GANPATH SINGH GANGARAM SINGH RAJPUT Vs GULBARGA UNIV.TR.REGR..
Bench: CHANDRAMAULI KR. PRASAD,KURIAN JOSEPH
Case number: C.A. No.-009866-009866 / 2013
Diary number: 37824 / 2009
Advocates: Vs
NAVEEN R. NATH
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9866 OF 2013 (@ SLP (C) No. 35063 of 2009)
GANAPATH SINGH GANGARAM SINGH RAJPUT … APPELLANT
Versus GULBARGA UNIVERSITY REP. BY ITS REGISTRAR & OTHERS … RESPONDENTS
WITH CIVIL APPEAL NO. 9867 OF 2013 (@ SLP (C) No. 35173 of 2009)
GULBARGA UNIVERSITY REP. BY ITS REGISTRAR & OTHERS … APPELLANTS
Versus SHIVANAND & OTHERS … RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
Ganpath Singh Gangaram Singh Rajput as also the
Gulbarga University, aggrieved by the judgment and
order dated 19/24th of November, 2009 of the Karnataka
High Court in Writ Appeal No. 3216 of 2004 quashing
the appointment of aforesaid Ganpath Singh Gangaram
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Singh Rajput as Lecturer in MCA in the Post-graduate
Department of the University, have preferred these
special leave petitions.
Leave granted.
Short facts giving rise to the present appeals
are as follows:
The appellant, Gulbarga University, hereinafter
referred to as ‘the University’, issued notification
dated May 22, 1998 inviting applications for
appointment to various posts including the post of
Lecturer in Masters’ in Computer Application, for
short, MCA. The minimum qualification, for
appointment to the post of Lecturer and with which we
are concerned in these appeals, is good academic
record with at least 55% of marks or an equivalent
grade at the Masters’ Degree level in the relevant
subject from an Indian University or an equivalent
degree from a foreign University.
Shivanand, respondent no. 3 herein, and Ganpath
Singh Gangaram Singh Rajput, respondent no. 3 of the
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writ petition (appellant herein), besides other
persons offered their candidature for appointment to
the post of Lecturer in MCA. The appellant claims to
have passed the M.Sc. examination in Mathematics with
First Class with distinction. It is an admitted
position that Shivanand possessed a post-graduate
degree in MCA and was eligible in terms of the
advertisement. The University, in terms of Section
53 of the Karnataka Universities Act constituted a
‘Board of appointment’ for selecting suitable
candidates. It consisted of experts holding high
positions in academic field including a Professor
each from University of Pune, Bombay University and
Kuvempu University. The Board of appointment
interviewed the candidates and ultimately made a
recommendation for the appointment of the appellant,
hereinafter referred to as ‘Ganpat’, who admittedly
did not have a post-graduate degree in MCA, but had a
Masters’ Degree in Mathematics. The recommendation
so made was placed for consideration before the
Syndicate which approved his appointment.
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Shivanand challenged the aforesaid selection and
appointment in a writ petition filed before the High
Court, inter alia, contending that Masters’ Degree in
Mathematics will not make Ganpat eligible in terms of
the advertisement and, therefore, his selection and
appointment to the post of Lecturer in MCA is
illegal. Shivanand further pointed out that since he
possessed a post-graduate degree in MCA and fulfils
all other conditions, he ought to have been selected
for appointment. Ganpat as also the University
resisted the prayer of Shivanand and contended that
the expression ‘relevant subject’ used in the
notification would mean any subject which is relevant
for the purpose of holding the post of Lecturer in
MCA. It was contended that Masters’ degree in
Mathematics is a degree in a relevant subject and
thus Ganpat possessed the basic qualification. While
defending the appointment it was further contended
that in the syllabus for MCA, Mathematics is the core
subject and, therefore, a candidate having a post-
graduate degree in Mathematics is eligible for
appointment as Lecturer in MCA. It was also pointed
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out that when an expert body like the Board of
appointment had found that a post-graduate degree in
Mathematics is a relevant subject for the purpose of
adjudging the eligibility and the same having been
approved by the Syndicate of the University, a body
consisting of experts, the same was not fit to be
interfered with by the High Court in exercise of its
writ jurisdiction. The learned Single Judge
considered the submission, dismissed the writ
petition and upheld the appointment of Ganpat, inter
alia, observing as follows:
“8…….The use of the word ‘relevant subject’ in relation to the qualification for Lecturers’ post is the bone of contention between the parties. It is also Sri. Chandrashekar’s assertion that it should relate only to a Master degree in Computer Applications and nothing else, while, the University would contend that it could also mean such of those who have secured a Masters degree in Mathematics. It is not in dispute that the Head of the Department, M.C.A. is held by a person who is also a Ph.D. holder in Mathematics. It is not in dispute that Mathematics is also subject which is taught in the Masters degree in Computer Applications course. What one can reasonably infer from the pleadings of the parties is that
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‘relevant subject’ could mean candidates who possessed Masters Degree in such of those subjects as are offered in the M.C.A. course. Mathematics being one of the subjects, it cannot be said that Masters Degree in Mathematics was not a “relevant subject” and it was only a Masters in Computer Applications.
It would be very unreasonable to hold “relevant subject” to mean only a Masters in Computer Applications. It would also be irrational to conclude that the non mention of the specific educational qualification for the post of Lecturer in M.C.A. could lead to only one conclusion that a candidate with a Masters degree in Computer Applications, alone, would meet the requirement.”
Shivanand, aggrieved by the same, preferred
appeal and both the parties reiterated the same
contentions. The submission made by Shivanand found
favour with the Division Bench of the High Court and
while doing so it observed as follows:
“28. This is nothing sort of trickery and fraud on persons applying to the post. The University had perhaps deliberately or with a design to achieve this result of selecting a person with post-graduate qualification in Mathematics, though it had called for applications to fill up the post of Lecturer in MCA course. That is why the action of
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the University falls short of the constitutional mandate of the State being in conformity with Articles 14 and 16(1) of the Constitution of India, affording equal opportunity to all eligible candidates. In fact the method of selection made by adopting this procedure, is so flawed that it can never pass the test before a Court, more so while in exercise of jurisdiction of judicial review of administrative action. We say so far the reason that the post notified for being filled up by the University in MCA course should be one with reference to the vacancy and the vacancy can only be in a particular subject of the department and cannot be generally with reference to the course.”
Accordingly, the Division Bench of the High Court
allowed the appeal and quashed the appointment of
Ganpat as Lecturer in MCA.
Ms. Kiran Suri, advocate appears on behalf of the
appellant Ganpat whereas the University is
represented by Mr. S.N. Bhat, advocate. They contend
that Mathematics is a relevant subject for MCA course
and, therefore, a person holding post-graduate degree
in Mathematics is eligible for appointment as
Lecturer in MCA. It is further pointed out that in
Gulbarga University, different Mathematics subjects
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are taught in MCA and, therefore, it cannot be said
that a person possessing Masters’ degree in
Mathematics is not eligible for appointment as
Lecturer in MCA. It has also been pointed out that
as to whether a particular qualification is relevant
or not for holding a post is best decided by the
experts concerned and, in the present case,
Mathematics, having been recognized as a relevant
subject for MCA course not only by the University but
by the Board of appointment consisting of eminent
academicians from various Universities, the Division
Bench of the High Court ought not to have substituted
their opinion. In support of the submission reliance
has been placed on a decision of this Court in the
case of B.C. Mylarappa v. Dr. R. Venkatasubbaiah,
(2008) 14 SCC 306 and our attention has been drawn to
Paragraph 26 of the said judgment which reads as
follows:
“26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the expert body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken
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a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made hereinabove, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction.”
Yet another decision on which reliance is placed
is the decision of this Court in the case of Rajbir
Singh Dalal (Dr.) v. Chaudhari Devi Lal University,
(2008) 9 SCC 284 and our attention has been drawn to
Paragraph 29 of the judgment which reads as follows:
“29. It may be mentioned that on a clarification sought from UGC whether a candidate who possesses a Masters degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa, UGC wrote a letter dated 5-3-1992 to the Registrar, M.D. University, Rohtak stating that the subjects of Political Science and Public Administration are interchangeable and interrelated, and a candidate who possesses Masters degree in Public Administration is eligible as Lecturer in Political Science and vice versa. Thus, this is the view of UGC, which is an expert in academic
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matters, and the Court should not sit in appeal over this opinion and take a contrary view.”
Mr. Naveen R. Nath, advocate appearing on behalf
of respondent Shivanand, however, contends that a
person holding the post-graduate degree in
Mathematics is not eligible for appointment as
Lecturer in MCA. It is pointed out that the
advertisement was composite and related to
appointment of various posts in different subjects
and, hence, the expression ‘relevant subject’ has to
be understood in that context. It has been pointed
out that the applications were invited for filling
the posts of Professor, Reader and Lecturer in the
Department of English, Urdu, Persian, Chemistry,
Bio-Chemistry, Applied Electronics, Geology, Law
etc., including MCA. According to the learned
counsel, the relevant subject in the advertisement
here would mean the subjects for which applications
were invited. According to him, the Board of
appointment misdirected itself in going into the
question as to whether Mathematics is a relevant
subject or not in MCA. Accordingly, he submits that
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the opinion of the Board of appointment as approved
by the Syndicate is not that sacrosanct so as to
deprive High Court the power of judicial review.
We have bestowed our consideration to the rival
submissions and we do not find any substance in the
submission of the learned counsel for the appellant
and the authorities relied on are clearly
distinguishable.
Main thrust in the appellant’s contention is that
when an expert body i.e. Board of appointment
consisting of high academicians, has found Ganpat
eligible and qualified and which has been approved by
the Syndicate, another expert body, the High Court
ought not to have acted as a Court of appeal,
examined the pros and cons and come to the conclusion
that Ganpat did not possess the requisite
qualification. There is no difficulty in accepting
the broad submission that academic issues must be
left to be decided by the expert body and the court
cannot act as an appellate authority in such matters.
It deserves great respect. When two views are
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possible and the expert body has taken a view, the
same deserves acceptance. However, to say that expert
body’s opinion deserves acceptance in all
circumstances and is not subject to judicial review
does not appeal to us. In our constitutional scheme
the decision of the Board of appointment cannot be
said to be final and absolute. Any other view will
have a very dangerous consequence and one must remind
itself of the famous words of Lord Acton “power
corrupts and absolute power corrupts absolutely”.
Now we revert to the authorities of this Court
relied on by the appellants. B.C. Mylarappa (supra) deals with the appointment to the post of Professor,
in which one of the eligibility condition for
appointment was ’10 years’ of experience of post-
graduate teaching’. The Board of appointment
considered the selected candidate eligible by taking
into consideration his experience as Lecturer and
Research Assistant and in the absence of any mala
fide, this Court observed that its opinion is not fit
to be rejected. This would be evident from Paragraph
24 of the judgment, which reads as follows:
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“24. There is another aspect of this matter which is also relevant for proper decision of this appeal. We have already indicated earlier that the Board of Appointment was constituted with experts in this line by the University Authorities. They have considered not only the candidature of the appellant and his experience as a Lecturer and Research Assistant along with others came to hold that it was the appellant who was the candidate who could satisfy the conditions for appointment to the post of Professor. Such being the selection made by the expert body, it is difficult for us to accept the judgments of the High Court when we have failed to notice any mala fides attributed to the members of the expert body in selecting the appellant to the said post.”
However, this judgment cannot be read to mean
that the courts are denuded of the power to
scrutinize the experience in a given case and come to
a contrary conclusion. As stated earlier, when the
view taken by the expert body is one of the possible
views, the same is fit to be accepted. Further, the
yardstick would be different when it concerns
eligibility conditions pertaining to ‘qualification’
and ‘experience’. In case of experience it is best
known to the expert body in the field in regard to
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the actual work done and, therefore, its opinion is
of higher degree deserving acceptance ordinarily.
Hence, in our opinion, this judgment did not fetter
the power of the High Court.
As regards the decision of this Court in the case
of Rajbir Singh Dalal (supra), the same is clearly distinguishable. In the said case the controversy
which fell for consideration was as to whether public
administration is one of the branches of Political
Science and in the face of the opinion of the expert
body that they are interchangeable, the conclusion of
the High Court that they are distinct and separate
was not approved. This would be evident from the
following passage from the said judgment.
“45. As has been pointed out by my learned Brother, the University has in its counter-affidavit taken a stand that Public Administration is one of the branches of Political Science and the Selection Committee comprised of eminent scholars had rightly chosen the appellant for the post of Reader after considering his academic achievements and also relying upon the view of the University Grants Commission in its letter dated 5-3- 1992 stating that the subjects of
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Political Science and Public Administration are interchangeable and interrelated and that a candidate who possesses a Masters degree in Public Administration is eligible to be appointed as Lecturer in Political Science. Similarly, a candidate possessing a Masters degree in Political Science is eligible for appointment to the post of Lecturer in Public Administration.
46. Despite the aforesaid views expressed by the expert bodies such as the University and the University Grants Commission, the High Court has held Public Administration and Political Science to be distinct and separate disciplines.….”
In the present case, there is no such plea. Here,
the plea is that as Mathematics is one of the
subjects in MCA and, therefore, Ganpat possessing
Masters’ degree in Mathematics is eligible. It is not
the plea of the University that Masters’ degree in
Mathematics is interchangeable with MCA. Not only
this, in the aforesaid case, this Court came to the
aforesaid conclusion due to different eligibility
criteria prescribed for appointment to the post of
Reader and Lecturer. It was pointed out by this Court
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that in the case of Reader the requirement was
Masters’ degree in an ‘appropriate subject’, whereas
for appointment as Lecturer it was ‘relevant
subject’. Said case related to the appointment of
Reader. On account of the use of different
expressions, this Court came to the conclusion that
post-graduate degree holder in Political Science is
eligible to be appointed to the post of Reader in
Public Administration. This would be evident from
paragraphs 48 and 49 of the judgment, which read as
follows:
“48. The recruitment rules followed by the University clearly indicate that in order to be appointed as Lecturer in a particular discipline a candidate must have a postgraduate degree in the relevant subject. On the other hand, for appointment to the post of Reader such a condition has not been specified. In fact, in Regulation 2 it has been generally indicated that no person shall be appointed to a teaching post in the University or in any institution, including constituent or affiliated colleges recognized under the UGC Act, 1956, or any institution deemed to be a university under Section 3 of the said Act, in a subject, if he/she does not fulfil the requirement as
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to the qualifications for the appropriate subject.
49. In my view, the omission in the Regulations cannot be said to be unintentional or a case of casus omissus. In my view, the expression “appropriate subject” was intended to cover the post of Reader and once the expert bodies had indicated that the appellant who held a postgraduate degree in Political Science was eligible to be appointed to the post of Reader in Public Administration and had been rightly appointed to such post, it is normally not for the courts to question such opinion, unless it has specialised knowledge of the subject.”
(underlining ours)
This Court did not say that Political Science is
the relevant subject for appointment as Lecturer in
Public Administration.
Having set the legal position in the right
perspective, we now proceed to consider the facts of
the present case. As is evident from the
advertisement, applications were invited for filling
up various posts in different subjects including the
post of Lecturer in MCA. The advertisement requires
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post-graduate degree in the ‘relevant subject’. The
relevant subject would, therefore, in the context of
appointment to the post of Lecturer, mean post-
graduate degree in MCA. In our opinion, for
appointment to the post of Lecturer, Masters’ degree
in the Mathematics is not the relevant subject. The
advertisement requires Masters’ degree in ‘relevant
subject’ and not ‘appropriate subject’. In the
present case, the Board of appointment has not stated
that post-graduate degree in Mathematics is the
relevant subject for MCA but in sum and substance it
is equivalent to a post-graduate degree in MCA for
the reason that Mathematics is one of the subjects
taught in MCA. This, in our opinion, was beyond the
power of the Board of appointment. It shall not make
any difference even if Mathematics is taught in the
Masters’ of Computer Application course. The learned
Single Judge, in our opinion, gravely erred in
upholding the contention of Ganpat and the University
that ‘relevant subject’ would mean ‘such of those
subjects as are offered in the MCA course’. If
Mathematics is taught in a post-graduate course in
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Commerce, a Masters’ degree in Commerce would not be
relevant for appointment in Mathematics or for that
matter in MCA. There may be a situation in which
Masters’ degree in MCA is differently christened and
such a degree may be considered relevant but it would
be too much to say that a candidate having post-
graduate degree in any of the subjects taught in MCA
would make the holders of a Masters’ degree in those
subjects as holder of Masters’ degree in Computer
Application and, therefore, eligible for appointment.
The language of the advertisement is clear and
explicit and does not admit any ambiguity and, hence,
it has to be given effect to. Since the appellant
Ganpat did not have a Masters’ degree in Computer
Application, in our opinion, he was not entitled to
be considered for appointment as Lecturer in MCA. We
are aghast to see that when a candidate possessing
Masters’ degree in MCA is available, the Board of
appointment had chosen an unqualified and ineligible
person for appointment in that subject. Its
recommendations are, therefore, illegal and invalid.
Natural corollary thereof is that the University
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acting on such recommendation and appointing Ganpat
as Lecturer cannot be allowed to do so and that the
Division Bench of the High Court was right in setting
aside his appointment. In our opinion, an
unqualified person cannot be appointed, whoever may
be the recommendee. We are of the opinion that the
Division Bench of the High Court was right in holding
that Ganpat was not eligible for appointment of
Lecturer in Masters’ of Computer Application.
Mr.Bhat and Ms. Suri lastly assail the order of
the High Court issuing mandamus for appointment of
Shivanand as Lecturer in MCA. It is contended that
after setting aside the appointment of Ganpat, the
High Court should have directed for consideration of
the case of Shivanand and such other candidates who
were found eligible for consideration. It is also
contended that Shivanand may have the right of
consideration but certainly not the right of
appointment.
We find substance in this submission.
Ordinarily, in a case where the person appointed is
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found ineligible, this Court after setting aside such
appointment, directs for consideration of cases of
such of the candidates, who have been found eligible.
It is only in exceptional cases that this Court
issues mandamus for appointment. The case in hand is
not one of those cases where the High Court ought to
have issued mandamus for appointment of Shivanand as
Lecturer in MCA. Hence, we are of the opinion that
the High Court rightly held Ganpat ineligible and
quashed his appointment. However, it erred in issuing
mandamus for appointment of Shivanand. Accordingly,
we uphold the impugned order of the High Court
whereby it had set aside the appointment of the
appellant herein and direct that the case of the writ
petitioner Shivanand and all other candidates be
considered in accordance with law. However, we make
it clear that the selection already made shall be
taken to its logical conclusion.
In the result, we dismiss these appeals with
modification in the direction as aforesaid with cost,
which we assess at Rs.50,000/-(Rupees fifty thousand)
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only in both the cases, payable by the appellants in
both the appeals equally.
………………………………………………………….J (CHANDRAMAULI KR PRASAD)
………………………………………………………….J (KURIAN JOSEPH)
New Delhi, November 01, 2013.
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