Dr. Sailesh Vinayak Deshpandey and Another Vs. Union Of India and Others - Court Judgment

The two petitioners, who had responded to Advertisement No.2 issued by the Banaras Hindu University, Varanasi1 on 29 August 2013 for one post of Assistant Professor in Kayachikitsa, Ayurveda, have filed this petition for quashing the selection and appointment of respondent no.7-Dr. Divya Kajaria on the said post.

Ordinance 11A of the Ordinances of University deals with the procedure for appointments of Professors, Associate Professors and Assistant Professors and in order to appreciate the controversy involved in this petition, it is necessary to first examine it. The Ordinance requires the candidates to upload their applications online through a software available on the portal "Recruitment and Assessment Cell"2 on the website of the University. It also provides for short-listing of the candidates for interview. This is initially done at the department level by the 'Faculty Affairs Committee - Level-I'3 and finally by the 'Faculty Affairs Committee - Level-II'4. The constitution of FAC-I and FAC-II is also provided in the Ordinance. The terms of reference of FAC-I are basically to : (a) conduct a preliminary examination of applications for meeting the minimum eligibility requirements and for completeness; (b) invite reference letters for the short-listed applicants; (c) invite short-listed candidates for personal interaction and seminar presentation/ performance and evaluate it and to make recommendations to FAC-II of the candidates who can be called for interview by the Selection Committee; and (d) ensure that no application received prior to the cut-off date remains pending with the FAC-I after 60 days from the cut-off date and in case FAC-I fails to complete the process of selection within 60 days from the cut-off date, the Vice-Chancellor of the University can constitute a Special Committee to complete the process of selection.

The Ordinance also provides the procedure for short-listing the candidates. The short-listed candidates are then invited for a personal visit to the department to interact with the teachers of the department and present a seminar. The FAC-I then prepares a final report, in order of merit, to recommend not more than 10 names per post to FAC-II.

The terms of reference of FAC-II are : (a) examination of the recommendations made by FAC-I; (b) to reject one or more names recommended by the FAC-I with reasons to be recorded in writing; (c) to recommend a maximum of 8 names against each post to the RAC for consideration of their candidature in the Interview by duly constituted Selection Committees; and (d) to submit its recommendations to the RAC on a proforma, listing the names of persons to be recommended for being called for interview by the Selection Committee.

The Vice-Chancellor nominates the expert persons to serve on the Selection Committee for interviews of the short-listed candidates. Power has also been given to the Vice-Chancellor, if he is of the opinion that it is necessary or expedient to do so, for reasons to be recorded in writing to relax any of the provisions of the Ordinance with respect to any class or category of persons. All such orders of relaxation have to be reported to the Executive Council in the ensuing meeting.

Having considered these provisions, it will be appropriate to refer to the averments made in the writ petition. It is stated that though Ordinance 11-A provides that short-listing of applications should be initially done by FAC-I and finally by FAC-II, the Vice-Chancellor of the University by order dated 8 November 2013 dissolved the FAC-I and nominated a "Super Committee" headed by Professor D.K Singh, Institute of Medical Sciences of the University to short-list the candidates. This Super Committee recommended names to RAC on 9 November 2013. The RAC then issued interview letters through e-mail on 9 November 2013 at 2.25 pm calling the short-listed candidates to appear for interview on 13 November 2013 with six documents namely, the mark-sheets/certificates in original in support of the qualification research/teaching experience, certificate from the Head of the Department indicating the pay-scales and allowances, a certificate of character from the present employer, a certificate from the present or last employer specifying that there is nothing against the applicant and in case the application has not been forwarded through the present employer, then a 'no objection certificate' for attending the interview. In the case of Scheduled Castes or Scheduled Tribes candidates, the original certificate issued by the competent authority should also be produced.

This communication sent on 9 November 2013 at 2.25 pm was followed by another communication dated 10 November 2013 at 7.03 pm. The petitioners were asked to appear for personal interaction in the department of Kayachikitsa in the Faculty of Ayurveda, Institute of Medical Sciences of the University on 11 November 2013 at 10.00 am. It also states that the petitioners should present a power point presentation which should include : (i) brief introduction; (ii) past achievements; (iii) present nature of work; (iv) presentation on specialised area; and (v) future vision. The petitioners were also directed to bring all the original documents, certificates and publications as claimed in the application form.

The petitioners have asserted that as they reside in Pune it was just not possible for them to attend the personal interaction fixed for 10.00 am on 11 November 2013 as the e-mail was received by them only at about 7.03 pm on 10 November 2013. Therefore, on receipt of the aforesaid communication, the petitioners sent an e-mail on 10 November 2013 at 10.25 pm with a request to postpone the date for personal interaction to enable the short-listed candidates to attend the interaction. However, no response was received. The personal interaction did take place on 11 November 2013. It is further stated that as the petitioner could not appear for personal interaction, no purpose would have been served by appearing for interview on 13 November 2013 and in any case it was not possible for them to collect all the required documents to be able to appear for interview.

Learned counsel for the petitioners has submitted that the Vice-Chancellor of the University could not have abolished FAC-I and FAC-II and replaced them by a Super Committee and, therefore, the recommendations made by the Super Committee are of no consequence. It is also the submission of learned counsel for the petitioners that the entire selection procedure suffers from arbitrariness as reasonable time was not given to the candidates for appearing before the Committee for personal interaction and interview. In this connection, it is submitted that sending an e-mail on 10 November 2013 at 7.03 pm to candidates residing in Pune and asking them to appear for personal interaction with the documents at 10.00 am on 11 November 2013 is unreasonable and it was not possible for the petitioners under any circumstances to have appeared for this interaction. Likewise, it has been submitted that the time given for appearing for interview on 13 November 2013 with the relevant documents was also unreasonable and in any case, if a candidate did not appear for personal interaction, no purpose would have been served by appearing at the interview as the performance of the candidates during the personal interaction has to be taken into consideration.

Sri Ajeet Kumar Singh, learned counsel appearing for the respondent-University has, however, submitted that the Vice-Chancellor of the University was justified in dissolving FAC-I and FAC-II and replacing them by a Super Committee since appointments in the Hospital of the University had to be made at the earliest because of the requirements imposed by the Medical Council of India. In this connection, reliance has been placed upon sub-clause (VIII) of Ordinance 11.A.1 to contend that the Vice-Chancellor could relax any of the provisions of the Ordinance. It is also the submission of learned counsel appearing for the University that opportunity had been given to the petitioners to appear for personal interaction and interview and, therefore, the petitioners cannot complain if they have not been able to appear for personal interaction and interview.

Sri Ashok Khare, learned Senior Counsel, appearing for the candidate whose name has been recommended by the Selection Committee, has also defended the procedure adopted by the University. It is his submission that since FAC-I had failed to complete the process of selection within 60 days of the cut-off date, the Vice-Chancellor was empowered to constitute a Special Committee to complete the process of selection. According to him, this period of 60 days will start to run from the date the application was submitted by the candidates and not from the cut-off date specified in the advertisement which was 30 September 2013. Learned Senior Counsel has also submitted that since the petitioners had been short-listed by the Super Committee, they cannot complain if FAC-I and FAC-II had been dissolved and replaced by a Super Committee. It is also his submission that the petitioners could have appeared for interview before the Selection Committee on 13 November 2013 and made a request for holding their personal interaction on a subsequent date but as that was not done, it is not open to the petitioners to now raise this grievance.

We have considered the submissions advanced by learned counsel for the parties.

Ordinance 11A of the Ordinances framed by the University provides a detailed procedure to be followed for making recommendations for appointment on the posts of Professors, Associate Professors and Assistant Professors. The relevant portions of this Ordinance are as follows :

"11.A.1 .............

I. Notification Inviting applications: .........

I.1.1) All the vacant teaching posts of permanent nature, plan posts, the temporary posts likely to continue, carrying pay scales of Rs.15600-39100 and above shall be advertised by the Recruitment and Assessment Cell (hereinafter called RAC) on the BHU website in the form of a composite rolling advertisement containing full details.

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II. Submission of application:

II.1) Online mode of submission of applications shall be essential. Candidates must upload their applications online through the software available on the portal of Recruitment and Assessment Cell on the BHU website for uploading applications and calculating the Academic Performance Index (API).

II.2) Individuals desirous of offering their candidature for a given post shall first register on the RAC portal on the BHU Website. Thereafter, they can fill up the prescribed electronic application form online through the software available on the said portal. Applications submitted on the portal shall be deemed to have been entered in the Application Register prescribed for the purpose and will be acknowledged through a system generated e-mail on the candidate's e-mail id.

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II.5) Candidates already in employment and short-listed for interview by the Selection Committee would be required to submit a "No Objection Certificate" from the employer prior to the interview, failing which they may not be considered further.

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III. Short-listing of Candidates for interview:............ Short-listing of Applications will be initially done at the level of Department/School/Centre/Unit by the Faculty Affairs Committee-Level I and finally at the level of Institute/Faculty/ by the Faculty Affairs Committee-Level II.

III.1.2) Terms of Reference of Faculty Affairs Committee-Level I (FAC I)

The terms of reference of FAC-I shall be as follows:

a). Preliminary examination of applications for meeting the minimum eligibility requirements and for completeness.

b). Detailed examination of all the eligible applications.

c). Inviting reference letters for short-listed applicants only from referees.

d). Short-listing of candidates who are then to be invited for a personal interaction and seminar presentation/ performance. The performance in the personal interaction/ seminar will be evaluated by the FAC-I on a 10 point scale which will be available to the Selection Committee to help in their decisions. To make recommendations to the Faculty Affairs Committee-Level II (FAC-II) of the candidates who can be called for interview by the Selection Committee.

e). To continuously examine and process the eligible applications as and when received for short-listing. However, no application received prior to a cutoff date shall remain pending with the FAC-I after the 60th day from cutoff date which shall be the last day of FAC-I round for the respective round of selection. In case FAC-I failed to complete the process of selection within 60 days from the cut-off date, the Vice-Chancellor will be empowered to constitute a Special Committee to complete the process of selection.

f). To also play a proactive role by contacting "Very Bright Candidates" with excellent academic and research/professional credentials. The FAC-I members and other Faculty members of the Dept/School/Centre/Unit may obtain the CVs of such candidates, even if they have not applied, and if found suitable, persuade them to apply and consider them along with other applications.

III.1.3) Principles of short-listing

The only criterion for short-listing will be excellence. Main considerations to identify excellence would be academic career, age, quality of previous research/creative/professional work, future plans and competence for quality teaching and research and potential for contributions to the university goals and life. The fact that a candidate meets the minimum requirement would not be a sufficient reason to be called for interview.

III.1.4) Procedure of Short-listing

The FAC-I shall follow the following Short-listing process:

(i) Calculation of the Academic/Professional score of a candidate based on the information furnished in the application. The criteria for calculation of Academic/Professional score for a discipline shall be such as are defined by the concerned Faculty and approved by the Vice-Chancellor from time to time.

(ii) Obtaining reference letters from the referees suggested by the short-listed applicant only; the FAC-I, if desired, may also obtain views from other authority/authorities, who may be in a position to provide reference on the basis of personal knowledge of the applicant.

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(v) Based on the above steps, the FAC-I would prepare a short-list of the applicants, in order of merit, who would be invited for a personal visit to the Department to interact with teachers of the Department and for presenting a seminar (or a performance in disciplines like music, painting etc). Generally not more than 10 candidates for a given post shall be invited for personal visit to the Department for interaction.

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(xi) The FAC-I shall prepare the final merit in order of the shortlisted candidates based on the API score and Quality Score. The said components shall have following relative weightages for deriving the overall score of a candidate/applicant:

a). API score: 43%

b). Quality score: 57%

(xii) Based on the above, the FAC-I will prepare a final Report, in order of merit, to recommend not more than 10 names per post to the Faculty Affairs Committee-Level II (FAC-II), constituted at the Institute/Faculty level for each Department/School/ Centre/Unit. If the FAC-I does not find suitable candidates, it may recommend lesser names to the FAC-II giving reasons in its Report to FAC-II. In exceptional cases where the quality of applicants is very high, the FAC-I may recommend up to 12 names per post.

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III.2) Faculty Affairs Committee-Level II (hereinafter called FAC II)

III.2.1) Constitution ......................

III.2.2) Terms of Reference of FAC-II :

The terms of reference of FAC-II shall be as follows:

a). Examination of recommendations of the FAC-I.

b). For maintaining high academic qualities across the Faculty, the FAC-II shall have the right to reject one or more names recommended by the FAC-I with reasons to be recorded in writing.

c). To recommend, within a month of the receipt of recommendations of the FAC-I, a maximum of 8 names against each post to the RAC for consideration of their candidature in the Interview by duly constituted Selection Committees.

d). The FAC-II will submit its recommendations to the RAC on a proforma listing names of persons to be recommended for being called for interview by the Selection Committee. The FAC-II will record clear reasons for making any changes in the recommendations received from the FAC-I. The said proforma shall be such as is defined by the concerned Faculty and approved by the Vice-Chancellor from time to time.

IV. Nomination of Expert Members to serve on Selection Committee .............

V. Interview of short-listed candidates by Selection Committee ................

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VIII. Powers to relax

Where the Vice-Chancellor is of the opinion that it is necessary or expedient to do so, he/she may by order, for reasons to be recorded in writing, relax any of the provisions of these Ordinances with respect to any class or category of persons. All such orders of relaxation passed by the Vice-Chancellor shall be reported to the Executive Council in its ensuing meeting."

The basic dispute in this petition is about the dissolution of FAC-I and FAC-II and their replacement by a 'Super Committee' and whether reasonable time was provided to the petitioners to appear for personal interaction and interview.

FAC-I and FAC-II have a definite and important role to play after the submission of the online applications. As noticed above, the short-listing of the candidates for interview is done initially by FAC-I and finally by FAC-II. The terms of reference of FAC-I have been spelt out in the Ordinance. It has to conduct a preliminary examination as to whether the applicants meet the minimum eligibility requirements and to carry out a detailed examination of all the eligible candidates. Thereafter, it has to invite reference letters for short-listed candidates only from the referees. It is FAC-I, the constitution of which has been provided, which has to invite the short-listed candidates for personal interaction and seminar presentation/performance. The Vice-Chancellor of the University can constitute a Special Committee only when FAC-I fails to complete the process of selection within 60 days from the cut-off date. The cut-off date is the date which is mentioned in the advertisement and in the instant case it was 30 September 2013. It cannot, as has been submitted by learned Senior Counsel for the respondents, be 60 days from the date of submission of the application. This is neither borne out from the Ordinances nor from the advertisement. It is also advisable to have a date which will be the same for each candidate and will not vary from candidate to candidate.

In the instant case, the Vice-Chancellor of the University ordered for dissolution of FAC-I and FAC-II and passed an order on 7 November 2013 that the Super Committee shall perform the role of FAC-I and FAC-II. This was prior to 60 says from 30 September 2013. The contention of learned counsel appearing for the respondent-University that the Vice-Chancellor of the University dissolved FAC-I and FAC-II and constituted a Super Committee by relaxing the provisions of the Ordinance cannot be accepted. This provision itself provides that the Vice-Chancellor can resort to this power if he is of the opinion that it is necessary or expedient to do so and for reasons to be recorded in writing and all such orders of relaxation passed by the Vice-Chancellor are required to be reported to the Executive Council in its next meeting. Time was granted to the University to place such an order of the Vice-Chancellor on record. Such an order has not been annexed with the supplementary counter affidavit filed by the University despite time having been granted, though the original records have been produced. The original records do not show that the Vice-Chancellor exercised the power for granting relaxation. In fact, the Vice-Chancellor had constituted the Super Committee without even recording any reason in writing nor is there anything on the record to indicate that the matter was reported to the Executive Council of the University. The Vice-Chancellor simply proceeded to constitute the Super Committee. The constitution of the Super Committee is clearly dehors the provisions of the Ordinance.

The contention of learned Senior Counsel appearing for the respondents that since the petitioners had been short-listed by the Super Committee, they cannot be permitted to raise this grievance, cannot also be accepted. When the Ordinance specifically provides for constitution of FAC-I and FAC-II and their respective roles have been demarcated, particularly with regard to the preparation of merit list of the candidates, the Super Committee could have been constituted to replace them only if the conditions specified in the Ordinance were satisfied. This condition, as noted above, has not been satisfied.

What is also important to examine is whether a reasonable opportunity was provided to the petitioners to appear for personal interaction and interview. It was only on 10 November 2013 at 7.03 pm that the petitioners, who reside in Pune, were asked to appear for personal interaction at 10.00 am on 11 November 2013. This is apparent from the e-mail which was dispatched at 7.03 pm on 10 November 2013. The letter is as follows :

"With reference to your application form no.3080-4 (Assistant Professor-Kayachikitsa), you are requested to present yourself for personal interaction in the Department of Kayachikitsa, Faculty of Ayurveda, Institute of Medical Sciences, Banaras Hindu University on Monday, 11th November, 2013 at 10:00 AM. You will be required to present a power point presentation which shall include the following points -

1. Your brief introduction,

2. Past achievements,

3. Your present nature of work,

4. Presentation on your specialized area,

5. Your future vision.

The presentation should not be more than 30 minutes. Further, you are requested to bring all the original documents and certificates, publications etc. as claimed in the application form.

You are also requested to bring the photo copy and original appointment letter and experience certificate for the graded salary and experience which you have claimed in your application for verification."

To ask a candidate residing in Pune at 7.00 pm on 10 November 2013 to appear for personal interaction with the necessary documents and presentation at Varanasi at 10.00 am on 11 November 2013 is to make a mockery of the entire process of selection. What is also important to note is that the petitioners had sent an e-mail at 10.00 pm on 10 November 2013 with a request to postpone the personal interaction because it was not possible for them to reach Varanasi at 10.00 am on the next day. This e-mail was not responded and personal interaction of the selected candidates was held on 10.00 am on 11 November 2013. The University should have provided adequate and reasonable time to the applicants to appear for personal interaction. Likewise, adequate and reasonable time should also have been provided to the candidates to appear for interview.

The Supreme Court in Hitendra Singh Vs. Panjabrao Deshmukh Krishi Vidyapeeth and Ors.5 has held that the selection of a person by means that are not fair, transparent and reasonable should not be sustained since it will amount to perpetuating the wrong and that persons who expect the system to protect their interest and their rights would be eternally disappointed if such steps are not taken.

In such circumstances, it is not possible to sustain the selection process for appointment on the post of Assistant Professor, Kayachikitsa, Ayurveda in the University and the consequential appointment of respondent no.7 on the said post. They deserve to be set aside and are set aside. It shall, however, be open to the University to hold a fresh selection for the post of Assistant Professor in Kayachikitsa, Ayurveda in accordance with law.

The writ petition is allowed to the extent indicated above.