REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7211-7212 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS.32081-32082 OF 2015)

PRADEEP SINGH DEHAL .....APPELLANT(S)

VERSUS

STATE OF HIMACHAL PRADESH & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) The challenge in the present appeals is to orders passed by the

High Court of Himachal Pradesh, Shimla on June 24, 2015 and July

30, 2015 whereby, the Himachal Pradesh University1 was directed

to add five marks on the parameter of “publications” in favour of

the  respondent  No.  32 in  respect of  appointment to the post of

Assistant  Professor  in  the  Department  of  Education  in  the

International  Centre  for  Distance  Education  and  Open  Learning,

Shimla.   

2) Initially,  an  advertisement  No.  3  of  2010 was  published inviting

applications for seven posts of Assistant Professor viz. four posts

1  for short, ‘University’ 2  hereinafter referred to as ‘writ petitioner’

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under  Unreserved  category,  one  post  under  Other  Backward

Classes3 category, one post under Scheduled Castes category and

one post in Scheduled Tribes category.  The appellant and the writ

petitioner were the applicants for such posts.  However, none of

the candidates were appointed to such posts.  Thereafter, another

advertisement  No.  3  of  2011  was  published.   This  time,

advertisement was published for  the  post  of  Assistant  Professor

inviting applications for six posts under Unreserved category, one

post  under  OBC  category,  one  post  under  Scheduled  Castes

category and one post under Scheduled Tribes category.  One of

the conditions in the advertisement was that the candidates who

have applied earlier as per revised UGC guidelines and also with

reference  to  previous  advertisements  need  not  to  apply  again.

However, they may send additional information, if any.   

3) The appellant and the writ petitioner did not apply again nor said

to  have furnished any additional  information.   In  such selection

process, the appellant was recommended by the Expert Committee

for appointment against the post meant for OBC category, having

obtained 60.83 marks.

4) Such appointment was challenged by the writ petitioner, inter alia,

on  the  ground  that  he  has  not  been  given  any  credit  of

“publications” whereas, for such “publications”, he has been given

credit when he was considered in pursuance of the post applied in

3  for short, ‘OBC’

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response to advertisement No. 3 of 2010.  The High Court accepted

the claim of the writ petitioner with the following directions:

“The writ  petition is  accepted and respondents No.  1 and  2  are  directed  to  add  to  the  score-sheet  of  the petitioner  five  marks  on  the  parameter  of “publications”.   In  case  the petitioner  then is  ranked first,  then  subject  to  completion  of  all  necessary formalities the respondent concerned shall proceed to in  accordance  with  law  appoint  him  to  the  post  of Assistant Professor, Education.”

5) The appellant filed review petition which came to be summarily

dismissed on July 30, 2015.  Still aggrieved, the appellant filed the

present appeal.

6) The argument of the appellant is two-fold.  First, it is for the experts

to assess the marks for “publications”.  Since the writ petitioner

has not  sent any “publications” along with his  application form,

therefore, he has not been granted any marks under the heading

“publications”.  It is also argued that decision of the experts as to

how much marks should be awarded cannot be interfered with by

the High Court, while exercising the power of judicial review under

Article 226 of the Constitution of India.  Even if, the Court finds that

certain marks under heading “publications” have not been granted,

the only course of action open to the Court is to remit the matter to

the  experts  to  examine  the  grant  of  marks  under  the  heading

“publications”, if any.  The reliance is placed upon judgment of this

Court in  University Grants Commission & Anr. v.  Neha Anil

Bobde (Gadekar)4 wherein this Court held as under:

4  (2013) 10 SCC 519

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“31.    We are of the view that,  in academic matters, unless there is a clear violation of statutory provisions, the  regulations  or  the  notification  issued,  the  courts shall keep their hands off since those issues fall within the domain of the experts.  This Court in University of Mysore v. C.D.  Govinda Rao [AIR  1965 SC 491]  , Tariq Islam v. Aligarh Muslim University [(2001) 8 SCC 546 : 2002 SCC (L&S) 1] and Rajbir Singh Dalal v. Chaudhary Devi Lal  University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887] , has taken the view that the court shall not generally sit in appeal over the opinion expressed by the expert academic bodies and normally it is wise and safe for the courts to leave the decision of the academic experts who are more familiar  with the problem they face, than the courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the  university.  For  attaining  the  said  standards,  it  is open to UGC to lay down any “qualifying criteria”, which has a rational nexus to the object to be achieved, that is,  for  maintenance  of  standards  of  teaching, examination  and  research.  The  candidates  declared eligible  for  Lectureship  may  be  considered  for appointment as Assistant Professors in universities and colleges  and the standard of  such a teaching faculty has a direct nexus with the maintenance of standards of education  to  be  imparted  to  the  students  of  the universities  and  colleges.  UGC has  only  implemented the opinion of the experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or  discriminatory  or  violative  of  Article  14  of  the Constitution of India.”

7) Learned  counsel  for  the  University  refers  to  the  policy  and

programme for recruitment of Lecturers in the University including

contemplating marks for “publications”, which is as under:

(vi) Publications 5 International, National referred Journals:  1 Mark each. Authored books*: 1 Mark each. Chapter in Books* (Excluding  proceedings  of  seminars/ conferences): 0.5 Marks each. Edited books*: 0.5 Marks each.

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Publications  in  popular  magazines, newspapers etc.: Nil. *On the relevant subject only.

8) It may be noticed that the post of Lecturer has been renamed as

Assistant Professor and that the norms of the appointment to the

posts of Assistant Professor are prescribed by 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, 20105.

9) Learned counsel for the University submitted that the discretion as

to whether any marks for “publications” are to be awarded or not

falls within an exclusive domain of the experts.  It is argued that

marks  obtained  in  the  earlier  selection  process  which  was  not

completed cannot be directed to be taken into consideration as not

only the Selection Committee is different but also the selection in

response to advertisement No. 3 of 2011 is being conducted after

framing of the Regulations for appointment to the post of Assistant

Professor.   

10) On the other hand, learned counsel for the writ petitioner pointed

out that not only the writ petitioner was granted five marks in the

earlier selection process but also five marks were granted to the

post  of  Assistant  Professor  in  Education  against  the  general

category post.  Such document has been appended with Annexure

R-3/5.

5  for short, ‘Regulations’

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11) In this background, we examine the respective contentions of the

parties.

12) As per the conditions pertaining to advertisement No. 3 of 2011,

the  applications  submitted  earlier  were  to  be  considered.   This

shows that the “publications” of the writ petitioner were with the

University  when  the  writ  petitioner  was  granted  marks  for

“publications”.  Even if the Selection Committee has undergone a

change as well as norms of selection as per the Regulations, the

Selection Committee was within its jurisdiction not to award any

marks  for  “publications”,  if  it  was  not  meeting  the  requisite

conditions.  But  surprisingly,  the  writ  petitioner  has  not  been

granted  any  marks  under  the  heading  “publications”  in  the

interview held on May 12, 2012, when the candidates for under

OBC category were interviewed but the writ petitioner was granted

five  marks  for  “publications”  when  the  interview  was  being

conducted  for  the  post  of  Assistant  Professor  under  general

category on May 13, 2012.  Though, the writ  petitioner has not

appeared in the interview but the fact remains that he has been

granted five  marks  for  “publications”.   It  is  the  same Selection

Committee who conducted interview on May 12, 2012 and on May

13,  2012.  Therefore,  the  stand  of  the  appellant  that  the  writ

petitioner  has  not  submitted  any  “publications”  does  not  merit

acceptance.   Such  “publications”  were  before  the  Search

Committee when the writ petitioner was interviewed on May 13,

2012.

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13) But it is equally true that it is for the experts to award marks for

“publications”.   The  High  Court,  while  exercising  the  power  of

judicial review, does not sit in the arm chair of the experts to award

the  marks  for  publications,  that  too,  on  the  basis  of  an  earlier

selection process.  The marks obtained by the writ petitioner under

the heading “publications” on May 13, 2012 were not before the

High  Court.   The  appellant  was  granted  three  marks  for

“publications”  in  the  earlier  selection  process  initiated  vide

advertisement  No.  3  of  2010.   Such  “publications”  were  also

required  to  be  taken  into  consideration  by  the  Selection

Committee.

14) We find that the process of conducting separate interviews for the

posts  of  Assistant  Professor  under  general  category  and  OBC

category is wholly illegal.  Though, none of the parties have raised

any dispute about it but since the same is inherently defective, we

are constrained to observe so.  Every person is a general category

candidate.   The benefit of  reservation is  conferred to Scheduled

Castes,  Scheduled  Tribes  and  OBC  category  candidates  or  such

other category as is permissible under law.  It is a consistent view

of this Court starting from  Indra Sawhney & Ors.  v.  Union of

India & Ors.6 that if a reserved category candidate is in merit, he

will occupy a general category seat.  In  Indra Sawhney’s  case,

the Court held as under:

“811.  In this connection it is well to remember that the

6  1992 Supp. (3) SCC 217

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reservations under Article 16(4) do not operate like a communal reservation.  It may well happen that some members  belonging  to,  say,  Scheduled  Castes  get selected in the open competition field on the basis of their own merit;  they will  not be counted against the quota  reserved  for  Scheduled  Castes;  they  will  be treated as open competition candidates.”

15) In judgment reported as Vikas Sankhala v. Vikas Kumar Agar-

wal7 one of the questions examined was whether reserved cate-

gory candidate who obtains more marks than the last general cate-

gory candidate is to be treated as general category candidate. It

was held that such reserved category candidate has to be treated

as unreserved category candidate provided such candidate did not

avail any other special concession. The Court held as under:  “84.2. Migration from reserved category to general cate- gory shall be admissible to those reserved category can- didates who secured more marks obtained by the last un- reserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category.”

16) The concessions which were availed by the reserved category can-

didates are in the nature of age relaxation, lower qualifying marks,

concessional application money than the general category candi-

dates.  

17) In  view  of  the  said  fact,  we  find  that  the  selection  process

conducted  by  the  University  cannot  be  said  to  be  fair  and

reasonable.  Consequently, the University is directed to re-examine

the  selection  process  by  constituting  an  Expert  Committee  who

shall consider the “publications” of the candidates who were being

considered in pursuance of advertisement No. 3 of 2011 and make

7      (2017) 1 SCC 350

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suitable recommendations accordingly by having a joint merit list

of all the categories of candidates who applied for appointment to

the post of Assistant Professor. However, in such selection process,

the  appointment  of  candidates  already  selected  will  not  be

disturbed,  except  the  appellant  whose  appointment  shall  be

subject  to  the  decision  of  the  University  on  the  basis  of

recommendation of the Expert Committee.     

18) We  hope  that  University  will  be  able  to  finalise  the  revised

selections within a period of six months from today.  

19) The appeals are, thus, allowed in the above terms.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; SEPTEMBER 17, 2019.

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