Orissa High Court
Dr. Biswanath Sahoo vs Vice Chancellor on 11 March, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 11144 of 2018
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Dr. Biswanath Sahoo .... Petitioner
-versus-
Vice Chancellor, Odisha .... Opposite Parties
University of Agriculture and
Technology, BBSR & Ors.
For Petitioners : Mr. S. Rath, Advocate
For Opp. Parties : Mr. A. Tripathy,
Addl. Govt. Advocate
Mr. A. Mohanty, Sr. Advocate
along with
Mr. S.S. Padhi, Advocate
(Opp. Party No. 3)
Mr. S.C. Rath, Advocate
(Opp. Party Nos. 1 & 2)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 18.12.2024 & Date of Judgment: 11.03.2025
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Biraja Prasanna Satapathy, J.
The present writ petition has been filed by the Petitioner
challenging the selection and appointment of Opp. Party No. 3 as
// 2 //
against the post of Senior Scientist (Horticulture) vide order of
appointment issued on 28.02.2018 under Annexure-1.
2. It is contended that Odisha University of Agriculture & Technology
(in short „OUAT‟) vide its advertisement dtd.26.09.2017 under
Annexure-2 invited applications from eligible candidates for
recruitment to the post of Senior Scientist and Junior Scientist.
Petitioner and Opp. Party No. 3 made their applications as against the
post of Senior Scientist (Horticulture). In the said advertisement as
against the post of Senior Scientist, the minimum essential
qualification indicated in Para 5 of the advertisement reads as
follows:-
“(i) Minimum 2nd Class Bachelor’s Degree in Agriculture/
Horticulture/ Agril. Engg & Technology/ Veterinary Science /
Fishery Science/ Home Science/ Forestry with at least 55% marks
or equivalent grade point
(ii) Minimum 2nd Class Master’s Degree in relevant subject with
atleast 55% marks or equivalent grade point
(iii)Ph.D. Degree in the relevant subject
(iv) Five (5) years experience in teaching/research/ extension
education in concerned subject (excluding the period spent on
Ph.D. study, subject to a maximum period of 3 years) in the rank of
Assistant Professor / equivalent in the pay scale of the Rs.8,000-
275-13,500/-(Pre-revised) or AGP Rs.6,000/-Rs. 15,600-39,100/-+
(revised)
(v) Significant contribution to Research /Teaching/ Extension
Education as supported by published works / innovations”
Page 2 of 43
// 3 //
2.1. It is contended that as provided under Para 5 of the advertisement
along with the qualification of 2nd class Bachelors Degree with 2nd
Class Masters Degree having 50% mark or equivalent grade, a
candidate should have acquired Ph.D. degree in the relevant subject.
Since Petitioner and Opp. Party No. 3 both made their applications as
against the post of Senior Scientist (Horticulture) as provided under
Para 5, a candidate should have Ph.D. degree in the relevant subject
i.e. Horticulture.
2.2. It is contended that as found from Annexure-3, Petitioner does
have the required Ph.D. in Horticulture and is having 2 nd Class
Bachelor‟s Degree with 2nd Class Masters degree with 55% mark.
Accordingly, in terms of the advertisement Petitioner does have the
required qualification as against the post of Senior Scientist
(Horticulture).
2.3. However, it is contended that even though Opp. Party No. 3 who
was selected and appointed vide order of appointment issued under
Annexure-1, does not have the required Ph.D. in Horticulture.
Accordingly, she was not eligible to make the application as against
the post in question. As found from Annexure-6, Opp. Party No. 3
does have the Ph.D. in the subject Botany (Science) from Utkal
Page 3 of 43
// 4 //University, BBSR. It is accordingly contended that since Opp. Party
No. 3 in terms of Para 5 of the advertisement does not have the Ph.D.
in the relevant subject i.e. Horticulture and she does have the Ph.D. in
Botany, in view of the clear stipulation in Para 5, Opp. Party No. 3
was not eligible to make the application. But the authorities of OUAT
illegally and arbitrarily not only selected Opp. Party No. 3 as against
the post in question, but also issued the impugned order of
appointment in her favour under Annexure-1, which is the subject
matter of challenge in the present writ petition.
2.4. It is also contended that Botany and Horticulture are two different
streams/disciplines. While the former predominantly revolves around
the study and learning of plants, the latter is more diversified in nature
and leans towards practice and implementation. Webster’s Universal
Dictionary defines Botany as ‘the science of plants’ and Horticulture as
‘the science of cultivating fruits, vegetables, flowers and plants.’
Similarly, the definition of Botany according to the Oxford English
dictionary is ‘the science which treats of plants’ and a Botanist has
been defined as ‘one who studies Botany.’ According to the same
dictionary, Horticulture means ‘the science of cultivating and
managing gardens, including the growing of flowers, fruit and
Page 4 of 43
// 5 //vegetables’ and a Horticulturist is one who ‘practices horticulture
scientifically.
2.5. It is accordingly contended that since in terms of the
advertisement Opp. Party No. 3 does not have the required
qualification, her selection and appointment as against the post of
Senior Scientist (Horticulture) is illegal and not sustainable in the eye
of law and in her place Petitioner is required to be appointed.
3. Mr. S.C. Rath, learned counsel appearing for Opp. Party Nos. 1 &
2-University on the other hand made his submission basing on the
stand taken in the counter affidavit. It is contended that as against the
post of Senior Scientist (Horticulture) in terms of Annexure-2, 6 nos.
of candidates made their applications, which includes the Petitioner
and Opp. Party No. 3. Out of those 6 candidates, applications of 5 nos.
of candidates were found eligible in all respect and accordingly all
those 5 candidates were called for to appear the interview, which was
held on 27.02.2018. The selection committee so constituted in terms
of Statute 3 (1) (ii) of OUAT Statute, 1966 conducted the interview of
the candidates, who were called for the interview on the scheduled
date.
Page 5 of 43
// 6 //
3.1. It is contended that the selection committee on examining all
aspects recommended the case of Opp. Party No. 3 for her
appointment as against the post of Senior Scientist (Horticulture) vide
Annexure-C to the counter affidavit / Annexure-1 to the writ petition.
It is contended that since Opp. Party No. 3 was appointed basing on
the recommendation made by the Selection Committee, duly
constituted in terms of the provisions contained under the Statute, no
illegality or irregularity can be found with such selection and
appointment of Opp. Party No. 3.
3.2. It is also contended that in the recommendation so made, while
Opp. Party No. 3 stood first in order of merit and suitability, Petitioner
stood 2nd. It is also contended that the word „relevant‟ as reflected in
Para 5 of the advertisement, was prescribed taking into account the
advertisement issued by the Agricultural Scientists Recruitment Board
(in short ASRB) of Indian Council of Agriculture & Research (ICAR).
Taking into account such advertisement issued under Annexure-D
series, the word „relevant‟ was reflected in Para 5 in place of the word
„concerned‟.
3.3. A further submission was also made taking into account the stand
taken in the additional affidavit so filed by Opp. Party Nos. 1 & 2. It is
Page 6 of 43
// 7 //
contended that Opp. Party No. 3 since has acquired Ph.D. in the
subject Botany, but her Ph.D. thesis is „Integrated Nutrient
Management in African Marigold‟. The Selection Committee who
were the subject experts, after going through the thesis, certified and
recommended her selection. Therefore, decision of the Selection
Committee in treating the Ph.D. thesis is not liable to be questioned.
The question of „relevant‟ and „concerned‟ should not dilute the
knowledge of experts treating a Ph.D. thesis and making a selection of
subject specialist. It is also contended that in a broader sense
Horticulture is a part of the parent subject Botany. It is accordingly
contended that since Opp. Party No. 3 has acquired Ph.D. in Botany,
which is a broader subject and she was recommended by the Selection
Committee who were all subject experts, no illegality or irregularity
can be found with such selection and engagement of Opp. Party No. 3.
4. In spite of appearance no counter affidavit has been filed by Opp.
Party No. 3. But Mr. A. Mohanty, learned Sr. Counsel appearing
along with Mr. S.S. Padhy, made his submission in the light of the
stand taken by the University in its counter.
4.1. Learned Sr. Counsel appearing for Opp. Party No. 3 does not
dispute that Opp. Party No. 3 has acquired the Ph.D. in the subject
Page 7 of 43
// 8 //
Botany, but in view of the nature of thesis i.e. “Integrated Nutrient
Management in African Marigold (Tgetes Erecta) Cv. Sirakole for
higher yield and quality flower”, the selection committee comprising
subject experts from various Universities in its wisdom evaluated the
Ph.D. thesis of Opp. Party No. 3 and found the thesis of Opp. Party
No. 3 to be a relevant subject as required in the advertisement.
4.2. It is contended that since no malafide has been attributed against
such action of the Selection Committee, such a decision of the
Selection Committee is not required to be interfered with by this Court
in exercise of its extraordinary jurisdiction. It is also contended that
the word „relevant subject‟ so appeared in Para 4.4.0 of the UGC
Regulation was clarified by the UGC in the letter issued in the year
2015. In the said clarification the word „relevant subject‟ as provided
under Para 4.4.0 was clarified as follows:-
“The relevance of subject or inter-disciplinary nature of subject
is required to be decided by the concerned University/Appointing
Authority with the help of subject experts in the concerned/related
field as per its requirement.”
4.3. It is contended that even though Opp. Party No. 3 does have the
Ph.D. in Botany, but taking into account the nature of thesis so
submitted by her in her Ph.D., the subject experts who were the
Page 8 of 43
// 9 //
members of the Selection Committee, since found that the Ph.D. done
by Opp. Party No. 3 also includes Horticulture as part of it, no
illegality or irregularity can be found with such selection and
appointment of Opp. Party No. 3.
4.4. It is also contended that in the science journal published by
American Association for the Advancement of Science, it has been
indicated that Botany is the mother subject and Horticulture is a part
of it. Not only that persons having Ph.D. in Botany and Zoology were
earlier recruited as against the post of Senior Scientist (Horticulture)
in OUAT.
4.5. It is also contended that after participating in the selection process
and on becoming unsuccessful, Petitioner is not permitted to assail the
selection and appointment of Opp. Party No. 3.
4.6. Learned Sr. Counsel in support of his aforesaid submissions relied
on the following decisions of the Hon‟ble Apex Court:-
“1. Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University,
Sirsa reported in (2008) 9 SCC 284
2. Basavaiah (Dr.) Vs. Dr. H.L. Ramesh and Others reported in
(2010) 8 SCC 372
3. R. Dominic Sahaya Ranjan Vs. The State of Tamil Nadu and
Others reported in MANU/TN/5908/2020
Page 9 of 43
// 10 //
4. The Chancellor and Another Vs. Dr. Bijayananda Kar and Others
reported in (1994) 1 SCC 169
5. Dalpat Abasaheb and Others Vs. Dr. B.S. Mahajan and Others
reported in (1990) 1 SCC 305
6. Tariq Islam Vs. Aligarh Muslim University and Others reported in
(2001) 8 SCC 5464.7. Hon‟ble Apex Court in Para 27, 30 to 32, 42 and 49 of the
Judgment in the case of Rajbir Singh Dalal has held as follows:-
“27. In Tariq Islam v. Aligarh Muslim University [(2001) 8 SCC 546:
2002. Normally it is wise and safe for the courts to leave the decision
of academic matters to experts who are more familiar with the
problems they face than the courts generally are.
XXX XXX XXX
30. Political Science is the mother subject and Public Administration
is the offshoot of the same.
31. We agree with Mr Patwalia, learned counsel, that it is not
appropriate for this Court to sit in appeal over the opinion of the
experts who are of the view that Political Science and Public
Administration are interrelated and interchangeable subjects, and
hence a candidate who possesses Masters degree in Public
Administration is eligible for the post of Lecturer in Political Science
and vice versa. We are told that a large number of persons having
qualifications in the interchangeable/interrelated subjects have been
appointed Readers/Professors/Lecturers and are continuing as such in
various colleges and universities in the State.
32. The appellant was selected by a Selection Committee consisting of
eminent experts after evaluating his qualifications and work.
Page 10 of 43
// 11 //
XXX XXX XXX
42. We are of the opinion that the impugned judgment and order of the
High Court cannot be sustained and it is hereby set aside. The appeal
is allowed and the writ petition filed in the High Court stands
dismissed. There shall be no order as to costs.
XXX XXX XXX
49. 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.”
4.8. Hon‟ble Apex Court in Para 3, 8, 21, 22, 25 to 28, 30, 31 & 38 of
the Judgment in the case of Basavaiah (Dr.) has held as follows:-
“3. Dr. Basavaiah and Dr. D. Manjunath were qualified to be
appointed as Readers in Sericulture?
XXX XXX XXX
8. Dr. Manjunath was MSc and PhD in Zoology and also had teaching
experience.
XXX XXX XXX
21. Settled legal position that the courts have to show deference and
consideration to the recommendation of an Expert Committee
consisting of distinguished experts in the field. The experts had
evaluated the qualification, experience and published work of the
appellants and thereafter recommendations for their appointmentsPage 11 of 43
// 12 //were made. The Division Bench of the High Court ought not to have
sat as an appellate court on the recommendations made by the
country’s leading experts in the field of Sericulture.
22. In University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491]
The courts should be slow to interfere with the opinions expressed by
the experts particularly in a case when there is no allegation of mala
fides against the experts who had constituted the Selection Board.
That it would normally be wise and safe for the courts to leave the
decisions of academic matters to the experts who are more familiar
with the problems they face than the courts generally can be.
XXX XXX XXX
25. The Court observed as under: [M.C. Gupta (Dr.) case [(1979) 2
SCC 339: 1979 SCC (L&S) 168] When selection is made by the
Commission aided and advised by experts having technical experience
and high academic qualifications in the specialist field, probing
teaching/research experience in technical subjects, the courts should
be slow to interfere with the opinion expressed by experts unless there
are allegations of mala fides against them. It would normally be
prudent and safe for the courts to leave the decision of academic
matters to experts who are more familiar with the problems they face
than the courts generally can be.
26. In J.P. Kulshrestha (Dr.) v. Allahabad University [(1980) 3 SCC
418: 1980 SCC (L&S) 436] the Court observed that the court should
not substitute its judgment for that of academicians: (SCC p. 426,
para 17)“17. Rulings of this Court were cited before us to hammer home
the point that the court should not substitute its judgment for
that of academicians when the dispute relates to educational
affairs. While there is no absolute ban, it is a rule of prudencePage 12 of 43
// 13 //that courts should hesitate to dislodge decisions of academic
bodies.”
27. In Maharashtra State Board of Secondary and Higher Secondary
Education v. Paritosh Bhupeshkumar Sheth [(1984) 4 SCC 27] the
Court observed thus: (SCC pp. 56-57, para 29)
“29. As has been repeatedly pointed out by this Court, the Court
should be extremely reluctant to substitute its own views as to
what is wise, prudent and proper in relation to academic
matters in preference to those formulated by professional men
possessing technical expertise and rich experience of actual
day-to-day working of educational institutions and the
departments controlling them.”
28. In Neelima Misra v. Harinder Kaur Paintal [(1990) 2 SCC 746:
1990 SCC (L&S) 395: (1990) 13 ATC 732] the Court further observed
that the High Court should show due regard to the opinion expressed
by the experts constituting the Selection Committee and its
recommendation on which the Chancellor had acted.
XXX XXX XXX
30. In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan [(1990) 1 SCC
305: 1990 SCC (L&S) 80: (1991) 16 ATC 528]“12….. The decision of the Selection Committee can be
interfered with only on limited grounds, such as illegality or
patent material irregularity in the constitution of the Committee
or its procedure vitiating the selection, or proved mala fides
affecting the selection, etc. It is not disputed that in the present
case the University had constituted the Committee in due
compliance with the relevant statutes. The Committee consisted
of experts and it selected the candidates after going through all
the relevant material before it. In sitting in appeal over thePage 13 of 43
// 14 //selection so made and in setting it aside on the ground of the so-
called comparative merits of the candidates as assessed by the
court, the High Court went wrong and exceeded its
jurisdiction.”
31. In Chancellor v. Dr. Bijayananda Kar [(1994) 1 SCC 169: 1994
SCC (L&S) 296: (1994) 26 ATC 570] the Court observed thus: (SCC
pp. 174-75, para 9)
“9.the decisions of the academic authorities should not
ordinarily be interfered with by the courts. Whether a candidate
fulfils the requisite qualifications or not is a matter which
should be entirely left to be decided by the academic bodies and
the Selection Committees concerned which invariably consist of
experts on the subjects relevant to the selection.”
XXX XXX XXX
38. The courts have a very limited role particularly when no mala
fides 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 realise
and appreciate its constraints and limitations in academic matters.”
4.9. Hon‟ble Apex Court in Para 3, 9 & 11 of the Judgment in the case
of R. Dominic Sahaya Ranjan has held as follows:-
“3. Accordingly, the University Grants Commission has also clarified
that the relevance of subject or inter-disciplinary nature of subject is
required to be decided by the concerned University/Appointing
Authority with the help of subject experts in the concerned/relatedPage 14 of 43
// 15 //field as per its requirement and UGC Regulations 2010 defines the
same in Clause 4.4.0 of UGC Regulations 2010.
XXX XXX XXX
9. In MANU/TN/3031/2013:2014 (3) CTC 433, Nadar Thanga Shubha
Laxman A vs. The State of Tamil Nadu. “21… The equivalence
committee has considered and approved the equivalent nature of the
degree and certificate obtained by the candidates.
XXX XXX XXX
11. Directed to award marks for the petitioner’s qualification of
Doctorate in Oceanography and for the teaching experience with the
qualification of doctorate in Oceanography for 3 years (2010 to 2013)
as per the prospectus for direct recruitment of Assistant Professors.”
4.10. Hon‟ble Apex Court in Para 9 of the Judgment in the case of
The Chancellor and Anr. has held as follows:-
“9. This Court has repeatedly held that the decisions of the academic
authorities should not ordinarily be interfered with by the courts.
Whether a candidate fulfils 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. In the
present case Dr Kar in his representation before the Chancellor
specifically raised the issue that Dr Mohapatra did not possess the
specialisation in the Philosophical Analysis of Values’ as one of the
qualifications. The representation was rejected by the Chancellor. We
have no doubt that the Chancellor must have looked into the question
of eligibility of Dr Mohapatra and got the same examined from the
experts before rejecting the representation of Dr Kar.”
Page 15 of 43
// 16 //
4.11. Hon‟ble Apex Court in Para 12 of the Judgment in the case of
Dalpat Absaheb Solunke and Others has held as follows:-
“12. It is needless to emphasise that it is not the function of the court
to hear appeals over the decisions of the Selection Committees and to
scrutinize the relative merits of the candidates. Whether a candidate is
fit for a particular post or not has to be decided by the duly
constituted Selection Committee which has the expertise on the
subject. The court has no such expertise. The decision of the Selection
Committee can be interfered with only on limited grounds, such as
illegality or patent material irregularity in the constitution of the
Committee or its procedure vitiating the selection, or proved mala
fides affecting the selection etc. It is not disputed that in the present
case the University had constituted the Committee in due compliance
with the relevant statutes. The Committee consisted of experts and it
selected the candidates after going through all the relevant material
before it. In sitting in appeal over the selection so made and in setting
it aside on the ground of the so called comparative merits of the
candidates as assessed by the court, the High Court went wrong and
exceeded its jurisdiction.”
4.12. Hon‟ble Apex Court in Para 7 of the Judgment in the case of
Tariq Islam has held as follows:-
“7. In University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491 :
(1964) 4 SCR 575] This Court stated that normally, it is wise and safe
for the courts to leave the decision of academic matters to experts who
are more familiar with the problems they face than the courts
generally are. Area of interference by courts would be limited to
whether the appointment made by the academic body had contravened
any statutory or binding rule and while doing so, the court should
show due regard to the opinion expressed by the experts and on whose
Page 16 of 43
// 17 //recommendations the academic body had acted and not to treat such
expert body as a quasi-judicial tribunal, deciding disputes referred to
it for decision.”
5. To the stand taken by the University & Opp. Party No. 3, learned
counsel appearing for the Petitioner made further submission basing
on the stand taken in the rejoinder affidavit. While reiterating the
stand that in terms of the advertisement Opp. Party No. 3 does not
have the required qualification i.e. Ph.D. in the relevant subject i.e.
Horticulture, but taking into account the stand taken by the University
that the selection committee since found Opp. Party No. 3 eligible and
recommended her claim and accordingly she was appointed, it is
contended that as found from Annexure-C, the selection committee
while considering the claim of Opp. Party No. 3, treated her Ph.D. as
Ph.D. in Horticulture.
5.1. It is contended that since as found from Annexure-6, Opp. Party
No. 3 has done her Ph.D. in Botany, the Selection Committee could
not have taken her Ph.D. in the subject Horticulture in the proceeding
of the meeting vide Annexure-A and accordingly recommending her
name vide Annexure-C. It is also contended that even though in the
counter affidavit so filed by the University, the University has tried to
take a plea that the word „concerned subject‟ has been
Page 17 of 43
// 18 //
substituted/replaced with the word „relevant subject‟, but the
University has not shed any light with regard to the difference
between the word „concerned subject‟ and „relevant subject‟.
5.2. It is also contended that in the notification issued by the ICAR on
21.03.2017 under Annexure-9, as against various disciplines while
prescribing the eligibility/qualification, Masters degree in Botany
while was prescribed in support of various disciplines, Master‟s
Degree in Horticulture is similarly prescribed in respect of some other
disciplines. So it is to be held that Master‟s Degree in Horticulture and
Master‟s Degree in Botany are two different fields and it cannot be
equated.
5.3. With regard to the stand taken by the University as well as Opp.
Party No. 3 that after participating in the selection process and on
becoming unsuccessful, Petitioner is not permitted to challenge the
selection and appointment of Opp. Party No. 3, learned counsel
appearing for the Petitioner relied on a decision of the Hon‟ble Apex
Court reported in (2019) 20 SCC 2017 (Dr. (Major) Meeta Sahai Vs.
State of Bihar & Ors.). Hon‟ble Apex court in Para 19 of the said
Judgment has held as follows:-
Page 18 of 43
// 19 //
“19. The appellant has thus rightly not challenged the selection
procedure but has narrowed her claim to only against the
respondents’ interpretation of “work experience” as part of merit
determination. Since interpretation of a statute or rule is the exclusive
domain of courts, and given the scope of judicial review in delineating
such criteria, the appellant’s challenge cannot be turned down at the
threshold. However, we are not commenting specifically on the merit
of the appellant’s case, and our determination is alien to the outcome
of the selection process. It is possible post what is held hereinafter
that she be selected, or not.”
5.4. The stand taken by the University as well as Opp. Party No. 3 that
since Opp. Party No. 3 has been recommended by the Selection
Committee comprising of subject experts and accordingly it is not
amenable to challenge, learned counsel for the Petitioner relied on a
decision of the Hon‟ble Apex Court reported in (2014) 3 SCC 767
(Ganapath Singh Gangaram Singh Rajput Vs. Gulbarga University
& Ors.). Hon‟ble Apex court in Para 21 & 22 of the said Judgment has
held as follows:-
“21. 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 postgraduate degree in
the “relevant subject”. The relevant subject would, therefore, in the
context of appointment to the post of Lecturer, mean postgraduate
degree in MCA. In our opinion, for appointment to the post of
Lecturer, Masters degree in Mathematics is not the relevant subject.
The advertisement requires Masters degree in “relevant subject” and
not “appropriate subject”. In the present case, the Board ofPage 19 of 43
// 20 //Appointment has not stated that postgraduate degree in Mathematics
is the relevant subject for MCA but in sum and substance it is
equivalent to a postgraduate 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.
22. It shall not make any difference even 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 postgraduate 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 postgraduate 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.”
5.5. Reliance was also placed on a decision of the Hon‟ble Apex Court
in the case reported in 2001 (8) SCC 532 (Dr. Bhanu Prasad Panda
Vs. Chancellor, Sambalpur University & Ors.). Hon‟ble Apex court
in Para 1, 2, 4 & 5 of the said Judgment has held as follows:-
“1. This appeal filed against the order of a Division Bench of the Orissa High
Court at Cuttack dated 25-2-1997, involves a challenge to the order sustaining in
its turn the order passed by the Chancellor, Sambalpur University, annulling the
appointment of the appellant to the post of Lecturer in Political Science, on the
Page 20 of 43
// 21 //ground that he did not possess the minimum required academic qualification
prescribed by the University Grants Commission.
2. The appellant was initially appointed as a Research Assistant in the
postgraduate department of the respondent University and joined as such on
6-7-1979. In the course of his employment, he performed his duties for
collection, compilation, tabulation and interpretation of data in addition to
assisting the MPhil programme. On 30-11-1992, the University issued an
advertisement inviting applications in the prescribed form for certain posts
enumerated therein, of which Lecturer in Political Science was also one.
Note 4 indicated that the details with regard to the nature of specialization,
qualification required etc. for the different posts will be available along
with the application form. The details so made available contained certain
stipulations and so far as the posts of Lecturers are concerned, in the
following terms:
“Lecturer.– Arts, Sciences, Social Sciences, Commerce, Education,
Physical Education, Foreign Languages and Law. Good academic record
with at least 55 per cent marks or an equivalent grade of Master’s degree
level in the relevant subject from an Indian university or an equivalent
degree from a foreign university.
Candidates, besides fulfilling the above qualification should have
cleared the eligibility test for Lecturers conducted by the University Grants
Commission, CSR at similar tests accredited by UGC. Exception from
passing the Lecturers’ eligibility test (GATE or Engineering graduates only)
is only applicable to these candidates who have done PhD up to December
1992 or MPhil up to March 1991, provided such candidates have secured
55 per cent marks at the Master’s level. Research Assistants of Sambalpur
University having 2nd class Master’s degree but have secured less than 55
per cent marks at the Master’s degree level and have earned MPhil up to
March 1991 or PhD up to December 1992 with certificates, marksheets,
evidence of teaching/research experience, testimonials and other
publications. Applications incomplete in any manner are liable to be
summarily rejected.
(b) Candidates in service should route a copy of their applications
through proper channel. No applicant will be interviewed unless his/her
application has been duly submitted through his/her employer or he/she
produces a „no-objection‟ certificate from his/her employer at the time of
interview.
(c) All applications and correspondence are to be addressed to the
undersigned by designation and not by name.
(d) The candidates are required to appear at an interview before the
Selection Committee at their own expenses.
(e) Issue of this advertisement does not make it binding on the
University to make appointment.
(f) Retired persons who have not attained the age of 65 years may also
apply for the appointment on tenure basis.
Page 21 of 43
// 22 //
(g) SC/ST candidates are required to obtain caste certificate from the
District Magistrate/Collector to be eligible to apply. However, the
consideration of their application is subject to the approval of UGC.”
(emphasis supplied)
As to the nature of posts, specialization etc. it has been stated as follows:
“Sl. Name of the deptt./college Name of post No. of Specialization
No. posts
* * *
17. Pol. Science & Pub. Admn.” Lecturer One Open
XXX XXX XXX
4. Heard, Shri Rakesh Dwivedi, Senior Advocate for the appellant, Shri
P.N. Misra, Senior Advocate for the Chancellor and Shri A. Subba Rao for
the University and Shri G.K. Banerjee for the University Grants
Commission. The learned Senior Counsel for the appellant vehemently
contended that the appellant was fully qualified and satisfied the norms
prescribed, that the minimum prescribed marks were secured by him in the
subject of Public Administration and this constitutes sufficient compliance
and satisfaction of the academic qualification stipulated. It was also
contended that the competent authority, well versed in academic matters,
have found the appellant to be fully eligible and such a decision ought not to
have been interfered with by the Chancellor and that the High Court was in
error in not setting aside the order of termination of the services of the
appellant. All the learned counsel appearing for the respondents, with equal
vehemence attempted to demonstrate that the Chancellor was right in his
decision and when the University Grants Commission also declined to grant
relaxation, the services of the appellant had to be necessarily terminated for
want of prescribed academic qualification on his part.
5. We have carefully considered the submissions of the learned counsel
appearing on either side. The stipulation regarding the minimum academic
qualification reads, “good academic record with at least 55 per cent marks
or an equivalent grade of Master’s degree level in the relevant subject from
an Indian university or an equivalent degree from a foreign university”.
Though the Department concerned for which the appointment is to be made
is that of “Political Science and Public Administration”, the appointment
with which we are concerned, is of Lecturer in Political Science and not
Public Administration and subject-matter wise they are different and not
one and the same. It is not in controversy that the posts of Lecturers in
Public Administration and in Political Science are distinct and separate and
Page 22 of 43
// 23 //
on selection the appellant could not have been appointed as Lecturer in
Public Administration, be it in the Department of Political Science and
Public Administration since the advertisement was specifically to fill up the
vacancy in the post of Lecturer in Political Science. Merely because the
Department is of Political Science and Public Administration — the
essential requirement of academic qualification of a particular standard
and grade viz. 55%, in the “relevant subject” for which the post is
advertised, cannot be rendered redundant or violated by ignoring the
relevant subject and carried away by the name of the Department only
which, in substance, encompasses two different disciplines. That merely
depending upon the context he was being referred to or the post is referred
to as being available in the Department of Political Science and Public
Administration, is no justification to do away or dispense with the essential
academic qualification in the relevant subject for which the post has been
advertised. Consequently, Resolution No. 6.2 dated 18-2-1992 or extracts
provided from the proceedings of the Board of Studies dated 2-3-1996
cannot be of any assistance to support the claim of the appellant. The
rejection by UGC of the request of the Department in this case to relax the
condition relating to 55% marks at post graduation level for Research
Assistant having MPhil up to March 1991 or PhD up to December 1992, is
to be the last word on the claim of the appellant and there could be no
further controversy raised in this regard. In view of the above, no exception
could be taken to the decision of the Chancellor and no challenge could be
countenanced in this appeal against the well-merited decision of the High
Court.”
5.6. Similarly, reliance was also placed in a decision reported in
(2007) 8 SCC 533 (Valsala Kumari Devi M. Vs. Director, Higher
Secondary Education & Ors.). Hon‟ble Apex court in Para 12, 19, 21,
22 & 23 of the said decision has held as follows:-
“12. The subject relates to the appointment/selection for the post of higher
secondary school teacher in History. Before considering the merits of the
claim made by the appellant as well as by the fifth respondent, it is desirablePage 23 of 43
// 24 //to refer to the relevant government orders issued by the Government of
Kerala. In GOMs No. 138/90/G.Edn. dated 27-6-1990, the General
Education (HSE) Department issued a notification prescribing certain
conditions for appointment of teachers for plus two higher secondary
course. The relevant clauses of the government order are as follows:
“1.-3. * * *
4. The issues relating to the implementation of the plus two higher
secondary course were examined in detail and discussions were held with
representatives of all concerned. After careful consideration of all aspects
of the matter the Government have decided to introduce the plus two course
in selected schools in 1990-1991. The Government are pleased to issue the
following further instructions in the matter:
(i)-(iv) * * * (v) The medium of instruction will be English. (vi)-(xii) * * *
Teachers.–The minimum qualifications for the higher secondary schools
teachers will be a second class Master’s degree in the subject concerned,
with BEd for the time being till rules are framed for regular appointment.
The teachers will be initially appointed on the basis of these qualifications.
The selection will be subject to seniority and suitability. If sufficient number
of qualified hands are not available for appointment as teachers, candidates
may be recruited through the Employment Exchange.
5.-8. * * *”
XXX XXX XXX
19. We are of the view that the Director has committed an illegality in
upholding the selection of the fifth respondent for appointment to the post of
HSST. Further the fifth respondent has been preferred to the appellant for
the reason that his main subject in BA is History which is totally irrelevant
for promotion to HSST from among HSAs. In G.O. dated 27-6-1990 the
qualification prescribed is a second class Master’s degree in the subject
concerned with BEd. It is relevant to point out that the appellant and the
fifth respondent have obtained MA degree from Mysore University and the
fifth respondent took BEd with Social Studies. The other reason given by the
Selection Committee for preferring the fifth respondent is that he hasPage 24 of 43
// 25 //proficiency in English, Kannada and Malayalam whereas the appellant has
proficiency in English and Malayalam.
XXX XXX XXX
21. In such circumstances, we are of the view that it was improper on
the part of the Selection Committee to make selection taking into account
the qualifications which are not prescribed in the G.Os. and by giving
weightage to such qualifications. The Selection Committee has also taken
note of the suggestion of the Parents Teachers Association that persons
having proficiency in Kannada should be preferred when there is no such
condition in the government order. In other words, preference is to be given
for proficiency in Kannada which is not a requisite qualification. In our
view, ignoring the appellant who has been working as HSA in the very same
school and selecting the fifth respondent by giving weightage for proficiency
in Kannada which is not a condition prescribed in the relevant government
orders by the Selection Committee cannot be sustained. It is based on
extraneous/irrelevant considerations.
22. In our view, the learned Single Judge as well as the Division Bench
of the High Court on the misconstruction of two G.Os. dated 27-6-1990 and
13-5-1998 prescribing qualifications and mode of selection, committed an
error in upholding the selection of the fifth respondent when the appellant
was fully qualified as well as senior to the fifth respondent as HSA.
23. Under these circumstances, we allow the appeal and set aside the
order dated 22-6-2004 passed by the learned Single Judge of the High
Court in WPs (C) Nos. 21069 of 2003 and 15674 of 2004 as well as the
order dated 12-7-2004 passed by the Division Bench of the High Court in
WA No. 1265 of 2004 confirming the selection of the fifth respondent as
HSST. As a result of the above conclusion, we direct the authorities to issue
appropriate order in favour of the appellant within a period of four weeks
from the date of receipt of this judgment. No order as to costs.”
5.7. Similarly, reliance was also placed in a decision reported in
(2009) 4 SCC 555 (Mohd. Sohrab Khan Vs. Aligarh Muslim
Page 25 of 43
// 26 //
University & Ors.). Hon‟ble Apex Court in Para 5, 6, 10, 11, 17 & 23
to 31 of the said Judgment has held as follows:-
“5. In order to deal with the contentions raised in both the appeals, it would
be necessary to deal herein with some of the relevant facts leading to the
filing of the writ petition:
Aligarh Muslim University issued an advertisement through
Advertisement No. 2 of 2004 dated 6-2-2004 whereby it called for
applications for filling up about 79 posts in the University. One of the said
posts which was advertised was the post of Lecturer in Chemistry in
University Polytechnic, Aligarh Muslim University. Qualification that was
laid down by the University as essential qualification was a first class
Master’s degree in the appropriate branch of teaching post in Humanities
and Sciences. Both Mohd. Sohrab Khan as also Merajuddin Ahmad
submitted their applications to be considered as against the aforesaid post
which was advertised, namely, Lecturer in Chemistry. Mohd. Sohrab Khan
had a first class Master’s degree in Chemistry (Pure) whereas Merajuddin
Ahmad was holding a first class Master’s degree in Industrial Chemistry.
6. The University authority, however, called both of them for the
interview. The Selection Committee which was constituted for the purpose of
selecting the suitable candidate selected Merajuddin Ahmad on the ground
that he would be more suitable to the aforesaid post as he holds a Master’s
degree in Industrial Chemistry which according to them would be best
suited to teach the particular subject for the University Polytechnic, Aligarh
Muslim University. The University Authority accepted the aforesaid
recommendation of the Selection Committee and issued an order of
appointment in favour of Merajuddin Ahmad. Mohd. Sohrab Khan, being
aggrieved by the aforesaid order passed by Aligarh Muslim University filed
a writ petition in the High Court of Allahabad.
XXX XXX XXX
10. The contention that is raised on behalf of Merajuddin Ahmad is that
the Selection Committee being constituted of experts on the subjects was the
only competent authority to decide that the person holding Master’s degree
in Industrial Chemistry is best suited for teaching the subject for which
advertisement was issued and the High Court acted illegally and without
Page 26 of 43
// 27 //
jurisdiction in interfering with the aforesaid opinion of the experts by
substituting its own decision.
11. It was also submitted that the Master’s degree in Industrial
Chemistry is as good as Master’s degree in Chemistry for the post for which
the advertisement was issued and that a person having Master’s degree in
Industrial Chemistry was better suited for teaching the said subject.
XXX XXX XXX
17. We have gone through the aforesaid advertisement which was issued
for filling up various posts and on scrutiny, we find that whenever and
wherever the University desired to fill up a post at variance with the main
subject, it is specifically notified and indicated in the said advertisement.
For example, advertisement which finds place at Serial No. 59 was for
filling up the post of Lecturer in Civil Engineering (Environmental Engg.)
for University Polytechnic for which qualification which was necessary and
essential was mentioned as first class Bachelor’s degree in
Environmental/Civil/Chemical/Petroleum/Biochemical
Engineering/Architecture. Many more posts advertised in the said
advertisement specifically indicate that whenever the University desired to
have a post filled up in a particular branch of the Humanities and Science
Department, it specifically indicated as such in the said advertisement. If it
was necessary for the University to fill up the post from the stream of
Industrial Chemistry, it would have so indicated in the advertisement itself
for in subsequent years, we find specific advertisement has been issued by
the same University for filling up the post of Lecturer in Industrial
Chemistry by issuing an advertisement specifically in that regard. There is
no doubt with regard to the fact that it is the University authority which
knows best as to what is their requirement.
XXX XXX XXX
23. The post advertised was meant for a person belonging to Pure
Chemistry Department for if it was otherwise, then it would have been so
mentioned in the advertisement itself that a person holding a Master’s
degree in Industrial Chemistry should only apply or that a person holding
such a degree could also apply along with other persons. It was not so
mentioned in the advertisement and, therefore, except for Merajuddin
Ahmad, no other degree-holder in Industrial Chemistry had applied for
becoming a candidate as against the aforesaid post.
Page 27 of 43
// 28 //
24. According to us, the Selection Committee as also the University
changed the rule in the midstream which was not permissible. The
University can always have a person as a Lecturer in a particular discipline
that it desires to have, but the same must be specifically stated in the
advertisement itself, so that there is no confusion and all persons who could
be intending candidates, should know as to what is the subject which the
person is required to teach and what essential qualification the person must
possess to be suitable for making application for filling up the said post.
25. We are not disputing the fact that in the matter of selection of
candidates, opinion of the Selection Committee should be final, but at the
same time, the Selection Committee cannot act arbitrarily and cannot
change the criteria/qualification in the selection process during its
midstream. Merajuddin Ahmad did not possess a degree in Pure Chemistry
and therefore, it was rightly held by the High Court that he did not possess
the minimum qualification required for filling up the post of Lecturer in
Chemistry, for Pure Chemistry and Industrial Chemistry are two different
subjects.
26. The advertisement which was issued for filling up the post of
Lecturer in Chemistry could not have been filled up by a person belonging
to the subject of Industrial Chemistry when the same having been
specifically not mentioned in the advertisement that a Master’s degree-
holder in the said subject would also be suitable for being considered. There
could have been intending candidates who would have applied for becoming
candidate as against the said advertised post, had they known and were
informed through advertisement that Industrial Chemistry is also one of the
qualifications for filling up the said post.
27. The Selection Committee during the stage of selection, which is
midway could not have changed the essential qualification laid down in the
advertisement and at that stage held that a Master’s degree-holder in
Industrial Chemistry would be better suited for manning the said post
without there being any specific advertisement in that regard. The very fact
that the University is now manning the said post by having a person from
the discipline of Pure Chemistry also leads to the conclusion that the said
post at that stage when it was advertised was meant to be filled up by a
person belonging to Pure Chemistry stream.
28. In A.P. Public Service Commission v. B. Swapna [(2005) 4 SCC 154
: 2005 SCC (L&S) 452] , at para 14 it was held by this Court that norms of
Page 28 of 43
// 29 //
selection cannot be altered after commencement of selection process and
the rules regarding qualification for appointment, if amended, during
continuation of the process of selection do not affect the same.
29. Further at para 15 of B. Swapna case% [(2005) 4 SCC 154 : 2005
SCC (L&S) 452] it was held that the power to relax the eligibility condition,
if any, to the selection must be clearly spelt out and cannot be otherwise
exercised. The said observations are extracted herein below: (SCC pp. 159-
60, paras 14-15)
“14. The High Court has committed an error in holding that the
amended rule was operative. As has been fairly conceded by learned
counsel for Respondent 1 applicant it was the unamended rule which was
applicable. Once a process of selection starts, the prescribed selection
criteria cannot be changed. The logic behind the same is based on fair play.
A person who did not apply because a certain criterion e.g. minimum
percentage of marks can make a legitimate grievance, in case the same is
lowered, that he could have applied because he possessed the said
percentage. Rules regarding qualification for appointment if amended
during continuance of the process of selection do not affect the same. That
is because every statute or statutory rule is prospective unless it is expressly
or by necessary implication made to have retrospective effect. Unless there
are words in the statute or in the rules showing the intention to affect
existing rights the rule must be held to be prospective. If the rule is
expressed in a language which is fairly capable of either interpretation it
ought to be considered as prospective only. (See P. Mahendran v. State of
Karnataka [(1990) 1 SCC 411 : 1990 SCC (L&S) 163 : (1990) 12 ATC 727]
and Gopal Krushna Rath v. M.A.A. Baig [(1999) 1 SCC 544 : 1999 SCC
(L&S) 325] .)
15. Another aspect which this Court has highlighted is scope for
relaxation of norms. Although the Court must look with respect upon the
performance of duties by experts in the respective fields, it cannot abdicate
its functions of ushering in a society based on the rule of law. Once it is
most satisfactorily established that the Selection Committee did not have the
power to relax essential qualification, the entire process of selection so far
as the selected candidate is concerned gets vitiated. In P.K. Ramachandra
Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this Court
held that once it is established that there is no power to relax essential
qualification, the entire process of selection of the candidate was in
Page 29 of 43
// 30 //
contravention of the established norms prescribed by advertisement. The
power to relax must be clearly spelt out and cannot otherwise be
exercised.”
30. In Krushna Chandra Sahu (Dr.) v. State of Orissa [(1995) 6 SCC 1 :
1995 SCC (L&S) 1321 : (1995) 31 ATC 438] at SCC p. 13, para 34 it was
held by this Court that “the Selection Committee does not even have the
inherent jurisdiction to lay down the norms for selection nor can such
power be assumed by necessary implication”.
31. In Krushna Chandra Sahu (Dr.) case% [(1995) 6 SCC 1 : 1995 SCC
(L&S) 1321 : (1995) 31 ATC 438] reference was made to the decision
in P.K. Ramachandra Iyer v. Union of India% [(1984) 2 SCC 141 : 1984
SCC (L&S) 214] , wherein at para 44 it was observed: (P.K. Ramachandra
case% [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] , SCC pp. 180-81)
“44. … By necessary inference, there was no such power in the ASRB to
add to the required qualifications. If such power is claimed, it has to be
explicit and cannot be read by necessary implication for the obvious reason
that such deviation from the rules is likely to cause irreparable and
irreversible harm.”
5.8. In the case reported in 1999 Supp. (3) SCC 168 (Rekha
Chaturvedi (Smt) Vs. University of Rajasthan & Ors.), Hon‟ble Apex
court in Para 11 of the said Judgment has held as follows:-
“11. However, for the reasons which follow, we are not inclined to set aside
the selections in spite of the said illegality. The selected candidates have
been working in the respective posts since February 1985. We are now in
January 1993. Almost eight years have elapsed. There is also no record
before us to show as to how the Selection Committee had proceeded to
weigh the respective merits of the candidates and to relax the minimum
qualifications in favour of some in exercise of the discretionary powers
vested in it under the University Ordinance. If the considerations which
weighed with the Committee in relaxing the requisite qualifications were
valid, it would result in injustice to those who have been selected. We,
however, feel it necessary to emphasise and bring to the notice of the
University that the illegal practices in the selection of candidates which
have come to light and which seem to be followed usually at its end mustPage 30 of 43
// 31 //stop forthwith. It is for this purpose that we lay down the following
guidelines for the future selection process:
A. The University must note that the qualifications it advertises for
the posts should not be at variance with those prescribed by its
Ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for
making applications for the posts in question or on the date to be
specifically mentioned in the advertisement/notification for the
purpose. The qualifications acquired by the candidates after the said
date should not be taken into consideration, as that would be
arbitrary and result in discrimination. It must be remembered that
when the advertisement/notification represents that the candidates
must have the qualifications in question, with reference to the last
date for making the applications or with reference to the specific
date mentioned for the purpose, those who do not have such
qualifications do not apply for the posts even though they are likely
to acquire such qualifications and do acquire them after the said
date. In the circumstances, many who would otherwise be entitled to
be considered and may even be better than those who apply, can
have a legitimate grievance since they are left out of consideration.
C. When the University or its Selection Committee relaxes the
minimum required qualifications, unless it is specifically stated in
the advertisement/notification both that the qualifications will be
relaxed and also the conditions on which they will be relaxed, the
relaxation will be illegal.
D. The University/Selection Committee must mention in its
proceedings of selection the reasons for making relaxations, if any,
in respect of each of the candidates in whose favour relaxation is
made.
E. The minutes of the meetings of the Selection Committee should be
preserved for a sufficiently long time, and if the selection process is
challenged until the challenge is finally disposed of. An adverse
inference is liable to be drawn if the minutes are destroyed or a plea
is taken that they are not available.”
5.9. Similarly, reliance was placed on a decision of the Hon‟ble Apex
Court in the case of State of Odisha & Anr. Vs. Mamata Mohanty
reported in 2011 (3) SCC 436. Hon‟ble Apex court in Para 23, 39 to
51 & 68 of the said Judgment has held as follows:-
“23. The Government of Orissa, Education and Youth Services
Department Circular dated 27-11-1986 dealt with the subject, continuance
Page 31 of 43
// 32 //of underqualified teachers in non-government colleges, eligibility to receive
grant-in-aid from the Government. The relevant part reads as under:
“The decision of Utkal University communicated to the Government in
their Letter No. A.13570/86 dated 20-8-1986 cannot be treated as a valid
order of condonation of under qualification unless the concurrence of the
University Grants Commission has been obtained. The universities which
have made order of condonation after the Regulation concerned of UGC
may refer the matter to UGC and secure their concurrence for
condonation.”
XXX XXX XXX
39. In Prit Singh (Dr.) v. S.K. Mangal [1993 Supp (1) SCC 714 : 1993
SCC (L&S) 246 : (1993) 23 ATC 783] this Court examined the case of a
person who did not possess the requisite percentage of marks as per the
statutory requirement and held that he cannot hold the post observing :
(SCC pp. 718-19, paras 12-13)
“12. … It need not be pointed out that the sole object of prescribing
qualification that the candidate must have a consistently good academic
record with first or high second class Master’s degree for appointment to
the post of a Principal, is to select a most suitable person in order to
maintain excellence and standard of teaching in the institution apart from
administration. … The appellant had not secured even second class marks
in his Master of Arts Examination whereas the requirement was first or high
second class (55%). The irresistible conclusion is that on the relevant date
the appellant did not possess the requisite qualifications.
13. … on the date of the appointment the appellant did not possess the
requisite qualifications and as such his appointment had to be quashed.”
(emphasis added)
40. In Pramod Kumar v. U.P. Secondary Education Services
Commission [(2008) 7 SCC 153 : (2008) 2 SCC (L&S) 244 : AIR 2008 SC
1817] this Court examined the issue as to whether a person lacking
eligibility can be appointed and if so, whether such irregularity/illegality
can be cured/condoned. After considering the provisions of the U.P.
Secondary Education Services Commission Rules, 1983 and the U.P.
Intermediate Education Act, 1921, this Court came to a conclusion that
lacking eligibility as per the rules/advertisement cannot be cured at any
stage and making appointment of such a person tantamounts to an illegality
Page 32 of 43
// 33 //
and not an irregularity, and thus cannot be cured. A person lacking the
eligibility cannot approach the court for the reason that he does not have a
right which can be enforced through court.
41. This Court in Pramod Kumar [(2008) 7 SCC 153 : (2008) 2 SCC
(L&S) 244 : AIR 2008 SC 1817] further held as under : (SCC p. 160, para
18)
“18. If the essential educational qualification for recruitment to a post is
not satisfied, ordinarily the same cannot be condoned. Such an act cannot
be ratified. An appointment which is contrary to the statute/statutory rules
would be void in law. An illegality cannot be regularised, particularly, when
the statute in no unmistakable term says so. Only an irregularity can be.
[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S)
753] , National Fertilizers Ltd. v. Somvir Singh [(2006) 5 SCC 493 : 2006
SCC (L&S) 1152 : AIR 2006 SC 2319] and Post Master General v. Tutu
Das (Dutta) [(2007) 5 SCC 317 : (2007) 2 SCC (L&S) 179] .]”
42. In J.P. Kulshrestha (Dr.) v. Allahabad University [(1980) 3 SCC 418
: 1980 SCC (L&S) 436 : AIR 1980 SC 2141] issue of relaxation of eligibility
came up for consideration before this Court wherein it was held as under :
(SCC pp. 425-26, paras 15-16)
“15. … We regretfully but respectfully disagree with the Division Bench
and uphold the sense of high second class attributed by the learned Single
Judge. The midline takes us to 54% and although it is unpalatable to be
mechanical and mathematical, we have to hold that those who have not
secured above 54% marks cannot claim to have obtained a high second
class and are ineligible.
16. … We have earlier held that the power to relax, as the Ordinance
now runs, insofar as high second class is concerned, does not exist.
Inevitably, the appointment of the 3 respondents violate the Ordinance and
are, therefore, illegal.”
(emphasis added)
43. In Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC
168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234] this Court again dealt
with the power of relaxation of minimum qualifications as the statutory
provisions applicable therein provided for relaxation, but to what extent and
under what circumstances, such power could be exercised was not provided
Page 33 of 43
// 34 //
therein. Thus, this Court issued the following directions : (SCC p. 176, para
11)
“A. The University must note that the qualifications it advertises for the
posts should not be at variance with those prescribed by its
Ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for
making applications for the posts in question or on the date to be
specifically mentioned in the advertisement/notification for the purpose. …
C. When the University or its Selection Committee relaxes the minimum
required qualifications, unless it is specifically stated in the
advertisement/notification both that the qualifications will be relaxed and
also the conditions on which they will be relaxed, the relaxation will be
illegal.
D. The University/Selection Committee must mention in its proceedings
of selection the reasons for making relaxations, if any, in respect of each of
the candidates in whose favour relaxation is made.
E. The minutes of the meetings of the Selection Committee should be
preserved for a sufficiently long time, and if the selection process is
challenged until the challenge is finally disposed of. An adverse inference is
liable to be drawn if the minutes are destroyed or a plea is taken that they
are not available.”
(emphasis added)
44. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 :
1984 SCC (L&S) 214 : AIR 1984 SC 541] this Court while dealing with the
same issue, held that once it is established that there is no power to relax
the essential qualifications, the entire process of selection of the candidate
was in contravention of the established norms prescribed by advertisement.
The power to relax must be clearly spelt out and cannot otherwise be
exercised.
45. In A.P. Public Service Commission v. B. Swapna [(2005) 4 SCC 154
: 2005 SCC (L&S) 452] this Court held that : (SCC p. 160, para 15)
“15. Another aspect which this Court has highlighted is scope for
relaxation of norms. … Once it is most satisfactorily established that the
Selection Committee did not have the power to relax essential qualification,
the entire process of selection so far as the selected candidate is concerned
gets vitiated.”
Page 34 of 43
// 35 //
(emphasis supplied)
46. This Court in Kendriya Vidyalaya Sangathan v. Sajal Kumar
Roy [(2006) 8 SCC 671 : (2007) 1 SCC (L&S) 23] held : (SCC p. 675, para
11)
“11. … The appointing authorities are required to apply their mind
while exercising their discretionary jurisdiction to relax the age-limits. …
The requirements to comply with the rules, it is trite, were required to be
complied with fairly and reasonably. They were bound by the rules. The
discretionary jurisdiction could be exercised for relaxation of age provided
for in the rules and within the four corners thereof.”
(emphasis added)
47. In Food Corpn. of India v. Bhanu Lodh [(2005) 3 SCC 618 : 2005
SCC (L&S) 433 : AIR 2005 SC 2775] this Court held : (SCC p. 628, para
12)
“12. … Even assuming that there is a power of relaxation under the
Regulations, … the power of relaxation cannot be exercised in such a
manner that it completely distorts the Regulations. The power of relaxation
is intended to be used in marginal cases…. We do not think that they are
intended as an „open sesame‟ for all and sundry. The wholesale go-by given
to the Regulations, and the manner in which the recruitment process was
being done, was very much reviewable as a policy directive, in exercise of
the power of the Central Government under Section 6(2) of the Act.”
48. In Bhanu Prasad Panda (Dr.) v. Sambalpur University [(2001) 8
SCC 532 : 2002 SCC (L&S) 14] one of the questions raised has been as to
whether a person not possessing the required eligibility of qualification i.e.
55% marks in Master’s degree can be appointed in view of the fact that
UGC refused to grant relaxation. On the issue of relaxation of eligibility,
the Court held as under : (SCC p. 536, para 5)
“5. … the essential requirement of academic qualification of a
particular standard and grade viz. 55%, in the „relevant subject‟ for which
the post is advertised, cannot be rendered redundant or violated…. … The
rejection by UGC of the request of the Department in this case to relax the
condition relating to 55% marks at postgraduation level … is to be the last
word on the claim of the appellant and there could be no further
controversy raised in this regard.”
(emphasis added)
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// 36 //
49. In view of the above, this Court held that the appointment of the
appellant therein has rightly been quashed as he did not possess the
requisite eligibility of 55% marks in Master’s course.
50. In the absence of an enabling provision for grant of relaxation, no
relaxation can be made. Even if such a power is provided under the statute,
it cannot be exercised arbitrarily. (See Union of India v. Dharam
Pal [(2009) 4 SCC 170 : (2009) 1 SCC (L&S) 790] .) Such a power cannot
be exercised treating it to be an implied, incidental or necessary power for
execution of the statutory provisions. Even an implied power is to be
exercised with care and caution with reasonable means to remove the
obstructions or overcome the resistance in enforcing the statutory
provisions or executing its command. Incidental and ancillary powers
cannot be used in utter disregard of the object of the statute. Such power
can be exercised only to make such legislation effective so that the ultimate
power will not become illusory, which otherwise would be contrary to the
intent of the legislature. (Vide Matajog Dobey v. H.S. Bhari [AIR 1956 SC
44 : 1956 Cri LJ 140] and State of Karnataka v. Vishwabharathi House
Building Coop. Society [(2003) 2 SCC 412] .)
51. More so, relaxation in this manner is tantamount to changing the
selection criteria after initiation of selection process, which is not
permissible at all. Rules of the game cannot be changed after the game is
over. (Vide K. Manjusree v. State of A.P. [(2008) 3 SCC 512 : (2008) 1 SCC
(L&S) 841 : AIR 2008 SC 1470] and Ramesh Kumar v. High Court of
Delhi [(2010) 3 SCC 104 : (2010) 1 SCC (L&S) 756 : AIR 2010 SC 3714] .)
XXX XXX XXX
68. From the aforesaid discussion, the following picture emerges:
(i) The procedure prescribed under the 1974 Rules has not been
followed in all the cases while making the appointment of the
respondents/teachers at initial stage. Some of the persons had admittedly
been appointed merely by putting some note on the noticeboard of the
College. Some of these teachers did not face the interview test before the
Selection Board. Once an order of appointment itself had been bad at the
time of initial appointment, it cannot be sanctified at a later stage.
Page 36 of 43
// 37 //
(ii) At the relevant time of appointment of the respondents/teachers
there has been a requirement of possessing good second class i.e. 54%
marks in Master’s course and none of the said respondents had secured the
said percentage.
(iii) Their appointments had been approved after a long, long time. In
some cases after 10-12 years of their initial appointment by the statutory
authority i.e. Director of Higher Education.
(iv) A candidate becomes eligible to apply for a post only if he fulfils the
required minimum benchmark fixed by the rules/advertisement. Thus, none
of the respondents could even submit the application what to talk of the
appointments.
(v) The so-called relaxation by Utkal University was accorded by
passing a routine order applicable to a large number of colleges, that too
after a lapse of long period i.e. about a decade.
(vi) Fixation of eligibility falls within the exclusive domain of the
executive and once it has been fixed by the State authorities under the 1974
Rules, the question of according relaxation by Utkal University could not
arise and, therefore, the order of condonation, etc. is a nullity.
(vii) The relaxation has been granted only by Utkal University though
Rule 2(i) of the 1974 Rules defined “University” means Utkal University,
Berhampur University, Sambalpur University and Shri Jagannath Sanskrit
Vishwa Vidyalaya.
(viii) Granting relaxation at this stage amounts to change of criteria
after issuance of advertisement, which is impermissible in law. More so, it is
violative of the fundamental rights enshrined under Articles 14 and 16 of the
Constitution of the similarly situated persons, who did not apply considering
themselves to be ineligible for want of required marks.
(ix) The exercise of condonation of deficiency had not been exercised by
any university other than Utkal University.
(x) The post of the teachers i.e. the respondents is transferable to any
college affiliated to any other university under the 1979 Rules.
(xi) The power to grant relaxation in eligibility had not been conferred
upon any authority, either the university or the State. In the absence thereof,
such power could not have been exercised.
(xii) This Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC
(L&S) 979 : AIR 1997 SC 2071] has categorically held that a person cannot
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// 38 //
get the benefit of grant-in-aid unless he completes the deficiency of
educational qualification. Further, this Court in Bhanu Prasad Panda
(Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] upheld the termination of
services of the appellant therein for not possessing 55% marks in Master’s
course.
(xiii) The aforesaid two judgments in Damodar Nayak [(1997) 4 SCC
560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] and Bhanu Prasad Panda
(Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] , could not be brought to
the notice of either the High Court or this Court while dealing with the
issue. Special leave petition in Kalidas Mohapatra [ SLPs (C) Nos. 14206-
09 of 2001 decided on 11-3-2002] has been dealt with without considering
the requirement of law merely making the reference to Circular dated 6-11-
1990, which was not the first document ever issued in respect of eligibility.
Thus, all the judgments and orders passed by the High Court as well as by
this Court cited and relied upon by the respondents are held to be not of a
binding nature. (Per incuriam)
(xiv) In case a person cannot get the benefit of grant-in-aid scheme
unless he completes the deficiency of educational qualification, question of
grant of UGC pay scale does not arise.
(xv) The cases had been entertained and relief had been granted by the
High Court without considering the issue of delay and laches merely
placing reliance upon earlier judgments obtained by diligent persons
approaching the courts within a reasonable time.
(xvi) The authority passed illegal orders in contravention of the
constitutional provisions arbitrarily without any explanation whatsoever
polluting the entire education system of the State, ignoring the purpose of
grant-in-aid scheme itself that it has been so provided to maintain the
standard of education.
(xvii) The High Court granted relief in some cases which had not even
been asked for as in some cases the UGC pay scale had been granted with
effect from 1-6-1984 i.e. the date prior to 1-1-1986 though the same relief
could not have been granted. Thus, it clearly makes out a case of deciding a
case without any application of mind.
(xviii) In some cases the UGC pay scale has been granted by the High
Court prior to the date of according the benefit of grant-in-aid scheme to
the teachers concerned which was not permissible in law in view of the law
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// 39 //
laid down by this Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC
(L&S) 979 : AIR 1997 SC 2071] .
(xix) The grievance of the respondents that not upholding the orders
passed by the High Court in their favour would amount to a hostile
discrimination is not worth acceptance for the reason that Article 14 of the
Constitution envisages only positive equality.
(xx) Concept of adverse possession of lien on post or holding over are
inapplicable in service jurisprudence.
(xxi) The submission on behalf of the respondents that government
orders/circulars/letters have been complied with, therefore, no interference
is called for, is preposterous for the simple reason that such
orders/circulars/letters being violative of statutory provisions and
constitutional mandate are just to be ignored in terms of the judgment of
this Court in Ram Ganesh Tripathi [(1997) 1 SCC 621 : 1997 SCC (L&S)
186 : AIR 1997 SC 1446] .”
5.10. Making all these submissions learned counsel appearing for the
Petitioner contended that since in terms of the advertisement Opp.
Party No. 3 does not have the required Ph.D. in the relevant subject
i.e. Horticulture, selection and appointment of Opp. Party No. 3 as
against the post of Senior Scientist (Horticulture) is not only illegal
but also not sustainable in the eye of law and requires interference of
this Court.
6. I have heard Mr. S. Rath, learned counsel appearing for the
Petitioner, Mr. A. Tripathy, learned Addl. Govt. Advocate appearing
for the State, Mr. S.C. Rath, learned counsel appearing for Opp. Party
Nos. 1 & 2 and Mr. A. Mohanty, learned Sr. Counsel appearing on
behalf of Opp. Party No. 3 along with Mr. S.S. Padhi, learned counsel.
Page 39 of 43
// 40 //
With due exchange of pleadings, the matter was heard at the stage of
admission and disposed of by the present order.
7. The fact which is not disputed is that pursuant to the advertisement
issued by the University under Annexure-2 on 26.09.2017, Petitioner
and Opp. Party No. 3 made their applications as against the post of
Senior Scientist (Horticulture). As provided under Para 5 of the said
advertisement, a candidate for the post of Senior Scientist in any
discipline is required to have +2 Bachelor‟s Degree with at least 55%
mark, 2nd Class Master‟s Degree in the relevant subject with at least
55% mark, Ph.D. degree in the relevant subject along with experience
and significant contribution to the research etc. It is not disputed that
while Petitioner does have the required qualification along with Ph.D.
in Horticulture, which is the relevant subject, but Opp. Party No. 3
though have the qualification as provided under Para 5(i)(ii), but she
does not have the Ph.D. in the relevant subject. As found from
Annexure-6, Opp. Party No. 3 does have the Ph.D. in the subject
Botany.
7.1. Since as provided in the advertisement a candidate is required to
have Ph.D. Degree in the relevant subject, taking into account the
name of the post i.e. Senior Scientist (Horticulture), as per the
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// 41 //
considered view of this Court, a candidate should have Ph.D. Degree
in the subject Horticulture.
7.2. The stand taken by the University as well as Opp. Party No. 3 that
Botany being a Broader subject which includes Horticulture and
accordingly, the Selection Committee, who were the subject experts
found Opp. Party No. 3 more suitable in order of merit and
accordingly recommended her claim vide Annexure-C pursuant to the
proceeding of the meeting under Annexure-A to the counter affidavit
filed by the University is not acceptable as the Selection Committee
while considering the claim of Opp. party No. 3 as found from
Annexure-A take her Ph.D. in the subject Horticulture.
7.3. Placing reliance on the decisions as cited by the learned counsel
for the Petitioner in the case of Ganpath Singh Gangaram Singh
Rajput, Dr. Bhanu Prasad Panda, Valsala Kumari Devi M., Mohd.
Shorab Khan as cited (supra), this Court is of the view that Petitioner
having the Ph.D. in the relevant subject i.e. Horticulture, it cannot be
equated with the Ph.D. of Opp. Party No. 3 in the subject Botany as
being a concerned subject.
7.4. In view of the clear prescription in the advertisement that a
candidate should have Ph.D. in the relevant subject, it is the view of
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// 42 //
this Court that Opp. Party No. 3 does not have that Ph.D. in terms of
the advertisement. The stand taken by Opp. Party-University as well
as Opp. Party No. 3 that after participating in the selection process and
on becoming unsuccessful Petitioner is not permitted to challenge the
selection and appointment of Opp. Party No. 3 is also not acceptable
to this Court in view of the decision of the Hon‟ble Apex Court in the
case of Dr. Meeta Sahai as cited (supra).
7.5. In view of the said decision, Petitioner has the locus to challenge
the illegality committed in the selection process. Not only that in view
of the decision in the case of Mamata Mohanty as cited (supra), since
Opp. Party No. 3 lacks the eligibility in terms of the advertisement, it
cannot be cured at any stage and making appointment of Opp. Party
No. 3 tantamount to an illegality and not an irregularity. The stand
taken by the University as well as Opp. Party No. 3 that decision taken
by the Selection Committee who were the subject experts cannot be
challenged in exercise of the extra ordinary jurisdiction of this Court
is also not acceptable as the Selection Committee as found from
Annexure-A has considered the application of Opp. Party No. 3 while
taking her Ph.D. in the subject Horticulture.
Page 42 of 43
// 43 //
7.6. In view of the aforesaid analysis, this Court is of the view that
Opp. Party No. 3 was not eligible and entitled to make the application
as against the post of Senior Scientist (Horticulture) in terms of the
advertisement issued under Annexure-2. The Ph.D. acquired by her in
the subject Botany cannot be equated as having the Ph.D. in the
relevant subject. Therefore, this Court is inclined to interfere with the
selection and appointment of Opp. Party No. 3 so made vide the
impugned order dtd.28.02.2018 under Annexure-1. This Court
accordingly is inclined to quash the said order and while quashing the
same and taking into account the position of the Petitioner in the merit
list so available under Annexure-C at Sl. 2, directs the University to
provide appointment to the Petitioner as against the said post. This
Court directs Opp. Party No. 2 to complete the entire exercise within a
period of six (6) weeks from the date of receipt of this order.
8. The writ petition is disposed of accordingly with the aforesaid
observation and direction.
(BIRAJA PRASANNA SATAPATHY)
Judge
Signature Not Verified
Orissa High Court, Cuttack
Digitally Signed Dated the 11th March, 2025/Sneha
Signed by: SNEHANJALI PARIDA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 12-Mar-2025 17:05:58
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