Kiran S/o. Rajaram Nimbalkar vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 413

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
F.I. REBELLO AND R.M. SAVANT, JJ.
Dr. Kiran S/o.Rajaram Nimbalkar, ) .. Petitioner.
V/s.
State of Maharashtra ) .. Respondents.
Writ petition no. 5852 of 2006
Decided on: 22nd MARCH, 2007.
Advocates appeared :
Mr.P.J.Thorat, Atul Pande and N.B.Kalwaghe for the
Petitioner.
Mr.R.D.Rane, Govt.Pleader for the Respondent Nos.1 & 4.
Mr.S.S.Aradhye with Mr.R.V.Govilkar for the Respondent
No.2.
Mr.H.S.Karnik for the Respondent No.3.
Mr.S.S.Pandit for the Respondent No.5.

Headnote:Constitution of India - Article 226 - Judicial review. - Scope of judicial review in matter of "selection" to a post of Lecturer in a College by a duly constituted selection committee is very limited.
       Court has given anxious consideration to the rival submissions of the respective parties. It is trite as laid down by a catena of decisions of the Apex Court that the scope of judicial review in the matter of "selection" by a duly constituted selection committee is very limited. A useful reference could be made to the judgment of the Apex Court in AIR 1990 SC 434 in the matter of Dalpat Appasaheb Solunke v. B.S. Mahajan. In the said judgment if has been held that the decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc.
       Constitution of India - Article 226 - Writ petition challenging selection process for appointment to a post of lecturer in college. - Since in absence of any grading or marking system being followed, process of selection by selection committee was vitiated hence selection of respondent 5 to post of lecturer cannot be sustained.
       In the instant case, the guide-lines prescribed by the C.C.I.M. for appointment to the post of lecturer, inter alia, postulate that if post graduate holders in the concerned subjects are not available then candidates from the allied subjects should be considered. Admittedly the petitioner and one another candidate were having post graduate qualifications in the concerned subject i.e. Agad Tantra from among five candidates who had appeared for the interview. Court, therefore, inquired from the counsel appearing for the respondent No. 3 as to how or on what basis the comparative merits of the candidates were judged. Court also asked the counsel as to whether a marking or grading system was followed by the selection committee to judge the comparative merits. The counsel for the respondent No. 5 produced the record of selection committee, relating to the selection in question. A reading of the proceeding sheet in respect of the post in question shows that no marking of grading system was followed by the said selection committee. The noting in respect of the said post only shows that the committee found the respondent No. 5 more meritorious than other candidates. Having gone through the said record, Court is at a loss to understood as to how the respondent No. 3 could be said to be more meritorious in the absence of any marking or grading system being followed by the selection committee. In Court’s view, a marking or grading system is a sine qua non in any selection process as otherwise the selection is susceptible to a charge of being arbitrary or capricious. More so in the instant case whom guide lines/instructions in terms postulate that only if a post graduate in the concerned subject is not available then a candidate in other subjects could be considered. Since, the petitioner and another candidate in the same subject were available why their cases were overlooked and the respondent No. 5 was preferred, cannot be known from the record of the proceedings of the selection committee in the absence of any grading or marking system, being followed. In the circumstances, Court is of the view that the process of selection followed by the said committee was vitiated.
       Since the respondent No. 5 was selected and continued as such since the year 2004, she would not be disturbed till a regular selected candidate is appointed in the said post of lecturer in Agad Tantra pursuant to directions contained in this judgment.

JUDGMENT :-

Rule. Rule with consent of the parties made returnable forthwith and heard finally.

2. By this petition filed under Article 226 of the Constitution of India, the petitioner challenges his non-selection to the post of lecturer in the Respondent No.3 College and the selection of the Respondent No.5 to the said post.

3. Such of the facts which are necessary to be cited for adjudication of the issue raised in the petition are stated thus : . The Respondent No.3 is an affiliated college of the Respondent No.2 Health University. The Respondent No.3 college issued an advertisement in daily Lokmat on 21.01.2004 for the post of lecturer in Agad Tantra. The petitioner applied for the said post alongwith some other applicants. The Central Council Of Indian Medicine i.e."C.C.I.M.", for the sake of brevity, has framed regulations governing the appointment of teaching staff in Ayurved Colleges. The said regulations are applicable to the Respondent No.3 College. The said regulations, interalia, provide that if the postgraduate qualification holders are not available, then the candidates from allied subjects could be considered. Insofar as the subject of the Agad Tantra is concerned, the allied subjects are -(i) Dravyaguna and (ii) Kayachikitsa. A copy of the circular dated 15.05.2002 informing the Dean/ Pricnipal/Director of the all Ayurved Colleges of the amended Regulations is annexed to the petition at Annexure ‘A’.

4. For the said selection, the Respondent No.3 had constituted a selection committee of seven persons, out of whom one was an expert in the concerned subject. The interview for the said post was held on 18.08.2004. In respect of the subject of Agad Tantra there were in all ten eligible candidates; out of which five candidates remained present for the said interview. Out of the said five candidates; two candidates were having the requisite qualification i.e. Post-graduation in Agad Tantra, which included the petitioner above named and the other three candidates were having post graduate qualification in the allied subjects. Pursuant to the said interview, the Respondent No.5 heareinabove, who was at the relevant time working as a resident Medical Officer in the Hospital of the Respondent No.3 and had a post graduation in the allied subject of Kayachikitsa, was selected. As stated above, it is the said selection of Respondent No.5, which has been impugned in the present petition.

5. On behalf of Respondents, affidavits, opposing the petition have been filed. On behalf of the Respondent No.4, an affidavit has been filed by one Dr. Abdul Wahid A. Karim. After quoting the instructions for appointment of the teaching staff i.e. if a candidate having the post graduation qualification is not available, then the candidate from the "allied subject" can be appointed. The said affidavit goes on to say that the Respondent No.5 has been appointed, as the Selection Committee preferred the Respondent No.5 for an appointment to the said post of lecturer in Agad Tantra on merits than the other candidates, including the petitioner since the Subject Expert has given his opinion that the performance of the other candidates in the interview was poor and therefore, the respondent No.5 has been selected.

6. An affidavit is also filed on behalf of the Respondent No.2 Health University by one Govind Prabhakar Jadhav, the Dy. Registrar. In the said affidavit it has been stated that after seeking a clarification from the Respondent No.3 as to why the Respondent No.5 came to be selected when candidates having post graduation in the same subject were available and after receipt of the said clarification from the Respondent No.3, that the Respondent No.5 has been selected on merits, that the Respondent No.2 has granted approval to the appointment of the Respondent No.5. An affidavit has also been filed on behalf of the Respondent No.3 by its Principal Dr.D.S.Pandit. In the said affidavit it is averred that since a duly constituted Selection Comm

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