Basharat Shafi vs University of Kashmir and Others

Ali Mohd. Magrey, J.â€"These two Letters Patent Appeals have been preferred by the appellant against the common judgment dated 09.02.2010

passed by the learned Writ Court in two clubbed writ petitions, viz. SWP No. 1421/2008 and SWP No. 966/2009, whereby the former writ

petition, filed by one Dr. Nissar Ahmad Mir, impleaded as respondent No. 3 in LPA No. 41/2010 and respondent No. 1 in LPA No. 42/2010

(for brevity, referred to hereinafter by his name, Dr. Nissar Ahmad Mir,), has been disposed of on the ground that the grievance of the petitioner

therein stood redressed by the Selection Committee, and the latter writ petition, filed by the present appellant, has been dismissed as being without

any merit. It may be mentioned here that the appellant, in the circumstances as would be set out in this judgment hereafter and being a candidate in

the same selection process as Dr. Nissar Ahmad Mir, had sought permission for impleadment as a respondent in SWP No. 1421/2008 filed by

Dr. Nissar Ahmad Mir. The appellant and Dr. Nissar Ahmad Mir had offered their candidature for the post of Deputy Registrar/Deputy Controller

of Examinations pursuant to advertisement notice No. F10(Apt-Gen)Rc/KU/07/Gen-466 dated 25.06.2007 issued by the respondent-University

notifying four such posts. The essential qualifications, as notified, for the posts were as under:

A Master's Degree with at least 55% marks or its equivalent grade of 'B' in the UGC seven points scale with:

(a) Five year experience as a lecturer in a College or a University with experience in Educational Administration.

OR

(b) Comparable experience in Research Establishment and/or other institution of Higher Education.

OR

(c) Five years of Administrative Experience as Assistant Registrar or on an equivalent post.

The interviews were scheduled to be held on 24.10.2008. Dr. Nissar Ahmad Mir, asserting that despite being possessed of the requisite

essential qualifications, he had been orally informed about being not eligible and, therefore, not being called for the interview, approached the

learned Writ Court through writ petition, SWP No. 1421/2008. In the said writ petition, Dr. Nissar Ahmad Mir made a prayer that the

respondents be directed to allow him to appear in the interview and to consider him for selection and appointment to the post.

The aforesaid writ petition came up for consideration before the learned Writ Court on 22.10.2008. While issuing notice in the main petition, in

the CMP accompanying the writ petition, the Court passed an order to the effect that respondents shall ensure conduct of the interview of the

petitioner which shall be at his own risk and responsibility.

The interviews scheduled to be held on 24.10.2008 were postponed. Meanwhile, on 30.12.2008, the respondent-University filed its reply-

affidavit in the aforesaid writ petition, SWP No. 1421/2008. Therein, it took the stand that the Screening Committee, while screening the

application forms as well as the relevant certificates submitted by the candidates, had found that the petitioner did not have the required years of

service as specified in the advertisement notice. As such, he was not eligible. Elucidating the stand so taken, it was averred that the petitioner had

worked in different capacities on consolidated salary with fractured service and had never worked as Assistant Registrar or a Lecturer or on

comparable post which carried regular pay scale of Rs. 8000-13500 for the period as indicated in the advertisement notice. It was further stated

that he had also no comparable experience in research establishment and/or other institution of higher education.

On 07.02.2009, the counsel for the parties seem to have made their respective submissions as to the lack or otherwise of comparable

experience of the petitioner during which Mr. J.A. Kawoosa, the learned counsel representing the University, sought adjournment to support his

contention vis-a-vis the comparable experience. The interim direction passed on 22.10.2008 was ordered to remain in operation for the date as

may be scheduled.

Meanwhile, the Selection Committee constituted by the University under Section 36 of the Kashmir and Jammu Universities Act, 1969

(hereinafter, the Act) met on 20.05.2009, conducted its proceedings/interviewed the candidates and made its recommendations consequent upon

which the University issued an order under endorsement No. F10 (Appt-Gen)RC/KU dated 27.05.2009 according sanction to the appointment of

three candidates named therein on three of the four advertised posts. Subsequent thereto, another order was issued under endorsement No. F. 1

(Adjustment-Officers)Reg/KU/09 dated 26.06.2009 which read, ""pursuant to fresh appointments/promotion of Deputy Registrars/Deputy

Controllers of Examinations and Assistant Registrars/Assistant Controller of Examinations, the following postings/transfers/adjustments are made

with immediate effect"". In the said order, the name of petitioner in writ petition, SWP No. 1421/2008, figured at serial No. 7 among the list of 19

names mentioned therein. Thus the fourth advertised post was filled up by selection and appointment of the writ petitioner in SWP No. 1421/2008.

The appellant herein, who was one of the candidates in the selection process, challenged the selection and appointment of the Dr. Nissar Ahmad

Mir (petitioner in SWP No. 1421/2008) made vide order dated 26.06.2009 through the medium of writ petition, SWP No. 966/2009 presented

before the Registry of the Court on 07.07.2009.

The aforesaid writ petition, SWP No. 966/2009, was filed by the appellant essentially on the grounds that in light of the stand of the respondent-

University taken in their reply affidavit filed in response to the Dr. Nissar Ahmad Mir's writ petition, SWP No. 1421/2008, the said respondent

was ineligible and, inspite of that fact, the respondent-University has selected and appointed Dr. Nissar Ahmad Mir without taking the Court in

confidence and without waiting for the final disposal of the writ petition, involving determination of the eligibility of the said respondent. Founding

his cause of action on the reply affidavit so filed by the respondent-University, the appellant in his writ petition urged that the selection process was

unfair and, therefore, arbitrary.

In the aforesaid writ petition, SWP No. 966/2009, the learned Writ Court by order dated 09.07.2009 ordered that till next date of hearing

before the Court, appointment of Dr. Nissar Ahmad Mir shall not be made. This order was subsequently clarified on 17.07.2009 to imply that his

appointment order shall remain stayed. On perusal of the original record, the aforesaid order was modified by order dated 19.08.2009, which

resulted in filing of LPA No. 167/2009 by the appellant herein. A Division Bench of this Court, by order dated 02.09.2009, allowed the LPA, set

aside the modification order dated 19.08.2009 and restored the interim order passed in SWP No. 966/2009 staying appointment of Dr. Nissar

Ahmad Mir until such time the writ petition of Dr. Nissar Ahmad Mir, SWP No. 1421/2008, was decided in his favour.

Simultaneous with the decision in the aforesaid LPA, the appellant (writ petitioner in SWP No. 966/2009) on 04.09.2009 filed CMP No.

2494/2009 seeking impleadment as party respondent in Dr. Nissar Ahmad Mir's writ petition, SWP No. 1421/2008.

Before the aforesaid application, CMP No. 2494/2009, filed by the appellant, would come up for consideration before the learned Writ

Court, Mr. J.A. Kawoosa, the counsel for the University, filed an application, being CMP No. 2833/2009, which was presented before the

Registry on 08.10.2009. In the said application, it was stated as under:

That after filing of the reply in the above titled writ petition, the Selection Committee interviewed the candidates for the post of Dy.

Registrar/Dy. Controller Examination. The Selection Committee on the basis of academic merit, past performance found the petitioner eligible and

recommended him for appointment. In order to reach just and proper conclusion of the matter, this fact is being brought on record of this Hon'ble

Court by way of supplementary affidavit which is annexed herewith.

It was, accordingly, prayed that the supplementary affidavit may be taken on record. In the said supplementary affidavit, it was stated as under:

That selection committee considered the case of Dr. Nissar Ahmad Mir in light of objections raised by screening committee and orders passed

by Hon'ble High Court in the matter.

That the Selection Committee after going through his bio-data found him eligible for the post of Deputy Registrar in terms of the advertisement

notice and as such recommended him on the basis of Academic record, past experience, performance in interview.

The CMP filed by the University for taking on record the supplementary affidavit was allowed by order dated 20.10.2009; whereas the CMP

filed by the appellant for impleadment as party respondent in Dr. Nissar Ahmad Mir's writ petition, SWP No. 1421/2008, was allowed by order

dated 29.10.2009. The appellant's counsel opted not to file any fresh returns, but to adopt the stance and stand taken by him in his writ petition,

OWP No. 966/2009.

In compliance to the subsequent orders passed by the learned Writ Court from time to time, mention whereof has been made by the learned

Writ Court in somewhat detail in the judgment under challenge in this appeal, the respondent-University filed three more supplementary affidavits

on 11.12.2009, 21.12.2009 and 27.01.2010 wherein it explained the circumstances under which Dr. Nissar Ahmad Mir had been initially

categorized as ineligible by the Screening Committee, but later found eligible by the Selection Committee etc. etc. Reference in this connection may

be made to one of such orders dated 30.12.2009 passed by the learned Writ Court, which is extracted hereunder:

While considering the rival submissions of the learned counsel for the parties and after going through the selection record as produced by learned

counsel for the respondent-University, before finally deciding the matter it shall be quite relevant first to ask respondent-University to file fresh

affidavit specific in terms vis-a-vis following points:

1) Clause 1(b) 'comparable experience in research establishment and/or other institution of higher education' as appear in the advertisement notice

issued by Registrar on 25.6.2007, be explained by the same Registrar as to what it, means.

2) In reply affidavit service particulars of the petitioner have been noticed and it has been observed that the petitioner was not in regular pay scale

for the periods indicated therein. In addition it is added 'he has also no comparable experience in research establishment and/or other institution of

higher education'. In the supplementary affidavit filed in response to order dated 14.12.2009 it is mentioned that Selection Committee after

threadbare discussion and after considering the service particulars of the petitioner has found that the petitioner has five years comparable service.

How that has been said when in the reply affidavit same service particulars were noticed and it was stated that 'it is not the requisite comparable

service'. This position is required to be explained i.e. how the same service particulars constitute comparable experience as required in clause 1(b)

of the advertisement notice.

In compliance to the aforesaid order of the learned Writ Court, the Registrar of the respondent-University filed the requisite supplementary affidavit

on 27.01.2010, as mentioned above.

The two writ petitions, as mentioned at the very outset, were heard together and decided by the learned Writ Court by the impugned common

judgment dated 09.02.2010 wherein the learned Writ Court recorded the following findings:

The respondents in no uncertain terms have qualified that the 'comparable experience in Research Establishment and/or other institution of higher

education' appearing in clause 1(b) of the advertisement notice dated 24.6.2007 while read conjointly with clause 1(a) and 1(c) of the

advertisement notice would show that the comparable experience means five years experience of working in any research establishment and/or

other institution of higher education. Clause 1(a) and Clause 1(c) provide opportunity to the teachers and administrators for seeking appointment to

the post of Deputy Registrar whereas Clause 1(b) provide(s) opportunity to Researchers and Scholars working in Research Establishments.

It is also qualified that in earlier affidavit while noticing the same service particulars of petitioner Dr. Nissar, he was stated to be ineligible but the

affidavit was filed on the observations of the Screening Committee. The Screening Committee in fact had observed that the petitioner was not in a

regular pay scale when regular pay scale was not a condition for having comparable experience. When the Selection Committee threadbare

discussed the matter, they noticed that the observation of the Screening Committee regarding position of the petitioner having not been in a regular

pay scale was not the condition in the advertisement notice. Based on the final decision of the Selection Committee, the subsequent affidavit was

filed wherein it is clearly stated that the petitioner did possess the comparable experience. The earlier affidavit was based on the observations of

the Screening Committee but when position altered in view of decision of the Selection Committee, the filing of affidavit to indicate that the

petitioner was having comparable experience was necessary.

While considering the clarification as has been tendered, the logical conclusion which appeals to the reason is that in the advertisement notice

candidate was not required to be in a particular pay scale. All what has been prescribed is that a candidate must have five years requisite

experience. The Screening Committee has wrongly observed that the petitioner is not eligible on the basis of his not being in a particular pay scale.

The said position has been taken note of by the Selection Committee. Same cannot be faulted.

The learned Writ Court, accordingly, held and ordered as under:

...The eligibility of the petitioner as determined by the Selection Committee does not warrant any interference.

Challenge to the selection and consequent appointment of the petitioner Dr. Nissar based on in-eligibility, for the reasons stated has no merit to

prevail. The selection as made cannot be disturbed.

SWP No. 1421/2008 has served its purpose as the grievance of the petitioner Dr. Nissar Ahmad stand redressed by the Selection Committee

itself, so petition is accordingly disposed of.

Writ petition SWP No. 966/2009 filed by respondent Basharat Shafi for the reasons stated hereinabove has no merit, as such, dismissed alongwith

connected CMPs. Any prohibitive order passed during the pendency shall cease to be in operation.

In these appeals, the appellant has, among other things, raised issues concerning the eligibility of Dr. Nissar Ahmad Mir which were not

originally taken in the writ petition and has challenged the judgment rendered by the learned Writ Court.

We have heard learned counsel for the parties, perused the record and considered the matter.

Before coming to the submissions made by the respective learned counsel at the Bar, it may be mentioned that at the time of admission of these

Letters Patent Appeals, a Coordinate Bench of this Court, by order dated 12.12.2011, directed the respondents in these appeals to file affidavits

in the light of the pleadings in the memorandum of appeals, more particularly paragraph 4 of LPA No. 42/2010.

In paragraph 4 of the LPA No. 42/2010, the appellant has raised his grounds of challenge against the impugned judgment of the learned Writ

Court. Briefly summarizing, in paragraph 4(a), it has been urged that Dr. Nissar Ahmad Mir would not have been declared eligible for appointment

as Deputy Registrar because he had not worked for requisite period in any Research Establishment, nor had he worked against regular pay scale

for the requisite period. The University in none of its affidavits stated that the State Resource Centre, where Dr. Nissar Ahmad Mir was working is

a Research Establishment and that he has worked against a regular pay scale. In paragraph 4(b), the finding of the learned Writ Court, that the

service rendered by Dr. Nissar Ahmad Mir as Project Officer from January 2002 has to be treated as comparable experience, is challenged on the

ground that Dr. Nissar Ahmad Mir had not worked as Project Officer in any Research Institute, but had worked in J & K State Resource Centre

which is not at all a Research Establishment. To support this contention, reliance is placed on the information supplied to the appellant under RTI

by Assistant Educational Adviser, Ministry of Human Resource Development, Department of School Education & Literacy, New Delhi, under

letter dated 10.3.2010. In ground 4(c), it is stated that Statute 5 of the University Statutes provides for recognition of a Department/Centre as

Research Centre. The requirement of this Statute is that the concerned Department/Research Centre/Institution must be conducting courses leading

to the award of M. Phil and Ph.D. and that the State Resource Centre, where Dr. Nissar Ahmad Mir had worked did not award M. Phil and

Ph.D. Degrees, nor was the said Centre a Post Graduate Department/Centre/Institution. In paragraph 4(d), it is urged that the bio-data of Dr.

Nissnr Ahmad Mir reproduced in the impugned judgment at page 11 thereof was not supported by any documentary proof. Therefore, the learned

Writ Court was not supposed to rely on the same and return a positive finding declaring Dr. Nissar Ahmad Mir to be eligible for the post of

Deputy Registrar. In paragraph 4(e), it is asserted that Dr. Nissar Ahmad Mir has misled the learned Writ Court as well as the University by

showing the address of his employer as University of Kashmir in his bio-data. It is stated that Dr. Nissar Ahmad Mir was an employee of J & K

State Resource Centre which was only being managed by the University. In paragraph 4(f), it is urged that the expression comparable experience

used in clause (b) of the advertisement notice connotes that the experience in Research Establishment must be comparable to experience

proscribed under clause (a). Such experience would mean 5 years experience against a post which is equivalent in status to the post of Lecturer of

a University or College, and the learned Writ Court has not considered this aspect of the matter which has resulted in failure of justice. In ground

4(g), it is stated that the University could not have brushed aside the averments made on oath by its Registrar in his first affidavit filed in SWP No.

1421/2008, since it was not clarified in the reply affidavit filed by the University whether the Registrar, who had sworn an affidavit to support the

decision of the Screening Committee, was a member of that Committee or not and whether other members of the said Committee were also

members of the Selection Committee.

Both, the respondent-University as well as Dr. Nissar Ahmad Mir, have filed their respective responses to the aforesaid assertions of the

appellant.

The respondent-University, in its response has stated that working in a particular regular pay scale was neither prescribed as a condition of

eligibility in the advertisement notice, nor is provided in the rules regulating appointment to the post of Deputy Registrar in the University. The said

condition had been wrongly insisted upon by the Screening Committee but, upon re-consideration by the Selection Body, which is the competent

body, was not persisted with. As to the contention that the State Resource Centre is not a Research Centre, it is submitted that term Research

Establishment has been used in generic sense and would include all institutions and establishments wherein research is being carried by Scholars. In

this connection, it is further submitted that the State Resource Centre is involved in multidimensional activities mentioned in the relevant paragraph

of the response. It is further submitted that it is not necessary that all Research Institutions/Centres/Establishments must be recognized by the

University Syndicate. The recognition under Statute 5 of the University of Kashmir M. Phil., Ph. D., D. Litt., D. Sc., & D.C.I. (Revised) Statutes is

required to be obtained only when a Research Institution/Centre/Establishment desires to conduct such courses that result in award of aforesaid

degrees. Elaborating on the submission, it is submitted that there are many Research Institutions/Centres/Departments in the University which are

not offering M. Phil and Ph. D. courses but where extensive research work is carried by Researchers, Scholars, Officers and other Faculty

Members. Specific reference in this behalf is made to the Department of Societal Work, Educational Multimedia Research Centre, Population

Research Centre, Department of Finance and Control, Department of Clinical Bio-Chemistry, Centre for Geo-Informatics, Bio-Informatics

Centre, Directorate of Life Long Learning, Institute of Foreign Languages, Directorate of Distance Education, Department of Bio-Resources and

many other centres established in the University. It is stated that State Resource Centre, Srinagar, is extensively engaged in research work under

the overall control of the University of Kashmir and therefore, for all purposes is a Research Establishment working under the aegis of the

University. As regards the allegation levelled by the appellant that Dr. Nissar Ahmad Mir did not possess 5 years' experience and that the

experience certificate had been issued in his favour by his father-in-law, it is stated that records have been verified and that there is no doubt that

the said respondent had more than 5 years' experience to his credit in the State Resource Centre. It is also stated that significantly research

conducted by other scholars under his guidance has culminated in publication of various research papers, projects and books.

Similarly, the respondent (Dr. Nissar Ahmad Mir) has filed his detailed response, specifically refuting the assertions made by the appellant in

his appeals, besides urging that the appellant has projected an entirely different case in his appeals which was neither pleaded by him in the writ

petition, nor projected during arguments before the learned Writ Court.

Mr. B.A. Bashir, learned counsel for the appellant, apart from taking us through the details narrated in this judgment, rather in detail,

hereinabove, submitted that once the respondent-University had declared Dr. Nissar Ahmad Mir as ineligible and sworn an affidavit to that effect,

it could not be allowed to resile therefrom and take an entirely opposite stance that the said respondent was eligible. Learned counsel submitted

that the respondent University was estopped from doing so under the doctrine of estoppel and in this connection cited Section 115 of the Evidence

Act. He further submitted that Dr. Nissar Ahmad Mir had a fractured service which could not be counted for determining the requisite experience,

so also because he had not worked in a regular scale of pay, and that the experience gained as Project Officer could not be taken into account for

determining the eligibility. To be precise, the learned counsel submitted that the question that requires to be gone through is as to whether Dr.

Nissar Ahmad Mir has the comparable experience in terms of advertisement notice and why he was not appointed alongwith other three

candidates?

Mr. J.A. Kawoosa, learned counsel for respondents 1 and 2, submitted that the appellant has no locus to challenge the selection and

appointment of Dr. Nissar Ahmad Mir. He further submitted that the University in its supplementary affidavits has explained that the Screening

Committee was constituted for administrative convenience and that it was not a statutory authority. The authority to determine the eligibility of a

candidate is with the Selection Committee constituted under the Act, which on consideration of the essential qualifications possessed by Dr. Nissar

Ahmad Mir, found him eligible. He further submitted that since the Selection Committee is a body of experts, this Court would not interfere with its

opinion. In this connection, Mr. Kawoosa placed reliance on the judgment of the Supreme Court in Dr. Basavaiah Vs. Dr. H.L. Ramesh and

Others, .

Mr. Jehangir Iqbal Ganai, learned counsel for Dr. Nissar Ahmad Mir, apart from arguing on the lines of Mr. Kawoosa and the averments

made by him in his response, submitted that Dr. Nissar Ahmad Mir had the requisite essential qualifications and, therefore, he was eligible to be

called for interview. Learned counsel submitted that Dr. Nissar Ahmad Mir's selection and subsequent appointment does not, in any way, violate

the eligibility criteria or any of the rights of the appellant. He further submitted that appellant cannot be allowed to take such issues in these appeals

as were neither taken up by him in opposition to Dr. Nissar's writ petition nor in his writ petition before the learned Writ Court. To buttress his

arguments, the learned counsel cited and placed reliance on the decisions of the Supreme Court in M/s. B.S.N. Joshi & Sons Ltd. v. Nair Coal

Services Ltd., AIR 2007, SC 437 ; B.C. Mylarappa @ Dr. Chikkamylarappa Vs. Dr. R. Venkatasubbaiah and Others, ; Hari Bansh Lal Vs.

Sahodar Prasad Mahto and Others, and a judgment of this Court in Lawlex Education & Research Trust v. State of J & K, 2013 (4) JKJ 637

[HC].

It is seen that the crux of the pleadings of the appellant all through, including the assertions made in paragraph 4 of LPA No. 42/2010, and the

sum and substance of the arguments of learned senior counsel appearing on his behalf is that Dr. Nissar Ahmad Mir was not eligible for the post of

Deputy Registrar. Much emphasis was laid by the learned senior counsel on the stand taken by the respondent-University in its reply affidavit

initially filed by the Registrar of the University on the basis of the report of the Screening Committee, and it was contended that the University was

estopped from withdrawing its first stance under the doctrine of estoppel in terms of Section 115 of the Evidence Act.

Perusal of the judgment of the learned Writ Court makes it manifest that the respondent-University elaborately explained the circumstances

under which Dr. Nissar Ahmad Mir was initially stated to be ineligible on the basis of the report of the Screening Committee, a non-statutory body,

which had been constituted only for administrative convenience, and later found to be eligible by the Selection Committee constituted under

Section 36 of the Act which interviewed him pursuant to the interim direction of the Court and considered his case.

The question is, once the competent body of experts, i.e., the Selection Committee, found Dr. Nissar eligible, would it be open for this Court

to sit in appeal over the decision of such expert body? The issue is not res integra. Similar controversy has come up before the Supreme Court

from time to time, beginning from the case of The University of Mysore and Another Vs. C.D. Govinda Rao and Another, , to Basavaiah (Dr.) v.

Dr. H.L. Ramesh (supra). In the latter case, the Supreme Court, referring to its earlier judgments on the point and the law laid down therein,

reiterated and reaffirmed the legal position that in academic matters, the Courts have a very limited role, particularly when no mala fides have been

alleged against the experts constituting the Selection Committee, and that it would normally be prudent, wholesome and safe for the Courts to leave

the decisions to the academicians and experts. It has been further laid down that, as a matter of principle, the Courts should never make an

endeavour to sit in appeal over the decisions of the experts and that the Courts must realize and appreciate its constraints and limitations in

academic matters.

It would also be relevant, rather advantageous, to quote hereunder what was laid down by the Apex Court in some of the numerous cases

mentioned in Basavaiah (Dr.) v. Dr. H.L. Ramesh (supra).

Dr. J.P. Kulshreshtha and Others Vs. Chancellor, Allahabad University and Others, :

Rulings of this Court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians

when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge

decisions of academic bodies....

Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, :

29.... As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise,

prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich

experience of actual day-to-day working of educational institutions and the departments controlling them...

Bhushan Uttam Khare Vs. The Dean, B.J. Medical College and others, :

... the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational

authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of

justice. ... ... ...

Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, :

... It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to

scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted

Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be

interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating

the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the

Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all

the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative

merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.

The Chancellor and Another Vs. Dr Bijayananda Kar and Others, :

This Court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a

candidate fulfils the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned

selection committees which invariably consist of experts on the subjects relevant to the selection....

In the instant case, the appellant has neither alleged any irregularity, muchless material irregularity, in the constitution of the Selection Committee

or its procedure, nor levelled allegations of mala fides against any of its members. Even members of the Selection Committee are not respondents

in the writ petition. Above being the position of the law on the point, established over a long period stretching nearly to half a century, this Court

would not sit in judgment over the decision of the Selection Committee of the University which found Dr. Nissar Ahmad Mir eligible for the post of

Deputy Registrar.

Though this should wrap up the matter, yet we proceed to deal with other arguments advanced at the Bar.

The appellant's cause of action, in his writ petition, SWP No. 966/2009, was founded on the reply affidavit filed by the respondent-University,

inasmuch as, the appellant did not project violation of any of his rights independent of such stand of the University based on the report of the

Screening Committee. His limited case before the learned Writ Court was that, though Dr. Nissar Ahmad Mir had been declared ineligible, yet he

was selected and appointed; therefore, his appointment be quashed and appellant be directed to be appointed on that post. Independent of the

statements made in the said reply affidavit, the appellant did not project any specific fact or ground: (i) to establish that but for the appointment of

Dr. Nissar, he had a right to appointment; or (ii) to demonstrate that he deserved a preference over Dr. Nissar Ahmad Mir; or (iii) any of his rights

had been violated in course of the selection process. Even in opposition to the writ petition of Dr. Nissar Ahmad Mir, wherein he sought

impleadment, and was arraigned as a respondent, he did not file any returns to contest any of the facts stated by him in his writ petition. Instead,

the appellant opted to rely on the submissions made by him in his own writ petition, OWP No. 966/2009. The only right which the appellant could

claim was right to consideration. It is not his case that he was not considered by the Selection Committee or that the Selection Committee

committed any illegality or irregularity while according consideration to him. It is also not that as against four advertised posts, there were only five

candidates and, if one of the selected candidates would be dropped, the appellant would stand a chance to be selected in his place. The Selection

Committee interviewed and considered in all seventeen candidates out of whom it recommended only four candidates, including Dr. Nissar Ahmad

Mir. That being the factual position, the appellant having been duly interviewed and considered, cannot raise any grievance, since determination of

suitability or otherwise of a candidate is the function of the Selection Board and the appointing authority, not of the Court.

True it is that the respondent Universality had taken a stand about ineligibility of Dr. Nissar Ahmad Mir in its reply affidavit filed in response to

the writ petition, SWP No. 1421/2008, but, subsequent thereto, the Selection Committee constituted by the University under Section 36 of the

Act, on noticing the mistake committed by the Screening Committee, found Dr. Nissar Ahmad Mir eligible in terms of the advertisement notice,

and recommended him for such appointment on the basis of his academic record, past experience and performance in the interview. The University

was legally obliged not to suppress or conceal this fact and to bring on record such new development and the changed factual scenario.

Consequent thereupon, the University on 08.10.2009 filed a duly sworn in affidavit alongwith an application bringing this vital fact on record of the

petition so that the Court reach a just and proper conclusion in the matter. The application moved in that behalf by the respondent-University was

duly accepted and allowed by the learned Writ Court by order dated 20.10.2009, without any exception or rider, in the following terms:

For the reasons detailed in the application coupled with the submissions made at the bar, it is allowed. Supplementary affidavit accompanying the

CMP shall be taken on record, copy whereof be supplied to counsel for the other side unless already furnished.

It is relevant to reiterate here that as on the date aforesaid application was allowed and the supplementary affidavit of the University was taken on

record by the learned Writ Court, the appellant herein was not impleaded as a party respondent in the said writ petition. Once the application filed

by the University was allowed by the Court without any exception and/or rider, it has to be taken that the stand taken in the said affidavit was

accepted by the Court for being relied upon for a decision in the lis, particularly so when there was no objection raised thereto by the contesting

party, i.e., the petitioner therein. Significantly, it is not that the respondent-University resiled from the stand taken by it in the reply affidavit: the fact

is that the reply affidavit was filed on the records as were available then and the supplementary affidavit was filed with reference to the new records

as had come into being after filing of the reply affidavit. Even so, the learned Writ Court for its satisfaction could seek an explanation and

clarification from the University as to the contradictory stands taken by it and ask for necessary details in that regard, which was, in fact, done. It

was for the Court whether to accept such explanation/clarification or not. The learned Writ Court in its impugned judgment having taken note of

such explanations and reasons and decided the matter finally on the basis of such explanations and clarifications, makes it manifest that the Court

has accepted the explanation so tendered by the respondent-University. The learned Writ Court did not commit any illegality as there is no bar to

accept the supplementary affidavit filed on subsequent records, particularly so when the same is germane to the decision of the case. Accordingly,

the appellant cannot have any grievance in that regard.

As regards the submission of the learned senior counsel that the University was estopped from withdrawing its earlier stance and his reference

to Section 115 of the Evidence Act, it would be appropriate to mention here the observations made by the Supreme Court in Olga Tellis and

Others Vs. Bombay Municipal Corporation and Others, , while dealing with a similar point. It was said that the doctrine of estoppel is based on

the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another on

the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. The plea of

estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transaction. In the instant case,

the respondent-University did not make, muchless intentionally, any declaration, or did any act or commit any omission, to cause the appellant to

believe in what was stated in the reply affidavit and to act upon such belief. As mentioned earlier, as on the date the reply affidavit as well as on the

date the supplementary affidavit was filed by the University in Dr. Nissar's writ petition, the appellant was not a party to the writ petition. As on the

date he was impleaded as a party respondent, not only the respondent-University had already brought on record the supplementary affidavit, but

the same was taken on record by the Court. Therefore, the plea of estoppel is not available to the appellant.

Furthermore, Dr. Nissar Ahmad Mir had come to the Court seeking protection of his fundamental right to consideration guaranteed under

Article 14 and 16 of the Constitution. What the learned counsel wants is that the wrong committed to Dr. Nissar should have been allowed to be

perpetuated, notwithstanding his fundamental right to consideration.

As regards the submission relating to the service of the petitioner as Project Officer, the argument is three dimensional, first, that J & K State

Resource Centre is not a Research Establishment; second, that Dr. Nissar Ahmad Mir had a fractured service and not in a regular scale of pay;

and third, that Dr. Nissar lacked 'comparable service'. For these reasons the service of Dr. Nissar Ahmad Mir, could not be treated as experience,

muchless comparable experience, in a Research Establishment and/or other institution of Higher Education and, therefore, could not be counted for

determining his eligibility. To buttress his argument, that J & K State Resource Centre is not a Research Establishment, reliance is placed in this

connection on letter dated 10.03.2010 from Assistant Educational Adviser, Ministry of Human Resource Development, Department of School

Education & Literacy, New Delhi.

The letter dated 10.03.2010, relied upon by the learned senior counsel says:

There is no specific clause mentioned regarding State Resource Centre qualify as Research Establishment, in the scheme of Support to NGO's

under which the grants are being provided for SRCs.

From a perusal of the above, it becomes axiomatic that the letter does not expressly say that J & K State Resource Centre is not a Research

Institute; it only says that there is no specific clause in the scheme which says that State Resource Centre qualifies as a Research Establishment. In

other words, the letter says that the scheme is silent on the subject. None-existence of a provision in the scheme to say expressly that the State

Resource Centre qualifies to be a Research Establishment cannot be interrelated to mean that there exists a provision therein expressly saying that

State Resource Centre does not qualify to be a Research Establishment. The interpretation, as is sought to be placed on the aforesaid contents of

the letter, cannot even be deduced impliedly. It is one thing to say that the scheme expressly says that State Resource Centre is not a Research

Establishment and another that the scheme does not contain any clause making such qualification. The submission made in this regard is illogical

and misconceived.

Apart from the above, what the appellant had urged in his memorandum of appeal, in paragraph 4 thereof, is that only such

Institutes/Departments could constitute Research Establishments as were offering M. Phil and Ph. D. courses, resulting in award of such Degrees.

According to the appellant, since State Resource Centre was not offering such courses as result in award of M. Phil and Ph. D. Degrees, it could

not be termed as a Research Establishment. The respondent-University in its response has sufficiently met this submission of the appellant wherein

it has specifically mentioned those departments/centres in the University which, though not offering M. Phil and Ph. D. Degrees, yet constitute

Research Institutes. In his rejoinder affidavit, the appellant has sought to place his own interpretation on Research Institute in light of some

advertisement issued by Central Road Research Institute, which is of no help to the appellant. The learned senior counsel has failed to produce any

statute, rule, regulation or guideline from any competent authority to show that the University had wrongly held State Resource Centre as a

Research Establishment.

It may also be observed here that the condition of eligibility was prescribed by the University itself and it is the University alone which knew the

context in which such condition was laid keeping in view the requirement of the post. Its competent expert body has held Dr. Nissar Ahmad Mir as

eligible, possessing the requisite experience. This Court is not an appellate authority for the decisions taken by the University or its Selection

Committee. Whether the State Resource Centre is a Research Institute or not, is a matter of fact which cannot be determined by this Court in its

extra ordinary writ jurisdiction.

Coming to the next prong of the argument, that Dr. Nissar Ahmad Mir had a fractured service which could not be counted for determining the

requisite experience, it is seen that the advertisement notice did not prescribe it as a condition that the experience ought to be had in a continuous

service or in a regular scale of pay. Learned senior counsel has also not cited any Statute or Regulation of the University which envisaged that only

such experience could be taken into consideration as had been gained on a continuous service and/or in a regular scale of pay. In absence of any

such condition prescribed in the advertisement notice, the contention raised is held to be untenable, What is not contained in the advertisement

notice cannot be read into it.

As regards the third prong of the argument that Dr. Nissar did not have 'comparable experience', the submission is that clause 1(b) of the

advertisement notice used the phrase ""comparable experience"", meaning thereby such experience as could be comparable to the experience as

prescribed in clauses 1(a) and 1(c) of the advertisement notice. According to the learned senior counsel, since the posts mentioned in clauses 1(a)

and 1(c) carried a regular scale of pay and were of permanent nature, the candidate seeking consideration on the basis of the experience as

mentioned in clause 1(b) should also have had worked on a post in a regular scale of pay and on continuous basis, and, as Dr. Nissar had

fractured service and had worked on consolidated basis, it could not be compared with what was prescribed in clauses 1(b) and 1(c) of the

notification. In this regard, apart of what has been observed by the learned Single Judge in its impugned judgment, it needs reiteration that elements

of regular pay scale and/or continuation of service have nothing to do with the experience factor. Comparability of experience is relatable to the

nature and quality of experience, not the structure of the perquisites available during the relevant period; and period of experience is relatable to the

totality of time, not seriality thereof. This can be explained in this way: if there are two persons working as Lecturers in a University or a College,

one is working in a regular scale of pay and the other is working on consolidated basis and both teaching the same subject, the difference in the

emoluments between the two would not have any impact on their teaching experience. Similarly, if the Lecturer working on consolidated pay

remains out of job for, say, two months between two spells of his engagement during a year, at the end of the year it cannot be said that he did not

have ten months experience during that year. Experience, in the facts of this case, would be the fact and/or state of the candidate having gained

knowledge through direct observation and participation, which could be had over a continuous period of time or in different spells of time. This, of

course, would be subject to the rules and/or requirement of the advertisement notice. In fact, this issue is also not res integra. Reference may be

made to the decision of the Supreme Court in Dr. Asim Kumar Bose Vs. Union of India (UOI) and Others, . In that case also a similar

controversy was involved and the Supreme Court held as under:

It is necessary to emphasize that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in

the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the

Rules that the teaching experience must be gained on regular appointment. There is hardly any difference so far as teaching experience is

concerned whether it is acquired on regular appointment or as a Specialist in a teaching hospital with the ex-officio designation"".

The aforesaid judgment was followed by this Court in Lawlex Education & Research Trust v. State of J & K (supra) cited and relied upon by Mr.

Jehangir, learned counsel for the respondent, Dr. Nissar Ahmad Mir. The aforesaid case was heard and decided by one of us (Magrey J.).

Following the aforesaid two judgments, it can safely be said that there is hardly any difference so far as experience is gained in a regular scale of

pay, a consolidated pay, in a continuous service or by piecemeal service, unless, of course, the rules or the advertisement notice expressly provides

so.

Mr. Bashir, learned senior counsel, also raised the point that whereas the appointment of three of the candidates was ordered on 27.05.2009,

the appointment of Dr. Nissar Ahmad Mir was made on 26.06.2009, i.e., 30 days thereafter, in a manner which smacks of mala fides, and the

respondents have not explained why was it so. Since the petitioner did not take any specific plea alleging mala fides against the respondents or

furnish the necessary particulars in that regard, the argument is noted only to be rejected.

In view of all what has been discussed above, it is held that there is no merit in these appeals. Consequently, no ground is made out to warrant

interference with the impugned decision rendered by the learned Writ Court. Having come to a definite conclusion, as above, it is felt unnecessary

to discuss the other judgments cited at the Bar by Mr. Jehangir Iqbal Ganai, learned counsel for the respondent, Dr. Nissar Ahmad Mir, and the

points supported by these judgments.

In view of the above, there is no merit in these appeals. The same are dismissed. Any subsisting order of restraint, including order dated

12.12.2011, passed in these appeals shall stand vacated.

No order as to costs is made. The original record produced by the University counsel is returned to him in open Court.