Bhagwati Prasad Kamboj vs Vice-Chancellor, Agra University

Satish Chandra, J.

This special appeal is directed against the judgment of a learned single Judge dismissing a writ petition. The writ petition challenged an order of the ViceChancellor, Agra University, approving the recommendation of the selection committee for the appointment of respondent No. 4, Sri Gopal Madhukar Chaturvedi, to the post of Reader (Head) of the Agra College, Agra.

It appears that Sri R.P. Shukla was the Reader (Head) of the Department of Drawing and Painting in the College. He died on September 30, 1972. The Managing Committee of the College appears to have appointed the petitioner Sri R.P. Kamboj to officiate on the post of Reader (Head) pending a regular appointment. The Managing Committee of the College advertised the post of Reader (Head) on May 23, 1973, in response to which about five candidates, including the petitioner and respondent No. 4, applied. The Selection Committee interviewed the candidates on November 12, 1973, and recommended Sri Chaturvedi, respondent No. 4, for appointment and placed him at serial No. 1. The petitioner was placed at serial No. 2 of the list.

It appears that the petitioner made a representation to the Managing Committee against the selection of respondent No. 4. The Managing Committee of the Agra College considered the representation at its meeting held on December 2, 1973. The Managing Committee decided to disagree with the decision of the Selection Committee, end recommended Sri Kamboj for appointment as Reader on the following grounds:

(a) Prof. Kamboj being a serving Reader of the College should, other things being equal, be preferred.

(b) Prof. Kamboj has nine years'' postgraduate teaching experience in the subject.

(c) Prof. Kamboj''s performance as Reader in the College has been commendable.

The Managing Committee sent the matter to the ViceChancellor for decision. The ViceChancellor by his order dated February 19, 1974, repelled the representation of the Managing Committee and upheld the recommendation of the Selection Committee and decided that Sri Chaturvedi be appointed. The ViceChancellor held that in regard to the comparative merits of the candidates the opinion of the experts who were in the Selection Committee is to be preferred to the view of the Managing Committee. He observed that in regard to Sri Chaturvedi it has been stated that he was not qualified. The ViceChancellor referred to certain Government orders and held that in view of paragraph (13?) of the Government order dated June 14, 1968, Sri Chaturvedi was duly qualified.

The Managing Committee of the College accepted the decision of the ViceChancellor, but Sri Kamboj, who was one of the candidates, filed a writ petition in this Court. The learned Single Judge did not find substance in any of the contentions raised against the order of the ViceChancellor and dismissed the writ petition. Sri Kamboj has come up in appeal.

The ViceChancellor''s order is questioned on the following grounds:

(1) Respondent No. 4 was not qualified. The finding of the ViceChancellor to the contrary was manifestly erroneous.

(2) The ViceChancellor did not apply his mind to the representation of the Managing Committee.

(3) The Selection Committee was not validly constituted, because

(a) the Chairman was absent; and

(b) Sri R.S. Bist, one of the experts, was biased in favour of Sri Chaturvedi.

In regard to the first question, the position appears to be that in the advertisement issued by the Managing Committee the minimum qualification mentioned was

"First class Master''s degree [Second class Master''s degree with Ph.D. with five years'' teaching experience of postgraduate classes in the subject; or second class Master''s degree with ten years'' teaching experience of postgraduate classes in the subject or provided otherwise."

Assuming that the qualifications mentioned in the advertisement are the final word on the subject, the position is that a person would be eligible even if he does not possess qualifications mentioned in the main part of the class, but is covered by ''provided otherwise''. The advertisement does not specify as to where the qualification should otherwise be provided. In this situation any provision which lays down the qualifications for the post of Reader (Head) of the Department of Drawing and Painting of the Agra College would be applicable. It appears that the Government has issued several notifications with regard to the fitment of teachers etc. in the revised pay scales. Appendix B to Government order dated March 7, 1968, lays down the principles and procedure for fixation and implementation of the revised scales of pay of the teachers of the Universities and nonGovernment aided Degree Colleges. Paragraph 5 provides for the posts of Readers in postgraduate colleges. It lays down the qualifications which must be possessed by a candidate who is entitled to the revised pay scales for the post. Paragraph 13 provides the academic qualifications for teachers of Degree and postgraduate classes in Departments, inter alia, of Drawing and Painting to be the same as laid down in the Agra University Handbook, 196566, as amended up to date. By another order dated June 14, 1968, the Government clarified that the teachers in the subjects mentioned in Paragraph 13 aforesaid will be eligible for earning the scale of Rs. 7001100 if they possess the qualifications prescribed in the Agra University Handbook, 196566 as amended up to date, even though they may not be the same as laid down in paragraphs 5 and 9 of Appendix B. The payscale of Rs. 7001100 was for Reader (Head). The Agra University Statutes provide the following qualifications:

"Heads of Department of PostGraduate Classes 2. For Drawing and Painting Classes

(i) M.A. Degree of any University in drawing and painting in First Class with two years'' teaching experience of Degree classes."

Reading the various notifications with the Agra University Handbook it appears that a person who possesses an M.A. Degree in first class and has two years'' teaching experience of degree classes is eligible for the post of Reader (Head). These Government orders would, in our opinion, be provisions referred to in the advertisement issued by the Managing Committee. Respondent No. 4 possessed these qualifications and the ViceChancellor was justified in holding that he was qualified for the post.

The next submission, that the ViceChancellor did not apply his mind, has no merit. A perusal of the ViceChancellor''s order shows that he dealt with the various points raised by the Managing Committee. Section 31(8) of the U.P. State Universities Act, 1973, says that the decision of the ViceChancellor on the reference made by the Management shall be final. This provision does not require the ViceChancellor to pass an elaborate or detailed order. In the context of the fact that this provision requires the Management to refer the matter to the ViceChancellor along with the reasons for disagreement with the recommendation made by the Selection Committee would suggest that the ViceChancellor should deal with the reasons. In the present case the ViceChancellor has dealt with the reasons mentioned by the Management.

The Managing Committee''s principal reason for disagreement was that other things being equal, Prof. Kamboj be preferred because his performance as Reader in the College has been commendable and he has nine years'' postgraduate teaching experience. The ViceChancellor held that on the question of comparative merit he would prefer the view of the experts as expressed in the recommendations of the Selection Committee to the opinion of the Managing Committee. Obviously the experts had placed Sri Chaturvedi at serial No. 1, and Prof. Kamboj at serial No. 2. The experts did not think that both were equal. It is thus apparent that the ViceChancellor did not agree with the implied contention of the Management that both the candidates were equally meritorious. Another matter which seems to have been raised subsequently, because it was not mentioned in the resolution of the Managing Committee, related to the qualifications of Sri Chaturvedi. The ViceChancellor dealt with that and held that Sri Chaturvedi was duly qualified. There is no case for holding that the ViceChancellor did not apply his mind.

The next submission made on behalf of the appellant was that the Selection Committee was not properly constituted, because one of the experts, Sri Bist, was biased, and because the Chairman was not present when the Committee interviewed the candidates.

From the resolution of the Managing Committee it appears that it was passed after consideration of the representation made by the petitioner. Nonetheless the Managing Committee did not differ from the recommendation of the Selection Committee on the ground that the Selection Committee was improperly constituted. Apparently the petitioner had not raised any such objection before the Managing Committee. This situation is material and relevant, because in the writ petition the petitioner has asked for the setting aside of the order of the ViceChancellor and thereafter for a direction that the ViceChancellor may reconsider the matter. There is no prayer for quashing the recommendation of the Selection Committee independently of the order of the ViceChancellor. Clause (b) of Section 31(8) of the State Universities Act provides:

" (b) In the case of appointment of a teacher of an affiliated or associated college, if the Management does not agree with the recommendation made by the Selection Committee, the Management shall refer the matter to the ViceChancellor along with the reasons of such disagreement and his decision shall be final:

It is implicit that the ViceChancellor is required to consider the reasons of disagreement mentioned by the Management in its reference and to decide them. The ViceChancellor is not required to make a general probe into all allied or incidental question in respect of the recommendation of the Selection Committee which could be raised but have not been stated by the Management to be the reasons for disagreement. Normally this Court would be reluctant to interfere with the ViceChancellor''s decision on a ground which was not raised before him and on which the ViceChancellor had no occasion to apply his mind or give his decision.

It is an elementary principle that a person should take an objection to the constitution or jurisdiction of an authority at the earliest opportunity and before the authority itself. The petitioner appeared before the Selection Committee. He should have raised the objection at that time. If he had raised the objection the defect could have been cured then and there. His objection is that the nominee of the head of the Management who has to act as the Chairman of the Selection Committee was not present. It has been stated that the District Magistrate was the nominee and he asked the Principal to go ahead with the proceedings of the selection, which he would endorse the next day. Obviously for some reason he was unable to be present at that time. If the petitioner had raised the objection that the Committee was not validly constituted in the absence of the Chairman, the defect could have been cured by either asking the Chairman to come or adjourning the meeting of the Committee for the next day or any other suitable date. The petitioner, however, appeared before the Selection Committee without raising any objection. He had his innings on the merits. Having lost he now turns round and takes up this technical objection. In our opinion, the petitioner has, by his conduct, disentitled himself from raising this point.

Similarly, if the petitioner had raised the objection before the Selection Committee that one of the experts, namely, Sri B.S. Bist, was biased, the Committee would have had occasion to consider the matter. Sri Bist was there. He would have had say on facts. But the petitioner at that time kept silent and let Sri Bist proceed with the work. The petitioner raises this objection for the first time in the writ petition, and that too without impleading Sri Bist as a party to the petition, so that he may be enabled to reply to the allegations of bias made against him. Principles of natural justice demand that before any person is castigated as biased in favour of one candidate, he should be given an opportunity of being heard. In our judgment the petitioner has disentitled himself from raising this plea in the writ petition for not having raised the point in the presence of Sri B.S. Bist when he appeared before the Selection Committee, and further for not having impleaded him in the writ petition.

We may also mention that the allegations upon which the plea of bias is based are vague. They have been denied by respondent No. 4. The petitioner has not brought any material to establish his allegations.

In regard to the absence of the Chairman from the meeting, the position is that under Section 31 (4) (d) of the State Universities Act the Selection Committee is to consist of

(1) the Head of the Management or a member of the Management nominated by him who shall be the Chairman;

(2) the Principal of the College and another teacher of the College nominated by the Principal; and

(3) two experts to be nominated by the ViceChancellor.

Thus the Committee consists of five persons. Section 31 (6) provides that no recommendation made by the Selection Committee referred to in subsection (4) shall be considered to be valid unless one of the experts had agreed to such selection. Subsection (7) provides that subject to the provisions of subsection (6) the majority of the total membership of any Selection Committee shall form the quorum of such Committee. The only condition, subject to which the majority has the right to decide is that one of the experts must agree with the selection made by the majority. Thus before the recommendation of a Selection Committee can be considered valid, two conditions must be satisfied, namely, (a) one of the experts has agreed, and (b) the majority of the total membership has made the selection. The provision that majority shall form the quorum suggest that out of five, if three members are present the quorum in the meeting is valid even though two members are absent. The further provision, that one of the experts must agree to the selection, suggests that one of the experts must be present to form the quorum. In the light of these express provisions with regard to the presence and absence of one or more members of the Committee, it appears that the absence of the Head of the Management or his nominee was not intended to vitiate the proceedings of the Selection Committee. The fact that the Head of the Management or his nominee was mentioned to be the Chairman of the Committee would suggest that if he was present, he would act as Chairman; otherwise the Committee, could proceed with its business in the absence of the Chairman.

In this connection learned counsel relied upon Paragraphs 96 and 99 of Halsbury''s Laws of England, Volume 9, Third Edition. In Paragraph 96 it has been stated that where a corporation aggregate has a head, no corporate act, other than the election of a new head, can be done without the presence of the head; ......The act of the head and a majority of the members is the act of the corporation. In Paragraph 99 it has been stated that ''where the corporation consists of a head and an aggregate of members in addition, the head, though he must be present at the meeting, need not necessarily be one of the majority or concur in the decision of the majority''. The reason for requiring the presence of the head appears to be that the head and the majority of the members constitute the act of the corporation. This principle, which may be applicable to corporations, which are juristic personalities, will not, in our opinion, apply to subordinate statutory bodies, which are not juristic entities by themselves, and whose proceedings are governed by statutory provisions, which do riot make it mandatory for the Chairman of the Committee to be physically present. Moreover, the statutory provisions do'' not require that the act of the Chairman and the majority will be the act of the Selection Committee.

In our opinion none of the submissions raised in support of the appeal has any merit. The same is accordingly dismissed with costs.