* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No. 236-39/2006
% Reserved on: 25th February, 2010
Decided on: 6th May, 2010
1. University of Delhi Through Vice Chancellor,
Delhi University, Civil Lines,
Delhi - 110007.
2. Department of Urdu
Through Head of Department
1st Floor, Arts Faculty Building,
University of Delhi,
Delhi - 110007.
3. Prof. (Mr.) Atteequallah Tabish,
Department of Urdu,
1st Floor, Arts Faculty Building,
University of Delhi,
Delhi - 110007.
4. Mr. Razi Haider
Through Department of Urdu
1st Floor, Arts Faculty Building,
University of Delhi,
Delhi - 110007. ..... Appellants
Through: Mr. Arvind Nigam, Sr.
Advocate with Mr. M.K. Singh, Advocate,
for the Petitioner.
versus
Dr. (Mrs.) Waseem Begum
Wife of Mr. Najamuddin,
R/o E/141, Street No. 21
Zakir Nagar, Okhla,
New Delhi - 110025. ..... Respondent
Through: Mr. Om Prakash, Advocate
LPA No. 236/2006 Page 1 of 15
Coram:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MUKTA GUPTA, J.
1. The Respondent applied for appointment to the post of Lecturer with
the Appellant No. 2 herein. As the Respondent was not even shortlisted, a writ
petition being W.P. (C) No. 7098/2002 was filed before this Court. Vide judgment
dated 31st August, 2005, this Court allowed the writ petition with the directions as
under:-
“40. In view of the above finding about the process of selection
being arbitrary, I am of the view that ends of justice would be met if
the petitioner‟s case is considered as of 8th November, 2002 by
another Selection Committee along with the candidature of all the four
selected candidates, and a fresh selection list is prepared. The
university is accordingly directed to consider the case of the petitioner
along with those of the other four candidates and select one person,
having regard to the advertisement dated 18.6.2001, to the post of
Urdu Lecturer (17th and 18th Century poetry). The petitioner and the
other candidates shall be given reasonable and appropriate notice by
the University in this regard, that shall interview them, by adopting
such criteria that shall have regard to the qualifications and experienceLPA No. 236/2006 Page 2 of 15
relatable to the post in question. This process shall be completed
within a period of ten weeks from today and a revised appointment list
shall be issued thereafter, in accordance with law, in respect of the
said post, and the other three posts.41. The writ petition is allowed to the extent indicated above. No
costs.”2. The facts leading to the filing of the writ petition by the Respondent
were that the Respondent pursuant to her post graduation (M.A. & M. Phil)
enrolled for the doctorate and was awarded Ph.D. in Urdu in 1994. Thereafter, she
worked for six months in Jamia Millia Islamia University and subsequently as a
Research Associate for two years in the University Grants Commission (UGC).
The Appellant on 18th June, 2001 advertised vacancies for four posts of Urdu
Lecturers, as under:
“UNIVERSITY OF DELHI 18th June, 2001
PART -II
Applications are also invited for the following posts which have
been advertised in the advt. No. Estab. IV/161/99 dated 15.6.1999;
Estab. IV/164/99 dated 15.11.1999 and Estab. IV/165/2000 dated
24.3.2000). Persons who have applied earlier need not apply again.
However, applications received earlier will be screened according to
the revised essential qualifications.”Sl. No. Deptt. Post (No. of Posts)/Reservation (if any)
Special/Desirable Qualifications, if any,
xxx xxxUrdu Lecturer (4) (SC-1)
LPA No. 236/2006 Page 3 of 15
First Post : Classical Poetry (17th and 18th Century A.D.). Second
Post : Classical Prose (17th and 18th Century A.D.). Third and Fourth
Posts Open (SC-1).xxx xxx xxx NOTE:1. It will be open to the University to consider names of suitable
candidates who may not have applied.2. xxx xxx 3. xxx xxx4. Relaxation of any of the qualification may be made in
exceptional cases on the recommendations of the Selection
Committee.”3. The Respondent though applied for the post of Lecturer Urdu, was
however not shortlisted by the screening committee and hence not called for the
interview. The Respondent thus filed W.P. (C) No. 7098/2002. During the
pendency of the writ petition as the selection process was over and four candidates
were selected, the Respondent amended the writ petition inter alia praying for
prohibiting Appellant No. 3 in participating or interfering in the selection process
and allowing the Respondent to participate in and to consider her in the selection
process and to appoint her to the regular post of Lecturer of Urdu.
4. The learned Single Judge framed the following four issues for
consideration:-
(1) The correctness and the legality of the screening process
adopted by the university;(2) Whether the non-consideration of the petitioner vitiated the
selection process;(3) The effect of consideration of the fourth Respondent; and
LPA No. 236/2006 Page 4 of 15
(4) Whether the selection was illegal and arbitrary on account of
participation by the third Respondent, in the interview.5. The first and the second issues were held against the Appellant and in
view thereof, the writ petition was allowed with the directions as mentioned above
in the first paragraph. With regard to the third issue it was held that the Appellant
acted in violation of Article 14, though that factor alone did not vitiate the selection
as the Respondent No. 4 therein was not finally selected. The fourth issue of bias
was held against the Respondent. Aggrieved by the order dated 31st August, 2005,
the Appellants have preferred the present appeal.
6. In support of his case, learned counsel for the Appellant contends that
in every selection and appointment, the University adopts a short-listing criteria
which has been adopted by the Appellant in this case as well, as the number of
applications was high. The short listing criteria adopted by the Appellants as per
Executive Council Resolution No. 297 dated 27th January, 1998, followed in all the
selections, is as under:-
“GUIDELINES/NORMS FOR CALLING CANDIDATES FOR
INTERVIEW FOR THE POST OF LECTURERCategories in order of preference:
Category Bachelor‟s Master‟s M. Phil Ph.D. Remarks.
No. Degree Degree Degree Cat.1 I I B.Phil Ph.D. Candidates I I - Ph.D. besides fulfilling II I M.Phil Ph.D. the LPA No. 236/2006 Page 5 of 15 II I - Ph.D. qualifications mentioned in all Xx xx xx xx xx the categories should clear NET or should have submitted Ph.D. thesis or completed their M.Phil degree by 31st December, 1993. Note:1. Normally, not more than 30 candidates should be called for
interview for one post and 15 more for each additional post
subject to a maximum of 75.2. xxx xxx
3. If a candidate belonging to any particular category has been
called for interview, all the candidates with equivalent of higher
qualifications from the category must be called for interview.4. xxx xxx 5. xxx xxx 6. xxx xxx7. A person who has worked as Lecturer in a College/Department
in the University for six months or more will be given
preference over others for being called for interview within the
same category.”7. Since as per the guidelines maximum 75 persons could be called for
the interview of four posts and by adopting the short listing criteria, people from
subcategory I and II of Category 1 itself were 73, the candidates which fell in the
IIIrd subcategory, were not called. The Respondent having secured low 2nd
LPA No. 236/2006 Page 6 of 15
division i.e., 50% marks in the Bachelor‟s course though Ist division in M.A. withPh.D. degree, fell in the IIIrd subcategory and hence she was not shortlisted for
being called to the interview. According to the learned counsel for the Appellant
such a procedure enables the institution to invite candidates having high academic
qualifications for interview and to further assess their in depth knowledge by
giving adequate time during interview. It is further contended that the post of
Lecturer is the entry point and academic record is of prime importance, hence, the
Executive Council formulated the guidelines based on the academic record.
8. Learned counsel for the Appellant further contends that the learned
Single Judge has gone on the premise that the two posts related to specific subject
or topics namely 17th and 18th Century AD Classical Poetry and 17th and 18th
Century Classical Prose respectively and that the University was under an
obligation to ensure that only those who answered this description and had
requisite experience and qualification relatable to such posts, were considered and
appointed. It further held that as there was no application of mind to the needs of
the post resulting in the exclusion of the Respondent and inclusion and
consideration of others, the procedure adopted was arbitrary. According to the
learned counsel for the Appellant, finding of the learned Single Judge does not
stem from the pleadings. As a matter of fact, the respondent in its amended petition
has not laid any claim only with regard to the post of Lecturer Urdu (17th and 18th
LPA No. 236/2006 Page 7 of 15
Century Poetry). As per the amended petition, the respondent has claimed thatthough it fulfills the criteria and meets the requirement of both the posts advertised
in Urdu Classical Poetry and Classical Prose 17th and 18th Century AD, however,
still she was not called for the scheduled interview. Thus, the respondent is laying
claim in the petition not only for 17th and 18th Century Urdu Classical Poetry but
also for Classical Prose. Moreover, in the prayer clause in the writ petition, the
Respondent has sought appointment to the post of Lecturer Urdu, thus seeks
appointment on anyone of the four posts. It also stated that the four candidates
selected were not a party in the writ petition and thus besides their applications, the
details of their academic achievements and expertise was not available on the writ
record.
9. During the course of arguments, learned counsel for the Appellant had
submitted that though the Respondent stakes her claim for lecturer in Urdu poetry
because of her specialization in the 17th and 18th Century Urdu Poetry during
arguments, however, perusal of the application filed by the Respondent would
show that she did not apply for Classical Urdu Poetry but mentioned as against the
Column Post Applied For-Lecturer Open. Thus her case was to be considered for
the two general posts and not for the post of Lecturer in Urdu Poetry 17 th and 18th
Century, which fact has been controverted by the learned counsel for the
Respondent.
LPA No. 236/2006 Page 8 of 15
10. On the other hand, learned counsel for the Respondent contends that
the selection process was vitiated on account of erroneous criteria for short listing
adopted by the screening committee. It is also contended that the shortlisting
criterion was not mentioned in the advertisement and thus could not have been
resorted to. Reliance is placed by the learned counsel for the Respondent on the
decisions rendered in the following cases Mrs. Rekha Chaturvedi vs. University of
Rajasthan & Ors. JT 1993 (1) SC 220 para 12 and 13; District Collector &
Chairman, Vizianagaram Social Welfare Residential School Society,
Vizianagaram & Anr. vs. M. Tripura Sundari Devi 1990 (3) SCC 655 para 6 and
S.P. Jain vs. Guru Govind Singh Indraprashtha University 2003 VIII AD (Delhi)
pg 331; and Dhirendra Krishan vs. BHEL 1999 (50) DRJ (DB).
11. We find from the pleadings that no such plea has been made to show
that it was only the Respondent and no other candidate who possessed the
qualification for the post of Lecturer Urdu Classical Poetry 17th and 18th Century
AD. In fact the selected candidates were neither a party before the learned Single
Judge nor were the complete details of their academic achievements available
before it except the copies of their application forms.
12. We find that the learned Single Judge has upheld the University‟s
compulsion in adopting a screening procedure to be undeniably legitimate. The
issue in the present appeal is narrow to the extent that once the learned Single
LPA No. 236/2006 Page 9 of 15
Judge had held that the University can adopt a screening procedure legitimatelywhether it could have held the screening procedure to be arbitrary because it did
not take into consideration the qualification necessary for the post of 17 th and 18th
Century Urdu Poetry i.e. as to whether the candidates screened and found fit
actually possessed the qualifications and experience relatable to the post.
According to the learned Single Judge, there was no application of mind to the
needs of the post.
13. In the present case, the University has adopted a uniform screening
criteria as per which in category I, various sub-categories have been formed as
enumerated above, according to which subcategories I and II are of people who
have first divisions both in the graduation and the post graduation. We find force in
the contention of the learned counsel for the appellant that it is for the interview
board to assess the aptitude of the incumbents to the concerned post. From the
pleadings it is not borne out that from the candidates screened nobody possessed
the qualification necessary for the post, that is, Urdu Classical Poetry 17th and 18th
Century except the Respondent.
14. In Dr. J.P. Kulshrestha and Ors vs. Chancellor, Allahabad
University and Ors reported as 1980 (3) SCC 418, the Hon‟ble Supreme Court
held as under:-
“10. We may dispel two mystiques before we debate the real issues.
Did the selection committee act illegally in resorting to the interviewLPA No. 236/2006 Page 10 of 15
process to pick out the best? We think not. Any administrative or
quasi-judicial body clothed with powers and left unfettered by
procedures is free to devise its own pragmatic, flexible and
functionally viable process of Transacting business subject, of course,
to the basics of natural justice, fair play in the action, reasonableness
in collecting decisional materials, avoidance of arbitrariness and
extraneous considerations and otherwise keeping within the leading
strings of the law. We find no flaw in the methodology of „interview‟.
Certainly, cases arise where the art of interviewing candidates
deteriorates from strategy to stratagem and undetectable manipulation
of results is achieved by remote control tactics masked as viva voce
tests. This, if allowed, is surely a sabotage of the purity of
proceedings, a subterfuge whereby legal means to reach illegal ends is
achieved. So it is that courts insist, as the learned Single Judge has, in
this very case, suggested on recording of marks at interviews and
other fair checks like guide-lines for marks and remarks about
candidates and the like. If the court is skeptical, the record of the
selection proceedings, including the notes regarding the interviews,
may have to be made available. Interviews, as such, are not bad but
polluting it to attain illegitimate ends is bad. Dr. Martin Luther King
Jr. was right when he wrote:So I have tried to make it clear that it is wrong to use immoral
means to attain moral ends. But now I must affirm that it is just
as wrong, or even more, to use moral means to preserve
immoral ends.
11. The second obscurantism we must remove is that blind veneration
of marks at examination as the main measure of merit. Social
scientists and educational avant garde may find pitfalls in our system
of education and condemn the unscientific aspects of marks as the
measure of merit system and however urgent the modernization of our
course culminating in examinations may be, the fact remains that the
court has to go by what is adopted by universities. Judges must not
rush in where even educationists fear to tread. So, we see no purpose
in belittling the criterion of marks and class the Allahabad University
has laid down, although to swear religiously by class and grade may
be exaggerated reverence and false scales if scrutinized by progressive
criteria.
12. We have stated earlier that the prescription of first class or high
second class is part of the Ordinance as a qualification for a Reader’sLPA No. 236/2006 Page 11 of 15
post. Is this condition mandatory or directory? The High Court at the
two tiers has taken contrary views. But we are inclined to hold that a
high second class is a mandatory minimum. A glance at the relevant
portion of Ordinance 9 reveals that wherever relaxation of
qualifications is intended, the Ordinance specifically spells it out and
by necessary implication, where it has not said so, the possession of
such qualification is imperative. We must remember that a Reader is
but next to a Professor and holds high responsibility in giving
academic guidance to post-graduate students. He has to be a creative
scholar himself capable of stimulating in his students a spirit of
enquiry and challenge, intellectual ferment and thirst for research. If
the teacher is innocent of academic excellence, the student, in turn,
will be passive, mechanical, negative and memorizing where he
should be innovative, imaginative and inventive. The inference is
irresistible that a Reader who guides the students and raises his
faculties into creative heights is one who himself has had attainments
to his credit. Putting aside for a moment the value of examinations
and marks as indicators of the student’s potential, we must agree that
the ordinance has a purpose when it prescribes atleast a high second
class for a Reader’s post. It is obligatory.
15. The Hon‟ble Supreme Court in the case of B. Ramakichenin Alias
Balagandhi vs. Union of India and Ors, reported as (2008) 1 SCC 362, held that:-
“15. It is well settled that the method of shortlisting can be validly
adopted by the selection body vide M.P. Public Service Comisssion v.
Navnit Kumar Potdar (vide paras 6, 8, 9 and 13) and Govt. of A.P. v.
P. Dilip Kumar.
16.Even if there is no rule providing for shortlisting nor any mention
of it in the advertisement calling for applications for the post, the
selection body can resort to a shortlisting procedure if there are a large
number of eligible candidates who apply and it is not possible for the
authority to interview all of them. For example, if for one or two posts
there are more than 1000 applications received from eligible
candidates, it may not be possible to interview all of them. In this
situation, the procedure of shortlisting can be resorted to by the
selection body, even though there is no mention of shortlisting in the
rules or in the advertisement.
LPA No. 236/2006 Page 12 of 15
17. However, for valid shortlisting there have to be two requirements
– (i) it has to be on some rational and objective basis. For instance, if
selection has to be done on some post for which the minimum
essential requirement is a BSc. degree, and if there are a large number
of eligible applicants, the selection body can resort to shortlisting by
prescribing certain minimum marks in BSc and only those who have
got such marks may be called for the interview. This can be done even
if the rule or advertisement does not mention that only those who have
the aforementioned minimum marks, will be considered or appointed
on the post. Thus the procedure of shortlisting is only a practical via
media which has been followed by the courts in various decisions
since otherwise there may be great difficulties for the selecting and
appointing authorities as they may not be able for interview hundreds
and thousands of eligible candidates; (ii) if a prescribed method of
shortlisting has been mentioned in the rule or advertisement then that
method alone has to be followed.”
16. In our view the screening procedure adopted by the Appellant cannot
be said to be arbitrary merely because it did not take into consideration the
qualification necessary for the post of 17th and 18th Century Urdu Poetry. As held
by the Hon‟ble Supreme Court fixing of a shortlisting criteria on the basis of marks
attained may be an archaic one but still holds the field. It is further for the
academic body to devise ways and means to find out the best suitable candidate for
the concerned post. In the absence of pleadings to the effect that except the
Appellant nobody else possessed this qualification, we cannot hold that the
screening procedure was arbitrary. In fact, that would be substituting our opinion
over that of the academic institution which is to be best left to them.
LPA No. 236/2006 Page 13 of 15
17. The contention of the learned Counsel for the Respondent that the
shortlisting criteria could not have been resorted to, as the same was not mentioned
in the advertisement also deserves to be rejected in view of the decision of the
Hon‟ble Supreme Court in the case of B. Ramakichenin Alias Balagandhi vs.
Union of India and Ors. (Supra).
18. We are conscious of the fact that in the writ petition and the present
appeal the appointments made were subject to outcome of the final decision and
thus no equity flows in favour of the selected candidates. However, to come to the
conclusion that the selected candidates did not have the experience for the post, it
is essential to have the details of their experience as part of pleadings and the same
cannot be merely inferred from the applications on record. Even in the case of
Respondent the fact that she has done work on Poet Mushafi of 18th Century A.D.
in her M.Phil is evident from the pleadings in the petition and not from the
application, where in the column “Title of Ph.D. Thesis” it is written “Biswi Sadi
Mai Urdu Gazal”. Thus we find force in the contention of the learned counsel for
the Appellant that it is to be left to the Interview Board to assess the aptitude of the
candidate in relation to the post.
19. Learned counsel for the Respondent also contended that the entire
selection process was vitiated on account of the presence of Sh. S.R. Kidwai in the
Selection Committee, as he was the guide to two of the selected candidates. This
LPA No. 236/2006 Page 14 of 15
issue has already been held against the Respondent by the learned Single Judge in
detail and we need not go further into it. Learned counsel for the Respondent also
raised the issue of calling Appellant No. 4 for the interview though he applied for
the post after the last date. Learned counsel for the Appellant in this regard relies
on the note (1) to the advertisement wherein it was permissible even to call
candidates who had not applied. However, the appellant no. 4 has not been selected
and it is for this reason the learned Single Judge did not go into this issue in detail
and nor is it relevant for the present appeal.
20. In view of the facts stated hereinabove, the appeal is allowed. The
impugned order dated 31st August, 2005 is set aside. However, we may note that
the Appellant has applied for the post of Urdu Lecturer advertised subsequently
and thus will be considered for the said post by the Respondent in accordance with
law.
(MUKTA GUPTA)
JUDGE
(MADAN B. LOKUR)
ACTING CHIEF JUSTICE
MAY 06, 2010
raj
LPA No. 236/2006 Page 15 of 15