Ganpath Singh Gangaram Singh Rajput as also the
Gulbarga University, aggrieved by the judgment and
order dated 19/24th of November, 2009 of the Karnataka
High Court in Writ Appeal No. 3216 of 2004 quashing
the appointment of aforesaid Ganpath Singh Gangaram
Singh Rajput as Lecturer in MCA in the Post-graduate
Department of the University, have preferred these
special leave petitions.
Leave granted.
Short facts giving rise to the present appeals
are as follows:
The appellant, Gulbarga University, hereinafter
referred to as ‘the University’, issued notification
dated May 22, 1998 inviting applications for
appointment to various posts including the post of
Lecturer in Masters’ in Computer Application, for
short, MCA. The minimum qualification, for
appointment to the post of Lecturer and with which we
are concerned in these appeals, is good academic JUDGMENT record with at least 55% of marks or an equivalent
grade at the Masters’ Degree level in the relevant
subject from an Indian University or an equivalent
degree from a foreign University.
Shivanand, respondent no. 3 herein, and Ganpath
Singh Gangaram Singh Rajput, respondent no. 3 of the
writ petition (appellant herein), besides other
persons offered their candidature for appointment to
the post of Lecturer in MCA. The appellant claims to
have passed the M.Sc. examination in Mathematics with
First Class with distinction. It is an admitted
position that Shivanand possessed a post-graduate
degree in MCA and was eligible in terms of the
advertisement. The University, in terms of Section
53 of the Karnataka Universities Act constituted a
‘Board of appointment’ for selecting suitable
candidates. It consisted of experts holding high
positions in academic field including a Professor
each from University of Pune, Bombay University and
Kuvempu University. The Board of appointment
interviewed the candidates and ultimately made a recommendation JUDGMENTfor the appointment of the appellant,
hereinafter referred to as ‘Ganpat’, who admittedly
did not have a post-graduate degree in MCA, but had a
Masters’ Degree in Mathematics. The recommendation
so made was placed for consideration before the
Syndicate which approved his appointment.
Shivanand challenged the aforesaid selection and
appointment in a writ petition filed before the High
Court, inter alia, contending that Masters’ Degree in
Mathematics will not make Ganpat eligible in terms of
the advertisement and, therefore, his selection and
appointment to the post of Lecturer in MCA is
illegal. Shivanand further pointed out that since he
possessed a post-graduate degree in MCA and fulfils
all other conditions, he ought to have been selected
for appointment. Ganpat as also the University
resisted the prayer of Shivanand and contended that
the expression ‘relevant subject’ used in the
notification would mean any subject which is relevant
for the purpose of holding the post of Lecturer in
MCA. It was contended that Masters’ degree in Mathematics is a degree in a relevant subject and
thus Ganpat possessed the basic qualification. While
defending the appointment it was further contended
that in the syllabus for MCA, Mathematics is the core
subject and, therefore, a candidate having a post-
graduate degree in Mathematics is eligible for
appointment as Lecturer in MCA. It was also pointed
out that when an expert body like the Board of
appointment had found that a post-graduate degree in
Mathematics is a relevant subject for the purpose of
adjudging the eligibility and the same having been
approved by the Syndicate of the University, a body
consisting of experts, the same was not fit to be
interfered with by the High Court in exercise of its
writ jurisdiction. The learned Single Judge
considered the submission, dismissed the writ
petition and upheld the appointment of Ganpat, inter
alia, observing as follows:
“8…….The use of the word ‘relevant
subject’ in relation to the
qualification for Lecturers’ post is
the bone of contention between the
parties. It is also Sri.
Chandrashekar’s assertion that it
should relate only to a Master degree in Computer Applications and nothing
else, while, the University would
contend that it could also mean such
of those who have secured a Masters
degree in Mathematics. It is not in
dispute that the Head of the
Department, M.C.A. is held by a
person who is also a Ph.D. holder in
Mathematics. It is not in dispute
that Mathematics is also subject
which is taught in the Masters degree
in Computer Applications course.
What one can reasonably infer from
the pleadings of the parties is that
‘relevant subject’ could mean
candidates who possessed Masters
Degree in such of those subjects as
are offered in the M.C.A. course.
Mathematics being one of the
subjects, it cannot be said that
Masters Degree in Mathematics was not
a “relevant subject” and it was only
a Masters in Computer Applications.
It would be very unreasonable to
hold “relevant subject” to mean only
a Masters in Computer Applications.
It would also be irrational to
conclude that the non mention of the
specific educational qualification
for the post of Lecturer in M.C.A.
could lead to only one conclusion
that a candidate with a Masters
degree in Computer Applications,
alone, would meet the requirement.”
Shivanand, aggrieved by the same, preferred
appeal and both the parties reiterated the same
contentions. The submission made by Shivanand found
favour with the Division Bench of the High Court and JUDGMENT while doing so it observed as follows:
“28. This is nothing sort of trickery
and fraud on persons applying to the
post. The University had perhaps
deliberately or with a design to
achieve this result of selecting a
person with post-graduate
qualification in Mathematics, though
it had called for applications to
fill up the post of Lecturer in MCA
course. That is why the action of
the University falls short of the
constitutional mandate of the State
being in conformity with Articles 14
and 16(1) of the Constitution of
India, affording equal opportunity to
all eligible candidates. In fact the
method of selection made by adopting
this procedure, is so flawed that it
can never pass the test before a
Court, more so while in exercise of
jurisdiction of judicial review of
administrative action. We say so far
the reason that the post notified for
being filled up by the University in
MCA course should be one with
reference to the vacancy and the
vacancy can only be in a particular
subject of the department and cannot
be generally with reference to the
course.”
Accordingly, the Division Bench of the High Court
allowed the appeal and quashed the appointment of
Ganpat as Lecturer in MCA.
Ms. Kiran Suri, advocate appears on behalf of the JUDGMENT appellant Ganpat whereas the University is
represented by Mr. S.N. Bhat, advocate. They contend
that Mathematics is a relevant subject for MCA course
and, therefore, a person holding post-graduate degree
in Mathematics is eligible for appointment as
Lecturer in MCA. It is further pointed out that in
Gulbarga University, different Mathematics subjects
are taught in MCA and, therefore, it cannot be said
that a person possessing Masters’ degree in
Mathematics is not eligible for appointment as
Lecturer in MCA. It has also been pointed out that
as to whether a particular qualification is relevant
or not for holding a post is best decided by the
experts concerned and, in the present case,
Mathematics, having been recognized as a relevant
subject for MCA course not only by the University but
by the Board of appointment consisting of eminent
academicians from various Universities, the Division
Bench of the High Court ought not to have substituted
their opinion. In support of the submission reliance
has been placed on a decision of this Court in the
case of B.C. Mylarappa v. Dr. R. Venkatasubbaiah, (2008) 14 SCC 306JUDGMENTand our attention has been drawn to
Paragraph 26 of the said judgment which reads as
follows:
“26. Admittedly, there is nothing on
record to show any mala fides
attributed against the members of the
expert body of the University. The
University Authorities had also
before the High Court in their
objections to the writ petition taken
a stand that the appellant had fully
satisfied the requirement for
appointment. In this view of the
matter and in the absence of any mala
fides either of the expert body of
the University or of the University
Authorities and in view of the
discussions made hereinabove, it
would be difficult to sustain the
orders of the High Court as the
opinion expressed by the Board and
its recommendations cannot be said to
be illegal, invalid and without
jurisdiction.”
Yet another decision on which reliance is placed
is the decision of this Court in the case of Rajbir
Singh Dalal (Dr.) v. Chaudhari Devi Lal University,
(2008) 9 SCC 284 and our attention has been drawn to
Paragraph 29 of the judgment which reads as follows:
“29. It may be mentioned that on a
clarification sought from UGC whether
a candidate who possesses a Masters degree in Public Administration is
eligible for the post of Lecturer in
Political Science and vice versa, UGC
wrote a letter dated 5-3-1992 to the
Registrar, M.D. University, Rohtak
stating that the subjects of
Political Science and Public
Administration are interchangeable
and interrelated, and a candidate who
possesses Masters degree in Public
Administration is eligible as
Lecturer in Political Science and
vice versa. Thus, this is the view of
UGC, which is an expert in academic
matters, and the Court should not sit
in appeal over this opinion and take
a contrary view.”
Mr. Naveen R. Nath, advocate appearing on behalf
of respondent Shivanand, however, contends that a
person holding the post-graduate degree in
Mathematics is not eligible for appointment as
Lecturer in MCA. It is pointed out that the
advertisement was composite and related to
appointment of various posts in different subjects
and, hence, the expression ‘relevant subject’ has to
be understood in that context. It has been pointed
out that the applications were invited for filling
the posts of Professor, Reader and Lecturer in the
Department of English, Urdu, Persian, Chemistry,
Bio-Chemistry, Applied Electronics, Geology, Law JUDGMENT etc., including MCA. According to the learned
counsel, the relevant subject in the advertisement
here would mean the subjects for which applications
were invited. According to him, the Board of
appointment misdirected itself in going into the
question as to whether Mathematics is a relevant
subject or not in MCA. Accordingly, he submits that
the opinion of the Board of appointment as approved
by the Syndicate is not that sacrosanct so as to
deprive High Court the power of judicial review.
We have bestowed our consideration to the rival
submissions and we do not find any substance in the
submission of the learned counsel for the appellant
and the authorities relied on are clearly
distinguishable.
Main thrust in the appellant’s contention is that
when an expert body i.e. Board of appointment
consisting of high academicians, has found Ganpat
eligible and qualified and which has been approved by
the Syndicate, another expert body, the High Court
ought not to have acted as a Court of appeal, examined the pros and cons and come to the conclusion
that Ganpat did not possess the requisite
qualification. There is no difficulty in accepting
the broad submission that academic issues must be
left to be decided by the expert body and the court
cannot act as an appellate authority in such matters.
It deserves great respect. When two views are
possible and the expert body has taken a view, the
same deserves acceptance. However, to say that expert
body’s opinion deserves acceptance in all
circumstances and is not subject to judicial review
does not appeal to us. In our constitutional scheme
the decision of the Board of appointment cannot be
said to be final and absolute. Any other view will
have a very dangerous consequence and one must remind
itself of the famous words of Lord Acton “power
corrupts and absolute power corrupts absolutely”.
Now we revert to the authorities of this Court
relied on by the appellants. B.C. Mylarappa (supra)
deals with the appointment to the post of Professor,
in which one of the eligibility condition for
appointment was ’10 years’ of experience of post- JUDGMENT graduate teaching’. The Board of appointment
considered the selected candidate eligible by taking
into consideration his experience as Lecturer and
Research Assistant and in the absence of any mala
fide, this Court observed that its opinion is not fit
to be rejected. This would be evident from Paragraph
24 of the judgment, which reads as follows:
“24. There is another aspect of this
matter which is also relevant for
proper decision of this appeal. We
have already indicated earlier that
the Board of Appointment was
constituted with experts in this line
by the University Authorities. They
have considered not only the
candidature of the appellant and his
experience as a Lecturer and Research
Assistant along with others came to
hold that it was the appellant who
was the candidate who could satisfy
the conditions for appointment to the
post of Professor. Such being the
selection made by the expert body, it
is difficult for us to accept the
judgments of the High Court when we
have failed to notice any mala fides
attributed to the members of the
expert body in selecting the
appellant to the said post.”
However, this judgment cannot be read to mean
that the courts are denuded of the power to
scrutinize the experience in a given case and come to JUDGMENT a contrary conclusion. As stated earlier, when the
view taken by the expert body is one of the possible
views, the same is fit to be accepted. Further, the
yardstick would be different when it concerns
eligibility conditions pertaining to ‘qualification’
and ‘experience’. In case of experience it is best
known to the expert body in the field in regard to
the actual work done and, therefore, its opinion is
of higher degree deserving acceptance ordinarily.
Hence, in our opinion, this judgment did not fetter
the power of the High Court.
As regards the decision of this Court in the case
of Rajbir Singh Dalal (supra), the same is clearly
distinguishable. In the said case the controversy
which fell for consideration was as to whether public
administration is one of the branches of Political
Science and in the face of the opinion of the expert
body that they are interchangeable, the conclusion of
the High Court that they are distinct and separate
was not approved. This would be evident from the
following passage from the said judgment.
“45.JUDGMENTAs has been pointed out by my
learned Brother, the University has
in its counter-affidavit taken a
stand that Public Administration is
one of the branches of Political
Science and the Selection
Committee comprised of eminent
scholars had rightly chosen the
appellant for the post of Reader
after considering his academic
achievements and also relying upon
the view of the University Grants
Commission in its letter dated 5-3-
1992 stating that the subjects of
Political Science and Public
Administration are interchangeable
and interrelated and that a
candidate who possesses a Masters
degree in Public Administration is
eligible to be appointed as
Lecturer in Political Science.
Similarly, a candidate possessing a
Masters degree in Political Science
is eligible for appointment to the
post of Lecturer in Public
Administration.
46. Despite the aforesaid views
expressed by the expert bodies such
as the University and the
University Grants Commission, the
High Court has held Public
Administration and Political
Science to be distinct and separate
disciplines.….”
In the present case, there is no such plea. Here,
the plea is that as Mathematics is one of the
subjects in MCA and, therefore, Ganpat possessing Masters’ degree in Mathematics is eligible. It is not
the plea of the University that Masters’ degree in
Mathematics is interchangeable with MCA. Not only
this, in the aforesaid case, this Court came to the
aforesaid conclusion due to different eligibility
criteria prescribed for appointment to the post of
Reader and Lecturer. It was pointed out by this Court
that in the case of Reader the requirement was
Masters’ degree in an ‘appropriate subject’, whereas
for appointment as Lecturer it was ‘relevant
subject’. Said case related to the appointment of
Reader. On account of the use of different
expressions, this Court came to the conclusion that
post-graduate degree holder in Political Science is
eligible to be appointed to the post of Reader in
Public Administration. This would be evident from
paragraphs 48 and 49 of the judgment, which read as
follows:
“48. The recruitment rules
followed by the University clearly
indicate that in order to be
appointed as Lecturer in a
particular discipline a candidate
must have a postgraduate degree in
the relevant subject. On the other
hand, for appointment to the post JUDGMENT
of Reader such a condition has not
been specified. In fact, in
Regulation 2 it has been generally
indicated that no person shall be
appointed to a teaching post in
the University or in any
institution, including constituent
or affiliated colleges recognized
under the UGC Act, 1956, or any
institution deemed to be a
university under Section 3 of the
said Act, in a subject, if he/she
does not fulfil the requirement as
to the qualifications for the
appropriate subject.
49. In my view, the omission in
the Regulations cannot be said to
be unintentional or a case of
casus omissus. In my view, the
expression “appropriate subject”
was intended to cover the post of
Reader and once the expert bodies
had indicated that the appellant
who held a postgraduate degree in
Political Science was eligible to
be appointed to the post of Reader
in Public Administration and had
been rightly appointed to such
post, it is normally not for the
courts to question such opinion,
unless it has specialised
knowledge of the subject.”
(underlining ours)
This Court did not say that Political Science is
the relevant subject for appointment as Lecturer in Public Administration.JUDGMENT
Having set the legal position in the right
perspective, we now proceed to consider the facts of
the present case. As is evident from the
advertisement, applications were invited for filling
up various posts in different subjects including the
post of Lecturer in MCA. The advertisement requires
post-graduate degree in the ‘relevant subject’. The
relevant subject would, therefore, in the context of
appointment to the post of Lecturer, mean post-
graduate degree in MCA. In our opinion, for
appointment to the post of Lecturer, Masters’ degree
in the Mathematics is not the relevant subject. The
advertisement requires Masters’ degree in ‘relevant
subject’ and not ‘appropriate subject’. In the
present case, the Board of appointment has not stated
that post-graduate degree in Mathematics is the
relevant subject for MCA but in sum and substance it
is equivalent to a post-graduate degree in MCA for
the reason that Mathematics is one of the subjects
taught in MCA. This, in our opinion, was beyond the
power of the Board of appointment. It shall not make any difference JUDGMENTeven if Mathematics is taught in the
Masters’ of Computer Application course. The learned
Single Judge, in our opinion, gravely erred in
upholding the contention of Ganpat and the University
that ‘relevant subject’ would mean ‘such of those
subjects as are offered in the MCA course’. If
Mathematics is taught in a post-graduate course in
Commerce, a Masters’ degree in Commerce would not be
relevant for appointment in Mathematics or for that
matter in MCA. There may be a situation in which
Masters’ degree in MCA is differently christened and
such a degree may be considered relevant but it would
be too much to say that a candidate having post-
graduate degree in any of the subjects taught in MCA
would make the holders of a Masters’ degree in those
subjects as holder of Masters’ degree in Computer
Application and, therefore, eligible for appointment.
The language of the advertisement is clear and
explicit and does not admit any ambiguity and, hence,
it has to be given effect to. Since the appellant
Ganpat did not have a Masters’ degree in Computer
Application, in our opinion, he was not entitled to be considered for appointment as Lecturer in MCA. We
are aghast to see that when a candidate possessing
Masters’ degree in MCA is available, the Board of
appointment had chosen an unqualified and ineligible
person for appointment in that subject. Its
recommendations are, therefore, illegal and invalid.
Natural corollary thereof is that the University
acting on such recommendation and appointing Ganpat
as Lecturer cannot be allowed to do so and that the
Division Bench of the High Court was right in setting
aside his appointment. In our opinion, an
unqualified person cannot be appointed, whoever may
be the recommendee. We are of the opinion that the
Division Bench of the High Court was right in holding
that Ganpat was not eligible for appointment of
Lecturer in Masters’ of Computer Application.
Mr.Bhat and Ms. Suri lastly assail the order of
the High Court issuing mandamus for appointment of
Shivanand as Lecturer in MCA. It is contended that
after setting aside the appointment of Ganpat, the
High Court should have directed for consideration of
the case of Shivanand and such other candidates who JUDGMENT were found eligible for consideration. It is also
contended that Shivanand may have the right of
consideration but certainly not the right of
appointment.
We find substance in this submission.
Ordinarily, in a case where the person appointed is
found ineligible, this Court after setting aside such
appointment, directs for consideration of cases of
such of the candidates, who have been found eligible.
It is only in exceptional cases that this Court
issues mandamus for appointment. The case in hand is
not one of those cases where the High Court ought to
have issued mandamus for appointment of Shivanand as
Lecturer in MCA. Hence, we are of the opinion that
the High Court rightly held Ganpat ineligible and
quashed his appointment. However, it erred in issuing
mandamus for appointment of Shivanand. Accordingly,
we uphold the impugned order of the High Court
whereby it had set aside the appointment of the
appellant herein and direct that the case of the writ
petitioner Shivanand and all other candidates be considered in accordance with law. However, we make
it clear that the selection already made shall be
taken to its logical conclusion.
In the result, we dismiss these appeals with
modification in the direction as aforesaid with cost,
which we assess at Rs.50,000/-(Rupees fifty thousand)
only in both the cases, payable by the appellants in
both the appeals equally.
New Delhi, November 01, 2013.