Vasant Ganu Patil of Thane and Another Vs the Chancellor and Others - Citation 1174428 - Court Judgment

Judgment:

Anuja Prabhudessai, J.

1. Upon a difference of opinion between the Division Bench of this court, a reference under Clause 36 of Letters Patent has been made under order dated 11.5.2012 . The points of difference formulated by the referral Court are as follows:

i) Whether in the facts and circumstances of this case, the decision of the Search committee to include the name of the respondent no.8 in the list of eligible candidates for the Office of Vice Chancellor of the University of Mumbai suffers from any non application of mind visavis condition no.3 when the Search Committee had recorded in the minutes of its meeting held on 12.6.2012 that the committee reviewed each and every application and prepared a list of 20 candidates (including respondent no.8) having all qualifications as mentioned in the statutory order dated 27.5.2009 issued by the Government of Maharashtra under Section 12(3A)(d) of the Maharashtra Universities Act, 1994.

ii) If the answer to the above question is in the affirmative, whether in the facts and circumstances of this case, this court should exercise its discretionary jurisdiction to direct the search committee to reconsider the question of eligibility of the respondent no.8 for the office of the Vice Chancellor visavis condition no.3 in part A of the Schedule to the above statutory order dated 27.5.2009.

2. The brief introductory facts leading to this reference are as under:

The post of Vice Chancellor of the University of Mumbai fell vacant on 28.9.2009. In view of the challenge to the Search Committee constituted in January 2010, the Chancellor (respondent no.1) reconstituted the Search Committee for recommending the names of the suitable persons for appointment of Vice Chancellor of University of Mumbai. The Chairman of the Search Committee issued an advertisement which was published in the newspapers dated 31.3.2010, inviting applications/nominations for the post of Vice Chancellor. In response to the said advertisement, 94 applications were received. The Search Committee shortlisted 20 candidates and recommended names of the five candidates for appointment as Vice Chancellor of the University of Mumbai, and forwarded the list of the five candidates to the Chancellor.

3. The Chancellor, after having interaction with the said five candidates, selected the respondent no.8 for the post of Vice Chancellor of Mumbai University for a term of five years. The selection was followed by the order dated 7.7.2010 whereby the Chancellor (R-1) appointed the respondent no.8 Rajan Welukar as the Vice Chancellor of the University of Mumbai for a term of five years.

4. By these petitions under Article 226 of the Constitution of India, the petitioners challenged the order 7.7,2010 of the respondent no.1, Chancellor, University of Mumbai, appointing the respondent no,8 Dr. Rajan Welukar as a Vice Chancellor of the University of Mumbai for a term of five years. The petitioners have challenged the appointment of the respondent no.8 Dr. Rajan Welukar as a Vice Chancellor, essentially on the ground that the respondent no.8 did not possess the requisite âEssential Qualification and Experienceâ as set out in part A of the order dated 27.5.2009 issued by the State Government, which reads as under:

PART 'A'

(1) Earned Directorate in any discipline and good academic record.

(2) Experience in the field of Higher Education of at least 15 years in teaching and research in a university/well-established institution or repute and/or at the undergraduate and post graduate level.

(3) Minimum of five research publications in peer reviewed/referred international research journals after Ph.D. and/or published quality books in a recognized discipline, referenced for study in higher education at the National/International level.

(4) At least 16 years of administrative experience in the field of Higher Education not below the rank of professor and Head of Department in a University/Principal (in Professor's Grade) of a Senior College/Head of a national/international institution of Advanced learning.

(5) Execution of at least one major research project.

(6) Experience of working with international bodies or international exposure through participation in workshop, seminars or conferences held outside the country.

(7) Experience of organizing events such as workshops, seminars, conference at an international level within the country in the field of higher education.

(8) Demonstrated experience in leadership.

5. The said petitions were heard by the Division Bench of this court presided over by the learned the Chief Justice and learned Justice Godbole, (as he then was). The Division Bench refuted the challenge based on the contention that the respondent no.8 did not have five years of administrative experience in the field of Higher Education as required by clause (4) of the Schedule Part 'A'. The Division Bench also dispelled the contentions of the petitioners that the respondent no.8 did not execute at least one major research project as required under clause (5) of the said schedule. The Division Bench concurred on the finding that the respondent no.8 had minimum experience of 15 years in teaching and research in a university/we-established institution or repute and/or at the undergraduate and post graduate level as required under clause (2), though the bench differed on the reasons for arriving at the said conclusion.

6. There was however total difference of opinion as regards the reasons as well as the conclusion arrived as regards fulfillment of the criterion under clause (3), which required Minimum of five research publications in peer-reviewed/referred international research journals after Ph.D. and/or published quality books in a recognized discipline, referenced for study in higher education at the National/International level.

7. The petitioners contended that the respondent no.8 did not meet the requirement of minimum 5 post Ph.D. publications under clause 5. Based on the affidavit of Professor Dr. Neeraj Hatekar, Professor of Econometrics in Mumbai University, the petitioners urged that the so called research publications included by the respondent no. 8 in his bio-data were problems meant for under graduate students and not research publications.

8. While dispelling the said contention, the learned Chief Justice took a view that,

a) Though the respondent no.8 had mentioned 12 publications in the bio-data, which included some publications prior to award of Ph.D as well as those which were not yet published, the respondent no.8 had to his credit 5 publications post Ph.D.

b) The appointment cannot be set aside merely because the Respondent no.8 had included all his research publications in his bio data.

Merely because, for the purpose of eligibility, only post Ph.D. research articles were to be considered, it did not wipe out the fact that he had done research before the Ph.D. degree as well. The fact that respondent no.8 had submitted research articles for publication and the said articles were yet to be published, did not make them irrelevant as even if the impugned order were to be interfered with and fresh selection were to be made, the articles of respondent No.8 submitted for publication by April, 2010 as mentioned in bio-data, might by now have been published.

c) The Selection Committee which is a body of Experts and academicians, had reviewed each and every application received in response to the advertisement and prepared the list of 20 candidates having essential qualifications for appointment to the post of Vice-Chancellor.

d) the petitioners have not made any allegations of mala fides against the chairman and members of the Search Committee, two of which were experts of international repute.

e) Courts have a very limited role in the academic matters particularly when no mala-fides have been leveled against the experts who had constituted the Selection Board and that it would normally be prudent, wholesome and safe to leave the decision of academic matters to the academicians and experts.

f) The statutory order conferred power under such committee to relax any condition in case of deserving candidates and the procedure adopted by such committee cannot be termed as âgrave and manifest illegalitiesâ.

g) The Chancellor who has discretion to appoint an eminent academician or an administrator of high caliber, found respondent no.8 to be most suitable amongst all panelists.

The learned Chief Justice was, therefore, of the view that the petitions are liable to be dismissed.

9. While the learned Justice Godbole held that,

a) Out of 12 publications referred to in the Resume, only 5 were post Ph.D publications which could have been considered for scrutiny.

b) The Committee has apparently taken the claim of the Respondent No. 8 regarding Research Publications at face value.

c) It is a case of an error of fact touching the merits of the decision visaavis the decision making process and would therefore satisfy the test of permissibility of judicial review.

d) There is no material to show that the Search Committee was conscious of the fact that atleast 7 out of 12 items of publications had to be excluded.

c) Merely because the minutes of the subsequent meeting of the Search Committee dated 12/6/2010 mention that the Committee reviewed each and every application and prepared the list of candidates having essential qualifications; in the face of such a glaring defect in the decision making process, it will be very unsafe to assume that the members of the Committee were conscious of the fact that 7 publications had to be excluded.

e) There was a material procedural irregularity in the first step of the decision making process itself. This is also a case of exercise of power by non-application of mind to relevant facts and exercise on the basis of facts which do not exist and/or are patently erroneous. The case therefore satisfies the test of permissibility of judicial review.

f) There is no material to show that the Committee had reached a conscious decision to exercise the power of relaxation but in fact, the material on record shows substantial degree of non-application of mind or assumption of existence of facts which do not exists and are erroneous.

g) Though the Chancellor is the appointing authority, it was difficult to hold that the Chancellor could exercise the powers of relaxation, which is essentially the prerogative to the Committee.

h) Further, that there is no material to show that the Chancellor was made aware or conscious of factual aspect that 7 out of 12 publications had to be excluded at the threshold.

i) The decision makers have exercised their power by non-application of minds to relevant facts and statutory provisions, which cannot be termed as a mere irregularity in decision making process.

j) Since the court lacks the academic expertise, it would be wise, safe and prudent to direct the members of the Search Committee to decide whether the remaining 5 publications satisfy the requirement of clause 3 of part A.

10. Since the Division Bench was divided in opinion on fulfillment of the criterion under clause 3 and the relief to be granted, vide order dated 9th August 2011 , the petitions were referred to the third learned Judge of the Court for considering the above-referred points.

Accordingly, the learned third Judge of this Court heard the petitions on the above referred two points and vide judgment dated 22.2.2012 answered the said two points as under:

R.E. Q.1.:

I am unable at this stage to state that the decision of such committee or the Chancellor of the University of Bombay suffers from any non application of mind visavis condition no.3. The answer to this question must await their response as to which of the 12 publications submitted by the respondent no.8 they took into consideration while considering the 8th respondents eligibility and appointment.

R.E. Q.2.:

If the answer to the question no.1 is in the affirmative, the answer to the question no.2 must be answered in the affirmative.

11. Subsequently, the petitions were placed before the Division Bench presided over by the Chief Justice. The Division Bench, vide order dated 11.5.2012, held that the third learned Judge in his oral judgment dated 22.2.2012 had not given clear opinion whether the view taken by the Chief Justice is correct or the view taken by Justice G.S. Godbole is correct. Hence, the said two questions formulated in reference order dated 09.8.2011, were referred to the division bench this Court. Accordingly, these petitions have been placed before us to answer the two questions formulated in the order of reference dated 09.8.2011.

12. The petitioners in P.I.L. No.92 of 2010 took out Notice of Motion No.250 of 2012 inter alia seeking to recall the order of reference dated 11.05.2012. The said notice of motion was dismissed by order dated 25.04.2013 and the petitions were placed before this Court to answer the two points referred to in the reference order dated 09.8.2011.

13. During the pendency of the reference, the petitioners moved Chamber Summons No.20 of 2014 for amendment to the petition and sought to raise additional grounds of challenge to the appointment of the respondent no.8. By praecipe dated 21/02/201 filed before the Bench presided over by the Chief Justice, the petitioners sought clarification whether the reference Court was competent to hear the application for amendment. By order dated 26.02.2014, the Division Bench presided over by the Chief Justice, without expressing any opinion on maintainability of chamber summons, ordered to place the chamber summons before the reference bench stating that it is for division bench hearing the reference to express its opinion. Accordingly, the parties were heard in the matter and vide order dated 18/03/2014 the chamber summons was allowed and the petitioner was permitted to amend the petition as per the proposed amendment disclosed in the schedule appended to the Chamber Summons.

14. The respondents filed their additional affidavits-in-reply to the amended pleadings. On completion of the pleadings, the matter was extensively argued by Mr. J. Shekhar, learned counsel for the petitioner in PIL No. 96 of 2010, Mr. Kowli, learned counsel for petitioner in PIL No. 92 of 2010 and Mr. R. A. Dada, learned Senior Counsel for respondent no.8 in PIL No. 92 of 2010 and for respondent nos.3, 4 and 5 in PIL No.96 of 2010, learned Advocate General Mr. D.J. Khambatta for respondent nos.1, 2, 5, 6 and 7 in PIL No.92 of 2010 and for respondent nos.3 and 4 in PIL No.96 of 2010 and Mr. Dharmadhikari, learned counsel for respondent no.9 in PIL No. 92 of 2010 and for respondent no.6 in PIL No. 96 of 2010.

15. The petitioners having amended the petition raised several grounds of challenge, which traverse beyond the points of reference. Mr. Dada, learned Senior Counsel and learned Advocate General Mr. Khambatta, have questioned the jurisdiction of this bench to hear the petitions de novo and to express opinion on the points raised in the amended petitions. Hence, before adverting to the arguments advanced on the points of reference, it would be appropriate to consider these preliminary objections.

16. Learned Advocate General Mr. Khambatta has submitted that reference made under Clause 36 of the Letters Patent is restricted to the points to which the two learned Judges of this court had differed in the judgment, which points have been set out in order of reference dated 9/8/2011. The fact that amendments were allowed by this court does not expand the jurisdiction of this court to traverse beyond the points of reference and that this court has no jurisdiction to enhance the scope of the reference under Clause 36 of the Letters Patent.

17. Carrying forward these submissions, learned Senior Counsel Mr. Dada relied upon the decisions of the Full Bench of the Gujarat High Court in the case of Shushila Kesarbhai and ors. vs. Bai Lilavati and ors. [AIR 1975 Gujarat 39], S.G.P. Committee vs. M.P. Dass Chela (dead) by L.Rs. [AIR 1998 SC 1978], Amalgamated Coalfields Ltd. Calcutta and ors. vs. State of Madhya Pradesh and anr. [AIR 1967 Madhya Pradesh 56], Royal Calcutta Turf Club through Acting Secretary, D.J. Leckie vs. Lala Kishan Chand Manchanda [AIR (30) 1943 Lahore 84] and Rajesh Kumar Aggarwal and ors. vs. K. K. Modi and ors. [AIR 2006 SC 1647].

18. Per contra, Learned counsels for the petitioners have urged that by order dated 26-2-2014 on the precipe preferred by the petitioners in PIL 92/2010, the original bench, after having considered that the issues raised in the Chamber Summons no 20 of 2014 were beyond the scope of reference, allowed the Chamber Summons to be heard by this bench. It is urged that the order dated 26.2.2014 has removed the restrictions and clarified that the issues raised in the Chamber Summons, which are beyond the scope of referral order, can be heard by this bench. It is further urged that having allowed the Chamber Summons vide order dated 18.3.2014, this bench has expanded the scope of the reference and this bench is therefore competent to hear all the issues raised in the amended petition even in the absence of such clarification.

19. Learned counsels on behalf of the petitioners have further submitted that since the third judge has not expressed his opinion on the points referred vide order dated 9.8.2011 and in view of the fact that Clause 36 of the Letters Patent does not provide for any remedy to such situation, this bench can exercise its inherent jurisdiction under section 151 of C.P.C. and hear the matter de novo, without restricting itself to the points of reference so formulated. Reliance is placed upon the decisions in Income Tax Officer, Company Circle II(1), Madras and ors. vs. Vice president, Income Tax Appellate Tribunal, Madras and ors. [1985 (155) ITR 310 (Mad.), Commissioner of Income tax, Jalandhar vs. M/s. Bhai Shamsher Singh and Sons [1989 TAX. L.R. 1001].

20. It is urged that in the Public Interest Litigation, the jurisdiction cannot be restricted only to the points referred and cannot be subjected to the technicalities and the endeavour should be to meet the ends of justice and should be interpreted expansively. In support of this contention, Mr. Kowli has relied upon the decisions in the case of Babu and ors. vs. The State of Uttar Pradesh [AIR 1965 SC 1467], State of Andhra Pradesh vs. P.T. Appaiah and anr. [AIR 1981 SC 365], Tanviben Pankajkumar Divetia vs. State of Gujarat [(1997) 7 SCC 156], Sajjan Singh and ors. vs. State of M.P. [(1999) 1 SCC 315] and Radha Mohan Singh Alias Lal Saheb and ors. vs. State of UP [(2006) 2 SCC 450].

21. We have given our anxious consideration to the submissions canvassed before us. Undisputed resume of the admitted facts would indicate that the petitioners had challenged the appointment of the respondent no.8 as a vice chancellor on the ground that he lacked the essential qualifications and experience stipulated under clause 2, 4, and 5 of Part A. Difference in opinion between the judges of the referral court as regards fulfillment of the criterion under clause 3 led to the reference to the third judge. Since the third Judge did not agree with the opinion of either of the judges of the referral bench, by order dated 11-5-2012, reference was made to this bench to express opinion on the same two points which were earlier referred to the third judge vide order dated 9^th August, 2011.

22. During the pendency of the reference, the petitioners amended the pleadings and raised the additional grounds of challenge viz.

1. That the application of the respondent no.8 was not submitted in time.

2. The search committee had accepted the said application in biased, malafidely and arbitrary exercise of power in favour of respondent no.8.

3. The respondent no.8 did not have actual teaching experience of 15 years and did not fulfill essential qualifications as required under Clause 2 of Part A.

4. The respondent no.8 did not have good academic record and thus did not fulfill the requirement under clause 1 of part A.

5. The respondent no.8 did not hold the rank of Professor as required under Clause 4 of Part A.

23. It is pertinent to note that the grounds at serial number nos. 3 and 4 above were already raised in the main petition and were answered by the referral Bench without there being any difference in opinion, while the grounds at serial number nos. 1 to 3 are raised in this reference for the first time. None of the grounds raised in the amended petition are covered by the reference and this raises a pivotal question as regards the scope and jurisdiction of the Court deciding the reference under clause 36 of the Letters Patent to consider the grounds not covered by the order of reference. It would, therefore, be apposite to refer to clause 36, which reads as under:

â36. Single Judges and Division Courts: and

We do hereby declare that any function, which is hereby directed to be performed by the said High Court of Judicature at Bombay in the exercise of its original or appellate jurisdiction, may be performed by any Judge or any Division Court thereof, appointed or constituted for such purpose, in pursuance of section One hundred and eight of the Government of India Act, 1915, and if such Division court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to opinion of the majority of the Judges who have heard the case including those who first heard it.

24. The plain reading of Clause 36 of Letters Patent clearly indicates that when the Division Court composed of two or more Judges, are divided in opinion, as to the decision is to be given on any point, such point is to be decided according to the opinion of the majority of the Judges, if there is a majority. However, if the Judges are equally divided, in case like the present, they are required to state their point of difference and the Judge or Judges to whom the reference is ultimately made are required state their opinion on the point. The said points would then be decided in accordance with the opinion of the majority of the judges who have heard the case, including those who first heard it.

25. It, therefore, follows that the Judges hearing the reference under clause 36 are required to express their opinion upon the points of difference formulated by the referral Judges and not on the points, which were not raised or were raised and dealt with by the referral Judges. This proposition has been clearly articulated by the full bench of Lahore High Court in Royal Calcutta Turf Club through Acting Secretary D.J. Leckie vs. Lala Kishan Chand Manchanda [AIR (30) 1943 Lahore 84] as under:

â.....

Even if the jurisdiction of the referee Judge is, therefore, confined to a decision of the point or points of difference it must follow that the jurisdiction for deciding the whole appeal must remain with the referring Bench. But I would go further. It appears to be doubtful whether even the referee Judge has jurisdiction to decide the point of difference. The clause says that the appeal shall be heard upon that point by the referee Bench and the point shall be decided according to the opinion. It does not specifically lay down that the point shall be decided by the referee Judge, as the Legislature could very easily have stated if it had been the intention to transfer jurisdiction for deciding the point, from the Division Bench seized of the case, to the referee Judge. It appears to me, therefore, that the jurisdiction for the decision not only of the appeal as a whole, but also of the point of difference, remains with the referring Bench; and all that the clause lays down is a method by which in the case of a difference of opinion, the difficulty is to be resolved. On this view, it would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench seized of the case which must pronounce the final judgment, according to the method provided by cl. 26.â

26. This is an Authority of the proposition that the jurisdiction of the judges deciding the reference is restricted to expressing an opinion on the point of difference and the jurisdiction for deciding all the points, including the points of difference vests with the referral bench. These principles have been reiterated in the case of Amalgamated Coalfields Ltd. Calcutta and ors. vs. State of Madhya Pradesh and anr. [AIR 1967 Madhya Pradesh 56].

27. The petitioners have relied upon the decisions in the case of Income Tax officer, Company Circle II(1), Madras vs. Vice President, ITAT and 1985 (155) ITR 310 and The Commissioner of Income Tax, Jalandar Vs. M/s. Bhai Shamsher Singh and Sons (1989) TAX L.R. 1001, in support of their contention that this bench has jurisdiction to hear the petition de novo. In the case of Income Tax Officer, Company Circle II(1) (Supra), pursuant to the difference of opinion between two members of the Income tax tribunal a reference was made to the third member under Section 255(4) of the I.T. Act, 1961. The third Member had remitted the matter to the two members for fresh consideration. While quashing the order of the third member it was held that the third Member, who is functioning under Section 255(4) of the Act cannot act as an appellate authority over the two members of the Tribunal. It was held that the third member does not have such a power to direct the two Members of the Tribunal who had differed on the point referred to him to decide on a particular point or act in a particular manner.

28. Similarly, in the case of Commissioner of Income Tax, Jalandar (Supra), it was held that Section 255(4) of the I.T. Act provides that if the member have bench have difference of opinion on any point, the case shall be referred to the President of the Appellate Tribunal for hearing on such point by one or more or other members of the Appellate Tribunal and such point shall be decided according to the majority of the members of the Appellate Tribunal who have head the case, including those who first heard it. Since on the facts of the case, the point of difference was left undecided and there was no majority decision, the case was sent back to the Tribunal for decision of the appeal afresh in accordance with law and returned the referred question on answer.

29. In the present case, the petitioners had not challenged the order of the third Judge. On the contrary, the petitioners in P.I.L. No.92 of 2010 took out a Notice of Motion No.250 of 2012 inter alia seeking recall of the order of reference dated 11.05.2012. Referring to the judgment of the Madras High Court in Writ Petition Nos. 905, 3138 and 5152 of 1978 in the case of Income Tax Officer, Company Circle II(1) (Supra) as well as to Clause 36 of the Letters Patent, the referral court concluded that the above Clause of the Letters Patent clearly permits reference to one or more Judges and the points referred have to be ultimately decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it. By the said order, therefore, ultimately, the Notice of Motion was dismissed and the original Bench presided over by the Chief Justice directed that these PILs would again be placed before another Division Bench for considering the two questions formulated in the order dated 09/08/2011. The petitioners have not challenged this order, therefore, at the threshold we may state that it would not now be open for the petitioners to challenge the maintainability of the reference under Clause 36 of letters patent and or to urge for de novo hearing by invoking provisions of Section 151 of C.P.C or by raising the veil of public interest litigation.

30. Furthermore, the ratio of these judgments does not in any manner support the proposition that the reference Court is competent to hear the matter de novo. On the contrary, it holds that the jurisdiction of the reference Court is confined to the opinion on the point of difference and the final decision would be as per the opinion rendered by the majority.

31. In the same way we have no hesitation in holding that the reliance on the decisions in Babuand ors. vs. The State of Uttar Pradesh [AIR 1965 SC 1467] and State of Andhra Pradesh vs. P.T. Appaiah and Anr. [AIR 1981 SC 365].,Tanviben Pankajkumar Divetia Vs. State of Gujarat [(1997) 7 SCC 156], Sajjan Singh and ors. vs. State of M.P. [(1999) 1 SCC 315] and Radha Mohan Singh Alias Lal Saheb and ors. vs. State of UP [(2006) 2 SCC 450] is totally misplaced. The reason being, in Babuand ors and State of Andhra Pradesh (supra), the Apex Court, while interpreting the provisions of Section 429 of Cr.P.C.1898, held that this section contemplates that it is for the third Judge to decide on what points he shall hear the arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit. Similar principles have been laid down by the Apex Court in Tanviben Pankajkumar Divetia, Sajjan Singh and ors. and Radha Mohan Singh Alias Lal Saheb and ors. (Supra), while interpreting the scope of Section 392 of the Cr.P.C., 1973. Suffice it to say that unlike Clause 36 of Letters Patent, the Judge hearing the appeal under Section 392 of Cr. P. C. is not required to express his opinion on the points of difference, but is required to examine the whole case independently give a final decision in the matter. Clearly therefore, the aforesaid decisions do not support the proposition canvassed by the leaned Counsel for the petitioners and would not be applicable to the facts of the present case.

32. The result of the above discussion can, therefore, be summed up as:

(i) Clause 36 of the Letters Patent provides for a mechanism to resolve the difference of opinion between the Judges of the referring Court.

(ii) The differing judges are required to formulate points of difference.

(iii) the Judges to whom the reference is made can only express their opinion on the points so formulated

(iii) thejurisdiction of deciding the points as per the majority opinion vests with the referral bench.

33. The next question, which would fall for consideration is whether the scope of the reference stands expanded in view of the order dated 26th February, 2014 passed by the referral bench and further order dated 18th March, 2014 passed by this Bench in Chamber Summons No.20 of 2014 permitting the petitioners to amend the petition and raise additional grounds of challenge as disclosed in the schedule appended to the Chamber Summons.

34. Undisputedly, the petitioners had filed a praecipe before the referral bench and sought clarification as regards the jurisdiction of the reference court to decide the chamber summons. The said praecipe was disposed of vide order dated 26.02.2014, wherein the referral bench headed by the Chief Justice after reproducing the two questions of reference, held that âIt is now for the division bench hearing the reference to express their opinion. Learned Counsel for the petitioner in PIL No.92 of 2010 states that petitioner has filed some chamber summons. Chamber Summons shall also be placed before the Division Bench hearing the Reference and we may not be treated to have expressed any opinion on the question of maintainability of the chamber summons.â

35. A bare reading of the aforesaid order clearly indicates that the referral bench had neither expanded the scope of the reference nor had expressed any opinion on the question of maintainability of the chamber summons, but had only ordered to place the chamber summons before this bench. In the light of this fact, we are unable to accept the contention of the learned Counsel for the petitioners that the referral bench has expanded the scope of the reference as to encompass the additional grounds raised in the amended petition.

36. The petitioners have next sought to contend that the order of reference has merged with order dated 25.4.2013 of the referral bench and order dated 18.3.2014 allowing the chamber summons for amendment of the petition. Needless to state that the doctrine of merger does not apply to the decisions of co-ordinate courts or benches but postulates merger of subordinate forums decision in the decision of the appellate or revisional forum modifying, reversing or affirming such decision. This is a well-established principle of law laid down by the Apex court in Kunhayammed and ors. versus State of Kerala (2006) 6 Supreme Court 359.

37. We are also unable to accept the contention of the petitioners that the scope of the reference stands expanded by virtue of order dated 18.3.2014. Suffice it to say that the reference court has no jurisdiction to enhance the scope of reference. Furthermore, while deciding the application for amendment the court does not adjudicate into the merits of the amendment sought to be incorporated. Reference may be made to the judgment of the Supreme Court in Rajesh Kumar Aggarwal and Ors. vs. K. K. Modi and ors. [AIR 2006 SC 1647]. Hence, the fact that the petitioners were permitted to amend the petition would not imply that the reference court has enhanced the scope of the reference, which exercise would otherwise be contrary to the provisions of clause 36 of letters patent.

38. We are thus of a view that the scope of the reference under Clause 36 of the Letters Patent is restricted to the points of reference formulated in order dated 9th August, 2011. The grounds raised in the amended petition are not covered by the reference hence it is not within our jurisdiction to consider the arguments or express our opinion and adjudicate on the said grounds. We, therefore, do not make any reference to the submissions advanced before us by the learned counsels for the petitioners in respect of the new points which have been raised by virtue of the amendment as well as the points which had been urged and considered by the referral court. We cannot but restrict our opinion to the points of reference, which is mainly restricted to the fulfillment of criterion prescribed under Clause 3 of Part A.

39. The crux of the question before us is whether the decision of the selection committee to include the name of the Respondent no. 8 in the list of eligible candidates for the office of Vice-Chancellor suffered from non-application of mind visÃ vis Clause 3 of Part A, which reads as under:

âMinimum of five research publications in peer/reviewed/referred international research journal after Ph.D and/or published quality books in a recognised discipline, referenced for study in higher education at the National/International level.â

40. The petitioners have alleged that seven out of twelve publications listed by the respondent no. 8 in his bio data did not fulfill the criteria of post Ph.D publication, as required under clause 3 of Part A. It is urged that the three out of remaining five publications are not research publications but are problems and hence, do not meet the requirement of clause 3. The petitioners have urged that the publications listed in the bio-data are not published in peer/reviewed/referred international research journal, which is one of the essential qualifications stipulated under Clause 3 of Part A. Thus according to the petitioners the Respondent no.8 was not qualified to be appointed as a vice chancellor.

41. Learned Counsels for the petitioners have argued that the Selection Committee cannot be considered as experts in academic field. They have further submitted that the petition raises a challenge to the decision making process, which on the face of it is erroneous and reflects non-application of mind and such decision making process qualifies test of judicial review. The learned Counsel for the petitioners have relied upon the following decisions:

1. Tata Cellular Vs. Union of India, (1994)6 SCC 651,

2. S.R. Bommai Vs. Union of India, (1994)3 SCC 1,

3. Rajesh Awasthi Vs. Nandalal Jaiswal, (2013)1 SCC 501,

4. Food Corporation of India and Ors. Vs. Sarat Chandra Goswami, CDJ 2014, SC 455,

5. Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and Ors. (2014) 1 SCC 161,

6. Jose Sebastian Vs. State of Kerala, CDJ 2013 Ker 457 and

7. K.V. Jeyaraj and Anr. Vs. The Chancellor of Universities and Ors. CDJ 2014, MHC 2054.

42. The learned Advocate General Mr. Khambatta and the learned Sr. Counsel Shir. Rafiq Dada have submitted that the Search Committee is an expert body which on scrutinizing each and every application has arrived at the satisfaction that the respondent no.8 was the most suitable and eligible candidate amongst the other panelists. It is urged that the Court cannot sit in appeal over the decision of experts in academic field. In support of this contention, learned Sr. Counsel Shri. Rafiq Dada and learned A.G. have relied upon the following decisions:

1. Basavaiah (Dr.) Vs. Dr. H.L. Ramesh and Ors. (2010) 8 SC 372,

2. Sajeesh Babu K. Vs. N.K. Santhosh and Ors. AIR 2013, S 141,

3. Transport and Dock Workers Union and Ors. Vs. Mumbai Port Trust and Anr. (2011)2 SCC 575,

4. The University of Mysore and Ors. Vs. C.D. Govinda Rao and Anr. AIR 1965 SC 491,

5. The Chancellor Vs. Dr. Bijayanand Kar, (1994)1 SCC 169,

6. M.V. Timmaiah and Ors. Vs. UPSC, (2008) 2 SCC 119,

7. R.S. Dass Vs. Union of India, AIR 1987 SC 593,

8. National Institute of Mental Health Vs. Dr. K. Kalyana Raman AIR 1992 SC 1806,

9. UPSC Vs. Hiranyalal Dev, AIR 1983 SC 1069,

10. B.C. Mylarappa Vs. Dr. R. Venkatasubbaiah, (2008)14 SCC 306 and

11. Utkal University Vs. Dr. Narsinghcharan Sarangi, 1999(2) SCC 193.

43. Before we advert to the submissions on the scope of the judicial review, it would be appropriate to refer to the aforesaid legal authorities relied upon by the respective parties.

44. While considering the scope of judicial review in contractual / administrative matters, the Apex Court in the case of Tata Cellular (Supra) has held that âjudicial review is concerned with reviewing not the merit of the decision in support of which the application for judicial review is made, but the decision making process itself. The duty of the Court is to confine itself to the question of legality. Its concern should be;

(i) Whether a decision making authority exceeded its powers? (ii) committed an error of law

(iii) committed a breach of the rules of natural justice

(iv) Reached a decision which no reasonable tribunal would have reached or, (v) Abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner with the manner in which those decisions have been taken. The extent of duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under.

(i) Illegality : this means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. (ii) irrationality, namely Wednesbury unreasonableness (iii) procedural impropriety. The above are only the broad grounds but does not rule out addition of further grounds in course of timeâ¦ in all these cases the test is to be adopted is that the Court should, âconsider whether something has gone wrong of a nature and degree which requires its intervention.â

45. S.R. Bommai (Supra), which though a land mark judgment on the provisions of Article 356 of the Constitution of India, may not strictly be applicable to the facts of the present case.

46. In the case of Rajesh Awasthy (Supra), the selection of the appellant as the Chairperson of UP State Electricity Regulatory Commission was challenged by filing a writ of quo-warranto for non-compliance with Section 85(5) of the Electricity Act, 2003 which required the Selection Committee to arrive at a satisfaction before recommending any person for appointment as a Chairperson of the State Government. The Apex Court has held that non-compliance with statutory powers renders decision making process vulnerable warranting interference by Court.

47. In the case of Food Corporation of India and Ors. Vs. Sarat Chandra Goswami, CDJ 2014, SC 455, while interpreting Regulation 60 of the Food Corporation of India (Staff) Regulations, 1971, the Apex Court held that âonce it is held that there has to be formation of opinion and such an opinion is assailable in a legal forum, we are of the view that the said opinion has to be founded on certain objective criteria. It must reflect some reason. It can neither be capricious or fanciful but demonstrative of application of mind. Therefore, it has to be in writing. It may be on the file and may not be required to be communicated to the employee but when it is subject to assail and, eventually, subject to judicial review, the competent authority of the Corporation is required to satisfy the Court that the opinion was formed on certain parameters indicating that there was no necessity to hold an inquiry.â

48. In the case of Central Electricity Supply Utility of Odisha (Supra) the Apex Court while throwing light on the duty of the Court while dealing with a writ of quo warranto has held that âit is clear as noon day that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basis purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority.â

49. In the case of University of Mysore (AIR 1965 SC 491), the Constitution Bench has laid down as under:

âBoards of appointments are nominated by the universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about malafides against the experts who constituted the present board; and so, we think, it would normally be wise and safe for theto leave the decisions of academic matters to experts who are more familiar with the problems they face then the courts generally can beâ.

50. These principles have been reiterated and reaffirmed by the Apex Court in Basavaiah (Dr.) Vs. Dr. H.L. Ramesh and Ors.(Supra) wherein it is held that:

âit is the settled position that the Courts have to show deference and consideration to the recommendation of an expert committee consisting of distinguished experts in the field. In the academic matters, the Courts have a very limited role particularly when no malafides have been alleged against the experts constituting the selection committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realize and appreciate its constraints and limitations in academic matters.â

51. In B.C. Mylarappa the Apex Court has reiterated that âthis court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a candidate fulfills the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees, which invariably consist of experts on the subjects relevant to the selection.â

52. In M.V. Thimayyaa (Supra), the Apex Court has held that âThe allegation of mala fide is very easy to be leveled and it is very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision making process. People are prone to make such allegations but the courts owe a duty to scrutinize the allegation meticulously because the person who is making the allegation of animus does sometimes mala fide due to his non-selection. He has a vested interest. Therefore, unless the allegations are substantiated beyond doubt, till that time the court cannot draw its conclusion.â

53. In the case of Transport and Dock Workers (Supra), the Apex Court has held that âExcessive interference by the judiciary in the functions of the executive is not proper. In several decisions, we have held that there must be judicial restraint in such matters.â It was further held that Judges must maintain judicial self-restraint while exercising the powers of judicial review of administrative of judicial decisions. Adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the filed of administration while the Court does not. In the administrative matters the Court should, therefore, ordinarily defer to the judgment of the administrators unless the decision is clearly violative of some statutes or is shocking arbitrary.

54. The Chancellor Vs. Dr. Bijayanand Kar (Supra), the Apex Court has emphasized that the decisions of the academic authorities should not ordinarily be interfered with by the Courts. Whether a candidate fulfills the requisite qualification or not is a matter, which should be entirely left to be decided by the academic bodies and the concern selection committees which invariably consists on the experts of subjects relevant to the selection.

55. In the case of R.S. Dass (Supra), National Institution of Mental Health (supra), and Union Public Service (supra), the Apex Court has held that the principles of natural justice do not require an administrative authority or a selection committee or an examiner to record reasons for the selection or non-selection of a person. In the absence of the statutory provision, the administrative authority is under no legal obligation to record reason in support of its decision. It is held that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative.

56. In Utkal university the Apex Court has held that allegations of bias must be carefully examined before any selection can be set aside. In the first place, it is the joint responsibility of the entire selection committee to select a candidate who is suitable for the post. When experts are appointed to the committee for selection, the selection is not to be lightly set aside unless there is adequate material which would indicate a strong likelihood of bias or show that any member of selection committee had a direct personal interest n appointing any particular candidate.â

57. The parameters of the judicial review are therefore well defined and it is well settled that the court cannot sit in appeal over the decision taken by the experts in academic field or interfere with the decision on specious grounds of malafides or bias. Nonetheless, the judicial restraint does not confer unfettered and unbridled powers on the selection committee to act arbitrarily or illegally in total violations of the Act or statutory rules. In such situations, it is within the jurisdiction of the court to scrutinize the decision-making process and test the decision on the touch stone of illegality, irrationality or procedural impropriety. The decision making process of the selection committee in selecting and recommending the appointment of respondent no.8 as Vice-Chancellor is required to be judged in the light of these well-settled principles.

58. In the curriculum vitae submitted in response to the advertisement, the respondent no.8 Vice-Chancellor had cited following publications/articles/research papers:

1. Wimbledon results reanalysed: A Probabilistic Model, Teaching Statistics, June 1990, Vol.12, Issue 2 from UK

2. Mathematical identity : The American Mathematical monthly, Oct. 2003, Vol. 110, No.8 from USA.

3. A Coin tossing experiment and nineteen distributions, Teaching Statistics, 2005, Vol. 28 Issue 2 from UK (Related to my Ph.D.

4. Expansion by Inclusion-Exclusion, The American Mathematical Monthly, May, 2005, Vol. 112, Nos. 5 from USA.

5. A result on Fibonacci numbers, Mathematical Gazette, Nov. 2005, Vol. 9, No.5/6 from USA.

6. Problem on Lucas number, School of Science and Mathematics, Jan. 2009, Vol. 109 (1) from Israel.

7. Redefining Distance Learning, Journal of Distance Education, University of Jammu, 2002, Vol. IX, No.1 from India.

8. A result on Fibonacci numbers, pimuepsilon, fall 2009 from USA.

9. Fibonacci numbers, submitted for publication in Fibonacci Quarterly, a research journal published in the USA.

10. Satellite-based education in YCMOU, submitted for publication to the Australian Journal âDistance Educationâ.

11. Presently working on a paper tentatively titled, âInnovative reforms in student assessment in Higher Education.

12. A waiting type model and associated results, submitted for publication in The Mathematical Gazette.â

59. It is pertinent to note that Clause 3 of Part A requires five post Ph.D publications in peer/reviewed/referred international research journal. We may at the very outset observe that the respondent no. 8 was awarded Ph.D on 15.9.2004 whereas the publications at serial nos. 1, 2, and 7 were published prior to award of Ph.D while those at serial number 9 to 12 were merely submitted for publication. It is well settled that eligibility requirements must be fulfilled on or before the last date for submission of application as may be specified in the advertisement willing applications for the post, unless of course, some other date is specified in the advertisement itself. Consequently, as on the date specified in the advertisement out of 12 publications, seven publications did not meet the requirement stipulated under Clause 3 of Part A of the Statutory Order dated 27/5/2009, which fact is also accepted by the respondent no.8 â Vice-Chancellor in his affidavit-in-sur-rejoinder. These seven items were, therefore, required to be discarded at the threshold.

60. The minutes of meeting held on 12.6.2010 however indicate that the selection committee had shortlisted 20 candidates including the respondent no.8, who had allegedly fulfilled the essential qualifications. The names and other essential qualifications of these candidates were recorded in Annexure B, which is stated to have been prepared by the Nodal Officer. Annexure B, which contains entries with respect to the respondent no. 8, refers to 12 publications, which fact ex-facie gives an indication that the said seven items were not discarded but were in fact considered by the selection committee.

61. It is also pertinent to note that Section 12 (3) of the Maharashtra Universities Act as substituted by Maharashtra Act No. XIV of 2009 requires the Committee to recommend the panel not less than five suitable persons for the consideration of the Chancellor for being appointed as the Vice-Chancellor. The rule also requires the committee to submit a detailed write up on suitability of each person included in the panel. In the present case, in the write up on respondent no.8, which is annexed to the minutes of meeting held on 2nd July, 2010, the committee had merely recorded that âDr. Rajan Welukar is a trained statistics expert with his Ph.D. in that area and several publications even though he is young (born 1959) he has very good experience as a teacher and administrator....â The said write up does not disclose whether the term 'several publications' referred to all twelve publications mentioned in the resume of respondent no.8 or whether it referred to only those five post Ph.D. Publications. The said write up, does not indicate that the Search Committee was conscious of the fact that seven publications at Sr. Nos. 1, 2, 7 and 9 to 12 did not meet the requirement stipulated in Clause 3 of Part A. The write up also does not indicate whether the Search Committee had considered whether the remaining five publications meet the minimum eligibility criteria.

62. True, the Search Committee does not discharge any adjudicatory functions and, therefore, there may not be any statutory requirement to record reasons for its decision. However, this does not mean that their decision should not be based on reason. The circumstance that there is no statutory requirement to record reason, does not confer upon the Search Committee any immunity from applications of mind to all relevant considerations and exclude irrelevant consideration. The fact that the Committee is required to give a detailed write up is itself an indication that there has to be some contemporaneous material to indicate that there was proper application of mind and cogent reasons in support of decision arrived at, particularly as the Search Committee was entrusted with the function of examining whether the candidates aspiring to be appointed to a high ranking post in the academic field fulfilled the minimum eligibility criteria and further recommend the names of the eminent academicians to the Chancellor for being appointed as Vice-Chancellor.

63. In the instant case, there is no material on record to indicate that the Selection Committee had in fact applied its mind and considered whether the 7 publications were to be discarded and whether the remaining 5 publications fulfilled the minimum eligibility criteria stipulated in Clause 3 of Part A. Interestingly, even in the additional affidavit of the Search Committee as well as at the conclusion of the arguments, the learned A.G. representing the Search Committee (respondent nos. 5 to 7) was unable to specify as to which of these publications out of 12 publications fulfilled the criteria laid down in Clause 3 and were considered by the Search Committee while assessing the eligibility of the respondent no.8 for the post of Vice-Chancellor.

64. Besides, there is no material to indicate that the Search Committee had taken a conscious decision to relax or to recommend relaxation of requirement under Clause 3 of Part A, either on the ground that respondent no.8 was an eminent academician or administrator or for any other reason. Furthermore, there does not appear to be any provision entitling the Chancellor to relax any of the essential eligibility requirements set out in Part A. Thus, we are of the view that although the minutes of meeting state that the Search Committee had reviewed each and every application, there is nothing to suggest that the Selection Committee had applied its mind visÃ vis Condition set out in Clause 3 of Part A.

65. These facts lead to an inevitable conclusion that the Selection Committee had abdicated its functions by accepting the claim of respondent no.8 as disclosed in his resume at the face value or relying almost entirely upon the notings / Annexure-B prepared by the Nodal Officer, without independently ascertaining whether the publications listed in the resume fulfilled the requirement of clause 3 of Part A and consequently whether the respondent no.8 possessed the minimum requisite eligibility criteria. This in our considered view is an error touching the decision making process.

66. Whiles we accept that in the exercise of powers of judicial review, we are normally not concerned with the merits of the decision, but where the decision making process is vitiated by non application of mind, or where authorities have abdicated their function by independently ascertaining whether respondent no. 8 fulfilled the prescribed qualification with regard to publication stipulated under Clause 3, powers of judicial review would have to be exercised.

67. Relying upon the affidavit of Dr. Neeraj Hatekar, Professor of Econometrics in Mumbai University, the petitioners have contended that the publications at Sr. No.3 relates to Ph.D. and same is not based on Post Ph.D. Research. Hence, the said publication does not meet the requirement of Clause 3 of Part A. The petitioners have further urged that the publications at Sr. Nos. 4, 5, 6 and 8 are not research publications in peer review journals but are problems which do not qualify as research publications. The petitioners have also disputed that the respondent no.8 has coauthored the solutions to the problem no.11033 along with Mr. Richard Strong. The petitioners have claimed that as per the policy of the publisher i.e. Mathematical Association of America, the solution was to be sent along with proposed problem. The petitioners claim that the problem was published in 2003, therefore, the solution was obviously given in 2003, itself i.e. prior to Ph.D. The petitioners have further contended that the problem on lucas number appearing at Sr. no.7 and result of Fibonacci number at Sr. no.8 are the same, except for change of alphabet âLâ to alphabet âFâ. The petitioners, therefore, claim that the remaining 5 publications do not fulfill the criteria of Clause 3 of Part A.

68. Though in vain, the learned Counsels for the petitioners and the respondents have tried to highlight the difference between publication of problems and research publication, Mathematical Journals and Peer reviewed Journals and have further sought to explain to us the intricacies and complexities of the 'problems' and 'solutions'. However, we with our limited ability and expertise in the academic field are unable to answer the points raised by the petitioners and decide whether the said 5 publications at Sr. Nos. 3, 4, 5, 6 and 8, meet the requirements stipulated by Clause 3 of Part A. In our view, it is within the domain of the Selection Committee, an expert body in academic field, to assess and review these publications and determine whether these publications meet the requirement of Clause 3 of Part A.

69. In the facts and circumstances of this case, in our considered view, the decision of the Search Committee to include the name of respondent no.8 in the list of eligible candidates in the office of the Vice Chancellor of the University of Bombay suffered from non-application of mind visÃ vis condition 3 of Part A.

70. In our view, this Court should exercise its extraordinary discretionary jurisdiction to direct the search committee to reconsider the question of eligibility of respondent no.8 in the office of Vice Chancellor visÃ vis condition 3 of Part A of the Schedule to the above Statutory order dated 27.05.2009.

71. We, therefore, answer the reference in the affirmative, in respect of the two points referred to us. With these findings, we direct the Registry to place the matter before the Original Bench presided over by the Chief Justice, for passing further orders.

Court	Mumbai High Court
Decided On	Dec-11-2014
Case Number	Public Interest Litigation Nos. 92 of 2010, 96 of 2010
Judge	P.V. HARDAS & THE HONOURABLE MRS. JUSTICE ANUJA PRABHUDESSAI
Appellant	Vasant Ganu Patil of Thane and Another
Respondent	The Chancellor and Others

Vasant Ganu Patil of Thane and Another Vs. The Chancellor and Others - Court Judgment