Mohammad Ayub vs University of Kashmir Srinagar and others

(1) This is a petition under section 103 of the Constitution of Jammu and Kashmir read with Article 62 (2) (a) of the Constitution of India seeking

to quash the resolution No. 20 of the University Council dated 1091971 accepting the recommendation of the Selection Committee and appointing

respondent No. 3 as reader in the Post Graduate Department of Hindi on probation for two years on the ground of maladies and also being

violative of the Kashmir and Jammu University Act of 1969.

(2) The petition is a long list of claims and grievances made by the petitioner. To put briefly the petitioner has averred that be joined the erstwhile

Jammu and Kashmir University as a lecturer on 10th May 1962 and continues in the same position. The petitioner secured first division in the B. A.

Examination. He secured first class first in M. A in Hindi from Muslim University Aligarh in 1958 and was awarded gold medal. He also passed M.

A. in Sanskrit in 1961 securing about 60% marks and securing second position in the University. The degree of doctorate in philosophy was

conferred upon him in the year 1966 by the erstwhile Jammu and Kashmir University. The petitioner has got varied experience of teaching over a

period of 13 years and has published many books including the one for which he won the Jammu and Kashmir academic award for 1969. The

petitioner has made literary contributions in various literary journals of the country. The petitioner was confirmed as lecturer on 11th May 1963

ahead of all his colleagues working in the department and he was therefore senior most confirmed lecturer in the University. The petitioner's work

won highest praise from the then Head of the Department which can be gleaned from the testimonial of the then Head of the Department forming

Annexure I to the petition. The present head of the Department No. 4 also conveyed a number of time his appreciation of the work to the

petitioner. As regards respondent No 3 (Dr. Mrs. Mohani Kaul) the petitioner has averred that she is a Matriculate in English only. She did

Intermediate also in English only. She obtained Honours in Hindi and passed her B. A. through Prabhakar. She did her M A in Hindi in second

'division obtaining 53% marks and secured Ph. D. in 1966 in Hindi She was appointed as a temporary lecturer in Govt. College for Women on

21157. Before this she was in the Information Department of the State as the Editor of the Hindi Magazine 'Yojna' While she was still a temporary

lecturer she was declared S. P T. from the day she joined the college. She was sent on deputation for two years to Jammu and Kashmir University

retaining her lien in the Education Department of the Government She served University as a temporary lecturer upto 166 1969 when she was

retired with pension benefits from Government service under C O. No 64 /HTE dated 271969. The said respondent was however made

permanent in 1P69 without referring the matter to the Head of the Department which was against the normal practice as no confirmation could take

place without the assessment of the Head of the Department. All that the respondent 3 had been able to claim is that won prize in the University

competition at Delhi and that a number of articles were published by her in some leading journals. The petitioner further averred that while filing the

forms of application for the post of reader in Hindi (vide annexure 2) respondent No 3 made interpolation therein All the concerned Heads of the

Department of Hindi successively gave their adverse reports against the respondent No. 3 right from Dr. H P. Gupta the first head of the

department to the present Head of the Department respondent No. 4 with the result that she was cot even allowed to cross efficiency Bar at Rs.

80000. Many complaints were made against her regarding the lack of interest shown by her in the work. The petitioner claims to be senior to

respondent No. 3 under the Rules of the University He has further alleged that despite his being senior and possessing superior merit and ability as

compared to respondent No. 3. The Selection Committee did not do justice to his case while making selection for the post of reader in Hindi All

the principles of justice, rule of law, conventions, reason, logic, fairness and propriety thrown to winds and the petitioner was mould by favouritism

and nepotism. The procedure provided under section 36 of the Kashmir and Jammu University Act of 19o9 for the filling up of the said post was

not at all observed. According to this section the Selection Committee is to be constituted of the following :

i) ViceChancellor (Chairman)

ii) ProViceChancellor

iii) Chairman Public Service Commission or a member of the Public Service Commission nominated by him.

iv) The Head of the University concerned (in the case of readers and lecturers only).

v) One member nominated by the University Council of the University concerned in the case of appointments of professothers and Readers.

vi) Two persons not connected with the University having special knowledge of the subject in which the appointment is to be made, nominated by

the ViceChancellor from the panel of experts approved by the University Council in the cage of professothers and readers.

(3) The panel is to be reviewed after every two years.

(4) The panel of experts in Hindi under Cl (vi) consisted of Heads of the Department of various Universities designated by name. The first selection

Committee was constituted of the following members It met and considered the matter of appointment to the post of reader :

1) Vicechancellor

2) Miss Mahmooda Ahmed Ali (Representative of University Council).

3) Sardar Amar Singh nominee of Public Service Commission.

4) Dr. R. K. Sharma, Professor and Head of Hindi Department Kashmir University.

5) Dr. H. L Sharma, professor and Head of Hindi Department Muslim University AligarhExpert.

6) Dr. I. S. Varshneeya, Professor and Head of the Department Allahabad University. Expert.

5) The Committee after its deliberations found that no candidate was suitable for the appointment of reader in Hindi The matter was shelved and it

was observed that the work of the local candidates be watched for one year and the post readvertised. But without waiting for the year to expire

the post was immediately readvertised on 17970 and interviews were fixed on 30ch of November 1970 Although the Head of the Department

respondent N, 4 had written to the Vice Chancellor that the post might not be filled but his advice was ignored. The second selection Committee

was therefore constituted. Respondent was bypassed on several matters. The petitioner has further submitted that ac interview no expert from the

approved panel was associated. This was violative of SEC. 36 of the University Act of 1969Consent of two experts was necessary before fixing

up the dare for interview for otherwise the selection committee could not be properly constituted. No second expert was available not having been

contacted till the date of interview. The association of Dr Savitri Sinha as an expert in the Selection Committee was illegal and malafide. She could

not be associated as she was nor included in the approved Panel Dr, Negendra Nagich expert on the panel was approved but he declined to

associate as an expert. No attempt was made for the second expert in place of Dr. Nagich though there were 9 other experts on the approved list,

It is alleged that Dr. Nagich and Dr. Savitri Sinha had remained as teachers of respondent No. 3 and both of them had personal relation with

respondent No. 3 Roth of them were staying with respondent No, 3 on their visits to Kashmir. It was therefore Dr. Nagich had declined co accept

the assignment of the expert. That Dr. Sinha bad been staying with respondent No. 3 is borne out from the letter of Shri R. K. Sharma (Vide

Annexure 17 to the petition). Dr. Savitri Sinba had not been above board as an examiner of the Jammu and Kashmir University. She had been

blacklisted from holding examinership in the erstwhile Kashmir and Jammu University. Despite the fact that the experts associated in the first

Selection Committee in the first interview ware still on the panel, they were not asked to associate this time. The members of the new Selection

Committee were :

ViceChancellor Chairman,

Mr. G M. Chicken, representative of the Public Service Commission.

Dr. Savitri Sinhaexpert.

Dr R. K Sharma Head of the Department of Hindi Kashmir University.

(6) Neither Miss Mahmooda Ali Shah nor Dr. V. M. Sharraa Head of Department of Hindi Kurikheshatar University was coopted this time. All

the above mentioned matters were brought to the notice of the ViceChancellor. Although the petitioner strongly protested against the association of

Dr. Savitri Sinha as an expert with the Selection Committee this was ignored (ride annexure 18) and interviews were held on 301170 There was

only one expert (Dr Savitn Sinha). The selection committee was also short of forum because only three regular and legal members were present

(vide annexure 19) These irregularities and illegalities were also brought to the notice of Chancellor. At the interview respondent No. 3 did not fair

well Even then Doctor Savkri Sinha threatened that if respondent No. 3 was not selected she would record note of dissent. This however, did not

influence the Head of the department respondent No. 4 who gave his note of dissent against the Selection of respondent No. 3. The Selection

Committee by majority recommended the name of the respondent No 3. The matter was placed before the University Council on 20271 wherein it

was resolved that the consideration of the matter be deferred The matter again came up before the University Council in its meeting held on 10971

and at this time the recommendation was accepted and Dr. Mrs. Mohani Kaul was appointed as reader in the Department of Hindi on probation

for two years. To sum up the petitioner wants to avoid the impugned order of appointment on the following grounds :

a) The course of events clearly establish bad faith and malafides in the appointment of respondent No. 3. The petitioner had been discriminated

and undue favour was shown to respondent No. 3. Dr. Savitri Sinha the so called expert was biased in favour of respondent No. 3.

b) The selection Committee was not properly and legally constituted as no expert borne on the panel was associated with it and this was violative

of Section 36 of the Kashmir and Jammu University Act.

c) The respondent No. 3 was selected and appointed in face of adverse reports by the three Heads of Department who alone were in a position to

adjudge and assess her merit.

d) The petitioner was senior to respondent No. 3 and in merit she stood no comparison to the petitioner.

e) The proceedings of the Selection Committee were badinlaw for want of requists to requisite quorum.

f) Scant respect has been shown to the note of dissent recorded by the Head of the Department under whom respondent No, 3 has to function.

g) The University Council did not apply its mind to the recommendations made by the Selection Committee and mechanically endothersed the

same.

(7) In their reply affidavit respondents Not. 1 and 2 have admitted the academic qualifications of the petitioner It is admitted that the petitioner' was

appointed on probation on 10562 and was confirmed as lecturer with effect from 11563. But it is denied that his work has all along won high

appreciation of his superiothers. As regards the adverse remarks noted by Shri H. P. Guota the First Head of Department and Shri J N Tiwari, his

successor against the respondent No. 3 no comments have been offered and only ignorance has been expressed. Regarding the remarks made by

respondent No. 4 (the present Head of the Department) it has been averred that these were found to be biased and were not endothersed by the

higher authorities. The complaints made by respondent No. 4 against respondent N. 3 were the result of his personal prejudice against the latter.

There were number of complaints against respondent No. 4 himself which had necessitated an enquiry against him. The enquiry was conducted by

Prof. M. M. Beg the then Vice Chancellor of the erstwhile University of Jammu and Kashmir who found faults with the conduct of respondent No.

On merits it is submitted that the post of reader being a selection post merit and ability are the guiding fact others for the selection thereto

Seniority is not relevant at all. Respondent No. 3 has put in longer tenure of service in the University and her performances at the interview were

adjudged to be superior to all other candidates including the petitioner. It was on the basis of better merit and suitability that respondent No. 3 was

appointed to the post ofreader. The constitution of the selection Committee is admitted. While admitting the averments made regarding the

constitution of the Selection Committee it is submitted that the Panel of experts consisted of persons who were the Heads of the Post Graduate

Departments of Hindi in the concerned Universities, the intention being that the Head of Department of the concerned University would be a

member of the panel irrespective of the particular person who was at the relevant time functioning as such. The Selection Committee which met on

8th August 1970 to consider the selection of appointment to the pest of Reader in Hindi consisted of the persons as have been indicated by the

petitioner in the relevant para of his petition. It is admitted that the first Selection Committee which met on 8870 opined that the post be

readvertised which was accordingly done. There was no question of waiting for one year to get the post readvertised. The post was readvertised

on 1791970 fixing the date of interview for 30111970. There was no question of referring the selection of the post to the respondent No. 4, the

Head of the Department. The Post had been lying vacant since 21269 and there was an urgency to fill up the same. After the post was

readvertised 17 candidates applied for the post out of whom 4 candidates had claimed special terms and conditions of service. As the University

was not prepared to offer such terms and conditions the aforesaid candidates were not called for interview The remaining 13 candidates including

the petitioner and respondent No. 3 were duly summoned for interview. Interview notices were sent to the candidates on 181170 whereas the

interview was held on 301170 the scheduled date. Telegrams were sent on 71170 to Dr. Nagindra Head of the Department of Hindi Delhi

University and Dr. I, N Madan the Head of Post Graduate Department of Hindi Punjab who were on approved list of experts and were asked to

accept the offer of membership of the Selection Committee to attend the meeting on 301170. No reply was, however, received from either of

them. Then it was learned that Dr. Nagindra had been relieved of his duties as Head of the Department in the University of Delhi. There upon it

was directed that the Head of the Post Graduate Department of Delhi University as such be requested to accept the membership of the selection

Committee. Accordingly another telegram was sent to the Head of Department in Hindi of Delhi University. In response to which Dr. Mrs. Savitri

Sinha who had taken over as Head of Department conveyed her acceptance as a member of selection committee. Dr I. N. Madan of Punjab

University was reminded telegraphically, but he expressed his inability to accept the membership of the Committee. Dr. V. M. Sharma Head of the

Department in Hindi of Kurukheshstar University, was also requested to accept the membership, but he did not convey his acceptance. It is

submitted that there is nothing to substantiate the petitioner's allegations that Dr Savitri Sinha had been the teacher of respondent No 3 and had

personal relations with her. The Selection Committee was validly constituted and this did not violate Sec. 36 of the Kashmir and Jammu University

Ace of 1969. It was not, however, obligatory to associate with the Second Selection Committee which met earlier on 301170, the same experts

who were the members of the 1st Selection Committee. It was considered proper to have fresh experts on the now Committee. The Selection

Committee was not short of necessary quorum. Four of its members attended and participated at the interview. The performance of respondent

No. 3 was found to be superior to that of others. This was the unanimous view of the three out of four members of the selection Committee who

held the interview. The fourth member namely respondent No. 4, however, gave his note of dissent. It is denied that Dr. Mrs. Savitri Sinha

threatened that if the respondent No 3 was not accepted she would record a note of dissent. The adverse remarks made by Dr. R. K. Sharma

were based on his personal prejudice. The recommendation of the Committee was reconsideree by the University Council ad the same was

endothersed by making a formal appointment of respondent No. 3

(8) In the reply affidavit filed by Dr. Mrs Mohani Kaul respondent No 3. she has almost reiterated what has been stated by respondent Nos 1 and

2 in their reply affidavits. She has further stated that the present writ petition is the result of animosity betrayed by respondent No. 4 against her.

Respondent No. 4 in view of his past behaviour towards the respondent No. 3 has nurtured grievance in respect of complaints made by her and as

such made the petitioner a tool to wreak vengeance against her. Those complaints made by respondent No. 3 were enquired in to by various

authorities at various times and respondent No. 4 was indicted thereon. There was no question of malafied in the appointment of respondent No 3.

Respondent No. 3 possessed superior merit as against the petitioner and she was also senior to him. The Selection Committee was properly

constituted. There was no violation of Sec. 36 of Kashmir and Jammu University Act. The quorum was Complete. All the three members gave

unanimous opinion in favour of the respondent No. 3 barring respondent No. 4 who was inicnically disposed towards her. This note of dissent was

paid no heed by the University Council at the same was found biased. It is further averred by her that writ petition is not maintainable against the

respondent No. 3 The post of Reader being a selection post the petitioner could not contend that the selection suffers from any vice.

(9) Respondent N. 4 also filed his reply affidavit. Bur in the order dated 6 61.973 it was observed that as this respondent had filed returns without

permission of this court and the order dated 16672 was peremptory in nature, therefore these returns could not be entertained. This was also

accepted by the counsel for the petitioner.

(10) I have heard the learned counsel for the parties at great length.

(11) There is no denying the fact that the post of Reader in the University is a Selection post as d seniority of a candidate alone is not the

determining factor for appointment to the said post. Merit and suitability are the important prerequisites for claiming the post. The question of

seniority of a candidate may become relevant only when any where merit and suitability of the rival candidates are equal. It is for the selection

committee charged with the function of selecting a candidate to adjudge the comparative merit and suitability of the candidates who are called for

interview, and the opinion of the Selection Committee, if otherwise properly constituted and there is no element of bias found in the selection, is

entitled to great weight and rouse prevail. In my opinion therefore the question of seniority in the present case is of little relevance for our purposes.

(12) That the petitioner possess brilliant academic qualifications is indeed unquestionable. He is a 1st Divisioner in B. A. and also 1st Class 1st in

M A. in Hindi. He as awarded gold medal and also secured about 60% marks in M A. in Sanskrit and got second position in the University. He

did research work, and dectrate in Philosophy was conferred upon him in the year 1966. He is also the publisher of many books including the one

for which he won J and K academic award for 1969 On the other hand the academic record of respondent No. 3 is not as brilliant as that of the

petitioner. She is a Second Divisioner in M. A. in Hindi. She has, however, won a prize in the University competition at Delhi and has contributed a

number of articles in some leading journals of the country.

(13) It was however, argued at the bar that the teaching experience of the respondent No. 3 is greater than that of the petitioner. Her performance

in the interview before the Selection Committee was commendable and was far superior to that of the petitioner. This influenced the Selection

Committee to make recommendation in her favour. But what that performance was? We do not know. The Court has not been taken into

confidence in regard to that and the relevant material and date has not been made available. However, even assuming that her performance at the

interview was better than that of the petitioner, the question still remains and which has indeed been seriously agitated before me whether the

Selection Committee was properly constituted within the meaning of Section 36 of the Kashmir and Jammu University Act of 1969. This section

requires the constitution of a Selection Committee for filling up the post of a reader with the following members:

i) ViceChancellor ( Chairman )

ii) Provice Chancellor,

iii) Chairman Public Service Commission or his nominee

iv) The Head of the University Department concerned.

v) One member nominated by the University Council

vi) Two persons not connected with the University having special knowledge of the subject in which the appointment is to be made nominated by

the ViceChancellor from the panel of experts approved by the University council.

The first Selection Committee was convened. It however met and ended without taking any decision. Its members were:

1) ViceChancellor

2) Miss Mahmooda Ahmed Ali (Representative of the University Council).

3) Sardar Amar Singh nominee of the Public Service Commission.

4) Dr. R. K. Sharma, professor and Head of Hindi Department Kashmir University.

5) Dr. B. L. Sharma, Professor and Head of Hindi Department Muslim University Aligarh......Expert.

6) Dr. B. S. Varihneya Professor and Head of the Department Allababad University... Expert

(14) This committee after its deliberations found that no candidate was suitable for the appointment of Reader in Hindi. It was observed that the

matter should be deferred and the post readvertised. Thereafter when, the post was readvertised another Selection Committee was constituted

which had the following members :

1) Vice Chancellor ( Chairman )

2) Mr. G M. Chicken nominee of the Public Service Commission.

3) Dr Savitri Sinha...Expert

4) Dr. R. K. Sharma Head of the Department of Hindi Kashmir University

15) This Committee met and concluded its deliberations by making a recommendation as per majority of three in favour of the respondent No. 3.

Dr. R K Sharma Professor and Head of the Department recorded a note of dissent disapproving the selection of respondent No 3. In may opinion

the Selection Committee was not properly constituted as it did not possess all the attributes of a Selection Committee as envisaged by Section 36

of the Kashmir and Jammu University Act of 1969.

(16) In the first instance the Committee for appointment of readers and professors must comprise of seven members i. e. the Vice Chancellor, the

ProVice Chancellor, if any, Chairman Public Service Commission or his nominee. The Head of University Department concerned, one member

nominated by the University Council and two experts. The first Selection Committee had six members whereas only four members were coopted

in the Second Selection Committee. There was no member in the Selection Committee representing the University Council as required by clause

(5) of Section 36 (1). It is true that the quorum of Selection Committee is 4 and the validity of the decision taken regarding any matter cannot be

questioned on this ground of lack of quorum. But in the case of appointment to an important post like reader there ought to have been a nominee

of the University Council. If Miss Mahmooda Ahmed Ali Shah the nominee of the University Council was indisposed and she could not therefore

attend the meeting, could not the University Council be requested to send its another nominee in the Committee. What appears to be the most

flagrant violation of the Rule is that no approved expert as required by clause 6 of Section 36 was coopted in the Selection Committee. This clause

requires that there must be in the Selection Committee two experts not connected with the University having special knowledge of the subject in

which the appointment is to be made. These are to be nominated by the ViceChancellor from the panel of experts approved by the University

council. Now according to the panel of experts for Hindi 10 gentlemen as approved by the University Council were available. The approved

experts were :

Dr. H. L. Sharma M. A. Ph. D. Litt, Shastri Professor and Head, Department of Hindi, Aligarh Muslim University. Aligarh.

Dr. I. S. Varshnaya, M. A. D Phil, D. Litt Professor and Head, Department of Hindi. University of Allahabad, Allahabad

Dr. Nagendra. M. A. D. Litt. Professor and Head, Department of Hindii University of Delhi, Delhi.

Dr. V. M. Sharma, Ph. D. LL. B. Professor and Head Department of Hindi, Kurukshetra University Kurukshetra.

Dr. I. N. Madan M. A. Ph. D. Professor and Head, Department of Hindi, Punjab University, Chandigarh,

Dr. G. S. Stayendra, M A. Ph. D. D Litt. Professor and Head Department of Hindi Rajasthan University, Jaipur.

Dr. K. N Shukla M. A. D. Litt, Professor and Head Department of Hindi, Gorakhpur University Gorakhpur.

Dr. U. N. Tiwari, M A. D. Litt. Professor and Head of Department of Hindi, University of Jabalpur, Jabalpur.

Dr G. P. Singh, M. A. D. Litt, Professor and Head, Department of Hindi, Jodhpur University Jodhpur.

Dr. KN Shukla M. A. D. Litt Professor and Head Department of Hindi, University of Lucknow, Lucknow.

(17) These experts it is clear have been approved by the University Council by name and not by designation of their officers. According to the

available list Dr. Nagendra, M. A D Phil, B Litt. Professor and Head of Department of Hindi University of Delhi was the approved expert. But in

his place Dr Savitri Sinha who had by then become the Head of the Hindi Department of University of Delhi was invited to attend as an expert. In

my opinion the action of the Vice Chancellor in nominating Dr. Savitri Sinha as an expert in disregard of the approved list is open to serious legal

objection as no one other than those in the panel could be invited to participate in the meeting of the Committee as this would be in violation of

clause 6 of Section 36 of the Act, The Vice Chancellor could only nominate an expert from the panel of experts approved by the University

Council Dr Savitri Sinha, it is clear did not figure at all in the panel of experts. The Vice Chancellor had therefore exceeded his authority in

nominating her to be an expert in the said meeting of the Selection Committee.

(18) It was, however, contended by the learned council for the respondents that the ViceChancellor was competent to nominate the Head of the

Hindi Department of Delhi University, whosoever he or she was in the place of Dr. Nagendra who had by then retired as Head of the Department

and Mrs. Sinha had assumed the charge of the Head of the Department It was, therefore, that she was invited to come and sit as an expert. The

view in enunciated that it is as a matter of fact the professor and the Heads of the Department of the various Universities shown in the resolution of

the University Council who have been approved as experts irrespective of their names. So if any one of the gentlemen mentioned in the panel of

experts bad retired his successor in office could be coopted as an expert. But this view is hardly tenable The intention of the resolution No 20 of

30th June 1970ofthe University Council is quire clear and unambiguous. Heads of the Department in Hindi of the various Universities have been

approved as experts by name and not by designation only. If the Intention was otherwise then in the panel experts should have been designated by

office only. Clause 6 of the Act must by read as a whole. This clause provides that two experts possessing special knowledge of the subject in

which the appointment is to be made must be coopted from the panel of experts approved by the University Council. According to the proviso the

panel is to be reviewed after every two years. The words having 'Special knowledge on the subject' are of importance. While approving the panel

of advisors on the particular subject to serve as experts the University Council is presumed to have given thought and consideration to be high

calibre, merit and proficiency of the persons sought to be brought on the list. Only outstanding persons must have been selected and approved as

Experts. It was therefore that these experts were designated by name. An eventuality may arise when an expert approved by the University

Council possessing extra ordinary merit, very high calibre and of outstanding ability demits his office either in consequence of his death or by

retirement and be is succeed d by another person of inferior calibre, could it be paid that his successor is to be coopted as an expert although his

name is not mentioned in the approved panel of expert ? In my opinion such a position cannot be envisaged. It was therefore that there was a

purpose in nominating the experts by name and not by designation of their office. The fact that the panel is to be reviewed after every two years

lends support to the view that I take in the matter. There is a difference between nomination or appointment by designation of office and name. In

the former case it is as member of a class or group while in the latter case it is in individual capacity. The question as to in what cases can an officer

be said to have been Approved or appointed by name or by designation of office came up before a Full Bench of this court in 1971 J&K LR 157.

Although the point involved in that case had bearing in different context and that case was of different nature not identical with the one in the case

before us yet the interpretation given on the two expressions 'appointment by designation' and appointment by name' may help us to arrive at

correct conclusion in this behalf :

The F. B. observed :

An identical definition appears to have been given by Byrne in his law Dictionary (1923 Edn ) at page 664 where the words 'Person designate'

have been defined as 'a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a

particular character.

A more pointed and simpler definition has been given in Mosley and whitelay's Law Dictionary (Fifth Edn) at page 237 where these words are

defined thus.

''An individual as distinguished from a member of a class"".

A similar definition has been given by Teague in his Bocket law lexicon (7th Edn) at page 271.

From the aforesaid definitions it would appear that persona designate in ordinary parlance indicates the appointment or selection of a person in his

individual capacity rather than as being a member of a particular class, post, job, or profession. For instance A may be a District Judge. He may be

referred to as merely A and described as A the District Judge of place X. Here the designation of A has been mentioned only to identify him but

essentially he has been refused in his individual capacity. Again A may not be referred to by his name but by his designation alone, for instance as

the District Judge x In such a case it is manifest that A has not been appointed in his individual capacity but as a member of the class or post which

he holds. In other words the main test to determine whether an appointment has been made as a persona designate or as a member of a class is to

find out whether the person appointed has been appointed by his name alone, the description or designation being given only to identify him.

Where only the profession or the occupation of the person or the post held by him is mentioned, the appointment is not as persona designate. We

are fortified in our view by a large number of decisions cited at the Bar.

(19) For the foregoing reasons I am, therefore, of the view that the nomination of Dr. Mrs. Savitri Sinha as an expert and her inclusion in the

selection committee offended Sec 36 clause (6) of the Kashmir and Jammu University Act As such the Committee could not be said to have been

properly and legally constituted.

(20) The result is that the selection suffer from legal infirmity.

(21) It was, however, contended on behalf of the learned counsel for the respondents that the Vice Chancellor could in exercise of his powers

under section 14(4) of the Kashmir and Jammu University Act nominate an expert irrespective of his figuring in the list of approved experts and

these powers could not be questioned later on. It is submitted that the nomination of Dr Mrs. Savitri Sinha as expert was made in the exercise of

these powers as it was found that Dr. Nagendra Head of the Department of Delhi University had already retired and that Dr. Savitri Sinha had

stepped in his shoes and little time was left for holding the deliberations of the Selection Committee It was, therefore, that the successor of Dr.

Negendra was invited to sit as an expert The University Council did not take any objection to thus nomination and did not call in the question the

powers of the Vice Chancellor in this behalf. I am afraid such an unbridled power cannot be assumed to the Vice Chancellor on the strength of

Sec. 14 (4). When the Statute is clear and the Statute requires that a thing must be done in a particular way then that thing must by done in that

way and there can be no question of the exercise of any discretion. Section 36 (6) and the"" aforesaid resolution 20 of the University Council left no

discretion to the Vice Chancellor. Nor does the language of Section 14 (4) admit of the construction sought to be placed at the bar. The scope of

this Section is limited as the powers under this section are to be exercised in emergency. In the instance case there was no emergency. The

extraordinary power vested in the Vice Chancellor could not be exercised according to his discretion without any guide lines. The guide line was

there. The list of experts approved by the University Council was already before the Vice Chancellor. He could not sit in review over that and

nominate his own expert in place of the one approved by the Council. The power of review of the panel vested in the Council.

(22) It is noteworthy to mention here that Section 14 (4) has not been invoked by the respondents in aid of their reply affidavits There is no

averment made by the Vice Chancellor in his affidavit that he had nominated Dr. Mrs' Savitri Sinha and asked her to sit as an expert in the

Selection Committee in exercise of his powers under Section 14 (4) of the said Act.

(23) The only ground urged in support of the nomination of Dr. Savitii Sihna ,to quote the very words used in the reply affidavit are :

'That the panel of experts consisted of persons who were the Heads of the Post Graduate Department of Hindi in concerned universities, the

intention being that the Head of the Department of the concerned University would be a member of the panel irrespective of the particular person

who at the relevant time was functioning as such.

(24) In this Section 14 (4) has not been adverted to at all. A proposition of fact or law which has neither been averred nor relied upon by the

respondents in the reply affidavit in respect of which the petitioner had no occasion to meet by way of filing rejoinder affidavit cannot be allowed to

be raised at a late stage of arguments. This appears to be only an afterthought. Reliance was also placed on Section 47 of the Kashmir and Jammu

University Act. This section provides :

No act or proceedings of any authority or other body or Committee of a University shall be invalidated merely by reason of the existence of a

vacancy among its member? or by reason of some person having taken part in the proceedings who is subsequently found not to have been entitled

to do so.

(25) But this section bag got no application to the case before us. It was not the case of some person to have taken part in the proceedings of the

Committee who was subsequently found not to have been entitled to do so. it is not a case of detection of a mistake, but it is the case of an

infraction of a rule, Sec 47 postulates the case of a bonafide mistake for rectification of which this salutary provision of law has been enacted.

More ] over it is submitted by the petitioner that this fact was brought to the notice of the higher authorities by him at the appropriate time. Thus the

mistake, if any, was pointed out at the initial stage and the same was not subsequently detected. Thus it is clear that Dr. Mrs. Sinha's inclusion in

the Selection Committee was not a mistake that was subsequently detected and the same could not be cured by Section 47 of the Act. Not do we

find the mention of this section in the reply affidavit. There is no averment regarding this in the returns filed by the respondent

(26) Great emphasis was laid by both the sides on the value of the note of dissent recorded by Dr. Sharma respondent No. 4. According to the

petitioner the note spoke volumes as regards the merit and competence of respondent No. 3 to work as reader in the Department of Hindi. This

was the opinion of the Head of the Department under whom respondent No. 3 had worked which carried weight and was of importance. The note

disclosed that respondent No. 3 was an average lecturer and the concerned Head of the Department was not satisfied with her even as lecturer.

He did not therefore recommend her, on the contrary he felt dissatisfied with the selection. Respondents, on the other hand, have tried to show that

the note of dissent recorded by Dr. Sharma was the result of bias exhibited by him against respondent No. 3 and it in no way adversely reflected

on her capabilities to function as reader, This note was not the honest appraisal of the performance of respondent No. 3 made by respondent No

while adverting to this aspect of the note reliance was placed upon the observations made by Mr. M. M. Beg the then Pro, ViceChancellor of

Kashmir Division of the University vide his report dated 201067. In this report the ProVice Chancellor observed that he had come to the

conclusion that Mr Sharma was not mentally adjusted to the work assigned to him. It would be in the interest of the University and also in the

interest of Mr Sharma himself that he might be advised to work elsewhere. The report preceded the institution of an enquiry following certain

complaints against the conduct of Mr. Sharma that he was not enjoying good reputation in the University and had been involved in a number of

unseemly incidents It is true that these averments made by the respondent No. 3 as regards the respondent No. 4 are based on the record of the

University. It is intriguing to find that the same respondent had once recommended the case of the respondent No 3 for the post of reader in

Jammu University and now he had recorded his note of dissent regarding the matter of her Selection. In that view of the matter respondent No 3

may be quite justified in saying that the note of dissent recorded by Dr Sharma was not his honest assessment. Be that as it may, it is not necessary

for me to delve deep in the matter in view of the fact that the constitution of the Selection Committee itself has been found to violate the statutory

provision of the University Act. I need not also dilate upon the other controversial matter raised before me for instance the fact of respondent No.

3 having remained a student at the Delhi University under the tutorship of Dr. Savitri Sinha and their familiarity with each other, the fact of Dr

Savitri being biased in favour of respondent No. 3 These allegations have been denied outright in the reply affidavits filed by the respondents.

There is no proof furnished by the petitioner to establish the contrary proposition. Without any material being extent on the record it is not possible

for me to subscribe to the view propounded by petitioner on this matter.

(27) For the foregoing reason. I therefore, hold that the impugned selection arid consequent appointment of respondent No. 3 as Reader in Hindi

Department of Kashmir University offends Section 36 (6) of the Kashmir and Jammu University Act of 1969 and the same is hereby quashed. I,

however, make no order as to costs.