Dr. Prabhu NaraIn Saxena Vs. Chancellor, Agra University and Others - Court Judgment

Sudhir Narain, J.

1. The petitioner seeks to quash the order dated 28.11.1988, passed by the Chancellor. Agra University, respondent No. 1, whereby the selection of the petitioner to the post of Reader in Zoology in Agra University (hereinafter referred to as the University) has been set aside.

2. Briefly stated the facts are that a post of Reader in Zoology fell vacant at the University. The University advertised the post. Dr. S.P. Jain, respondent No. 3, applied for appointment. The Selection Committee, in its meeting dated 29th April. 1986, interviewed ten candidates. Respondent No. 3 also appeared for selection before the Selection Committee. The Selection Committee did not find respondent No. 3 or any other candidate suitable for the post and recommended for re-advertisement of the post. The post was re-advertised in the newspapers. The petitioner and respondent No. 3 along with other candidates applied for the post in the month of December, 1986.

3. The University wrote a letter to the Chancellor on 13.3.1987 to nominate three experts for the post of Reader in Zoology. It suggested three names of experts, namely. Prof. N. K. Pillai, Zoology Department, Delhi University, Prof. K. Swaroop, Zoology Department, Gorakhpur University who were already nominated as experts in the selection which had taken place on 29th April, 1986, and Prof. U.S. Srivastava. Zoology Department, Allahabad University. In anticipation of the approval of the names suggested by the University, the Selection Committee held its meeting on 18th April, 1987, and interviewed the candidates. The petitioner and respondent No. 3 bothparticipated in the selection. The Selection Committee unanimously selected the petitioner for the post in question. The papers regarding selection were, however, kept in sealed cover, as the Chancellor had not given its approval by the said date.

4. The Chancellor on 25th August, 1987, approved the names of the experts as suggested by the University. The University, after receiving the approval of the Chancellor, sent the necessary records including the minutes of the Selection Committee before the Executive Council. The meeting of the Executive Council took place on 20th September, 1987, and unanimously it approved the recommendation of the Selection Committee for appointment of the petitioner as Reader in Zoology and passed resolution accordingly. The Registrar of the University issued appointment letter to the petitioner on 21st September, 1987, and on the same date he joined the post. The Executive Council after a year in its meeting held on 29th October, 1988, confirmed the appointment of the petitioner on the post of Reader in Zoology.

5. Respondent No. 3 submitted a representation to the Chancellor challenging the selection of the petitioner, firstly, on the ground that the experts, who constituted the Selection Committee, were not given prior approval by the Chancellor as required under the provisions of Section 31 (4) (a) (iii) and Section 31 (5) (a) of U.P. State University Act. 1973 (hereinafter referred to as the Act) and secondly, on the ground that the Executive Council did not approve the recommendation of the Selection Committee within four months as required under the proviso to Section 31 (a) of the Act. The petitioner submitted his comments to the said representation. The Chancellor by a detailed order held that the selection of the petitioner was invalid for both the reasons referred to above and set aside the selection with a further direction to re-advertise the post.

6. The first question is as to whether the Selection Committee wasduly constituted and its recommendation could have been considered by the Executive Council. Section 31 (4) (a) of the Act provides that the Selection Committee for the appointment of a teacher of the University shall consist of the Vice-Chancellor who shall be Chairman thereof. Clause (iii) of Section 31 (4) (a) provides that in case of Professor or Reader, three experts and in other cases, two experts as may be nominated by the Chancellor shall be member of the Selection Committee. There is no dispute that there must be three experts in the Selection Committee duly nominated by the Chancellor and in absence of nomination by the Chancellor, the Selection Committee cannot be validly constituted and recommend the name of any candidate.

7. The question is as to whether the Selection Committee was duly constituted for appointment to the post in question and its recommendation could have been considered by the Executive Council. Section 31 (4) (a) of the Act provides that the Selection Committee for the appointment of Reader of the University shall consists of (i) The Vice-Chancellor, (ii) Head of Department concerned, and (iii) Three experts to be nominated by the Chancellor.

8. There is no dispute that the Selection Committee consisted of all these persons. The only contention is that at the time the Selection Committee interviewed the candidates, the Chancellor had not given its approval to the names of three experts who had participated in the Selection Committee. The University had already suggested the names of three experts before the Selection Committee interviewed the candidates. It was open to the Chancellor to approve or disapprove the names suggested by the University but after it had approved the names of the experts as suggested by the University, it will not invalidate the Constitution of the Selection Committee. The Chancellor having given approval to the names of the experts suggested by the University, itshall be deemed that they had been nominated by the Chancellor retrospectively. Clause (iii) of Section 31 (4) (a) contemplates nomination of the three experts by the Chancellor. The Selection Committee should hold meeting after the experts are nominated by the Chancellor hut after the names of the experts are approved by the Chancellor even if after the meeting of the Selection Committee, the selection per se cannot be held vitiated unless there are some other grounds which can establish that the selection was with ulterior motive or was biased. The petitioner has not established that there was any element of bias of any member of Selection Committee or it was mala fide.

9. Secondly, if there was any irregularity in the procedure in obtaining the nomination from the Chancellor in regard to three experts who were to be members of the Selection Committee, it will not invalidate the selection in view of Section 66 (d) of the Act which provides that no act or proceeding of any authority or body or committee of University shall be invalid by reason of any irregularity in its procedure not affecting the merits of the case. In Dr. Mohammad Suhail v. Chancellor, University of Allahabad and another. 1994 (2) UPLBEC 787, it was held that even if there was any irregularity in the constitution of Selection Committee, because somebody participated in the selection of the candidates who could not have participated but such irregularity need not affect the merits of the case unless it is shown that there was any bias. The petitioner has not alleged that any member of the Selection Committee was biased or participation of any member materially affected the decision of the selection. The decision of the Selection Committee was unanimous and the Executive Council also unanimously approved the recommendation of the Selection Committee. The selection of the petitioner on the post of Reader in these circumstances could not be held to be invalid on the ground that the Chancellor had approved thenames of the experts after the Selection Committee had interviewed the candidates.

10. Thirdly, the petitioner is further estopped from challenging the selection on the ground that the Selection Committee was not properly constituted. He had applied for appointment on the post in question. The petitioner appeared for the interview before the Selection Committee held on 29.4.1986, but he was not selected. The Selection Committee did not find any candidate suitable and the post was re-advertised in December. 1986. The petitioner again applied for appointment. He again appeared for interview before the Selection Committee on 18.4.1987 and again he was not selected. He was fully aware as to who were members of the Selection Committee on 29.4.1986 as well as on 18.4.1987. He never raised objection as regards the constitution of the Selection Committee. A candidate who had appeared for interview before the Selection Committee cannot challenge its constitution merely on the ground that it was not properly constituted. In Dr. Sama v. University of Lucknow and others. AJR 1976 SC 2428, it was held that where the candidate knew all the relevant facts and did not raise his finger against the constitution of the Selection Committee, cannot raise the question of the reasonableness of bias or real likelihood of bias as regards to members of the Selection Committee. In Union of India and another v. M. Chandrasekharan and others, JT 1998 (1) SC 295, the candidate appeared before the promotion committee, it was held that such candidates cannot turn around and contend later when they found they were not selected by challenging the procedure adopted for selection.

11. The next ground for setting aside the selection of the petitioner is that the Executive Council took the decision after four months of the recommendation submitted by the Selection Committee. Proviso to Section 31 (8) of the Act provides that if the Executive Council does not takea decision on the recommendations of the Selection Committee within a period of four months from the date of meeting of such Committee, then the matter shall stand referred to the Chancellor and his decision shall be final. This proviso will be applicable only when the recommendations of the Selection Committee is placed before the Executive Council but in case the decision of the Selection Committee cannot be placed before the Executive Council for any Justifiable reason, the said period is to be excluded. The University has categorically stated that it had sought approval of the Chancellor in regard to the names of the experts and such approval was received on 25.8.1987 and it was only thereafter the matter could have been placed before the Executive Council. The period of four months. In these circumstances, cannot be counted from the date of meeting of the Selection Committee which was held on 18.4.1987. In Dr. Mohammad Suhail v. Chancellor, Allahabad University and others. (1990) 2 UPLBEC 1209, interpreting the said proviso. It was held that the Executive Council must be in a position to take a decision within four months but in case the Executive Council is prevented or prohibited from taking any decision on the recommendations of the Selection Committee, the limitation of the period of four months under the said proviso will not be applicable.

12. Learned counsel for the respondent placed reliance upon the decision Dr. A. N. Vishnoi and another v. Chancellor, University of Allahabad and others, 1981 AIR 60 (Summary of Cases 58) wherein it was held that the intention of the legislature is clear that if the Executive Council failed to take decision on the recommendation of Selection Committee within four months, then it ceases to have any authority to consider or take a final decision, then the matter stands referred to the Chancellor. In this decision, the Court was not considering a case where the Executive Council was prevented on account of certain contingency to take decision in the matter. The Executive Council cantake a decision only when the recommendation of the Selection Committee is placed before it and if it fails to take decision within four months from the date, it receives the recommendations of the Selection Committee, the matter shall stand referred to the Chancellor.

13. There is another aspect in respect of limitation provided under the first proviso to sub-section (8) of Section 31 of the Act. The Executive Council can take the decision only when the recommendations of the Selection Committee is placed before it. The period will start from the date of receipt of the recommendation of the Selection Committee. In Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer and another, AIR 1961 SC 1500, the Apex Court held that limitation for filing the appeal against the Award of the Land Acquisition Officer shall start from the date of Award either communicated to or is known by the party whether actually or constructively. The words 'the date of Collector's Award' is to be interpreted accordingly. Similarly, the words under the proviso 'within a period of four months from the date of meeting of such Committee' must mean the decision of the meeting of the Committee is communicated to the Executive Council.

14. Lastly, it may be noted that the petitioner has been working since 21st December. 1987. This Court admitted the writ petition on 6.12.1988 and suspended the operation of the impugned order of the Chancellor dated 28.11.1988 and since then the petitioner is continuing in service. The petitioner was selected by the Selection Committee on merits and it has been approved by the Executive Council. It has not been shown that his selection was not on merits. In these circumstances also, it will not be proper to dislodge him from working in the Institution. In Rajendra Prasad Srivastava v. District Inspector of Schools, Gorakhpur. 1994 ACJ 781, it was held that an employee whose initial appointment may be bad on account of some infirmity therein butIf he has been allowed to work for some years under the stay order of the Court, it will be unfair to remove such an employee.

15. In view of the above, the writ petition is allowed and the impugned order passed by respondent No. 1 dated 28.11.1988 is hereby quashed. Considering the facts and circumstances of the case the parties shall bear their own costs.