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Service = When the appointment of one person held wrong , the other person can not be appointed automatically by way of writ of Mandamus unless in exceptional circumstances = GANAPATH SINGH GANGARAM SINGH RAJPUT … APPELLANT Versus GULBARGA UNIVERSITY REP. BY ITS REGISTRAR & OTHERS … RESPONDENTS = http://judis.nic.in/supremecourt/imgst.aspx?filename=40953

When the appointment of one person held wrong , the other person

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

can not be appointed automatically by way of writ of Mandamus unless in exceptional circumstances  =

 

Shivanand challenged the aforesaid selection and appointment in a writ petition filed before the High Court, inter alia, contending  that  Masters’ Degree in Mathematics  will  not  make  Ganpat  eligible  in  terms  of  the advertisement and, therefore, his selection and appointment to the  post  of Lecturer in MCA is illegal.  Shivanand further pointed  out  that  since  he possessed a post-graduate degree in MCA and fulfils  all  other  conditions, he ought to  have  been  selected  for  appointment. =

 

 

 

Ordinarily,  in  a  case

 

where the person appointed is found ineligible, this  Court  after  setting

 

aside such appointment, directs for consideration of cases of such  of  the

 

candidates, who have been found eligible. 

 

It is only in  exceptional  cases

 

that this Court issues mandamus for appointment. 

 

The case in  hand  is  not

 

one of those cases where the High Court ought to have issued mandamus  for appointment of Shivanand as Lecturer in MCA. 

 

Hence, we are of  the  opinion

 

that the  High  Court  rightly  held  Ganpat  ineligible  and  quashed  his

 

appointment. 

 

However, it erred  in  issuing  mandamus  for  appointment  of

 

Shivanand. 

 

Accordingly, we uphold the impugned  order  of  the  High  Court

 

whereby it had set aside the appointment of the appellant herein and direct

 

that the case of the writ petitioner Shivanand and all other candidates  be

 

considered in accordance with law.  

 

However, we  make  it  clear  that  the

 

selection already made shall be taken to its logical conclusion.

 

 

 

            In the result, we dismiss these appeals  with  modification  in

 

the direction as aforesaid with cost, which we assess at Rs.50,000/-(Rupees

 

fifty thousand) only in both the cases, payable by the appellants  in  both

 

the appeals equally.

 

 

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO. 9866 OF 2013
(@ SLP (C) No. 35063 of 2009)

 

GANAPATH SINGH
GANGARAM SINGH RAJPUT … APPELLANT

 

Versus

 

GULBARGA UNIVERSITY REP.
BY ITS REGISTRAR & OTHERS … RESPONDENTS

 

WITH
CIVIL APPEAL NO. 9867 OF 2013
(@ SLP (C) No. 35173 of 2009)

 

GULBARGA UNIVERSITY REP.
BY ITS REGISTRAR & OTHERS … APPELLANTS

 

Versus

 

SHIVANAND & OTHERS … RESPONDENTS

 
J U D G M E N T

 

CHANDRAMAULI KR. PRASAD, J.

 
Ganpath Singh Gangaram Singh Rajput as also the Gulbarga University,
aggrieved by the judgment and order dated 19/24th of November, 2009 of the
Karnataka High Court in Writ Appeal No. 3216 of 2004 quashing the
appointment of aforesaid Ganpath Singh Gangaram Singh Rajput as Lecturer in
MCA in the Post-graduate Department of the University, have preferred these
special leave petitions.

 

Leave granted.

 

Short facts giving rise to the present appeals are as follows:

 

The appellant, Gulbarga University, hereinafter referred to as ‘the
University’, issued notification dated May 22, 1998 inviting applications
for appointment to various posts including the post of Lecturer in Masters’
in Computer Application, for short, MCA. The minimum qualification, for
appointment to the post of Lecturer and with which we are concerned in
these appeals, is good academic record with at least 55% of marks or an
equivalent grade at the Masters’ Degree level in the relevant subject from
an Indian University or an equivalent degree from a foreign University.

 

Shivanand, respondent no. 3 herein, and Ganpath Singh Gangaram Singh
Rajput, respondent no. 3 of the writ petition (appellant herein), besides
other persons offered their candidature for appointment to the post of
Lecturer in MCA. The appellant claims to have passed the M.Sc. examination
in Mathematics with First Class with distinction. It is an admitted
position that Shivanand possessed a post-graduate degree in MCA and was
eligible in terms of the advertisement. The University, in terms of
Section 53 of the Karnataka Universities Act constituted a ‘Board of
appointment’ for selecting suitable candidates. It consisted of experts
holding high positions in academic field including a Professor each from
University of Pune, Bombay University and Kuvempu University. The Board of
appointment interviewed the candidates and ultimately made a recommendation
for the appointment of the appellant, hereinafter referred to as ‘Ganpat’,
who admittedly did not have a post-graduate degree in MCA, but had a
Masters’ Degree in Mathematics. The recommendation so made was placed for
consideration before the Syndicate which approved his appointment.

 

Shivanand challenged the aforesaid selection and appointment in a writ
petition filed before the High Court, inter alia, contending that Masters’
Degree in Mathematics will not make Ganpat eligible in terms of the
advertisement and, therefore, his selection and appointment to the post of
Lecturer in MCA is illegal. Shivanand further pointed out that since he
possessed a post-graduate degree in MCA and fulfils all other conditions,
he ought to have been selected for appointment. Ganpat as also the
University resisted the prayer of Shivanand and contended that the
expression ‘relevant subject’ used in the notification would mean any
subject which is relevant for the purpose of holding the post of Lecturer
in MCA. It was contended that Masters’ degree in Mathematics is a degree
in a relevant subject and thus Ganpat possessed the basic qualification.
While defending the appointment it was further contended that in the
syllabus for MCA, Mathematics is the core subject and, therefore, a
candidate having a post-graduate degree in Mathematics is eligible for
appointment as Lecturer in MCA. It was also pointed out that when an
expert body like the Board of appointment had found that a post-graduate
degree in Mathematics is a relevant subject for the purpose of adjudging
the eligibility and the same having been approved by the Syndicate of the
University, a body consisting of experts, the same was not fit to be
interfered with by the High Court in exercise of its writ jurisdiction.
The learned Single Judge considered the submission, dismissed the writ
petition and upheld the appointment of Ganpat, inter alia, observing as
follows:

 

“8…….The use of the word ‘relevant subject’ in relation to
the qualification for Lecturers’ post is the bone of contention
between the parties. It is also Sri. Chandrashekar’s assertion
that it should relate only to a Master degree in Computer
Applications and nothing else, while, the University would
contend that it could also mean such of those who have secured
a Masters degree in Mathematics. It is not in dispute that the
Head of the Department, M.C.A. is held by a person who is also
a Ph.D. holder in Mathematics. It is not in dispute that
Mathematics is also subject which is taught in the Masters
degree in Computer Applications course. What one can
reasonably infer from the pleadings of the parties is that
‘relevant subject’ could mean candidates who possessed Masters
Degree in such of those subjects as are offered in the M.C.A.
course. Mathematics being one of the subjects, it cannot be
said that Masters Degree in Mathematics was not a “relevant
subject” and it was only a Masters in Computer Applications.

 
It would be very unreasonable to hold “relevant subject”
to mean only a Masters in Computer Applications. It would also
be irrational to conclude that the non mention of the specific
educational qualification for the post of Lecturer in M.C.A.
could lead to only one conclusion that a candidate with a
Masters degree in Computer Applications, alone, would meet the
requirement.”

 

Shivanand, aggrieved by the same, preferred appeal and both the
parties reiterated the same contentions. The submission made by Shivanand
found favour with the Division Bench of the High Court and while doing so
it observed as follows:

 

“28. This is nothing sort of trickery and fraud on persons
applying to the post. The University had perhaps deliberately
or with a design to achieve this result of selecting a person
with post-graduate qualification in Mathematics, though it had
called for applications to fill up the post of Lecturer in MCA
course. That is why the action of the University falls short
of the constitutional mandate of the State being in conformity
with Articles 14 and 16(1) of the Constitution of India,
affording equal opportunity to all eligible candidates. In
fact the method of selection made by adopting this procedure,
is so flawed that it can never pass the test before a Court,
more so while in exercise of jurisdiction of judicial review of
administrative action. We say so far the reason that the post
notified for being filled up by the University in MCA course
should be one with reference to the vacancy and the vacancy can
only be in a particular subject of the department and cannot be
generally with reference to the course.”

 

Accordingly, the Division Bench of the High Court allowed the appeal
and quashed the appointment of Ganpat as Lecturer in MCA.

 

Ms. Kiran Suri, advocate appears on behalf of the appellant Ganpat
whereas the University is represented by Mr. S.N. Bhat, advocate. They
contend that Mathematics is a relevant subject for MCA course and,
therefore, a person holding post-graduate degree in Mathematics is eligible
for appointment as Lecturer in MCA. It is further pointed out that in
Gulbarga University, different Mathematics subjects are taught in MCA and,
therefore, it cannot be said that a person possessing Masters’ degree in
Mathematics is not eligible for appointment as Lecturer in MCA. It has
also been pointed out that as to whether a particular qualification is
relevant or not for holding a post is best decided by the experts concerned
and, in the present case, Mathematics, having been recognized as a relevant
subject for MCA course not only by the University but by the Board of
appointment consisting of eminent academicians from various Universities,
the Division Bench of the High Court ought not to have substituted their
opinion. In support of the submission reliance has been placed on a
decision of this Court in the case of B.C. Mylarappa v. Dr. R.
Venkatasubbaiah, (2008) 14 SCC 306 and our attention has been drawn to
Paragraph 26 of the said judgment which reads as follows:

 

“26. Admittedly, there is nothing on record to show any mala
fides attributed against the members of the expert body of the
University. The University Authorities had also before the High
Court in their objections to the writ petition taken a stand
that the appellant had fully satisfied the requirement for
appointment. In this view of the matter and in the absence of
any mala fides either of the expert body of the University or
of the University Authorities and in view of the discussions
made hereinabove, it would be difficult to sustain the orders
of the High Court as the opinion expressed by the Board and its
recommendations cannot be said to be illegal, invalid and
without jurisdiction.”

 
Yet another decision on which reliance is placed is the decision of
this Court in the case of Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal
University, (2008) 9 SCC 284 and our attention has been drawn to Paragraph
29 of the judgment which reads as follows:

 

“29. It may be mentioned that on a clarification sought from
UGC whether a candidate who possesses a Masters degree in
Public Administration is eligible for the post of Lecturer in
Political Science and vice versa, UGC wrote a letter dated 5-3-
1992 to the Registrar, M.D. University, Rohtak stating that the
subjects of Political Science and Public Administration are
interchangeable and interrelated, and a candidate who possesses
Masters degree in Public Administration is eligible as Lecturer
in Political Science and vice versa. Thus, this is the view of
UGC, which is an expert in academic matters, and the Court
should not sit in appeal over this opinion and take a contrary
view.”

 
Mr. Naveen R. Nath, advocate appearing on behalf of respondent
Shivanand, however, contends that a person holding the post-graduate degree
in Mathematics is not eligible for appointment as Lecturer in MCA. It is
pointed out that the advertisement was composite and related to appointment
of various posts in different subjects and, hence, the expression ‘relevant
subject’ has to be understood in that context. It has been pointed out
that the applications were invited for filling the posts of Professor,
Reader and Lecturer in the Department of English, Urdu, Persian, Chemistry,
Bio-Chemistry, Applied Electronics, Geology, Law etc., including MCA.
According to the learned counsel, the relevant subject in the advertisement
here would mean the subjects for which applications were invited.
According to him, the Board of appointment misdirected itself in going into
the question as to whether Mathematics is a relevant subject or not in MCA.
Accordingly, he submits that the opinion of the Board of appointment as
approved by the Syndicate is not that sacrosanct so as to deprive High
Court the power of judicial review.

 

We have bestowed our consideration to the rival submissions and we do
not find any substance in the submission of the learned counsel for the
appellant and the authorities relied on are clearly distinguishable.

 

Main thrust in the appellant’s contention is that when an expert body
i.e. Board of appointment consisting of high academicians, has found Ganpat
eligible and qualified and which has been approved by the Syndicate,
another expert body, the High Court ought not to have acted as a Court of
appeal, examined the pros and cons and come to the conclusion that Ganpat
did not possess the requisite qualification. There is no difficulty in
accepting the broad submission that academic issues must be left to be
decided by the expert body and the court cannot act as an appellate
authority in such matters. It deserves great respect. When two views are
possible and the expert body has taken a view, the same deserves
acceptance. However, to say that expert body’s opinion deserves acceptance
in all circumstances and is not subject to judicial review does not appeal
to us. In our constitutional scheme the decision of the Board of
appointment cannot be said to be final and absolute. Any other view will
have a very dangerous consequence and one must remind itself of the famous
words of Lord Acton “power corrupts and absolute power corrupts
absolutely”.

 

Now we revert to the authorities of this Court relied on by the
appellants. B.C. Mylarappa (supra) deals with the appointment to the post
of Professor, in which one of the eligibility condition for appointment was
’10 years’ of experience of post-graduate teaching’. The Board of
appointment considered the selected candidate eligible by taking into
consideration his experience as Lecturer and Research Assistant and in the
absence of any mala fide, this Court observed that its opinion is not fit
to be rejected. This would be evident from Paragraph 24 of the judgment,
which reads as follows:

 

“24. There is another aspect of this matter which is also
relevant for proper decision of this appeal. We have already
indicated earlier that the Board of Appointment was constituted
with experts in this line by the University Authorities. They
have considered not only the candidature of the appellant and
his experience as a Lecturer and Research Assistant along with
others came to hold that it was the appellant who was the
candidate who could satisfy the conditions for appointment to
the post of Professor. Such being the selection made by the
expert body, it is difficult for us to accept the judgments of
the High Court when we have failed to notice any mala fides
attributed to the members of the expert body in selecting the
appellant to the said post.”

 

 

 

However, this judgment cannot be read to mean that the courts are
denuded of the power to scrutinize the experience in a given case and come
to a contrary conclusion. As stated earlier, when the view taken by the
expert body is one of the possible views, the same is fit to be accepted.
Further, the yardstick would be different when it concerns eligibility
conditions pertaining to ‘qualification’ and ‘experience’. In case of
experience it is best known to the expert body in the field in regard to
the actual work done and, therefore, its opinion is of higher degree
deserving acceptance ordinarily. Hence, in our opinion, this judgment did
not fetter the power of the High Court.

 

As regards the decision of this Court in the case of Rajbir Singh
Dalal (supra), the same is clearly distinguishable. In the said case the
controversy which fell for consideration was as to whether public
administration is one of the branches of Political Science and in the face
of the opinion of the expert body that they are interchangeable, the
conclusion of the High Court that they are distinct and separate was not
approved. This would be evident from the following passage from the said
judgment.

 

“45. As has been pointed out by my learned Brother, the
University has in its counter-affidavit taken a stand that
Public Administration is one of the branches of Political
Science and the Selection Committee comprised of eminent
scholars had rightly chosen the appellant for the post of
Reader after considering his academic achievements and also
relying upon the view of the University Grants Commission in
its letter dated 5-3-1992 stating that the subjects of
Political Science and Public Administration are
interchangeable and interrelated and that a candidate who
possesses a Masters degree in Public Administration is
eligible to be appointed as Lecturer in Political Science.
Similarly, a candidate possessing a Masters degree in
Political Science is eligible for appointment to the post of
Lecturer in Public Administration.

 
46. Despite the aforesaid views expressed by the expert bodies
such as the University and the University Grants Commission,
the High Court has held Public Administration and Political
Science to be distinct and separate disciplines.….”

 

In the present case, there is no such plea. Here, the plea is that as
Mathematics is one of the subjects in MCA and, therefore, Ganpat possessing
Masters’ degree in Mathematics is eligible. It is not the plea of the
University that Masters’ degree in Mathematics is interchangeable with MCA.
Not only this, in the aforesaid case, this Court came to the aforesaid
conclusion due to different eligibility criteria prescribed for appointment
to the post of Reader and Lecturer. It was pointed out by this Court that
in the case of Reader the requirement was Masters’ degree in an
‘appropriate subject’, whereas for appointment as Lecturer it was ‘relevant
subject’. Said case related to the appointment of Reader. On account of the
use of different expressions, this Court came to the conclusion that post-
graduate degree holder in Political Science is eligible to be appointed to
the post of Reader in Public Administration. This would be evident from
paragraphs 48 and 49 of the judgment, which read as follows:

 

“48. The recruitment rules followed by the University clearly
indicate that in order to be appointed as Lecturer in a
particular discipline a candidate must have a postgraduate
degree in the relevant subject. On the other hand, for
appointment to the post of Reader such a condition has not
been specified. In fact, in Regulation 2 it has been
generally indicated that no person shall be appointed to a
teaching post in the University or in any institution,
including constituent or affiliated colleges recognized
under the UGC Act, 1956, or any institution deemed to be a
university under Section 3 of the said Act, in a subject, if
he/she does not fulfil the requirement as to the
qualifications for the appropriate subject.

 
49. In my view, the omission in the Regulations cannot be said
to be unintentional or a case of casus omissus. In my view,
the expression “appropriate subject” was intended to cover
the post of Reader and once the expert bodies had indicated
that the appellant who held a postgraduate degree in
Political Science was eligible to be appointed to the post
of Reader in Public Administration and had been rightly
appointed to such post, it is normally not for the courts to
question such opinion, unless it has specialised knowledge
of the subject.”

 

(underlining ours)

 

 

 

This Court did not say that Political Science is the relevant subject
for appointment as Lecturer in Public Administration.

 

Having set the legal position in the right perspective, we now
proceed to consider the facts of the present case. As is evident from the
advertisement, applications were invited for filling up various posts in
different subjects including the post of Lecturer in MCA. The
advertisement requires post-graduate degree in the ‘relevant subject’. The
relevant subject would, therefore, in the context of appointment to the
post of Lecturer, mean post-graduate degree in MCA. In our opinion, for
appointment to the post of Lecturer, Masters’ degree in the Mathematics is
not the relevant subject. The advertisement requires Masters’ degree in
‘relevant subject’ and not ‘appropriate subject’. In the present case, the
Board of appointment has not stated that post-graduate degree in
Mathematics is the relevant subject for MCA but in sum and substance it is
equivalent to a post-graduate degree in MCA for the reason that Mathematics
is one of the subjects taught in MCA. This, in our opinion, was beyond the
power of the Board of appointment. It shall not make any difference 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 post-graduate course in Commerce, a Masters’ degree in
Commerce would not be relevant for appointment in Mathematics or for that
matter in MCA. There may be a situation in which Masters’ degree in MCA is
differently christened and such a degree may be considered relevant but it
would be too much to say that a candidate having post-graduate degree in
any of the subjects taught in MCA would make the holders of a Masters’
degree in those subjects as holder of Masters’ degree in Computer
Application and, therefore, eligible for appointment. The language of the
advertisement is clear and explicit and does not admit any ambiguity and,
hence, it has to be given effect to. Since the appellant Ganpat did not
have a Masters’ degree in Computer Application, in our opinion, he was not
entitled to be considered for appointment as Lecturer in MCA. We are
aghast to see that when a candidate possessing Masters’ degree in MCA is
available, the Board of appointment had chosen an unqualified and
ineligible person for appointment in that subject. Its recommendations
are, therefore, illegal and invalid. Natural corollary thereof is that the
University acting on such recommendation and appointing Ganpat as Lecturer
cannot be allowed to do so and that the Division Bench of the High Court
was right in setting aside his appointment. In our opinion, an unqualified
person cannot be appointed, whoever may be the recommendee. We are of the
opinion that the Division Bench of the High Court was right in holding that
Ganpat was not eligible for appointment of Lecturer in Masters’ of Computer
Application.

 

Mr.Bhat and Ms. Suri lastly assail the order of the High Court
issuing mandamus for appointment of Shivanand as Lecturer in MCA. It is
contended that after setting aside the appointment of Ganpat, the High
Court should have directed for consideration of the case of Shivanand and
such other candidates who were found eligible for consideration. It is also
contended that Shivanand may have the right of consideration but certainly
not the right of appointment.

 

We find substance in this submission. Ordinarily, in a case
where the person appointed is found ineligible, this Court after setting
aside such appointment, directs for consideration of cases of such of the
candidates, who have been found eligible. It is only in exceptional cases
that this Court issues mandamus for appointment. The case in hand is not
one of those cases where the High Court ought to have issued mandamus for
appointment of Shivanand as Lecturer in MCA. Hence, we are of the opinion
that the High Court rightly held Ganpat ineligible and quashed his
appointment. However, it erred in issuing mandamus for appointment of
Shivanand. Accordingly, we uphold the impugned order of the High Court
whereby it had set aside the appointment of the appellant herein and direct
that the case of the writ petitioner Shivanand and all other candidates be
considered in accordance with law. However, we make it clear that the
selection already made shall be taken to its logical conclusion.

 

In the result, we dismiss these appeals with modification in
the direction as aforesaid with cost, which we assess at Rs.50,000/-(Rupees
fifty thousand) only in both the cases, payable by the appellants in both
the appeals equally.

 
………………………………………………………….J
(CHANDRAMAULI KR PRASAD)

 

 

 

………………………………………………………….J
(KURIAN JOSEPH)

 

New Delhi,
November 01, 2013.

 

———————–
22

 

 

 

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