Nirmal Kumar Singh, Dr. vs University of Jammu and Others

Both these cases involve common question of law and facts because what arises for consideration is the validity of selection of Dr.Subash

Chander Sharma and Dr.Jigar Mohammad, the private respondents herein, as Readers in the Department of History, University of Jammu.

The facts of the case are that on January 30th, 1990 the University of Jammu through its Registrar issued notice inviting applications for various

teaching positions in different subjects including the post of readers with Specialisation in Modern India and Medieval Indian History in the

Department of History. The petitioners and the private respondents having applied for the post of Reader in Modern History and Medieval History

were interviewed by the Selection Committee constituted under Section 36 of the Kashmir and Jammu Universities Act, 1969 (hereinafter

Universities Act). However since petitioners were not selected, they challenge the selection and appointment of private respondents on the

following grounds:

i. The Selection Committee was not constituted in accoordance with Section 30 of the Universities Act as such its decision selecting the private

respondents was invalid and ineffective.

ii. The petitioner, Dr.Nirmal Kumar Singh, possessed better merit as compared to Dr. Subash Chander Sharma whose selection was influenced by

Prof. A.C.Bose because of his personal liking and equations.

It is proposed to deal with these grounds aqseriatim:

i. The contention of the petitioners is that Selection Committee was not duly constituted firstly because Prof. K.C.Yadav and Prof. R.C.Joshi

having been nominated as Members of Faculty of Social Sciences and Members of the Board of Research Studies in Social Services were

disqualified to be the Members of the Selection Committee as experts, and secondly because instead of two experts only one was associated with

the Selection Committee. In support of this, reliance is placed on Clause vi of SubSection 1 of Section 36 of the Universities Act which reads:

Selection Committees(A) Save as others wise provided in this Act, there shall be Selection Committees in a University comprising the

following members for selection of teachers and officers for appointment in the University concerned:a) Committee for appointment of teachers;

i)..............

ii).............

iii)............

iv).............

v)..............

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 Vice Chancellor from the panel of experts approved by the University Council in the case of Professors and Readers and the Syndicate in the

case of Lecturers"".

The question involved is whether Prof. Yadav and John had suffered the disability of being members of the Selection Committee as experts by

their mere nomination as members of the Faculty and Board or some active association or connection with the University was necessary to hold

that they were connected with the University and thus disqualified to be members of the Selection Committee. It is an admitted fact that both Prof.

K.C.Yadav and Prof. Johri were nominated as members of the Faculty of Social Sciences and Members of Board of Research Studies in Social

Sciences between May and June, 1990. It is also admitted that Prof. Yadav conveyed his acceptance to the University vide his letter dated

30.07.1990. The interviews were held sometime after June 1990 but before February, 1991. Neither of them according to the official respondents

ever attended any meeting of Faculty of the Board during this period. This has been emphatically stated by Prof. M.LLakhanpal, the then Vice

Chancellor of the University, in the counter affidavit, relevant portion of which is extracted below:

The fact that Prof. R.C.Johri was nominated as a Member of the Board for Research Studies in Social Science and Prof. K.C.Yadav had been

nominated as a Member of the Faculty of Social Sciences is not disputed. The said nominations, however, did not amount to connect the said two

professors with the University of Jammu so as to disqualify them from being members of the Selection Committee as Experts. It is pertinent here to

mention that Prof, Yadav had not attended ever since the date of his nomination any meeting of the Faculty of Social Science nor Prof. Johri has

attended any meeting of the Board of Research Studies since his nomination as a member of the Board

The expression ""Connected"" defined in Black's Dictionary is as under: ""Connected. Joined; united by junction, by an intervening substance or

medium, by dependence or relation, or by order in a series.

Thus it is not by mere nomination that a person gets connected with the University but something more is required to suffer the disability

contemplated by Section 36. No doubt the Faculties and the Board are authorities of the University under Section 20 of the Act and their

membership may be a ground to hold that they are connected with the University but the contention that mere nomination without anything more or

actual participation in the meetings, can be inferred is to read too much in the word 'connected' as defined in the dictionary. In case the two experts

had attended any meeting of the Faculty or the Boards before their nomination as experts under Section 36 of the Universities Act, the position

might have been different in view of the Bench decision of the Court in ""Roop Krishan Bhat Vs. University of Kashmir, 1997 SLJ 272, holding

that: ""It is not denied that Dr. Z.M.Qureshi remained Head of Department, Political Science, University of Kashmir for about a decade. Obviously,

he managed the affairs of University and his Department for a long time leaving great imprint before leaving it. He had his colleagues, his students

and many others in the University. Thereafter, his cooption as a member of Universities Board of under graduate studies appears to be the result of

this connection. Similar is the case with Dr. Vidhya Bhusan who happens to be the coopted member of Universities Board of Post Graduate

Studies. Both these experts are enjoying benefits out of the University. This connection is quite apparent and intimate disqualifying both of then

from being expert members of Selection Committee writhing the meaning of section 36 of Universities Act, 1969. Their connection with the

University has given rise to likelihood of bias also in the mind of petitioner who is one of the candidates for selection in question. With a view to

have fair selection, University Rules have to be followed scrupulously. These days there is not difficulty in finding experts for empanelment to

selection Committees since they are available.

However this decision is distinguishable because it is not the case of the petitioners that any of the experts had ever been associated with the

University of Jammu during the period of their nomination as Members of the Faculty of Social Sciences and Board of Research Studies. So mere

acceptance of nomination without participation in the meetings of the Faculty of the Board would not amount to having any connection with the

University and consequently neither Prof. Yadav nor Prof. Johri had incurred the disability to be experts in terms of Clause VI of SubSection 1 of

Section 36 of the Act.

The second ground of the challenge is that Selection Committee must be in accord with SubSection 1 of Section 36 of the Act. Since

SubSection 1 of the Section 36 provides that two persons having special knowledge of the subject in which selection is to be made must be the

members of the Selection Committee, the selection and subsequent appointments of the private respondents is bad because only one expert was

member of the Selection Committee. It was further contended that SubSection 2 of Section 36 is not the Rule but an exception and since no

circumstances have been pleaded, the Constitution of the Selection Committee cannot be justified under the SubSection. The argument, though

attractive, is exfacie fallacious because while Sub Section 1 deals with the composition of the Selection Committee for appointment of teachers in

general, the quorum of the Committee for such appointment is fixed by SubSection 2 of Section 36 of the Act, which reads:

(2). The quorum of the Committee for appointment of teachers shall be four in each case, of whom at least one person not connected with the

University or a College, should possess special knowledge of the subject. The majority of the members of the other two Selection Committees

shall form the quorum.

It is, therefore, not correct to say that SubSection 2 is an exception to SubSection 1, but on the contrary, it controls SubSection 1 by fixing the

quorum so that the purpose sought to be achieved by enacting SubSection 1 is not defeated on account of the non availability of any of the

members specified therein. In this view I am fortified by the decision of this Court in ""Dr. Mrs.Madhvi Yaseen and another Vs. University of

Kashmir Srinagar and Others"", 1978 JKLR 288, holding that:

It is further not in dispute that the quorum of Selection Committee was complete to satisfy the requirements of subsection 2 of Section 36 and one

of the four members making for the quorum, namely, respondent No.5, was having special knowledge in the subject of History.

So the Constitution of the Selection Committee does not suffer from any infirmity and the argument to the contrary has no substance.

The next contention of Mr. Kotwal is that petitioner, Nirmal Kumar Singh, possessed better merit in terms of the qualifications prescribed for the

post but the Selection Committee ignored the same because of the undue influence of Dr. A.C.Bose, the then Head of the Department of History,

who from the very begining wanted the respondent to be selected. This brings us to the qualification prescribed for the post and eligibility of these

invited for the interview. ""B) READERS

Good academic record with a doctoral degree or equivalent published work. Evidence of being actively engaged in (i) Research or (ii) innovation

in teaching methods or (iii) production of teaching materials.

About five years experience of teaching and/or research provided that at least three of these years were as Lecturer or in an equivalent position.

This condition may be relaxed in the case of candidates with outstanding record of teaching/reacher.

The case of petitioner, Nirmal Kumar Singh, is that both he and Dr. Subash Chander Sharma, respondent, had earlier appeared for the

interview for the post of Lecturer. But it is only the petitioner who was selected and Dr. Subash Chander Sharma, according to him, had not

improved his academic qualification thereafter. He therefore could not have been selected for the post of Reader. A similar argument was rejected

by the Apex Court in ""Dalpat Abasaheb Solunke, etc. etc. Vs. Dr. B.S.Mahajan etc. etc."" AIR 1990 SC 434, holding that"" ""It is needless to

emphasis 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

malafides 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 merit of the candidates as assessed by

the Court, the High Court want wrong and exceeded its jurisdiction."" Similarly in ""Km. Neelima Misra Vs. Dr. Harinder Kour Paintal and Others"",

AIR 1990 SC 1402, it was held by their lordships:

It is not unimportant to point out that in matters of appointment in the academic field the Court generally does not interfere. In the University of

Mysore V.C.D. Govinda Rao, (1964) 4 SCR 575: (AIR 1965 SC 491""), this Court observed that the Courts should be slow to interfere with the

opinion expressed by the experts in the absence of malafide alleged against the experts. When appointments based on recommendations of experts

nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or

ordinance. The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its

recommendation on which Chancellor has acted.

Thus when the eligibility on the basis of qualification is not disputed, the interse merit of the candidates determined by the experts in the field can

be interfered only on the ground of bias and malafides. The selection of Dr. Subash Chander Sharma as Reader has however been assailed on the

grounds that in 1986 he appeared before the Selection Committee for the post of Lecturer but was not selected. At that time, Dr. Bose gave a

dissenting note against the selection and expressed the opinion that he considered Dr. Sharma more suitable. Again in 1989 Petitioner, Dr.Nirmal

Kumar Singh, and respondent, Dr. Subash Gander Sharma, were interviewed for the post of Lecturer. The Selection Committee selected the

petitioner and did not find the respondent suitable. But on his occasion Dr. Bose was not a member of the Selection Committee. It is further

alleged that Dr. Bose as Head of the Department of History went out of his way to proved opportunity to respondent, Dr. Subash Chander

Sharma for teaching post graduate students so as to make him eligible for the post of a Reader. Dr. Bose filed a counter in which he explained why

he considered the private respondent (Dr. Sharma) suitable for the post of Lecturer in 1986. This was an honest opinion of the Head of the

Department recorded at a time when no particular special relationship is attributed to him. Dr. Bose could have opted to remain silent, but he

chose a course which only speaks of his boldness in expressing what he thought of the comparative merit. One should appreciate this instead of

reading between the lines. Had he any interest, he would have simply kept quiet and waited for the opportunity to help him instead of exposing to

the unsustainable charge of favouritism being attributed to him. He has also stated there was a practice in the University to borrow the services of

college teachers for teaching post graduates whenever University teachers were not available. He has named Prof. Hari Ram, Prof. N.D.Wani,who

though posted in the College, were invited to teach the students of University. This fact has not been controverted by Petitioner, NIrmal Kumar

Singh and as such must be held to be an arrangement in the academic interest of the students specially when teaching to the post graduate students

alone was not determinative of the eligibility as he was otherwise also eligible for the post as per the qualification prescribed for the post. After Dr.

Bose countered the allegations, Petitioner Nirmal Kumar Singh filed his rejoinder to this in which he gave some more instances to establish that Dr.

Bose was close to the respondent. He has referred to a letter written by Dr. Bose as Head of the Department recommending the Book ""Punjab

the Crucial

Decade"" (Delhi 1987) written by Dr. Subash Chander Sharma for purchasing the same from the author. Another circumstances relied by the

petitioner to prove the charge that Doctor Bose was very close to Dr. Sharma as both of them were to go to Hardawar where Dr. Bose was to

perform the death rites of his mother for which four birth were also reserved in Sialda Express, However the private respondent cancelled his

reservation because he was expecting appointment order being issued. In his affidavit, Dr. Bose has neither denied having written the letter

recommending the book nor the fact that the private respondent had been his students. Both of them were closely associated with him as his

students. He further stated that it is quite customary for a teacher to introduce a former student as author of a book besides being a matter of

satisfaction. The relevant portion of his affidavit on the point reads as under:

As a matter of fact, the petitioner has been, besides being a student, associated with the answering respondent as a Departmental colleague for

more than one year during which period he was teaching as a Lecturer in the postgraduate Department of History, University of Jammu. It is in this

background that respondent no.4 as a former student approached the answering respondent for a recommendatory letter introducing him as an au

nor of a Book which grew out of his Ph.D. Thesis for which he was awarded the Ph.D. Degree by the University of Jammu in 1981. The

answering respondent accepting this request did write letters to a few of his friends who he knew recommending the said book written by

respondent no.4. This was not only consistent with the practice their students but has been a practice with the answering respondent throughout. In

almost similar circumstances, the answering respondent, when approached by his former students Dr.Hari Om of Jammu and M.K.Basu of

Calcutta, recommended their books to his friends. Needless to say that it is a matter of great satisfaction for any teacher to recommend the Book

written by one of his students. There was, therefore, nothing improper or unusual in the circulation of the said letter by the answering respondent.

Similarly, while denying the allegation that he was to go to Haridawar to perform death rites of her mother, Dr.Bose has stated under:

The true facts are that the answering respondent, his wife, respondent no.4 and another student of the answering respondent Mr.Shalinder Singh

were all scheduled to travel to Calcutta by Sialdah Express as the answering respondent was to visit his daughter there and the said two persons

were scheduled to attend the annual session of the History congress. Since the purpose of the visit was common, a Library Assistant was sent from

the Department to book four seats by Sialdah Express. Subsequently, however, while Shalinder Singh did accompany the answering respondent,

respondent no.4 did not do so as the State Government had cancelled the winter vacations in Jammu, Udhampur and Kathua Districts. Shalinder

Singh was in Calcutta visiting the National Library and later attending the session of History Congress.

There is no reason to take a different view because even if the allegation is accepted as correct, the decision of the Selection Committee cannot

be said to be vitiated because there is no allegation against the experts or the ViceChancellor. Head of the Department has no major role because

if Dr. Bose was so influential, he would have got him selected in the year 1986 itself when he considered him more suitable than the selected

candidates. This means the experts have greater say in the selection than the Head of the Department or even the Vice Chancellor. The arguments

almost tantamounts to challenge the competence of an erstwhile teacher or guide to be a member of the Selection Committee when his own

students are to be interviewed.

If this argument is to prevail, Clause iv of SubSection 1 of Section 36 will have to be declared ultra vires which however is not the challenge.

The relationship of teacher and taught at the University level brings them close to each other but it is only an academic relationship and nothing

more ought to be read into it. It was in this background that a similar argument in""Dalpat Abasahed Solunke, etc. etc.Vs Dr .B .S. Mahajan etc

etc"", AIR 1990 SC 434, was rejected by holding that:

We are unable to understand as to how the fact that they were his guide when the appellant was doing his M.Sc. would influence their decision in

selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the

Faculty in question, it is one of their duties to guide the students. In fact, very often the experts on the selection Committees have to be drawn from

the teaching faculty and most of them have to interview candidates who were at one or the other time their students. That cannot disqualify them

from being the members of the Selection Committees. In fact, as stated by the 4th respondent in his affidavit before the High Court, even the 2nd

respondent, the aggrieved candidate was also his student.

In view of the above, there is no merit is either of these petitions as the selection of both private respondents, namely Dr.Subash Chander

Sharma and Dr.Jigat Mohd, does not suffer from any infirmity, and both the petitions are therefore dismissed without any order as to costs.