Taskeena Fazil vs University of Kashmir and Others

Mr. Bhawani Singh, Chief Justice

Through this Letters Patent Appeal, petitioner has challenged the Judgement of Single Judge dated April 08,1997, whereby her petition has

been dismissed. Material facts, giving rise to this Appeal, may be narrated.

Petitioner became Research Associate in the University of Kashmir, Directorate of Iqbal Institute on November 16,1984. While working in this

capacity, respondents advertised a post of Lecturer in Iqbal Institute. She applied for this post and was selected out of many candidates including

respondent6 vide Order No.F10(App/Gen175)Adm. dated November 14,1989. This appointment was in the pay scale of Rs. 22004000 on

probation for a period of one year which she completed satisfactorily and was confirmed against this post.

Through advertisement dated February 20,1995, respondent 4 invited applications for various posts available in the University of Kashmir,

among them was one post of Reader in the Iqbal Institute. Srinagar. Only those candidates, who possessed the following qualification, were eligible

to apply for this post:

For Readers other than Readers in M.E.R.C./Islamic Studies/Distance Education:

a) 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 material.

b) 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/research.

Petitioner being eligible, also applied for this post within the prescribed time. Ultimately, she was asked to appear before selection committee at

Kashmir House, Chanakayapuri, New Delhi on August 24,1996. The selection Committee comprised of the following members:

i) Prof. M.Y Qadri, Vice Chancellor, University of Kashmir, Srinagar (Chairman).

ii) Prof. Jaggar Nath Azad

iii) Prof. UbaidurRehman

iv) Mohammad Shafi Pandith

v) Dr. Girja Dhar

vii) M.A Andrabi, Director, Iqbal Institute, University of Kashmir, Srinagar.

According to the petitioner, the candidates, who had applied for the post and had been ordered to present themselves for interview on August

24,1996 at New Delhi, were as under:

i) Taskeena Fazil, petitioner:

ii) Ab. Rashid Bhat, Lecturer, Department of Islamic Studies, University of Kashmir:

iii) Bashir Ahmed Nahvi, Lecturer, Department of Urdu, University of Kashmir, Srinagar:

iv) Hayat Amir, Adhoc Lecturer, Iqbal Institute, University of Kashmir, Srinagar.

All the candidates were interviewed by the Selection Committee. Petitioner faired well and on account of her brilliant academic career and also

in view of the fact that she had discharged her duties as Research Associate and Lecturer in Iqbal Institute from November 14,1984 was not only

entitled to be recommended for appointment against the post of Reader, but also on account of the inferior merit of other competing candidates,

who did not possess qualifications like the petitioner. However, after the finishing of the interview, she came to know that respondent 2,under the

influence of Mohammad Maqbool Dar, Minister of State for Home Affairs. Government of India, and Mufti Vuhammad Syed, ExUnion Minister

had recommended Bashir Ahmed Nahvi against the post of Reader in Iqbal Institute, University Of Kashmir, Srinagar, and, therefore, he as likely

to be appointed against this post soon. She also learnt that during his stay in New Delhi for the purpose of this interview before the Selection

Committee, he stayed with Mohammad Maqbooi Dar, Minister of State for Home Affairs, therefore, it is on account of the influence of said

Minister that Bashir Ahmad Nahvi has been recommended for appointment.

The process of selection undertaken by respondent2 for filling the post of Reader is illegal, improper, unconstitutional and actuated by malafides

for the reason that the advertisement for filling up of this post had been issued on February 20, 1995. The last date for receipt of applications was

March, 24 1995. The process for selection was not expedited for long time and it was on August 10, 1996 when the schedule for holding

selections in the state of Jammu and Kashmir was announced by the Central Government/ Election Commission that interviews for this post were

held at New Delhi on August 24,1996. When once the schedule for holding the elections in the State was announced, it was open for the

respondents to fill the post by holding interview at New Delhi on August 24,1996, Interview was held since the purpose behind this was the

influence of Minister of State for Home Affairs recommending the case of respondent6 for this appointment, therefore, the process of selection is

devoid of merit and against the principles of equity, fair play and good conscience. Further, respondents1 to Shad fixed interview for various

posts., which were lying vacant in the Departments of Geography and Distance Education. These interviews were postponed, but this course was

not adopted for the post of Reader in Iqbal Institute since the object was to facilitate the induction of respondent6 in the Institute as Reader and

that the interviews ought to have been postponed due to announcement of elections in the State Interviews for posts in other departments were

postponed, but the Selection Committee did not do so in the case of this post. This was done with clear malice and, therefore, the whole exercise

is palpably erroneous and unconstitutional. Alternatively, it is pointed out that respondant6 did not possess requisite qualification prescribed in the

advertisement notice dated February 20, 1995, therefore, he could not be called for the interview. In 1989 when the post of Lecturer in the Iqbal

Institute was filled by the respondents, respondent6 was rejected, while the petitioner was unanimously recommended for appointment to the post.

Respondent6 was appointed Lecturer on adhoc basis, as such he did not possess five years teaching experience on February 20,1995,therefore,

was not eligible to apply for the post of Reader, could not be called for interview and selected for the post in question. Having served on adhoc

basis, period as such spent could not be counted towards teaching experience. With this background, entertaining of his candidature was patently

for oblique reasons, and therefore, his recommendation is tinted with colourable exercise of power as compared to the petitioner, who is

academically sound and superior having rendered more than five year service against the post of Lecturer in Iqbal Institute and an approved

Research Guide. Numerous scholars have worked under her being a CoSupervisor, including Syed Shabir Ahmad. Presently, many more are

working under her guidance. The prominent reliefs claimed by the petitioner are for quashing the process of selection undertaken by the

respondents for filling the post of Reader in Iqbal Institute, University of Kashmir pursuant to advertisement notice dated February 20,1995 and

the recommendations made in favour of respondent6 and direction to the respondents' to consider her case for appointment against this post in

accordance with law and on account of her merit, suitability and academic qualifications.

University has filed objections in this case. It is pointed out that respondent6 was not rejected for the post of Lecturer as contended. As a

matter of fact, he was also selected, but he could not be absorbed since only one post was available at that stage. While considering the

applications of candidates for the post of Reader in Iqbal Institute, the stipulations in the advertisement notice were strictly applied and followed

while scrutinizing the application forms. Candidates were called for interview only when they satisfied the eligibility criteria. For selection of

candidates, academic brilliance was not only criteria, may other factors laid down by University Grants Commission are also to be kept in view.

Allegations of malafides have been repudiated with great emphasis. It is pointed out that these dignitaries had no role to play in the selection

process/in this selection. Petitioner has raised certain objections against which she never represented at the relevant time. Replying respondent was

not subject to any direction by Section Commission nor was it at any time asked to stop the exercise by the State Government on account of the

an nouncement of elections in the state. The exercise for making selection for the University of Kashmir had been set in motion long back and it

was not prudent to postpone the matter without any justifiable cause. University had been conducting interviews at New Delhi in the past as well,

therefore, this was not an isolated case. Delhi being centrally placed, it is convenient for experts to be available there, otherwise their presence in

the state of Jammu and Kashmir cannot be ascertained due to various reasons. The Selection Committee postponed further Selections due to

blockade of National Highway delinking Kashmir Valley with rest of the country on account of torrential rains and inclement weather. However,

interviews for the post of Professor in Mathematics, Professors in Physics, and Readers in Physics, Mathematics and Iqbal Institute could be

conducted before the cancellation of interviews for other disciplines. For the post of Reader in Iqbal Institute, out of nine candidates, six were

present. Inter views were postponed from 25.8.1996 for reasons stated above, whereas interviews for other disciplines and Reader in Iqbal

institute were held before the elections in the State and notification of 23.3.19996 did not apply to it. Respondent6 was eligible for consideration

since his service as Lecturer on adhoc basis had been recognized and taken into consideration. Allegations in this regard are wholly irrelevant and

unwarranted. Respondent6 being eligible, therefore, his consideration by the Selection Committee is neither illegal nor influenced by any ulterior

considerations. Teaching experience, even if acquired on adhoc basis, cannot be allowed to go waste and it was rightly taken into consideration by

the replying respondent. It is for the Selection Committee to assess the merit of candidates since it comprises of experts and this assessment cannot

possibly be done by this court.

Respondent6 has filed separate objections on his behalf. His case is that he has brilliant academic record. He has specialization in ""Iqbaliat

remembers thousands of verses of different poets including Iqbal. Besides having done Master of Arts in Urdu, he also possesses academic

qualification in Arabic and Persian language. He obtained Master of Philosophy Degree in ""Iqbaliat"" in 1983 and Doctorate Degree in 1988 in the

subject of ""Iqbaliat"" under the supervision of A.A.Saroor, ExDirector of Iqbal Institute, University of Kashmir and Prof. Z.H.Farooqi, ExHead of

the Department of Islamic Studies, Jamiya Millia Islamia, New Delhi. On the other hand, petitioner has been awarded Doctorate Degree in Urdu in

198384 with thesis ""Firaq Kee Shairy Main Hindustani Anasir"", therefore, petitioner cannot claim to possess superior merit or claim over the

answering respondent for appointment to the post of Reader in the Iqbal Institute. Object of establishment of Iqbal Institute in 1976 is study of

Iqbal and allied branches concerning poetry and philosophy of Iqbal. Respondent has also recorded his other academic achievements extensively

in his objections and it is stated that he is the founder of ""Iqbal Academy J and K"", a Literary Organisation for doing research work on the poetry

and philosophy of Iqbal, for conducting literary seminars, conferences and poetic symposia. Respondent is the Secretary of this Academy having

conducted 25 Literary Conferences attended by Scholars, Literary Luminaries and Poets of this State as well as rest of the country like Mazhar

Imam, Prof. Gopi Chand Narang, Prof. H.U.Hamidi and Prof. Jaggar Nath Azad, etc. This apart, he did research in his thesis in respect of ""Iqbal

Aur Tassur"". He has written the following books:

1) IqbalAhwaluAfkar

2) WahdatulWajood Aur Iqbal.

3) Mahsoosat.

4) GulshaniiMustaffa.

5) TareekhulAmbiya (3 volumes).

6) HakeemiMashriq (Essays on art and thought of Iqbal).

7) ChashmaeAftab (Essays on Dr.Iqbal).

8) BayadiShorida.

9) BayadiAmin Buch.

This apart, some other documents highlighting his academic achievements are produced in support. He is an approved Guide for Research

Programmes of Master of Philosophy and Doctor of Philosophy. He has been teaching Urdu especially ""Iqbaliat"" for the last seven years

(Annexure B12). In 1994, the Sahitya Akademi extended invitation to him under subject ""Travel Grant to Authors"" for his Literary contribution.

Before being appointed Lecturer in Urdu Department of University of Kashmir in 1988, he was working in the capacity of Production Assistant in

Doordarshan Kender for about eight years and contributed there also in ""Iqbaliat"". Before that he was teaching Urdu especially ""Iqbaliat"" from

1997 to 1981 in Islamia Hanfia College (Islamabad) Anantnag.

Selection Committee is a High Power Statutory Committee of the University. Selections made by it remain secret till approved by the

Competent Authority. It is not understandable how petitioner had access to its recommendations which remain sealed and he has no knowledge

about the recommendations made by the Selections Committee. Having known her worth and competence in the subject of ""Iqbaliat"", petitioner is

engineering nefarious design to defeat the selection process undertaken by the Selection Committee. The petition is incompetent and premature.

Petitioner is estopped from challenging the selection process and recommendation of Selection Committee since she has participated in the

Selection process thereby subjecting herself to assessment by the Selection Committee. It may be the Selection Committee has recommended her

since at this time it is not known what the recommendations are. Her merit can be understood from the fact that her thesis is not in the field to

which the selection is intended to be made. Petitioner has hardly any knowledge in the field and cannot recite the verses of Iqbal in Urdu/Persian in

correct perspective and explain their true meaning and in case she is able to do so, he would be prepared to withdraw in her favour. He is fully

eligible for being considered for the post of Reader in question and has been rightly asked to appear in the interview, by Selection Committee

comprising persons of eminence and expertise competent to assess the merit of respective candidates appearing before it. Allegation of malafides

has been denied. It has been denied that during the interview, he stayed with Minister of State for Home Affairs. Rather, he stayed with Mr

Shakeel Ahmed S/o Gh. Ahmed R/O Gopal pora BaghiMehtab, Srinagar at Seema Lodge,3745,Churiwalan Chawri Bazar, Delhi from August

22,1996 to August 26, 1996 morning and from August 26,1996 to August 27, 1996 at Hotel Bombay Orient near Kar Hotel near Jamia Masjid,

verifiable from the record of the said Hotels. Shri Gulzar Ahmed, Lecturer in Mathematics, University of Kashmir was also in Delhi during that

particular time for appearing before the Selection Committee for the post of Reader in Mathematics, who knew these facts very well. Ali other

allegations of malafides have been denied. Interviews were held for the post of Reader in Iqbal Institute, they were conducted on August 24, 1996.

The schedule for holding interviews for other posts was disturbed on account of blockade of SrinagarJammu National Highway due to floods and

land slides, apart from tragic incident involving death of hundreds of pilgrims to Holy Amar Nath Cave. Selection process could not be disturbed

by elections in the State since University is an Autonomous Body and its employees do not participate in the conduct of election nor there was any

liklihood of elections being affected by it. Moreover, these selections were not influenced by Ministers concerned as contended. He had complete

teaching experience required under the advertisement and for this purpose, adhoc period has also to be taken into consideration. In nutshell, it can

be said that respondent has disputed all the allegations set up against him by the petitioner in the petition and submits that he is fully eligible for the

post in question and has brilliant academic as well as practical experience in the field of ""Iqbaliat"" as compared to the petitioner, which is most

relevant for assessing the suitability of a candidate for the post of Reader in Iqbal Institute, University of Kashmir, Srinagar.

Shri M.A.Qayoom contended that process of selection is bad and actuated by malafides. With a view to bring home this submission, Learned

Counsel submitted that for August 24,1996, two more interviews in the subjects of Geography and Distance Education were fixed apart from

Reader in Iqbal Institute of Kashmir University. However, interviews for Geography and Distance Education were postponed, but this course was

not adopted with respect to Reader in Iqbal Institute. Consequently, reasonable inference from these facts is that this course was adopted to

accommodate and select respondent6 on the recommendations of Mufti Mohd. Syed, ExUnion Home Minister and Mohd. Maqbool Dar, Minister

of Home Affairs, on the twin facets of this submission, reliance was placed on two decisions of the Apex Court namely AIR 1993 Supreme Court

1236; (Rajendra Roy Union of India and another) and AIR 1995 Supreme Court 1088; (Madan Lal and others v. State of Jammu and Kashmir

and others)

Respondents pointed out that postponement of interviews for other posts was ordered because of blockade of National Highway linking

Kashmir with rest of the country. With respect to the post of Reader in Iqbal Institute, six out of nine candidates had presented themselves at the

venue of interview in Delhi. Members of Selection Committee were also present. Therefore, it was considered proper not to postpone the

interviews for this post. Candidates participated in this selection including the petitioner and no grievance was ever made by any candidate in this

respect. Further, it is submitted that Selection Committee comprised of persons of eminence, therefore, allegation that they were influenced by

exUnion Home Minister and present Union Minister of State for Home Affairs is patently baseless. Respondent6 has also explained that he did not

know these Ministers nor he ever met them. He has pointed out the place where he stayed during the period he visited Delhi for this interview.

Petitioner referred to para 7 of Rajendra Roy's case (supra) in which Supreme Court said that;

.....It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable

inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of

facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.....

We may now quote paras 16 and 17 of Madan Lal's case on which strong reliance was placed by the Learned Counsel. In these two

paragraphs, the Supreme Court observed as under;

In the light of what is stated above, that while dealing with contention No. 1, this contention also must fail. The petitioners subjectively feel that

as they had got fared better in the written test and had more marks therein as compared to concerned selected respondents, they should have been

given more marks also at the oral interview. But that is in the realm of assessment of relative merits of concerned candidates by the expert

committee before whom these candidates appeared for the viva voce test. Merely on the basis of petitioners apprehension or suspicion that they

were deliberately given less marks at the oral interview as compared to the rival candidates, it cannot be said that the process of assessment was

vitiated. This contention is in the realm of mere suspicion having no factual basis. It has to be kept in view that there is not even a whisper in the

petition about any personal bias of the members of the interview committee against the petitioners. They have also not alleged any mala fides on the

part of the interview committee in this connection. Consequently, the attack on assessment of the merits of the petitioners cannot be countenanced.

It remains in the exclusive domain of the expert committee to decide when more marks should be assigned to the petitioner or to the concerned

respondents. It cannot be the subject matter of an attack before us as we are not sitting as a court of appeal over the assessment made by the

committee so far as the candidates interviewed by them are concerned. In the light of the affidavit in reply filed by Dr. Girija Dhar to which we

have made reference earlier, it cannot be said that the expert committee had given a deliberate unfavourable treatment to the petitioners.

Consequently, this contention also is found to be devoid of any merit and is rejected

This contention is equally devoid of any merit. The submission of the learned Senior Counsel for the petitioners is that a mere look at

annexureC will show that the merit list of open category candidates recommended for appointment comprises of majority of candidates belonging

to one community only and therefore, the committee has shown special liking for such candidates who are preferred by inflating their marks in the

oral interview. To say the least, it is a mere conjecture on the part of the petitioners. The very first candidate in the order of merits is roll No. 100

who does not belong to the other community. He is one Sh. Vinod Chatterji, similarly, there are also other candidates in the said merit list of 16

candidates who donot belong to the other community. Once the interview process is found to be proper and justified and not being vitiated by any

mala fides, the result of the viva voce test may project a picture in which more candidates from one community may get selected on merits but that

is neither here nor there. The validity of viva voce test cannot be judged simply on the basis of the result thereof unless there is anything to show

that the entire selection process was vitiated on account of mala fides or bias or that the interview committee members had acted with an ulterior

motive from the very beginning and the whole selection process was a camouflage. No such allegations have been made by the petitioners against

the selectors who sat in the interview committee. Consequently, even this contention is found to be devoid of any factual basis and stands rejected

We are not impressed by the submission advanced before us by learned counsel for Appellant. It may be true that in an appropriate case,

reasonable inference of mala fides from the pleadings and antecedent facts and circumstances may reasonably be drawn. But for such inference,

there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions

as said by the Apex Court in Rajendra Roy's case (supra). In Madan Lal's case, Apex Court rejected the challenge as to assessment of merit

holding that it is a matter which falls within the exclusive purview of Expert Committee and court does not sit as a court of Appeal over the

assessment made by the committee of candidates interviewed by it. This decision is of no help to the Appellant (see also AIR 1990 Supreme

Court 434; Dalpat Abasaheb Solunke etc.etc. v. Dr.B.S Mahajan etc.etc.).

Narration of facts from reply by the university and respondent plainly demonstrates that selection process is not actuated by mala fides. By

notification dated August 23, 1996, interviews fixed from August 25, 1996 were postponed. Since it was not possible for candidates to reach for

the same on account of blockade of National Highway from Srinagar. For the subjects of Distance Education and Geography, the interviews were

postponed as candidates had not arrived. These interviews were fixed during afterlunch Session. Whereas the interviews for post of Reader in

Iqbal Institute were fixed during prelunch Session and candidates had arrived for the purpose. Interviews were fixed at Delhi being a Central Place,

easily accessible to every one including the experts. Candidates are paid TA/DA for the interviews and there is no complaint, and the contention

that it was fixed where to facilitate the Selection of respondent6 at the instance of the Ministers is hardly convincing. Therefore, mala fides cannot

be attributed to the Selection Committee for holding this interview and postponing the others. Allegation of influence by the two Ministers has been

strongly resisted not only by the University, but also by the respondent6.

In view of the explanation offered by the respondents, it is not difficult to say that the attack that selection process is actuated by mala fides,

mounted by the petitioner, has been effectively repulsed by the respondents. Moreover, neither the Ministers nor the Selection Committee are

parties to this case. The allegations are general and vague in nature and the appellant has miserably failed to lay strong foundation for it and facts

supplied are woefully inadequate, fanciful and imaginary. Consequently allegations against them are unteanable. (see AIR 1996 Supreme Court

326; Dr. J.N. Banavalikar versus Municipal Corporation of Delhi and another and (1979) Supreme Court cases 165; Smt. Swaran Lata versus

Union of India and others.

21 . Next it was contended that Selection Committee was not properly constituted in terms of Rule 36 of Universities Act 1969. Elaborating this

contention, it was submitted that in what capacity Shri M.S.Pandit participated in the Selection Committee is not understandable. Except for this

allegation, no other defect was pointed out. We hardly see any substance in this submission, in view of clarification by Shri. R. Bazaz, learned

counsel for the University, that Shri M.S.Pandit was Member of Selection Committee as nominee of University Counsil under section

Then it was contended that respondent6 was not eligible, however, he was called for interview. Frankly speaking, this contention has no force.

Shri R. Bazaz submitted that the petitioner was found eligible during the process of scrutiny of his case by the University. Perusal of his BioData

would demonstrate in unmistakable terms that he has brilliant academic record and experience in research and ""Iqbaliat"" we took serious pains for

examining this allegation. Examining the qualifications in the context of eligibility criteria prescribed for this post, we do not notice that respondent6

is not qualified to be considered for the post of Reader in Iqbal Institute of Kashmir University. He has rightly been found eligible by the University

and Selection Committee has not committed any illegality in calling him for interview. Ultimately, it is for the Selection Committee to pick up the

best out of the available candidates and the court should not interfere in the academic field of the University unless the action is without jurisdiction

or suffers from mala fides. (See AIR 1990 Supreme Court 434; Dalpat Abasaheb Solunke etc.etc. v. Dr. B.S.Mahajan etc.etc.).

Shri Qayoom contended that when the Single Judge had come to the conclusion that petition was premature, it ought to have been dismissed

on that ground without considering the other questions involved in it. We are not impressed by this submission. Petitioner had advanced number of

submissions, therefore, nothing wrong in the approach of Single Judge dealing with the merits each of these submissions. It pertains to the domain

of Court hearing the matter whether to deal with all these submissions made before it or deal with one or more for deciding the case in question

and parties to the case cannot limit the jurisdiction of the Court in this regard. Any way, before us also, learned counsel for the Appellant advanced

many submissions, therefore, we are dealing with those which are found material and relevant.

Similarly, we find no substance in the next contention of the Appellant that selection so made would not be proper after a long lapse of time,

since post in question was advertised long back. True it may be that selections should be made with in a reasonable time, but no hard and fast rule

can be laid down in this behalf, since selections get delayed for variety of reasons. Learned counsel for the University has explained that on account

of serious disturbed conditions in the State, Selections to various posts in the University as well as other Departments of State Government got

delayed. Equally, untenable is the plea that in view of announcement of elections for the state, this selection could not be made for the reason stated

by the respondents in the preceding para of this Judgement.

We do not find any merit in the contention of respondents that petition is premature and that the petitioner having taken part in the interview is

estopped from challenging the same, therefore, liable to be dismissed in terms of Apex Court decision in AIR 1980 Supreme Court 881; (Mrs.

Kunda S.Kadam and others V. Dr. K.K. Soman and others) and (1976) 3 Supreme Court Cases 585; (Dr. G. Sarana Versus University of

Lucknow and others). There is no much substance in this submission of respondent, since the petitioner has challenged the Selection process.

Petition is maintainable. (See AIR 1994 313 NOC (J and K); Miss Anjum Afshan and others versus State of J and K and others).

What emerges out of the aforesaid discussion is that there is no merit in this Appeal and the same is accordingly dismissed leaving the parties to

suffer their respective costs.