228 1 1 1T CWP Noe2370of2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION2 2752011 1 Dre Suresh Kumar Petitioner l VERSUS 0 0 Maharshi DayanandUniversity and others I Respondents C5 I CORAM Z HONBLE MRJSTICE PERMOD KOHLI PRESENT2 MtHarinder Sharma I Advocate for the petitioner Z Mr4nuragGoyal Advocate MrSaurabh Chopra Advocate QO mW Z Permod Kohli Je 0 le of respondentno3 as Reader in the disciplineof Pharmacognosyin the department of Pharmaceutical Sciences of the 14ea DayanandUniversity has been challengedin the present writ petitionBrieflystated the facts relevantfor purpose of present writ petitionare noticed hereinafter 2e Dayanand University issued an advertisement no 1 of 2008 in various newspapers and Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 11 229 a CWP Noe2370of2009 also throughits website invitingapplicationsfor the post of ReaderlAssistantProfessor Ill the pay scale of Rs 12000 42018300 Three postsof Reade one in each subjectof il Pharmaceutical Chemistry i and i in the Departmentof Pharmaceutical 1 Sciences of the respondentJniversitywere notified for As per the advertisement the 0 0 minlmum qualificationprescribedfor the posts were PhD I C5 degreewith first class either at Bachelors or Masters Level I in the appropriatebranch of specializationin Pharmacywith Z two years expeence in at the 2 Ievel of Lecturer or equivalentOR I lSt class degreeat Masters LeveI in the appropriatebranch Lo Z of specializationIll Pharmacywith five years experiencein at the Ievel of Lecturer such OO candidates will be requiredto obtain PhD degreewithin a mm Z period of seven years from the date of appointmentas Assistant Professor 3e Petitioner who was Ph D in the subject of Pharmacognosy and was otherwise eligiblefulfilling all ee necessaryconditions applied for the post of Assistant ProfessorlReader Ill the disciplineof Pharmacognosy in responseto the aforementioned advertisement Since very few applicationswere received another advertisement no312008 was issued for two posts of Reader in the Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 1 1 230 1 1 CWP Noe2370of2009 3 subjectsof Pharmacognosyand Pharmacologyfor which same qualifications and experience were notified as in the earlier advertisement The second advertisement further contains stipulation that those candidates who had appliedagainst advertisement no 112008need 1 not applyagain Respondentno3 also appliedin response to the advertisement After shortIistingof the candidates 0 0 interviews were held As many as six candidates were I 0 screened forinterview However onlythree candidatesie I petitionerrespondentno3 and one Vivek Kumar appeared Z for interview held on 4 112008 before the Selection Committee chaired by respondentno2 4m The Selection Committee is a statutory committee t0 Z constituted as per stature22 framed under Section 15 of the MaharshiDayanandUniversityAct 1975 lereinafter 01 w referred to as the Act The Selection Committee Z comprisedof followingmembersl Qm SrJ Name of Designation Subject Specialization 0 Selection Committee Members le Prof R P Hooda VicewChanceilor MDUR Chairman ree 2e Prof4Kadaan Dean Faculty of Pharmaceuti Pharmacy Pharma Sc cal Sciences Biochemlstry 3 DrArun Nand Head Deptt Of doe do Pharma SCe 4e ProfRup KKhar Professor do dow outside subject expert Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 231 CWP Noe2370of2009 Sr Name of DesignaOon Subject Specialization 0 SeIection Committee Members 5a ProfSaranjit Professor doe edoe Singh outside subject expert 6 ProfSBhoop Professor do do outside subject expert 7 ProfSS1garwal Principal edoe do C Cha ncellors Nomineel 0 0 Procedure for constitution of Selection Committee and I quorumetc is prescribedunder stature22 of the Act The 9 same IS reproducedas underl Z Selection Committee for appointments e 22 ll The Selection Committeelscreening I committee for recommendingappointmentand promotionof the teachers of the University Z namely Lecturer Lecturer Ill senior scale CO Iecturer in selection gradelreaderprofessor 7 Z under the relevant promotion scheme as approvedby the Universityshall consist of the followingl The VicemChancellor 94mev iiornitted iii the head of the department concerned however when the head of the department concerned happensto be of the rank of a reader the dean of the faculty concerned will Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 232 l CWP Noe2370of2009 5 be a member of the committee in his placefor the selection to the postof Professor ivthree outside experts in the concerned subject out of the Iist recommended by the ViceChancellor and approvedby the Executive 1 Council Ct vvo persons not in the service of the 0 0 Universityto be nominated by the Executive I C9 Council one of whom shall be a person out of I four persons nominated by the Chancellor to Z the Executive Council in the case of selection C2 of the finance officer and the controller of I examinations Z vAn academician who is nominee of the chancellor C mV videan of the faculty Z 2The ViceChancellor shall be the chairman of the selection committee 3The Registrarshall be the Secretaryof the Selection Committee eeeee 4The selection committee shall also recommend the appointment of director directorate of distance education director regionalcentre principal of the maintained college director deputydirector asst Director Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 233 1 CWP Noe2370of2009 6 of Physicaleducation director youth welfare Iibrarian deputy Iibrarian asst Iibrarian and the postsequivalentthereto Notel The quorum shall be four out of which at Ieast two outside subjectexperts must be 1 present 0 ioA nominee of the UGC will be associate with 0 0 the selection committee as observer for 0 promotionto the post of Professor under career I advancement scheme Il Z 5s The selection committee made its recommendation for appointment of respondentno3 as Reader in the subjectof I Accordingly respondent no3 was Z appointedas Reader Selection of respondentno3 has been C challengedprimarilyon followinggroundsl emo That no outside subject expert ill the subject of Z Pharmacognosywas included in the Selection Committee to Qm assess the merit of the candidates for appointmentas Reader in the disciplineof iThat no criteria was adoptedby the Selection Committee for selection of the candidates iiiJThat the petitioner has much higher merit than respondentno 3 but his merit has been ignoredarbitrarily while makingselection of respondentno 3 Stature22 requires three outside expertsin Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 234 e CWP No2370 of2009 the concerned subjectout of the Iist recommended by the Vice Chancellor and approvedby the Executive Council of the University Under Note ofStature22the quorum of Selection Committee is four out of which at Ieast two outside subjectexpertsmust be present It is allegedthat out of three outside experts one expertProfessor Saranjit Q Singhdid not associate with the Selection Committee and 0 0 remainingtwo outside experts1e ProfRupKKharand Prof I C5 BBhoop were not the subjectexpertsin the disciplineof I It is stated that Prof Khar is a Professor in Z the departmentof Pharmaceutic which deals with Novel l DrugDeliverySystem whereas Prof BSBhoop is a I professori tl the subject of Pharmaceutical sciences and Z It is allegedthat both these Professors Q0 were not the subject experts Itl the subject of l7 and thus they were unable to adjudgethe Z suitabilityof the candidates for the post of Reader for this Qm subject 6e In support of the second contention that no criteria was adopted the petitioner has placed on record e46nnneeoe information sought under RTI Act The petitionermade an applicationdated 20 122008 seekinginformation under the RTI Act The information soughtby the petitionerwas made available by the respondentJniversitythrough its Ietter dated 91 2009 The relevant information asked for and the Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 235 0 CWP No2370 of2009 8 replyfurnished by the Universityis as under Information required Replylposition 01nterview No such criteria has been adopted 02BPharmacymerit by the University There IS 03GATE qualification 041Pharmacy merit provision of Selection Committee 05PhD awarded under stature22 ofthe University 06Qualificationsobtained from a m reputedinstitution Act The selection to the post of 07Work experience after Post Graduation Teachers are made on the 0 08Post Doctoral experience recommendations of the statutory 0 09Research Publications I selection committee which 10Role of Impact Factor Published Research Papers interviews the eligiblecandidates 11Guiding Research on Post Graduation and Doctoral ievel and consider the qualification Z ars Abstracts expenence and research 13 Reviewershipof International publicationlworketCe as given at Journals SrNo213 I 7e It is the case of the petitionerthat the Selection Z Committee was requiredto assess the candidates on the 10 basis of various factors indicated from SrNos1 to 13 7 Z above However the Selection Committee did not applythis 0m criteria for making selection Thus the selection stands vitiated havingbeen made without any criteria and non consideration of the relevant factors e00eaeeW 8 In support of the claim of the petitionerthat his higher merit has been ignored the petitionerhas placedon record comparativetable showing his qualificationsand that of respondentno 3 as also their respectivepercentagein some 1 examinations and experienceetc Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 236 1 CWP Noe2370of2009 9 9a Private respondentno 3 and official respondentsOled their separatedisclaimers to this writ petition It is pleaded that Pharmaceutical science is a completecourse or disciplinePharmaceutical science has various subjects Iike Pharmaceutical Chemistry and m etc AII these subjectsare taught in the 1 Departmentof Pharmaceutical science It is stated that 0 0 ProfRup KKhar is an expert in the subject of I 9 Pharmaceutical science having in PharmaCYI I Bio Chemistrywhereas Prof BS Bhoop IS an expert of Z Pharmaceutical Science havingspecializationin PharmaCYl and both these expertswere activelyinvolved I in the selection process It IS further stated that Z Pharmacognosy is one of the primary disciplines of C Pharmacyand the experts in the field of Pharmacywere 3 competenttoevaluate and assess candidates Z 10 Regarding adoption of criteria it is stated that Llm statutory selection committee comprisingof experts have made selection No mala fide has been attributed to the expertsand thus selection cannot be challenged on any such ae groundIt is further pleadedthat the petitionerafter having participated in the selection He is estopped from challengingthe selection on account of his norselection As regardsthe inter se merit it is stated that selection has been made by the expert s selection committee who were Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 237 t7 1 1 4 CWP Noe2370of2009 10 competent to assess the inter se merits of the candidates and nojudicialreview IS permissible 110 I have heard Iearned counsel for the parties and perusedthe record 12 Judicial review in the matter of selection and that too 1 in the specializedfiled is Iimited to the examination of manner and method of selection observance of rules and 0 0 fair consideration duringselection While exercisingpower I t of judicialreview High Court does not sit as a court of I appealto examine the selection In the case of National Z Institute of Mental Health and Neuro Sciences 1992 Supp Supreme Court Cases 481 the Honble SupremeCourt has observed as underl t 7eeIn the first place it must be noted that the Z function of the SeIection Committee is neither CQ judicial nor adjudicator It IS purely 7 Z administrative The High Court seems to be in QW error for preferringDrGauri Devi as against the other candidate The selection has been made by the assessment of relative merits of riva mP candidates determined in the course of the interview of candidates possessingthe required eligibility There isno rule or regulationbroughtto our notice requiringthe Selection Committee to record reasonsIn the absence of any such Iegal Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 238 7 r6 CWP Noe2370of2009 11 the selection made withoutrecording reasons cannot be found fault with Il Again in the case of VeKeSood vm Secretary Civil Aviation AIR 1993 SC 2285 the Honble SupremeCourt has held as underl 7 t is for the expert body and this CC Court does not have the assistance of 0 0 experts Moreover it is for the rule I t5 rnakingauthorityor for the Legislature I to regulatethe method of recruitment Z prescribequalifications etc It is open to the President or the authorized person I to undertake such exercise and that t0 Z necessarytests should be conducted by CQ UePC before givingthe certificates to 7 them This is not the provinceof this Z Court to trench into and prescribe 0m qualificationsin particularwhen the matters are ofthe technical nature Il C Again Ill the case of DreRajbir Singh Dalal vse Chaudhari Devi Lal University Sirsa 8 Anre 2009 SCT 326 wherein it has been observed as underl 44We agree with MrPatwalia Iearned counsel that it is not appropriatefor this Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 239 t1 CWP Noe2370of2009 12 Court to sit in appealover the opinionof the expertswho are of the view that Political Science and Public Administration are inter related and inter changeablesubjectsand hence a candidate who possesses Masters 1 degreein Public Administration is eligiblefor 0 the post of Lecturer in Political Science and 0 C40 Il Vicevers I a 13 As noticed above Pharmaceutical Science is a broader disciplinewhereas the subjectsIike Pharmacologyand Z It and Pharmaceutical Chemistryetc are its Q various branches The Court has no expertiseto formulate I an opinionregardingthe capacity capabilityand knowledge Z of the expertsto evaluate any specificbranch of the broader C disciplineIt is the job of the expertsin the filed to evaluate 7 the candidates No interference is warranted by this Court Z r in such matter in view of the dictum of the judgments referred to herevabove Similarly this Court cannot evaluate the comparativemerit of the candidates who appearedbefore the Selection Committee due to Iack of Cee expertisein the scientific field Iike the present one It is alwaysIeft to the wisdom of the experts on the Selection Committee to evaluate the inter se merit of the candidates On this count as well no intervention is permissible 14 It is Iastly arguedthat the Selection Committee did not Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 240 1 a Ol CWP Noe2370of2009 13 adoptany criteria for selection of the candidates thoughthe parameters had been Iaid down for assessing the candidates While seekinginformation under RTI Act as many as 13 factors were quoted Ill the application regardingwhich the information was soughtAs a matter of fact these 13 indicators are parameters for adjudgingthe Cc calibre of the candidates by the Selection Committee Even 0 0 respondentsnol and 2 in paragraph14 ofthe reply have I t prescribedthese very 13 parameters for assessing the I candidates Indubitablythis is the selection criteria which Z the Selection Committee was requiredto adoptfor selection C From the perusalof these parameters it can be safelyand 1 I convenientlyinferred that the candidates were requiredto Z be assessed and adjudgedby evaluatingthem on the basis 0 of their qualifications work experience research 2 publications participation in Conferences workshops V 1 Seminars etc and reviewershipof international journals apartfrom performancein interview 15 Record of the Selection Committee was called for The same has been examined The only opinionof the Selection Committee on record is as underl After interviewing the Committee recommends the followingin order of meritl for Pharmacognosy lViunish Garg Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 241 1 b CWP Noe2370of2009 14 2Suresh Kumar The second post Ill be readvertised SdlRP Hooda AK Madan Arun Nand Roop KKhar BShoop SS AggarwalSPVats 04011O8Il Except this there are no other proceedingsof the 0 Selection Committee which may in any manner indicate the 0 O thoughprocess of the Selection Committee regardingthe I C comparative merit of the three candidates appearingbefore I it Admittedly no marks were allocated for interview Z qualificationsexperience research works participationIll Conferences etc or reviewershipof International Journals Without fixing any marks for each component of the C0 Z selection criteria how the Selection Committee has arrived 10 at the final decision that one candidate is better than the 3 other is not known Once the criteria has been Iaid down Z and as many as 13 parameterswere prescribedfor adjudgingthe capabilityand merit of the candidates it was obligatoryupon the Selection Committee to have assessed the candidates by adop8ngsome methodology either by fixingthe total marks and allocatingthe marks for each componentof the criteria or by awarding gradingso as to determine their individual merit Nothing of this sort has been done by the Selection Committee After the interview the Committee has simply selected respondent no Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 242 1 r CWP No2370 of2009 15 without disclosinghow respondentno3 is better than the petitionerand other candidate It would not be inappropriate to say that the Selection Committee has drawn any inter se merit of the candidates before it on the basis of the Iaid down criteria No individual marks or gradinghas been awarded in interview andlor for their qualification work qualityof publicationsand research work etc expenen 0 0 This itself is sufficient to vitiate the selection Z 45 16 It has been vehementlyarguedon behalf of the I that the petitionerafter havingparticipated in Z the selection is estoppedfrom challengingthe selection on 2 being unsuccessful To support their contention the respondents have referred to a Division Bench judgmentof Cl Z this Court in the case of Santosh Devi vse State of C Haryanaand others 200721 SLR 267 while dealing WAo with the question of estoppel ill selection process has Z observed as underl C 6 It is well settled that selection criteria for allocation of marks for interview would be dependent on the nature of job the eee minimum qualificationwhich is prescribed the age group from which the selection is to be made and the body to which the task for holding interviews IS entrusted The aforementioned view has been expressedby Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 243 CWP Noe2370of2009 16 Honble the SupremeCourt in Lila Dhar Ve State of Rajasthan19811 4 SCC 159 which has been repeatedlyfollowed and applied in the cases of Anzar Ahemd ve State of Bihar19941 1 SCC 150 and laswinder Singh ve State of Jammu 8 l Kashmir20031 2 SCC 132 The criteria 0 0 given in instructions is dated 1332006 I C5 1 whereas the interview took place on 1152006 Havingappearedin the interview Z the petitioner is even otherwise estopped from challenging the selection and I appointment of respondentno 5 as has been Z Iaid down by Honble the SupremeCourt in C Vijay Syal Ve State of Punjab 20031 9 m SCC 401 Il Z There are host of other judgmentsto support this contention However these judgmentsare of no avail to the respondentsin the facts and circumstances of present case Where the Selection Committee has failed to applythe 4meew Iaid down criteria for the purpose of selection and fair assessment of the candidates and such exercise by the SeIection Committee is not known to the candidates rule of estoppelhas no applicationThus if it is discovered that the Selection Committee has either not adoptedany fair and Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 244 S0 Cll CWP No2370 of2009 17 rational criteria or the prescribed criteria has not been fairly applied the candidate is entitled to assail the process of selection and consequentlythe selection as well Rule of estoppelIS not attracted in such a case In the case of Rajesh Kumar Gupta and others vse State of UeP And 1 others 200515 SCC 172 a similar issue came to be 0 considered before Honble SupremeCourt In the aforesaid 0 0 case the rightllocusof the unsuccessful candidates who I C5 challengedthe selection was objectedto on the groundof their participationby invokingrule of estoppel Considering Z this aspect Honble SupremeCourt noticed as underl 1 2 13The Division Bench also found that I at the time of makingthe applicationthe t Z scheme notified by the State Cll Government was that the preparationof W2 the merit Iist would be at the State Ievel Z and not at the district Ievel The criterion for merit Iist was subsequently challangedonly on 31102001 ie after eeeen the applicationshad been made by the candidates Consequentlyno candidate had any occasion to protest since the criterion was abruptlychanged by the State Government Thus the Division Bench overru Ied the objection to the Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 245 0 1 CWP Noe2370of2009 18 of the writ petitioosby taking the view that there was no questionof estoppel and the ca ndidates who had a ppliedand were not selected could not be said to be estopped from challengingthe process of selection Nor could there be any pleaof promissoryestoppel 1 invoked by the writ petitionersas nothingwas l established to show that they had altered their 0 0 positionto their detriment by applyingpursuant I to the advertisement In our view the finding C5 of the Division Bench on this pointis justified Il In view of the fact that Selection Com mittee has not Z adjudgedthe candidates Oll the basis of Iaid down criteria Ct the selection of respondentno 3 is vitiated and is thus I declared as invalid Z 17 This petition iS accordingly allowede m of respondentno 3 IS hereby set 7 Z aside RespondentJniversity is directed to constitute a fresh Selection Committee to assess the merit of the applicantsafresh The Selection Committee shall evaluate the candidates on the basis of Iaid down criteria 4ee Parameters It would be prudent and advisable if the selection committee fixes the maximum marks or adopts grading method and also allocates marks for each componentof the criteria However it IS Ieft open to the wisdom of the Selection Committee to apply the criteria in a Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 246 r 1 CWP No2370 of2009 fair and nonarbitrary manner The University shall constituteSelection Committee in accordance with mandate of stature 22 within one month The Selection Committee shall consider the candidates in accordance with the prescribedcriteria by either awardingmarks or gradingor m any other fair method taking into consideration their C qualificationswork experienceresearch publicationpeers 0 0 of opinion if any and performancein interiew Let the I tD processof selection be completedwithin a periodof four I monthSe Z 45 2 PERMOD KOHLII t OUDGE I Pronounced on 27 2011 Z MFK Le 00 NOTE2Whether to be referred to reporter7YES 7 9 Ol 1 Z C1 1 5 Gupta Suruchi 2014.03.06 15: 35 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document