Full Judgment Text
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PETITIONER:
DR. J. P. KULSHRESHTHA AND ORS.
Vs.
RESPONDENT:
CHANCELLOR, ALLAHABAD UNIVERSITY, RAJ BHAWAN AND ORS.
DATE OF JUDGMENT30/04/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
KOSHAL, A.D.
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 2141 1980 SCR (3) 902
1980 SCC (3) 418
CITATOR INFO :
F 1990 SC1402 (32)
ACT:
Ordinance 9(2) of the University of Allahabad issued
under section 32(2) (f) of the Allahabad University Act,
1921-Whether strict compliance regarding the qualifications
etc. prescribed for appointment of teachers is necessary-
whether non- complain serviettes the selection.
HEADNOTE:
Six posts of Readers in the English Department of the
University fell vacant and applications were invited by
advertisement. The appellants and respondents 5 to 10, among
others were applicants and they were all serving as lecturer
in the University at that time. Since section 29 of the
Allahabad University Act, 1921 stipulates that teachers of
the University shall be appointed by the Executive Council
on the recommendations of the Selection Committee, a
Selection Committee was constituted. The selection committee
has to do the statutory exercise of choosing the best among
the applicants in conformity with the minimum qualifications
prescribed under ordinance 9(2) of the University. But the
committee chose to interview the candidates who were
otherwise eligible for consideration. 13 applicants turned
up for interview. Respondent 9, Dr. Rhattacharya and
appellant Skand Gupta resented the viva voce test as
unauthorized and did not care to appear for the interview.
However Dr. Bhattacharya. On being persuaded, did later turn
up, was interviewed and eventually included in the Select
List. Skand Gupta did not enjoy the benefit of a second
pursuation to present himself for interview, did not appear
before the Selection Committee and missed the bus.
Respondents S to 10 were chosen and on the recommendation,
the Executive Council made their appointment. The appellants
thereupon moved the Chancellor under section 42 of the Act
requesting him to cancel the appointments of respondents 5
to 10. But by an order dated November 22, 1973 he upheld the
selection and appointment. The appellant, therefore, moved
the High Court under Article 226 of the Constitution and
impugned the selection process and the appointments on
various grounds. The learned single judge considered the
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merits of the contentions and concluded that the selections
and the consequent appointments were bad in law except in
regard to respondents 7 and 10 and directed the University
to make fresh selection and fill UP the vacancies.
Respondents 5 to 6 and 8 and 9 went in appeal to the
Division Bench which accepted their appeals and reversed the
judgment of the single judge in its entirety and hence the
appeal by special leave.
Allowing the appeal the Court,
^
HELD: 1. Any Administrative or quasi-judicial body
clothed with powers and left unfettered by procedures is
free to device its own pragmatic, flexible and functionally
viable processes of transacting business subject, of course,
to the basics of natural justice, fair play in action,
reasonableness in collecting decisional materials, avoidance
of arbitrariness and extraneous considerations and
903
other vise keeping within the leading strings of the law.
Though there is no flaw in the methodology of interviews,
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 or proceedings, a
subterfuge whereby legal means to reach illegal ends is
achieved. So, it is that Courts insist on recording of marks
at interviews and other fair checks like guidelines 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 [908 H, 909
A-C]
2. 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,
things as they now stand. But, however imperfect and obtuse
the current system and however urgent the modernization of
our courses culminating in examinations may be, the fact
remains that the Court has to go by what is extent and
cannot explore on its own or ignore the measure of merit
adopted by universities. Judges must not rush in where even
educationists fear to tread. So the criterion of marks and
class, the Allahabad University bas laid down is sound,
although to swear religiously by class and grade may be
exaggerated reverence and false scales if strictly
scrutinized by progressive n criteria. [909,E-G]
3. The prescription of a high second class in ordinance
9 is a mandatory minimum. A glance at the relevant portion
of ordinance 9 reveals that wherever relaxation of
qualifications is intended, the ordinance specifically pelfs
it out and by necessary implication, where it has not said
so, the possession of such qualification is imperative. The
ordinance has a purpose when it prescribes at least a high
second class for a Reader’s post. It is obligatory. [909 H,
91 O A. C-D]
4. "High" is the antithesis of "low" and a high second
class is, therefore, a contrast to a low second class. When
the range of a second class marks is wide of the candidate
who gets that Class with marks within the lower half bracket
it cannot be said that he gets a high second class. If he
manages to get 48 marks he barely gets a second class not a
high second class. And commonsense, which is not an enemy of
Courtsense, points clearly to the meaning, of high second
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class as one where the marks fall a little short of first
class marks and he narrowly misses first class. In the
context of ordinance 9 and its purpose and the collection of
words used viz. ’first class or a high second class’, the
interpretation will misfire if the Court disregard the
intent and effect of the adjective, ’high’ and indifferently
read it to mean merely the minimum marks needed to bring the
candidate within the second class. High is high and a
superior second class denotes marks somewhere near first
class marks. Even by relaxing, diluting and liberalizing the
rigour clearly imported by the draftsman by using the
expression "high second class", still it is impermissible to
render the word ’high’ nugatory or make, by construction,
that intensive adjective redundant. Nor did the University
has all these years treat a high second class to mean a mere
second class and English has not lost its potency in he
Allahabad University so 25 to include low in high. The
utmost construction would be: Draw a line at mid-point, and
marks above and below that line will be high and low second
class respectively. In the instant case, the mid-line
904
being 54 those who have not secured above 54 cannot claim to
have obtained a high second class and are ineligible. [910
D-H, 911 A, D]
5. It is true that the Selection Committee is in expert
body. But their expertise in not in law, but in other
branches of learning and the final interpretation of an
ordinance is a legal skill outside the academic orbit.[911
E-F]
6. While there is no absolute ban, it is a rule of
prudence that courts should hesitate to dislodge decisions
of academic bodies. But university organs, for that matter
any authority in our system, is bound by the rule of law and
cannot be a law unto itself. If the Chancellor or any other
authority lesser in level decides an academic matter or in
educational question, the court keeps its hands off; but
where a provision of law has to be read and understood, it
is not fair to keep the could out. To respect in authority
is not to worship it unquestion illegal since the bhakti
cult is inept in the critical field of law. In short, while
dealing With legal affairs which have an impact on academic
bodies, the views of educational experts are entitled to
great consideration but not to exclusive wisdom. [911 G-H,
912 B-D]
The University of Mysore and Anr. v. C. D. Govinda and
Anr., [1964] 4 SCR 575 @ 586; followed.
7. An illegal act cannot be deemed to be legal by
reading a legislative function into an executive action.
Were this dubious doctrine applied to Governmental affairs
and confusion between executive and legislative functions
juries prudently sanctioned, the consequence could well be
disastrous to the basics of our democracy. Shall gains in
some case should not justify the urging of propositions
which are subversive of our constitution. [912 E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1524 of
1977.
Appeal by Special Leave from the Judgment and order
dated 21-9-1976 of the Allahabad High Court in S.A.Nos.
26,66 and 37/76.
S. P. Gupta and Pramod Swaroop for the Appellants.
Yogeshwar Prasad and Mrs. Rani Chkabra for the
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Respondents 5 and 6.
U. R. Lalit and Manoj Swarup, Miss Lalit Kohli for the
Respondent (University.)
The Judgment of the Court was delivered by
KRISHNA IYER J.-The core controversy in this appeal by
special leave rages round the legality of the selection of
Readers by the Allahabad University. The fortunes of the
litigation, pending for seven years have been fluctuating
from court to court. The fine line of distinction between
internal autonomy for educational bodies and insulation of
their operations from judicial interference on the one hand
and the constitutional obligation of the court to examine
the legality of academic
905
actions and correct clear injustices on the other is
jurisprudentially real and the present appeal illustrates
the demarcation between the two positions. While legal
shibboleths like "hand-off universities" and meticulous
forensic invigilation of educational organs may both be
wrong, a balanced approach of leaving universities in their
internal functioning well alone to a large extent, but
striking at illegalities and injustices, if committed by
however high an authority, educational or other, will
resolve the problem raised, by counsel before us in this
appeal from a judgment of the Division Bench of the High
Court.
Once We recognize the basic yet simple proposition that
no islands of insubordination to the rule of law exist in
our Republic and that discretion to disobey the mandate of
the law does not belong even to university organs or other
authorities the retreat of the Court at the sight of an
academic body, as has happened here, cannot be approved. On
the facts and features of this case such a balanced exercise
of jurisdiction will, if we may anticipate our ultimate
conclusion, result in the reversal of the appellate judgment
and the restoration, in substantial measure, of the learned
single Judge’s judgment quashing the selections made by the
University bodies for the posts of Readers in English way
back in 1973.
A perception in perspective of the facts which are
brief and the law which is clear, persuades us to narrate
the circumstances which have led a number of lecturers of
the Allahabad University to fighting forensic battles over
the selection of some as Readers in English by the selection
Committee and their opportunity by the Executive Council
Nearly a decade ago, six posts of Readers in the
English Department of the University fell vacant and
applications were invited by advertisement. The petitioners
and respondents 5 to 10 among others, were applicants. These
parties were all serving as lecturers in the university at
that time. A selection committee was constituted as
contemplated by the statutes and ordinances harmed under the
Allahabad university Act, 1921 (for short, hereinafter
called the Act.) Section 29 of the Act, stipulates that
teachers of the university shall be appointed by the
executive council on the recommendations of the selection
committee. There are statutory provisions regulating the
functions of the selection committee section 32(2)(f) of the
Act. provides for the issuance of ordinances prescribing
qualifications for appointment of teachers. Ordinance 912)
lays down the qualifications for teachers in the various
faculties. We are concerned with ordinance 9 with special
reference to the prescription of qualifications for Readers
and it runs thus:
906
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9. The following qualifications are prescribed for
the appointment of teachers in the Faculties of
Arts, Science, Commerce and Law
(2) For Readers: (i) First or high Second Class
Master’s degree in the Subject concerned and good
academic record.
(ii) Established reputation for sound scholarship and
be competent to teach upto Master’s degree and
guide research
(iii) A doctor’s degree, or equivalent published work.
(iv) At least 5 Years’ teaching ’experience of the
subject concerned in post-graduate classes in a
University recognized by law, or research
experience in a Research Institute recognized by
the. University or’ the State, or the Central
Government.
Provided that the selection ’Committee may relax
the qualifications contained in clause (iii) for
the post of Readers in the case of candidates
whose total length of service as tea cheers in
this University is not less than the period’
required to teach the maximum of the Lecturer’s
grade and who shall have established a reputation
as teachers.
Provided further that in the case of women-
teachers of this (i.e. Allahabad University), in
place of qualification No. (IV) requiring 5 years’
teaching experience in post graduate classes a
minimum of 5 Years teaching experience of the
subject in the graduate classes in this University
may also be considered adequate for the post of
Readers.
The statutory exercise of choosing the best among the
applicants in conformity with the minimum qualifications is
done by the selection committee which recommends to the
’executive’ council its panel. While there is no specific
legislative provision regarding the procedure to be adopted
by the selection committee there is no doubt that
arbitrariness is anathema, violation of natural justice
vitiates and subject to this, self-created rules, flexible
and pragmatic, fair and functionally viable, may well be
fashioned by the selection committee. In this case the
committee chose to interview the candidates who were other
wise eligible for consideration. 13 applicants turned up for
inter view. But respondent No, 9, Dr. Bhattacharya, and
petitioner No. 2, Skand Gupta, apparently resented the viva
voce test as unauthorized and did not care to appear for the
interview. How ever, Dr. Bhattacharya (R. 9), on being
persuaded, did later turn up, was interviewed and eventually
included in the ’select list’. The
907
second Petitioner did not enjoy the benefit of a second
persuasion to present himself for interviews did not appear
before the Selection Committee and missed the bus.
The Committee, which consisted of academic experts
prepared a panel and forwarded it to the Executive Council.
As is inevitable in situations of over supply, many are
called but few are chosen and Respondents 5 to 10 (Dr. Mrs.
Hem Lata Joshi, R-5, Shri H. S Saxena, R-6 Dr. R. R. Dutt,
R-7, Shri I. N. Agarwal, R-8, Dr. A.N.Bhattacharyya, R-9,and
Dr. L.M. Upadhayaya, R-10) were lucky to be chosen while the
Petitioners were luckless and lost. Petitioner No. 2
represented against the propriety of the selection to the
executive council, but the latter overruled the objection
and accepted the recommendation. Respondents 5 to 10 were
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thus appointed Readers. The Petitioners thereupon moved the
chancellor under s.42 of the Act and urged in their
Petition, that the selection was illegal, but were
disappointed because the chancellor, by this order of
November 22, 1973, upheld the selection and the
appointments. The last refuge of those with lost causes is
the writ jurisdiction of the High Court. The Petitioners
invoked Art. 226 of the Constitution and impugned the
legality of the selection process and the appointments on
various grounds. The learned single Judge considered the
merits of the contentions and concluded that the selections
and the consequent appointments were bad in law except in
regard to respondents 7 and 10 and directed the university,
in January 1976, to hold fresh selections . for filling the
vacancies of long years ago.
Inevitably, the vanquished respondents rushed to the
appellate Bench of the High Court where success greeted
them; for, the appeals were allowed in reversal of the
single Judge’s reasoning and the writ petition was dismissed
in entirety. The final sanctuary of those who F. fancy that
they are victims of judicial injustice of other forms of
iniquity is the Supreme Court in its misleadingly immense
and self defeatingly multiform jurisdiction under Art. 136,
The appellants are here hopefully invoking our power to heal
their alleged in jury.
With this backdrop, it will be easy to appreciate the
few submissions urged by the appellants in substantiation of
their case that although the selection committee was legally
constituted, the process of selection and the criteria for
selection Were illegal, If the selecting were invalid dated
by any lethal vice the council’s action in accepting the
commendees cannot survive. Nor can the chancellor’s
dismissal of the objections of the appellants lend life to
what otherwise is non est. Thus, the crucial issue is
whether the grounds of attack levelled against the selection
have substance.
908
A few basic facts must be remembered before We discuss
the merits. All the parties with whom we are concerned as
candidates, have acquired their master’s degree from the
Allahabad University. In tune with the hierarchical ethos of
Indian society which does not spare the academic there is a
pyramidal structure with lecturers at the bottom, Readers
above them and professors at the top, speaking
simplistically. Our concern in this appeal is with Readers;
and the eligibility qualifications mentioned in ordinance 9
are the minimum, not the maximum. We may straight get into
the meat of the matter, The substantial con tension urged by
the appellant with success before the single Judge and
failure before the Division Bench is that the contesting
respondents are not even qualified for consideration because
they do not have a first class or a high second class in the
Master’s degree. It is common ground that none of them has a
first class. It is undisputed that the Allahabad University
awards first class to those who obtain 60 % and above and
second class to those who secure anything between 48 % to 59
^. For the nonce, we are not concerned with the other
qualifications itemized in ordinance 9. The marks obtained
by the appellants show that they are recipients of first
class or high second class. The controversy is not about
their eligibility but that of the contesting respondents.
Dr. Mrs. Joshi (R. S) has secured 52.2 marks; Shri Saxena
(R. 6) has scraped through with 49 .3 marks; Dr. Dutt (R. 7)
has, however, obtained a first class while Shri Agarwal
(R.8) is slightly below the middle line in the second class
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range having got only 53 .8, marks; Dr. Bhattacharya (R9.)
has fared a little better with 54 .5 marks. Dr. Upadhyaya
(R. 10) also has a better performance record in the Master’s
degree examination since he has 55.1 marks to his credit.
From these figures it is obvious that Dr. Dutt (R.7) has the
’distition of being the holder of a first class. It is
beyond one’s comprehension how his selection can be
challenged on the score of ineligibility. Indeed, the
appellants have accepted the findings of the learned single
Judge who has disallowed the writ petition vis-a-vis R. 7
and R. 10. We agree. Even in regard to the conclusion
arrived at so far as R. 10, Dr. Upadhyaya, is concerned who
has secured marks above the middle line in the range between
48 % and 59 %, we are not disposed to disagree with the
single Judge. Thus, the appointments of. 7 and R.10 do not
call for any interference. The rest will, right now, be
exposed to the actinic light of legal scrutiny.
We may dispel two mystiques before we debate the real
issued. Did the selection committee act illegally in
resorting to the interview process to pick out the best ? We
think not. Any administrative or quasi judicial body clothed
with powers and left unfettered
909
by procedures is free to devise its own pragmatic, flexible
and functionally viable processes of transacting business
subject, of course to the basics of natural justice fair
play in action, reasonableness in collecting decisional
materials, avoidance of arbitrariness and extraneous
considerations and otherwise keeping with in the leading
strings of the law. We find no flaw in the methodology of
‘interviews.’ Certainly, cases arise where the are 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 guidelines 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 be
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."
The second obscurantism we must remove is the 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,
things as they now stand. But, however imperfect and obtuse
the current system and however urgent the modernization of
our courses culminating in examinations may be, the fact
remains that F he court has to go by what is extent and
cannot explore on its own or ignore the measure of merit
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 Allahahad
University has laid down, although to swear religiously by
class and grade may be exaggerated reverence and false
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scales if strictly scrutinized by progressive criteria.
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’s post. is this condition
mandatory or directory ? The High Court at the two tiers has
taken contrary views. But we are inclined to
910
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
Now we come to close grips with the Principal point-
debated before us. When is a second class high, going by
marks? For any layman the meaning is clear. For any purpose-
oriented interpretation the decoding is simple. High is the
antithesis of low and a high second class is, therefore, a
contrast to a low second class. When the range of second
class marks is wide, of the candidate who gets that class
with marks within the lower half bracket you cannot say he
gets a high second class. If he manages to get 48 marks he
barely gets a second class-not a high second class. And
commonsense which is not an enemy of court sense, points
clearly to the meaning of high second class as one where the
marks fall a little short of first class marks and he
narrowly misses first class. In the context of ordinance 9
and its purpose and the collocating of words used viz.
’first class or a high second class’, the interpretation
will misfire if we disregard the intent and effect of the
adjective ’high’ and indifferently read it to mean merely
the minimum marks needed to bring the candidate within the
second class. High is high and a superior second class
denotes marks some where near first class marks. Assuming we
relax, dilute and liberalize the rigour clearly imported by
the draftsman by using the expression ’high second class’,
still it is impermissible to render the word ’high’ nugatory
or make, by construction, that intensive adjective
redundant. Nor are we impressed with the strange submission
that the University has all these years treated a high
second class to mean a male . second class, and, therefore
English has lost its potency in the Allahabad University and
high includes low. Such bathetic semantics
911
must be rejected sucre continuing commission cf wrong does
not right it.
The utmost we may reiuctantly accept is the
construction that the learned single Judge has adopted. Draw
a line at mid-point, and marks above and below that line
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will be high and LOW second class respectively.
It was urged that marks for the second-class grade vary
from university to University and start sometimes with 40 %
and so, even 48 % must be regarded as high second class for
Allahabad University. Here we are concerned only with
holders of second class from the Allahabad University and so
the complication of other universities does not rise. Even
otherwise, will reference to and particular university, the
marks for second class may be from X to Y and ’high’ with
reference to that university will be the superior half
between X and Y. Lexically, logically, legally,
teleologically, we, find the conclusion the same. We
regretfully but respectfully disagree with the Division
Bench and uphold the sense of high second class attributed
by the learned single Judge. The mid line 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. In the instant case, Dr.
Mrs. Joshi, Shri Saxena and Shri Agarwal do not fill the
bill, their marks being below 54 in the Master’s degree
examination. We have earlier held that the power to relax,
as the ordinance now runs, in so far as high second class is
concerned, does not exist. Inevitably, the appointment of
the 3 respondents violate the ordinance and are therefore,
illegal. It is true, as counsel for the respondent urged,
that the ’selection Committee is an expert body. But their
expertise is not in law, but in other branches of learning
and the final interpretation of an ordinance is a legal
skill outside the academic orbit.
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 prudence that courts should hesitate to
dislodge decisions of academic bodies. But university
organs, for that matter any authority in our system, is
bound by the rule of law and cannot be a law unto itself If
the Chancellor or any other authority lesser in level
decides an academic matter or an educational question, the
Court keeps its hands off; but where a provision of law has
to be read and understood, it is not fair to keep the Court
912
out. In Govinda Rao’s case (1) Gajendragadkar, J (as he they
was) struck the right note:
"What the High Court should have considered is whether
file appointment made by the Chancellor Had contravened
any statutory or finding rule or ordinance, and in
doing so, the High Court should have shown due regard
to the opinions expressed by the Board and its
recommendations on which the Chancellor has acted."
(Emphasis added)
The later decisions cited before us broadly conform to the
rule of caution sounded in Govinda Rao. But to respect an
authority is not to worship it unquestioningly since the
bhakti cult is inept in the critical field of law. In short,
while dealing with legal affairs which have an impact on
academic bodies, the views of educational experts are
entitled to great consideration but not to exclusive wisdom.
Moreover, the present case is so simple that profound
doctrines about academic autonomy have no place here.
A strange submission was mildly made that the Executive
Council has also the power to make ordinances and so, by
accepting a low second class has equal to a High second
class in the case of the three respondents, the Council must
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be deemed to have amended the ordinance and implicitly re-
written it to delete the adjective ’high before ’second
class. This argument means that an illegal act must be
deemed to be legal by reading a legislative function into an
executive action. Were this dubious doctrine applied to
governmental affairs and confusion between executive and
legislative functions juris prudentially sanctioned, the
consequences could Well be disastrous to the basics of our
democracy We mention this facet of the argument not only to
reject it but to emphasize that small gain in some case
should not justify the urging of propositions which are
subversive of our Constitution Be that as it may, we are
satisfied that respondents 5, 6 and 8 do not possess a high
second class in their Master’s degree.
The second condition successfully urged before the
single judge of the High Court relates to Dr. Bhattacharya
(R. 9). The point is that R. 9 and petitioner No. 2 for
selection the second Petitioner lost his chance of being
considered because he did not appear for the interview and
Dr. Bhattacharya averted that fate because he was sent for a
second time. The equivocal version of Dr. Bhattacharya
913
has not been accepted by the learned single Judge and we are
unhappy that an academic has been put to the necessity of
this dubiety which suggests that taking liberties with truth
for getting a temporary advantage is a tendency which does
not spare highly educated and gifted persons. In this
connection, even the terminological inexactitude indulged in
by Dr. Hem Lata Joshi (R. 5) is not complimentary, when she
says that in her application she gave 54 marks as against
the actual figure of 52.2 and when challenged, she excused
herself by saying that her memory, working in a hurry, let
her down. We are satisfied that if the Selection Committee
had chosen to give an opportunity to the 2nd petitioner,
even as they did to R. 9, he might well have turned up and
having regard to his high marks, might also have stood a
good chance of being selected. The criticism is not that the
Selection Committee’s action was mala-fide or biassed, but
that there has been unequal treatment between equals. For
this reason, the selection of R. 9 deserves to be struck
down as violative of Art. 14.
Other minor points which have been urged and countered
do not deserve serious consideration and we decline to deal
with them. The conclusion we reach is that the selection and
appointments of respondents 7 and 10 are good; but the
selection and appointment of respondents 5, 6, 8 and 9 are
bad in law.
The tragic sequel cannot be dismissed as none of our
concern because the Court, by its process, must, as far as
possible, act constructively, minimising the injury and
maximising the benefit. Indifference to consequences upon
institutions and individuals has an imperial flavour and we
wish to make it clear that the fact that since 1973 the
respondents 5, 6, 8 and 9 have been functioning as Readers
without blemish is a factor which distresses us when we
demolish their appointments. They have gained experience of
several years in the Reader’s post. They are otherwise well
qualified on the academic side. The short-fall in the matter
of a high second class, while some of them have been
doctorates, should not have such disastrous consequences as
to throw out the appointees 7 years after. We think that
these special circumstances may well justify the appropriate
authority in the University resorting to alternatives which
may mitigate their misfortune. We have been informed by
counsel Mr. Manoj Swarup that the University is inclined to
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take an accommodative attitude to mitigate the hardship that
may flow from the adjudication. Of course, they are free to
take such steps as they deem just and necessary. We do not
think there was anything wrong in Dr. Bhattacharya having
been persuaded to come to the interview, but we regard it as
improper that such a facility was not extended to the 2nd
petitioner.
914
In conclusion, we allow the appeal and direct a fresh
selection from among those candidates who are qualified for
Readership in the light of our interpretation of Ordinance
9. We make it clear that the appointments of respondents 7
and 10 sustained by the High Court, will remain untouched.
The appeal is allowed subject to the observations made
above.
S.R. Appeal allowed.
915