1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.6789 of 2010 Vinayak S/o. Bhagwanrao Bhise Age 55 years, Occ. Service R/o. 197, Nandanwan Colony, Aurangabad Petitioner Versus 1] The State of Maharashtra through it's Secretary Higher & Technical Education Department Mantralaya, Mumbai-32. 2] The Search Committee for Recommending Eligible Names for the post of Vice-Chancellor, through it's Nodal Officer Dr. Madhumadan, Registrar Shreemati Nathibai Damodar Thackersey Women's Univeresity, 1, Nathibai Thackersey Road, Mumbai-400 020 3] Dr. Babasaheb Ambedkar Marathwada University, Aurangabad Through it's Registrar. Respondents. Shri S.S. Jadhavar, Advocate for the petitioner Shri N.B. Khandare, Govt. Pleader for respondent No.1 Shri Ravi Kadam, Advocate General for the respondent No.2 Shri R.R. Mane, Advocate for respondent No.3. 2 2] with WRIT PETITION NO. 6788 OF 20101 Dr. Gunderao s/o. Kishanrao Kulkarni, Age 59 years, Occ. Service R/o. Flat No.1, Plot No.12, Yogeshwar Silver Heights, Ahinsa Nagar, Jalna Road, Aurangabad. Petitioner Versus 1] The State of Maharashtra through it's Secretary Higher & Technical Education Department Mantralaya, Mumbai-32. 2] The Search Committee for Recommending Eligible Names for the post of Vice-Chancellor, through it's Nodal Officer Dr. Madhumadan, Registrar Shreemati Nathibai Damodar Thackersey Women's Univeresity, 1, Nathibai Thackersey Road, Mumbai-400 020 3] Dr. Babasaheb Ambedkar Marathwada University, Aurangabad Through it's Registrar. Respondents. Shri S.S. Jadhavar, Advocate for the petitioner Shri N.B. Khandare, Govt. Pleader for respondent No.1 Shri Ravi Kadam, Advocate General for the respondent No.2 Shri V.G. Sakolkar, Advocate for respondent No.3. 3 3] WITH WRIT PETITION NO. 6576 OF 2010 Yeshwant S/o. Kondji Khillare Age 54 years, Occ. Service R/o. 68, Saket Nagar, Bhavsingpura, Aurangabad. Petitioner Versus 1] The State of Maharashtra through it's Secretary Higher & Technical Education Department Mantralaya, Mumbai-32. 2] The Search Committee for Recommending Eligible Names for the post of Vice-Chancellor, through it's Nodal Officer Dr. Madhumadan, Registrar Shreemati Nathibai Damodar Thackersey Women's Univeresity, 1, Nathibai Thackersey Road, Mumbai-400 020 3] Dr. Babasaheb Ambedkar Marathwada University, Aurangabad Through it's Registrar. Respondent. Shri S.S. Jadhavar, Advocate for the petitioner Shri N.B. Khandare, Govt. Pleader for respondent No.1 Shri Ravi Kadam, Advocate General for the respondent No.2 Shri R.R. Mane, Advocate for respondent No.3. CORAM:-B.R. GAVAI AND A.A. SAYED, JJ. DATE : 22ND OCTOBER, 2010. ORAL JUDGMENT { PER B.R. GAVAI, J.] : 4 1] Rule. Rule made returnable forthwith. Heard by consent. 2] All the petitioners in these petitions challenge the action of the respondent No.2 - Search Committee, inasmuch as, the said Committee has not called the petitioners for interview/presentation before it, for the post Vice Chancellor of the respondent No.3 University. 3] Since the issues involved in the petitions are identical, the same are being finally disposed of by this common judgment. 4] An advertisement was issued by the Chairman, Search Committee for inviting applications for the post of Vice Chancellor of Dr. Babasaheb Ambedkar Marathwada University (hereinafter referred to as “the University”). The said Search Committee came to be appointed according to the provisions of the Maharashtra Universities Act, as amended by the Act No. XIV of 2009. It appears that after receipt of the applications, which were about 100 in number, the Search Committee decided to call only 34 persons, for presentation before the Committee. The petitioners were not called for the presentation. Being aggrieved by the action of the respondent No.2 Committee, in not inviting them for the purpose of 5 presentation, the petitioners have approached this court. 5] We have heard Shri Jadhavar, learned counsel appearing on behalf of the petitioners and Shri Kadam, the learned Advocate General, appearing on behalf of the respondents. 6] Shri Jadhavar, learned counsel appearing on behalf of the petitioners submits that as per the advertisement which was published, though short listing of the candidates applying for the post was permissible, the same cannot be done in the manner, which contravenes the order issued by the State of Maharashtra dated 27th May, 2009 ( hereinafter referred to as “the said order” for short). The learned counsel submits that in view of Clause I of the said order, the qualifications as prescribed in Part A of the Schedule are mandatory and unless the candidates qualify the requirements prescribed in part A of Schedule to the said order, the candidate cannot be considered for the post of Vice Chancellor. 7] The learned counsel further submits that all the persons named in para.7 of the W.P. No. 6576/2010, who have been invited by the Committee, do not answer the requirement in part A of the Schedule of the said order. It is submitted that though petitioner - Prof. Bhise qualifies all the requirements of Part A, he has not been 6 called for presentation. The learned counsel further submits that in so far as Dr. Khillare is concerned, though he has worked as Head of the Department for 2 years, if his experience as Director of Students Welfare is taken into consideration, then, he would be meeting the requirement of possessing 5 years administrative experience. The learned counsel fairly concedes that in so far as Dr. Kulkarni is concerned, he possesses only 2 years experience as Head of Department. It is submitted that in accordance with the relevant statutes of the University, the Post of Head of Department goes by rotation amongst all the Professors. It is, however, submitted that in so far as the other Universities are concerned, such is not the requirement and, therefore, the provision in the said order, which requires that a candidate must have 5 years of administrative experience is discriminatory in nature and, therefore, liable to be quashed and set aside. 8] Shri Jadhavar further submits that on comparative assessment with the 5 persons named in para. 7, as stated hereinabove, it would reveal that the petitioners are much more qualified and entitled to be considered for the post of Vice Chancellor, than the aforesaid 5 persons. 9] The learned counsel submits that since the petitioners 7 are not challenging the invitation issued to the aforesaid 5 persons, it is not necessary to join them as party respondents in the present petitions. The learned counsel further submits that the limited relief claimed in the petitions, is an opportunity to present themselves before the Committee, so that the Committee can judge their suitability for the post of Vice Chancellor. 10] The learned Advocate General, on the contrary submits that the Search Committee which is appointed as per the provisions of the Maharashtra Universities Act ( hereinafter referred to as “ the said Act” for short), consists of eminent persons, and is chaired by a retired Judge of the Supreme Court. He submits that the other 2 persons in the Committee are Principal Secretary of the Higher Education Department of the State of Maharashtra and a person not below the rank of Director of Head of an Institute or organization of national repute, nominated by the Management Council and the Academic Council. The learned Advocate General submits that in view of the provision of sub-section (3A) of Section 12, as amended by the 2009 amendment, the Screening Committee is required to recommend a candidate, taking into consideration the various factors as stated in the said provision. 11] The learned Advocate General submits that the 8 Screening Committee, upon appreciation of the material placed before it, has decided to shortlist 34 person out of 100. It is submitted that such a shortlisting has been done on the basis of the material placed before it, considering the eligibility and suitability of the candidates. It is submitted that upon the scrutiny of material submitted by each of the candidates, it was found that the 34 candidates were more suitable to be shortlisted for the purpose of presentation. The learned Advocate General further submits that there are no allegations of malafides against the members of the Committee. It is submitted that the discretion which has been exercised by the Committee, has been exercised within the parameters , as laid down by the statute, of which judicial scrutiny would not be permissible in the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. 12] The learned Advocate General further submits that, it is not as if that the Committee has found the petitioners to be unsuitable. It is submitted that the Committee was required to adopt some criteria for shortlisting and by adopting the said criteria, it has shortlisted 34 candidates. The learned Advocate General fairly concedes that merely because the Committee has not short listed the petitioners, does not reflect on the caliber and amount to casting any aspersions regarding the suitability of the petitioners. It is 9 therefore, submitted that no interference would be warranted in the extraordinary jurisdiction of this court. The learned Advocate General relies on the judgment of the Apex Court, in the case of “Basvaiyah (Dr.) Vs. Dr. H.L. Ramesh and others” reported in (2010)8 SCC 372. 13] The procedure for appointment of Vice Chancellor has undergone a change by way of amendment to the Maharashtra Universities Act, 1949, by Maharashtra Act No. XIV of 2009. Section 12 of the said Act has been substantially amended. It will be necessary to refer to the said provision, which reads thus :- “In Section 12 of the Maharashtra Universities Act, 1994 “(a) for sub-section (1), the following sub-section shall be substituted namely :- “(1) The Vice-Chancellor shall be appointed by the Chancellor in the manner stated hereunder :- (a) There shall be a Committee consisting of the following members to recommend suitable names to the Chancellor for appointment of Vice- Chancellor, namely :- (i) a member nominated by the Chancellor, who shall be the retired Judge of the Supreme Court or retired Chief Justice of a High Court or an eminent scientist of national repute or a recipient of Padma Award in the field of education; (ii)the Principal Secretary of Higher and Technical Education Department or any officer 10 not below the rank of Principal Secretary to Government nominated by the State Government; (iii) the Director or Head of an institute or organization of national repute, such as, Indian Institute of Technology, Indian Institute of Management, Indian Institute of Science, Indian Space Research Organization or National Research Laboratory, nominated by the Management Council and the Academic Council, jointly, in the manner specified by the State Government by an order published in the Official Gazette; (b) The member nominated by the Chancellor shall be the Chairman of the Committee; (c) The members nominated shall be the persons who are not connected with the University or any college or any recognized institution of the university; (d) No meeting of the Committee shall be held unless all the three members of the Committee are present.” (b) for sub-section (3), the following sub- section shall be substituted , namely :- “(3) The Committee shall recommend of panel of not less than five suitable persons of the consideration of the Chancellor for being appointed as the Vice-Chancellor. The names so 11 recommended shall be in alphabetical order without any preference being indicated. The report shall be accompanied by a detailed write up on suitability of each person included in the panel. (3A) A person recommended by the Committee for appointment as a Vice chancellor shall, (a) be an eminent academician or an administrator of high caliber; (b) be able to provide leadership by his own example; (c) be able to provide vision and have ability to translate the same into reality in the interest of students and society ; and (d) possess such educational qualifications and experience as may be specified by the State Government, by an order published in the Official Gazette, in consultation with the Chancellor. (3B) The eligibility conditions and the process for recommendation of names for appointment as Vice Chancellor shall be given wide publicity to ensure the recommendation of most suitable candidates.” 14] It can thus be seen that for appointment of Vice Chancellor, a Committee of 3 members, to recommend a panel of 12 suitable persons, is required to be constituted. A member nominated by the Chancellor, who shall be a retired Judge of the Supreme Court or retired Chief Justice of a High Court or an eminent scientist of national repute or a recipient of Padma Award in the field of education is required to be appointed as Chairman of the said Committee. The other members of the Committee are required to be the Principal Secretary of Higher and Technical Education Department or any officer not below the rank of Principal Secretary to Government nominated by the State Government; and the Director or Head of an institute or organization of national repute, such as, Indian Institute of Technology, Indian Institute of Management, Indian Institute of Science, Indian Space Research Organization or National Research Laboratory, nominated by the Management Council and the Academic Council, jointly, in the manner specified by the State Government by an order published in the Official Gazette It is further required that all these members are independent members, not connected with the University or any college or any recognized institution of the University. Sub-section 3 of Section 12, requires the said Committee to recommend a panel of not less 5 persons for consideration by the Chancellor. 15] For recommending a person for the post of Vice 13 Chancellor, the Committee is required to satisfy itself that the candidates recommended possess the following qualifications :- A) that, he is an eminent academician or administrator with high caliber. B) that, he is able to provide leadership by his own example C) that, he is able to provide a vision and an ability to translate the same into reality in the interest of the students and society. D) that, he possesses such educational qualification and experience as may be specified by the State Government by an order published in the official Gazette in consultation with the Chancellor Sub-section (3B) of Section 12 requires that the eligibility conditions of the process for recommendation of the names for appointment of Vice Chancellor shall be given wide publicity to ensure recommendation of suitable candidates. 16] It is not in dispute that in pursuance to the requirement of clause (d) of sub-section (3A), read with sub-section (3B) of Section 12, the State of Maharashtra has published an order dated 26th May, 2009 in the official Gazette specifying the essential qualifications and experience for the post of Vice Chancellor. 14 17] Clause (1) of the said order reads thus :- “ Whereas the Vice Chancellor of a University is the Principal academic and executive officer of the University and is responsible for development of the academic programmes and general administration of the University for ensuring efficiency and good order of the University; And whereas xxx. and whereas xxx Now, therefore, in exercise of the powers conferred by clause (d) of sub-section (3A) of Section 12 of the Maharashtra Universities Act, 1994, (Mah.XXXV of 1994) and of all other powers enabling it in that, the Government of Maharashtra, in consultation with the Chancellor, hereby :- specifies that the person being recommended by the Committee shall possess the essential qualifications and experience as set out in part `A' of the Schedule appended hereto; and may possess desirable experience, expected skill and competencies as set out in Part `B” and Part `C' respectively of the said schedule” 18] It can thus be seen that the said order provides that a person who is recommended by the Committee is required to possess the essential qualifications and experience , as stated in 15 Part A of the Schedule appended thereto. The desirable experience, expected skill and competencies, as set out in part B and C in the said order, as already stated hereinabove, are desirable and not essential. 19] Part A of the Schedule to the said order deals with the essential qualification and experience required for the post of Vice Chancellor. It would, therefore, be necessary to refer to the said Part A of the Schedule, which reads thus :- “Essential Qualification and Experience :- (1)Earned Doctorate in any discipline and good academic record. (2)Experience in the field of Higher Education of at least 15 years in teaching and research in a university/well established institution of repute and/or at the undergraduate and postgraduate level. (3)Minimum of five research publications in peer-reviewed/referred international research journals after Ph.D. and/or published quality books in a recognized discipline, referenced for study in higher education at the National/International level. (4)At least 5 years of administrative experience in the field of Higher Education not below the rank of Professor and Head of the Department in a university/Principal (in 16 Professor's Grade) of a Senior College/Head of a national/international institution of Advanced Learning. (5)Execution of at least one major research project. (6)Experience of working with international bodies or international exposure through participation in workshops, seminars, or conferences held outside the country. (7)Experience of organizing events such as workshops, seminars, conference at an international level within the country in the field of higher education. (8)Demonstrated experience in leadership.” 20] Though it is sought to be argued on behalf of the respondents that in view of Clause 4 of Part D of the Schedule, a wide discretion is vested with the Committee to relax any of the conditions, in case of a suitable candidate, it will not be necessary for us to go into that question since a categorical statement is made by the learned Advocate General that the Committee has not relaxed any of the essential qualifications and experience, as provided in part A of the Schedule. 21] It is not in dispute that in so far as Dr. Kulkarni is concerned, he only possess 2 years administrative experience, as 17 required under clause (4) of part A of the schedule. It is contended on behalf of the petitioners that, in so far as Dr. Khillare is concerned, his experience as Head of the Department alongwith experience as Director of Students Welfare is required to be taken into consideration while determining his eligibility as per clause (4) of Part A. 22] We are afraid, as to whether the same would be permissible. Clause (4) of Part A, specifically provides that 5 years experience has to be in the field of Higher Education, not below the rank of Professor and Head of the department in a University/Principal in Professor's Grade of a senior college/Head of a national/international institution of Advanced Learning. The contention of the petitioners that the experience of Professor Khillare as Director of Students Welfare is also required to be taken into consideration so as to comply the requirement of clause (4), if accepted, in our view, the same would amount to re-writing the essential qualifications provided in clause (4). In our view, it will not be permissible for us to do so. 24] The next contention of the petitioners, which is required to be considered by us is that, since it is only the Babasehab Ambedkar Marathwada University, which requires that the post of 18 Head of the Department has to be occupied by rotation and that the same is not provided in the other Universities and hence, the said condition is liable to be quashed and set aside. Admittedly, these 2 petitioners have responded to the advertisement knowing very well the essential qualifications as prescribed under the said order. It is only after the said petitioners have not been short listed for the purpose of presentation, they are now seeking to challenge the said condition as discriminatory and unconstitutional. . In view of the judgment of the Apex Court in the case of “ K.A. Nagmani Vs. Indian Airlines _” reported in (2009) 5 SCC 515, a candidate having participated in the selection process cannot be permitted to turn back and thereafter say that some of the conditions of eligibility are not sustainable in law. In that view of the matter, the contention in that respect deserves to be rejected. 25] In so far as Dr. Bhise is concerned the learned Advocate General states that the Committee has considered that Clause (1) of the Essential Qualification requires that the candidate must have a Doctorate in any discipline and good economic record. It is stated that the Committee has found that though he possesses the Doctorate, the academic record of the said candidate is not good, inasmuch as, the marks which he has secured at the graduation 19 level, were not of a suitable standard. He submits that the Committee , on the basis of a reasonable criteria, has also found the said Dr. Bhise to be ineligible. We , therefore, find that the ground on which the Committee has not found Dr. Bhise eligible for short- listing cannot be said to be irrational. 26] Now, that leads us to the next question, as to whether the persons who have been invited for presentation by the Committee( those who are named in para.7 of the petition), were eligible and suitable for shortlisting or not. 27] It is not in dispute that the petitioners though having sufficient opportunity, have chosen not to implead those persons as party respondents, since the petitioners contend that they are not against the invitation to those persons for the purpose of presentation, we are not inclined to non suit the petitioners only on that ground. We have, therefore, made a pertinent query to the learned Advocate General, as to whether any relaxation has been given to those persons, in so far as the essential qualifications as mentioned in Part A of Schedule is concerned. A categorical statement has been made by the learned Advocate General that none of the essential conditions, as prescribed under Part A has been relaxed by the Committee in so far as those 5 persons, who 20 have been invited by the committee for presentation, are concerned. 28] While examining the proceeding of the Search Committee, our jurisdiction would be very limited. We cannot be expected to sit in an appeal over the decision of the Search Committee and that too, consisting of eminent and independent persons. It is a settled principle of law that while invoking the jurisdiction of judicial review of administrative action, we can only examine the decision making process and not the decision. . The Apex Court in the case of “Tata Cellular Vs. Union of India” reported in (1994)6 SCC 651.has observed in para.77 as under :- “The duty of the court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial 21 review can be classified as under: (i) Illegality : This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesday unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind28, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention". 29] It can thus be seen that it will only be permissible for us to scrutinize the decision making process of the