V.K. Bali, J.
1. This order shall dispose of Civil Writ Petition Nos. 10269 and 10280 of 1998 as common questions of law and fact are involved therein. The facts have, however. been extracted from Civil Writ Petition No. 10280 of 1998. Learned Counsel for the parties also suggest the same course.
2. Dr. Bhim Singh Dahiya, a Coordinator (SPT) Seed Technology Centre, Chaudhary, Charan Singh, Haryana Agricultural University, Hisar, takes strong exception to the appointment of respondent No. 3 on the post of Director of Research and, thus seeks issuance of writ in the nature of certiorari so as to quash order, Annexure P-3 dated June II, 1998 whereby he has been appointed as Director of Research (hereinafter referred to as DR).
3. Briefly stated, the facts as projected in CWP No. 10280 of 1998 are that the respondent University, advertised the post of DR on February 12, 1998 and applications were invited from the eligible candidates. Petitioner applied in response to the said advertisement being eligible. Chapter 3(III) of University Statutes lays down essential qualifications for the post of DR which further enjoins that selection to the post of DR may be made by the Vice Chancellor with the approval of the Board on the basis of panel of two names in order of merit and the consultation with the Deans is necessary. The Selection Committee on May 16, 1998 assessed the candidates and the recommendations were kept in the sealed cover to be presented before the next meeting of the Board of Management for approval of the same. In its 108th meeting the Board of Management discussed the appointment of DR vide Agenda Item No. B-8 on June, 9, 1998. In the meeting of Board of Management on June 9, 1998 half of the present members objected to the approval of agenda item No. B.8. on the basis of non-consultation with the Deans, which is mandatory under the Act and for not showing the record. The members also objected to the Constitution of the Selection Committee. It is further the case of petitioner that as no panel was formed, which is mandatory under Clause 3 (III) of Chapter III, only respondent No. 3 was recommended for the post under contention. It is further pleaded that finding difficulty for approval the Chairman opted for voting but the result remained the same as the votes for and against the agenda item. No. B-8 were equally divided. Then the Chairman/Vice Chancellor exercised his right of vote and declared the resolution passed. It is also pleaded that half of the present members, who voted against the proposal, submitted a dissenting note to the Chairman and refused the same.On June 11, 1998 finding no decision on the dissenting note in the proceedings, the said Members submitted a detailed letter of objection against the passing of the said Agenda Item. It is further the case of petitioner that as per Section 25(3) of the said Act the DR shall be trained in Agriculture but respondent No. 3 has done his B.Sc. M.Sc. from the traditional university and is a Plant Pathologist. On June 11, 1998 respondent No. 3 was appointed as DR.
Pursuant to notice issued by this Court, respondents filed written statement and seriously opposed the cause of the petitioner. It has been pleaded by way of preliminary objections that the procedure regarding appointment of Deans and Directors on the basis of seniority-cum-merit had been prescribed in Clause III of the Statutes. This procedure remained in force till the judgment of the Apex Court came in Reshmi Srivastava's case. Subsequently, Dr. J. S. Bhatia and others directly appointed professors, filed Civil Writ Petition No. 10191 of 1996 which was decided by the Division Bench of this Court on 21.4.1997, relevant part of which reads as under :-
'For the foregoing reasons, we allow this writ petition and direct the respondent University to frame the seniority of the direct recruits, Readers, Associate Professors, Professors separately without inter-mingling the same with those promoted under Clause 3 of Chapter IV-A of the statutes and such incumbents be not considered as a member of the cadre for any inter seniority with the direct recruits. To make it further clear, it may be observed that an incumbent promoted under Clause 3 of Chapter IV-A of the Statutes can not claim seniority over a direct recruit though he may have along length of service.'
4. The matter was placed before the Board of Management in its meeting held on 1.7.1997 vide Item No. B-35 and it was decided to obtain the legal opinion of the Advocate General, Haryana, The matter was again placed before the Board of Management in its 175th meeting held on 14.7.1997 vide Item No. B-1 After due deliberations, the Board took following decision :-
'The Board noted the opinion of the Advocate General Haryana regarding the issue. The Board felt that till recently the University had been treating direct recruitees and personal promotees on an equal footing and considering the personal promotees as regular members of the cadre to which they are promoted. The University has traditionally maintained common seniority between the promotees and direct recruitees. Further, he Statutory provisions also do not mention direct recruitment as the only source of appointment.'
In view of the above, the Board felt that a Special Leave Petition against the judgment of the High Court may be filed. In the meantime, the Board decided that in consonance with the judgment of the High Court, separate seniority list of directly recruited professors and Associate Professors, who, according to the judgment belong to the Cadre and that of ex-cadre personal promotee Professors and Associate Professors should be drawn up immediately. The Board also discussed at length the proposal as suggested by the HAUTA for making an amendment in the relevant statutes equating the personal promotees and direct recruitees and was of the opinion that according to the Advocate General, this may necessitate an amendment in the Act rather than the Statutes. However, the Board felt that in view of the fact that views on this issue are not very definite, further legal opinion in the matter be obtained and in the mean time a proposal for amendment in the Act may be prepared. The Board after due deliberations of the judgment of this Court, was of the view that the charge given to the Deans/Directors/HODS on the principle of seniority should be withdrawn. The proposal as contained in the agenda for amending the existing Statutory provisions regarding appointment of Deans/Directors and HODs was approved with a further addition that the selection committee for such posts may recommend a panel of two names in order of merit for the consideration of the Board. The Board authorised the Vice Chancellor to make the relevant amendment in the Statutes in consonance with the proposal approved by the Board. It is then pleaded that the Board had accordingly taken a decision that the procedure for appointment to the posts of Deans/Directors and positions of Heads of Departments should be modified by introducing an element of selection for these appointments changing the earlier principle of seniority-cum-merit. The Management amended the manner of appointments of Deans/Directors and Heads of department as provided in Chapter 3 and 4 of the Statutes. These modifications were made on 14.7.1997 and accordingly the decision of the Board of Management took effect from the said date. It is in pursuance of the said decision that the Vice Chancellor issued the amendment to the Statutes vide notification dated 13.10.1997 and in the notification it was specifically mentioned that the amendment was effective from 14.7.1997. It was also in pursuance of this decision that the applications were invited for the posts of Deans/Directors and the positions of Heads of Departments from the various eligible applicants in the University. It is further the case of respondents that the matter regarding the appointment to the post of Director of Research was discussed by the Board vide item No. B-8 of its 180th meeting held on 9.6.1998. According to these proceedings some of the members objected to the recommendations of the selection committee and felt that the committee had interviewed persons whose record of service was not unblemished and consultation with the Deans was not carried out. These proceedings also show that the Chairman himself showed the record of consultation with the Deans. He also explained that the Selection Committee also looked into the eligibility aspect of the candidates who appeared before it. The allegations of the petitioner that half of the present members of the Board opposed the recommendations of the Selection Committee have been denied. It is further pleaded that as per Rules 4 of the Rules of Business for the Board of Management, as approved by the same body vide item No. B-1 of its 15th meeting held on 24.6.1972, all questions to be considered in a meeting of the Board are to be decided by majority of votes of the members present. The Chairman of the Board is entitled to vote on any question and, if the votes be equally divided, he can have a second or casting vote. In view of the said procedure, the Vice Chancellor-Chairman, exercised his right of casting vote because the votes both in favour and against the proposal were equally divided. The contention of petitioner that Mrs. Sudha Sharma, IRS, was a nominee of the Financial Secretary has also been denied. It is further pleaded that when the meeting of the Board of Management was held on 9.6.1998, she was duly acting as Commissioner and Secretary and, therefore, legally entitled to exercise her vote. It has been denied that respondent No. 3 does not have educational qualifications for the post under contention. His major achievements and accomplishments have been detailed in para 9 of the written statement. It is then pleaded that keeping all and many other academic accomplishments of respondent No. 3 in view, as also level of excellences and contributions made by him in various aspects of crop production/protection technology, he was found suitable for selection the post under contention. With regard to the allegation of the petitioner that a panel of two names had to be sent in order of merit, it is admitted by the respondents that the Selection Committee did not find any other person out of the candidates who appeared before it who could have been placed on the panel. The Selection Committee for making the recommendations for the post of DR consisted of Vice Chancellor, Director General, ICAR and Secretary to Government of India and Dr. Kirti Singh, Member, ASRB. It is then pleaded that it would be clear from the proceedings of the meeting held by the Vice Chancellor that consultations were held with the Deans. A reference in this regard was also made in the agenda notes which were placed before the Board for deliberating the matter regarding appointment of DR. The copies of the letter issued for convening the meeting of the Deans on 8.5.1998 and proceedings thereof have been annexed with the written statement as Annexures R-5 and R-6.'
5. Mr. Gunjan Mehta, learned counsel for the petitioner vehemently contends that when the rules required sending of panel of two names in order of merit for appointment on the post under contention, the respondents clearly erred and transgressed the provisions of the rules while recommending the name of only respondent No. 3 and further that no consultation was done with the Deans as required by the Rules governing the field. It is then contended that respondent No. 3 in any case is not competent to hold the post on which he has been recommended and appointed lacking the qualifications in the specialised field and that Mrs. Sudha Sharma was not the Secretary and as such appointment of respondent No. 3 has to be quashed. Mr. Surya Kant, learned counsel for the respondents has joined issues with learned counsel for the petitioner on all the issues
6. We have heard learned counsel for the parties and gone through the records of the case. In the context of the written statement that has been filed in this case, and the submissions made by learned counsel for the respondents, we do not find any merit in any of the contentions raised by learned counsel for the petitioners, noted above. The proceedings of 180th meeting of the Board of Management held on 9.6.1998 have been placed on record as Annexure R-1. Item No. B-8 deals with appointment of Director of Research. It is mentioned in the said proceedings that some members objected to the recommendations of the selection committee and felt that the committee had also interviewed persons whose record of service was not unblemished and consultation with the Deans was not carried out. They also wanted to see the record of the candidates interviewed. The record of service of all the candidates interviewed was presented for perusal by the members. The Chairman himself showed the record of consultation with the Deans. He also explained that the selection committee looked into the eligibility aspect as well. A few members also saw the record. The Chairman and some other members still opposed the proposal and the matter was decided through voting. Four members, namely, Shri Jaibir Singh, Shri Sher Singh, Shri R. S. Balhara and Smt. Saria Sangwan voted against he proposal to approve the selection of Dr. B. L. Jalali as Director of Research. However, the other four members, Shri R. S. Verma, IAS, Dr. J. D. Chowdhary, Sh. Naseem Ahmad, IAS and Smt. Sudha Sharma, IRS voted in favour of the proposal. A perusal of the proceedings would, thus, manifest that the votes both in favour and against the proposal were equally divided. The Chairman, Dr. J. B. Chaudhary then exercised the right of casting vote and voted in favour of the proposal. Insofar as Sudha Sharma, voting in favour of the proposal and that she belongs to IRS and not IAS and, therefore, could not be a Secretary is concerned, suffice it to say that at that relevant time, she was a Secretary to the Government. It is not for the petitioner to think as to who in law can be made a Secretary, whether a person from the Administrative Service or from Revenue Service. It is upto the Government to decide as to who should be and can be appointed as Secretary. That Sudha Sharma was holding the post of Secretary has not been denied. No fault can, thus, be found with the resolution appointing respondent No. 3 on the post under contention and the contention of learned counsel for the petitioner that Smt. Sudha Sharma could not vote in favour of respondent No. 3 is repelled. Proceedings of the Selection Committee, copy whereof has been placed on record as Annexure P-4, would demonstrate that the Selection Committee consisted of Vice Chancellor, Director General, ICAR and Dr. Kirti Singh, Member. ASRB, New Delhi. 12 candidates were interviewed. All the members of the Selection Committee unanimously selected respondent No. 3 B. L. Jalali. As mentioned above, it is the positive case of the respondents that no other candidate was found suitable for the post under contention. It is true that panel of two names in order of merit has to be sent for approval of the selection made by the concerned Selection Committee and that in the present case only name of respondent No. 3 was sent. This Court, is, however, of the view that a panel of two or more can be sent only if two or more are found eligible or suitable for the post under contention. To illustrate, if the selection committee has to make panel of two names and subsequently say that person sent at No. 2 is either not eligible or suitable for the post under contention, the appointing authority shall have no choice but for to make appointment of the person sent at No. 1 in order of merit. As mentioned above, it is the positive case of the respondents that no other candidate was found suitable for the post under contention. In these circumstances we do not find any fault in the decision of the selection committee recommending the name of respondent no. 3 only for the post of D.R. Insofar as eligibility of respondent No. 3 is concerned, suffice it to say that impressive array of achievements and accomplishments, as mentioned in the written statement, leave no doubt in our mind that he was eligible for the post of D.R. It would be amply clear from Annexure R-6 that a meeting was held under the Chairmanship of the Vice Chancellor in his office room on 1.5.1998 at 9.30 AM for consultations regarding the appointment to the post of Director of Research in compliance of the provisions as contained in Section 25(2) of the Haryana and Punjab Agricultural Universities Act, 1970. The Deans recommended that the applications of all eligible candidates may be placed before the Selection Committee constituted for the appointment as per BOM's decision in this regard. The document has been signed by all the Deans. The averment of the petitioner to the contrary, as noted above, is, thus, found to be factually incorrect.
Finding no merit in these petitions, we dismiss the same, leaving however the parties to bear their own costs
7. Petitions dismissed.