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Dr. Shyam Lal Mathur Vs. University of Udaipur and 3 ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1939 of 1973
Judge
Reported in1980WLN(UC)120
AppellantDr. Shyam Lal Mathur
RespondentUniversity of Udaipur and 3 ors.
Cases ReferredIn Dr. Mrs. Nirmala M. (sic)Upadhoyoya v. Ravindra Verma and Ors.
Excerpt:
.....226--(sic)misjoinder of caurse of action-challeage to selection of post of professor and to two posts of readers in one writ petition--petitioner confining challenge to selection of readers only--held, objection of misjoinder does not survive.;(b) constitution of india - article 226--misstatement--challenge given up--held, misstatement is not material.;constitution of india - article 226--waiver or (sic)acquiescene--petitioner not (sic)krowing defect of jurisdiction of tribunal or authority--held, failure to raise objection does not amount to waiver.;where the applicant is not aware of the true legal position with regard to the defect in the constitution of, or the jurisdiction of the tribunal his failure to raise an objection before the tribunal would not amount to waiver so as to..........singh kulhari respondent no 2 and dr. orkar singh rathore, respondent no 3 for appointment on the post of reader in the dopartment of extension education in the rajasthan college of agriculture, udaipur and their appointment on the said post. the petitioner in the writ petition has challenged the selection of d r c. mehta, respondent no. 4, for appointment on the post of professor in extension education and his appointment on the said post.2. the facts, briefly stated, are, as under: the university of udaipur (hereinafter referred to as 'the university'), has been constituted under the provisions of the udaipur university act, 1962. the department of extension education is one of the departments in the college of agriculture of the university the petitioner joined the university in the.....
Judgment:

S.C. Agarwal, J.

1. In this writ petition filed under Article 226 of the Constitution of India, the petitioner, Dr. Shyam Lal Mathur, has challenged the validity of the selection of Shri Vijay Singh Kulhari respondent No 2 and Dr. Orkar Singh Rathore, respondent No 3 for appointment on the post of Reader in the Dopartment of Extension Education in the Rajasthan College of Agriculture, Udaipur and their appointment on the said post. The petitioner in the writ petition has challenged the selection of D R C. Mehta, respondent No. 4, for appointment on the post of Professor in Extension Education and his appointment on the said post.

2. The facts, briefly stated, are, as under: The University of Udaipur (hereinafter referred to as 'the University'), has been constituted under the provisions of the Udaipur University Act, 1962. The Department of Extension Education is one of the Departments in the College of Agriculture of the University The petitioner joined the University in the year 1962 as Demonstrator in the Department of Extensation Education, On 15th January, 1963 the petitioner was appointed as Lecturer in the said Department. In the year 1973 there occurred one vacancy on the post of Professor and one vacancy on the post of Reader in the Department of Extension Educaiion. By advertise. ment dated 12th April, 1973 the Registrar of the University invited applications for the aforesaid posts of Professor and Reader in the Department of Extension Education of the University. In response to the aforesaid advertisement the petitioner submitted his application for both the posts, Respondent No, 4 had applied for the pos of Professor, and respondents No. 2 and 3 and applied for the post of Reader. For the purpose of making selection for the post of Professor a Selection Committee consisting of Dr. P S Lamba, the Vice Chancellor of the University, Dr. R M Singh Associated Dean and two experts, viz Dr. S K. Sharma and Dr. O P. Daharma was constituted. The Selection Commitee was to interview all the applicants for the post of Professor. On 16th July 1973, Dr O P Dharma could no be present to attend the meeting and to meet the said exigency the Vice Chancellor appointed Dr. S K. Sharma, Assistant Director General, Indian Council of Agriculture Research as an expert member of the Selection Committee. The said Selection Committee selected respondent No. 4 for the post of Professor. For the purpose of making selection far the cost of Reader a Selection Committee consisting of Shri P.S. Lamba, the Vice Chancellor of University, Dr. N. Prasad, Dean, College of Agriculture, Dr P N (sic)Jha, Head of the Department of Extension Education and two experts, viz, Dr. K. N Singh and Dr. O P. Dahama, was constituted. The said selection committee met for the purpose of interviewing of the candidates on 17 July, 1973 Dr. N. Prasad, who was the member of the said Selection Committee, could not participate in the deliberations of the Sclection Committee. The Selection Committee, (sic)afser interviewing the candidates, selected respondents No. 2 and 3 for two posts of the Reader in the Department of Extension Education. Being aggrieved by the aforesaid selection of respondent No 4 for the post of Professor & the selection of respondents No 2 and 3 for the posts of Reader, the petitioner has filed this writ petition wherein he has challenged the aforesaid selections made by the two Selection Committees and orders of appointment of respondent No 4 and respondent No. 2 and 3, on the posts of Professor & Readers respectively on the basis of the aforesaid selections.

3. In the writ petition the petitioner has submitted that selection of respondent No. 4 for the post of Professor Is vitiated on account of the fact that the Selection Committee which made the said selection was not properly constituted in as much as Dr. S.K. Sharma who sat on the Selection Committee as an expert could not be nominated as an expert because he was not on the panel of person (sic)recommerded by the Academic Council as required by clause (3) of the Statute 49 of the University. The case of the petitioner further is that Dr. D. K Mishra, Director of Extenuon Education of the Universitv, had also attended the meeting of the said Selection Committee as a special invitee and the presence of Dr. D. K Mishra who was not a (sic)meonber of the Selection Committee, has vitiated the selection made by the Selection Committee. With regard to the appointment of respondents No 2 and 3 on the posts of Readers the petitioner in his writ petition has submitted that the Selection Committee made selection for two posts of Reader even though only one post of Reader had been notified by the Dean as per Statute No. 49(3) of the University and only one post of Reader had been advertised, and that the second post of Reader was neither advertised nor could suggestions there for be procured from the various agencies. The case of the petitioner further is that the Selection Committee which had selected respondents No. 2 and 3 for the two posts of Reader was not properly constituted in as much as Dr. D.K. Mishra had attended the meeting of the Selection Committee as a special invitee and that the presence of Dr. D.K. Mishra, who was not a member of the Selection Committee, has vitiated the selection made by the Selection Committee.

4. In the reply that has been filed to the writ petition on behalf of the University it is admitted that the name of Dr. S. K. Sharma did not appear on the panel of experts approved by the Academic Council but it is stated that the Academic Council, in its resolution No 88 dated May 4/5/1973, had authorised the Vice Chancellor to add to the existing panels, names of Professors or persons of equal status or above from any Indian University/ Institution deemed to be University/and Institutions of Research set up by the Indian Council of Agricultural Research and the Council of Scientific and Industrial Research, and directed that the names added shall form part of existing panels In the said reply it is stated that as Dr. O P. Dahama who was member of the Selection Committee, could not present himself to attend the proceedings of the Selection Committee on 16th July, 1973, and the Vice-Chancellor, to meet the exigency invited Dr. S.K Sharma, Assistant Director General (National Administration), Indian Council of Agricultural Research, New Delhi, who was fully competent to discharge, the functions of an Expert and who was at that time available at Udaipur, to attend the meeting of the Selection Committee held on 16th, July, 1973 As regard the presence of Dr. D.K Mishra it is stated in the said reply that he was not a member of the Selection Committees and that he did not interview the candidates and he did not take part in the deliberations of the Selection Committees. In the said reply it is also stated that in advertisement dated April 24, 1973 a note had been appended that the number of posts may be increased or decreased, and that, there was nothing illegal in selecting two persons for the posts of Reader. In the reply afore said the University has also raised objection that the petitioner, having not appeared at the interview for the post of Professor though he was called for the same, could not challenge the selection of respondent No 4 for the said post.

5. Before dealing with the submissions urged by Shri (sic)Mridul, the learned Counsel for the petitioner, in support of the writ petition it is necseary to deal with the preliminary objections with regard to the maintainability of writ petition raised by Shri H M Parekh, the learned Counsel for the University.

6. The first objection raised by' Shri Parekh is that the writ petition suffers from the defect of misjoinder of causes of action in as much as in the writ petition the petitioner has challenged the validity of the order relating to the selection of respondent No.4 for the post of Professor and the order relating to the selection of respondents No. 2 and 3 for the two posts of Reader. The submission of Shri (sic)Parekh is that there are different grounds on the basis of which the validity of the aforesaid orders is challenged and that the challenge to validity of two independent proceedings, one with regard to the selection for the post of Professor and the other with regard to the selection for two posts of Reader, cannot be combined in one writ petition. In support of his aforesaid submission Shri (sic)Parekh has laved reliance on the decision of this Court in Sardar Inder Singh v. State of Rajasthan 1955 RLW 170. Shri Mridul, the learned coursel for the petitioner has submitted that the grounds on which the selection of respondent No 4 for the post of Professor and the selection of respondents No. 2 and 3 for the post of Reader have been challenged are identical and a joint petition was, therefore, maintainable. Shri Mridul has further submitted that in case it be found that a joint petition to challenge the two selections is not maintainable, the petitioner would confine his challenge to the validity of the selection of respondents No 2 and 3 for the posts of Reader and their appointment on the said posts. In my opinion it cannot be said that the grounds on the basis of which validity of the selection of respondent No 4 for the post of Professor and grounds on the basis of which validity of the selection of respondents No. 2 and 3 on the posts of Readers have been challenged are identical. All that can be raid is that one of the grounds of challenge to both the selections, namely, that proceedings of the Selection Committees which met on July 16 and 17, 1973 were vitiated on account of the presence of Dr. D.k Mishra who was not a member of the said selection Committees. In addition to the afore said common ground, the petitioner has urged other grounds on the basis of which he has challenged the selection of respondent No. 4 for the pest of Professor which do not apply to the selection of respondents No. 2 and 3 for the post of Readers. Similarly there are grounds on the basis of Which the petitioner has challenged the selection of respondents No. and 3 for the posts of Reader, which are not applicable to the selection of respondent No 4 for the post of Professor. The writ petition does suffer from the defect of misjoinder of causes of action. But in view of the statement of Shri Mridul that the petitioner confines his challenge to the validity of the selection of respondents No 2 and 3 for the post of Reader and their appointments on those posts in pursuance of the said selection, the objection raised by Shri Parekh as to the maintainability of the writ petition on the ground of misjoinder of causes of action does not survive.

7. The second preliminary objection, raised by Shri Parekh is that the petitioner, in his writ petition, has deliberately made a false statement to the effect that he had appeared at the Interview for the post of Professor even though he had not so appeared and that in view of the aforesaid said-statement of facts in the writ petition the petitioner cannot be granted any relief and the writ petition the petitioner has wrongly-stated that the petitioner had been interviewed by the Selection Committee for the post of of Professor. But in my opinion the aforesaid misstatement of fact in the writ petition cannot be regarded as of material significance in view of the fact that the petitioner has given up his challenge to the validity of the selection of respondent No. 4 for the post of Professor, and the said fact is of no relevance whatsoever to the validity of the selection of respondents No. 2 and 3 for the posts of Reader because the said selection was made by a different selection committee which met on a different date and the petitioner did appear for interview before the said selection committee The objection raised by Shri Parekh cannot, therefore, be accepted.

8. The third preliminary objection raised by Shri Parekh is that the petitioner, having appeared for interview before the Selection Committee which made the selection for the posts of Reader on 17th July, 1973 should be deemed to have waived his objection with regard to the proceedings of the said Selection Committee and that it is not open to the petitioner to challenge the validity of the said selection in the writ petition on the ground that the Selection Committee was not properly constituted. In support of his aforesaid submission Shri Parekh has placed reliance on the decision of this Court, Dr. N C. Mehta v State of Rajesthan: 1972 WLN 661. Shri Mridul, the learned Counsel for the petitioner has, on the other hand, submitted that principle laid down by this Court in Dr. NC Mehta v. State of Rajasthan is-not applicable to the facts of the present case. According to Shri Mridul acquiescence or waiver can operate as bar to the maintainability of a writ petition only in those cases where a petitioner, being aware of the illegality in the constitution or jurisdiction a Tribunal, fails to raise an objection and submits to the said jurisdiction Shri Mridul submits that in the present case it could not be said that the petitioner when he appeared before the Selection Committee for the purpose of interview of 17th July, 1973 was aware of the fact that Dr. D.K. Mishra who was present at the meeting of the said selection Committee was not a member of the Selection Committee, and, therefore, it could not be said that the petitioner was aware about the illegality in the constitution of the Selection Committee and had waived his objection as regards the validity of the constitution of the Selection Committee by appearing before the said Selection Committee for interview.

9. The law is well settled that the conduct of an applicant In participating in the proceedings pending before a Tribunal or an authority experci-sing judicial functions without taking objection to the jurisdiction of the Tribunal or the authority, may disentitle him from seeking a writ of certiorari to quash the order pissed by the Tribunal or the authority in those proceedings. The aforesaid rule is based on the principle that certiorari is a discretionary remedy and acquiescence or waiver on the part of the applicant would disentile him to the said remedy. Bat in order to constitute acquiescence or waiver on the part of the applicant so as to disentitle him from seeking relief, it is necessary to establish that the applicant was aware of the defect in the jurisdiction of the Tribunal or authority but he did not raise an objection before the Tribunal or the authority and participated in the proceedings before the Tribunal or the authority in the hope of a favourable verdict There can be no acquiescence or waiver on the part of an applicant in a case where the applicant did not know of the defect in the jurisdiction of the Tribunal or the authority when he submitted to the jurisdiction of the said Tribunal or authority.

10. In Manak Lal v. (sic)Premchand : [1957]1SCR575 the Supreme Court was dealing with a case where the decision of a Tribunal constituted under the provisions of the Bar Councils Act to enquire into conduct against a legal practitioner was sought to be quashed by certiorari on the ground that one of the members of the said Tribunal was qualified on account of pecuniary interest and the entire proceedings of the Tribunal were vitjated on that account. The Supreme Court did not permit the aforesaid challenge being allowed to be raised by the appellant in the said case on the ground that the appellant on account of his conduct in not raising the said objection before the Tribunal, had waived the same and be could not be permitted to raise the said challenge at a later stage. While holding that there was waiver on the part of the appellant the Supreme Court has observed:

Shri Daphtary contends, and no doubt rightly, that if we are satis-fied that the appellant did not know about the true legal position in this matter and his right arising therefrom, his failure to challenge the appointment of Shri Chhangani on the Tribunal would not raise an effective plea of waiver. However, in our-opinion, it is very difficult to accept Shri Daphtary's argument that his client did not know the true legal portion or his rights until he met Shri Murli Manohar.

11. From the aforesaid observations of the Supreme Court It is clear that in a case where the applicant is not aware of the true legal position with regard to the defect in the constitution of, or the jurisdiction of, the Tribunal his failure to raise an objection before the Tribunal would not amount to waiver so as to preclude him from raising the said objection at subsequent stage in the writ petition filed by him against the decision of the Tribunal.

12. The same principle has been applied to the writ petitions challenging the validity of selections made by the Selection Committee for appointment on a post. In Dr. N.C Mahta v. State of Rajasthan this Court was dealing with such a case and emphasis has been laid on the fact that the petitioner in the said case had taken a possible chance of being selected for appointment as a Reader on the basis of the recommendations of the Board which was reconvened under the directions contained in the previous judgment of Kan Singh J. under a set of rules which he knew had ceased to exist and that the said conduct of the petitioner in the said case disentitled him to any relief by way of writ of certiorari to grant the selection made by the Board.

13. This would mean that the pelitioner can be held to be disentitled from seeking relief before this Court In this writ only If it is shown that the petitioner was aware about the illegality in the constitution of the Selection Committee which met on 17th July 1973 for the purpose of making selection for the posts of Reader and inspite of the aforesaid kapwledge with regard to the defect in the constitution of the Selection Committee the petitioner appeared before the Selection Committee for interview in the hope that he would be selected for the said post. There is nothing on the record to show that on 17th July, 1973, when the petitioner appeared before the Selection Committee for interview he was aware of the fact that Dr. D.K. Mishra who was present at the meeting of the Selection Committee was not a member of the said Selection Committee but was only an special invitee and that the Selection Committee was not properly constituted on-account of the presence of Dr. D.K. Mishra at the time of the said interview. In these circumstances it cannot be said that the petitioner, by his conduct in appearing before the Selection Committee for interview, has waived his objection with regard to the validity of the proceeding of the Selection Committee and on account it of the aforesaid conduct be is not entitled to raise the said objection to the validity of the proceedings of the Selection Committee in his writ, petition before this Court. The preliminary objection raised by Shri Parekh to the maintainability of the writ petition on the ground of acquiescence and waiver on the part of the petitioner cannot, therefore, be accepted

14. Now we come to the merits of the case. The validity of the selection of respondents No. 2 and 3 for the posts of Reader in the Department of Extension Education has been challenged by Shri Mridul on the ground that the proceedings of the Selection Committee which selected respondents No. 2 and 3 for the post have been vitiated on occount of the presence of Dr. D.K Mishra who was not the member of the Selection Committee. In support of his aforesaid submission Shri Mtidul has placed reliance on the decision of this Court in Dr. Mrs, Nirmala M. Upadhyayu v Shri Ravindra Verma and ethers (S B. Civil Misc Writ petition No 1687 of 1970, decided on September 3, 1971).

15. Shri H.N. Parekh, the learned Counsel for the University, has however placed reliance on the affidavit filed on behalf of the University that Dr. D.K. Mishra had neither interviewed the candidates for the posts of Reader nor had he participated in the deliberations of the Selection Committee. The submission of Shri Parekh is that the mere presence of Dr. D.K Mishra at the time when the Selection Committee met on 17th July, 1973 for the purpose of interviewing the candidates for the posts of Readers does not Invalidate the selection made by the Selection Committee.

16. In Dr. Mrs. Nirmala M. (sic)Upadhoyoya v. Ravindra Verma and Ors. a similar question arose for consideration before this Court In that case a Selection Committee had been constituted for making selection for the post of Reader in Political Science in the University of Jodhpur and the proceedings of the Selection Committee were challenged on the ground that Professor (Miss) A Dastoor, who was not the member of the Selection Committee, had participated in the meeting of the Selection Committee Accepting aforesaid contention Shinghal J, (as he then was) has observed as under

A reading of Statute 19(1) shows that the Selection Committee for appointment of a Reader shall consist of the Vice-Chancellor an Educationist nominated by the Chancellor the Dean of the Faculty, the Head of the Department of the rank of a Professor and two experts in the subject not concerned with the University, nominated by the Vice Chancellor. Then statute 19.4) provides that the Selection Committee shall 'consider and present to the Syndicate recommendations as to the appointment referred to it' This scheme of the Statutes makes it quite clear that only the Selection Committee constituted in accordance with Statute 19(1) is competent to consider and present its recommendations to the Syndicate, It follows, therefore, that if the Selection Committee was not constituted in accordance with Statute 19(1), it did not have the authority of considering and presenting its recommendations to the Syndicate. As it is not in controversy that Prof (Miss). A Dastoor, respondent No, 8 was not a member of the Selection Committee which was constituted under Statute 19(1) of the University, her presence and association with the Committee changed Its complexion altogether so that it cannot really be said that the Selection Committee which met on June 20, 1970 was constituted in conformity with the requirement of Statute 19(1). That Committee could not therefore, consider and present its recommendation to the Syndicate and the Syndicate could not, in its turn, accept that recommendation and appoint respondent No 1, Shri Ravindra Verma, as Reader in Political Science.

17. A peresual of Statute 49 framed by the University which relates to the manner of appointment of the teachers of the University shows that clause (3) of Statute 49 is in pari materia with Statute 19(1) of the Statutes of the Jodhpur University which was Considered by this Court in Dr. (Miss) Nirmala M. Upadhayaya's case. Similarly clause (10), of Statute 49 of the University provides that the Selection Committee shall Interview the candidate and recommend for each type of vacancy a panel, if available, of suitable candidates in order of preferencs to be considered by the Board for appointment. The aforesaid provision is similar to that (sic)contaired in Statute 14(4) of the Statute of the Jodhpur University. The principles laid down by this Court in Dr. (Mrs) Nirmala Upadhaya's case with regard to the mode of functioning of the Selection Committee constituted under statute 19 of the Jodhpur University would equally apply to Selection Committee coonituted in accordance with statute 49 (3) of the statutes of the University.

18 In the present case it is not disputed that even though he was not a member of the Selection Committee, Dr. D.K Mishra was present at the time when the Selection Committee met on 17th July, 1973 for the purpose of interviewing the candidates who had applied for the pose of Reader In the reply filed on behalf of the University, it is stated that Dr. D.K Mishra had been invited by the Vice Chancellor to attend the meeting of the Selection Committee as a special invitee and that Dr. D K Mishra had neither interviewed any of the candidates nor did he participate in the deliberations of the Selection Committee The aforesaid averment is contained in paragraph 5 of the said reply. From the affidvait of Shri Phool Shanker, the Assistant Registrar of the University, filed in support of the said reply, it appears that the correctness of the contents of para 5 of the reply has been verified on the basis of knowledge as based on the record of the University. Shri H. M Parekh has placed before me the original record, including the minutes of the minutes of the Selection Committee held on 17th July, 1973 There is nothing in the aforesaid minutes to show that Dr. D.K Mishra, who was present in the said meeting of the Selection Committee had neither interviewed the candidates not had he participated in the deliberations of the Selection Committee In these (sic)circumsiencee it is not possible to accept the mere ipso (sic)dixie of the (sic)Astistant Registrar of the Uaiversity who was not a member of the Selection Committee and thus had no personal knowledge of the matter, that Dr. D.K Mishra had nether interviewed the candidate nor had he participated in the deliberayo is of the Selection Committee which selected respondents No 2 and 3 for the posts of Reader Further more it can not be conceived that Dr. D. K Mishra, who had been specially invited invited by the Vice. Chancellor to attend the meeting of the Selection Committee, just remained present as a mere spectator al the said meeting and be did not express his views with regard to the meritsor demerits of the candidates who had appeared for interview before the Selection Committee. In my opinion, therefore, the proceedings of the Selection Committee which met on 17th July, 1973 for making Selections for the posts of Reader and which selected respondents No. 2 and 3 for the said posts are vitiated on account of presence and association of Dr. D.K. Mishra, who was not a member of the said Committee and the orders for appointment of respondents No. 2 and 3 on the posts of Readers in the Department of Extension Education passed on the basis of the recommendations of the said Selection Committee are liable to be quashed.

19. In the result the writ petition is partly allowed to the extent that the proceedings of the selection Committee leading to the selection of (sic)res (sic)pondents No. 2 and 3 for the posts of Reader in the Department of Education and the orders appointing respondents No. 2 and 3 on the posts of Reader 'n the Department of Extension Education on the basis of the aforesaid recommendations of the Selection Committee are quashed. But in the (sic)circumstancas of the case there would be no order as to costs in this writ petition.


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