the relevant provisions of section 14 of the Universities Act, which reads thus - “14 (1) ....... (2) ...... (3) ...... (4) ..... (5) It shall be the duty of the Vice-Chancellor to ensure that the directives of the State Government, if any, and the provisions of the Act, Statutes, Ordinances and Regulations are strictly observed and that the decisions of the authorities, bodies and committees which are not inconsistent with the Act, Statutes, Ordinances or Regulations are properly implemented. (6) The Vice-Chancellor may defer implementation of a decision taken or a resolution passed by any authority, body or committee of the university if, he is of the opinion that the same is not consistent with the provisions of the Act, Statutes, Ordinances or Regulations or that such decision or resolution is not in interest of the university and at the earliest opportunity refer it back to the authority, body or committee concerned for reconsideration in its next meeting with reasons to be recorded in writing. If differences persist, he shall, within a week, giving reasons submit it to the Chancellor for decision {6} and inform about having done so to the members of the authority, body or committee concerned. After receipt of the decision of the Chancellor, the Vice Chancellor shall take the action as directed by the Chancellor and inform the authority, body or committee concerned accordingly. (7) ...... (8) ..... (9) The Vice Chancellor shall be appointing and disciplinary authority for the university teachers who are appointed on the recommendations of the selection committee constituted for the said purpose.” 7. By placing reliance on the above provisions it is urged that though the Vice Chancellor is the appointing and disciplinary authority yet by virtue of sub section (6) of Section 14 if the Vice Chancellor defers with the recommendations of the committee then the Vice Chancellor, for the reasons to be recorded in writing in respect of his difference, shall send the matter back to the committee for reconsideration and thereafter if the difference subsist, for the reasons recorded in writing, shall refer the matter to the Chancellor. According to the petitioner, the Vice Chancellor, at his own, cannot set aside the recommendations of the committee. 8. Learned counsel for the petitioner also placed reliance on the ruling reported in AIR 2002 SC 1885 in the matter of “Vinodan T. V/s University of Calicut”, wherein it is observed that the persons selected for a post do not, thereby acquire a right to be appointed to such post is well established by judicial {7} precedent. Even if vacancies exist, it is open to the concerned authority to decide how many appointments should be made. However, the selected candidates have a right to compel such authority (i) not to make appointments by traveling outside the list and (ii) to make the selection for appointment strictly in the order the candidates have been placed in the list. Further reliance is placed on the ruling reported in AIR 2005 SC 2775 (1) in the matter of “Food Corporation of India V/s Bhanu Lodh” wherein it is it is observed that unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted. It is further observed that “However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review.” Learned counsel for the petitioner also placed reliance on the ruling reported in AIR 2008 {8} SC 559 in the matter of “Dir.S.C.T.I. V/s V.Pushkaran” it is observed in the said judgment that it is evident that whereas the selectee as such has no legal right and the superior court in exercise of its power of judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on the part of the employer. Each case, therefore, must considered on its own merit. 9. It was tried to urge that the petitioner was called for assessment of papers after she faced the interview and hence to cancel her selection on the basis that she has not disclosed that her younger sister has appeared in the said examination would not amount to misconduct and therefore the Vice Chancellor is not justified in rejecting her selection. 10. Per contra, learned counsel for respondents No.2 and 3 urged that considering the fact that no legal enforceable right is vested with the petitioner for her appointment as per the advertisement, the writ petition is not maintainable at all. It is urged that now the University has re-advertised the post of Reader in Urdu subject and the petitioner has also applied for the same. This fact is not denied by the learned counsel for the petitioner. 11. Considering these submissions and as observed in the judgments cited supra, one fact is clear that as per rule under the service jurisprudence, mere selection during the recruitment does {9} not create any enforceable vested right in the person selected. 12. In the case in hand, it is not disputed that the petitioner was paper setter and she has also assessed papers for M.A. Urdu examination for which her sister had appeared. It is also not disputed that as per regulations the petitioner has filed an undertaking in respect of appearance of her close relatives in the said examination. It is but natural that when the petitioner has acted as paper setter, even before appearing for the interview, she was aware that her sister is also appearing for the said examination and later on also she assessed the said papers. In the premise, as per the powers vested u/s 14 (9) of the Universities Act, if the Vice Chancellor, who is the appointing authority of the teachers, rejected the recommendations of the selection committee it cannot be said that the same is arbitrary, malafide or unreasonable. We do not find any fault with the order passed by the Vice Chancellor rejecting the recommendation of the selection committee. In the premise, no interference is called for in the extra ordinary writ jurisdiction of this Court in exercise of powers under Article 226 of the Constitution of India. Therefore, this writ petition, which is sans merits, is dismissed with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp1364-09 {10} Learned counsel for the petitioner prays for certificate to appeal to the Supreme Court. Request refused. Learned counsel for the petitioner also prays that the statement of the respondents, that the post would not be filled in, be continued. In the light of what has been held by us above, the said request is declined. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp1364-09