The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A No.3103 of 2023 Dr. Pankaj Kumar Parhi, S/o. Late Sarat Chandra Parhi, presently working as Associate Professor, PG Department of Chemistry, Fakir Mohan University, Vyasa Vihar (North Campus), P.O. Nuapadhi, Dist.-Balasore -Versus- …Appellant. 1. Niva Nayak, W/o. Malaya Ketan Balabantaray, resident of Plot No. 14-A, Brahmeswar Bag, Tankapani Road, P.O. Badagada Brit Colony, Bhubaneswar, Dist.-Khurda. 2. Fakir Mohan University represented through its Registrar, Vyasa Vihar, P.O. Nuapadhi, Dist.-Balasore. 3. Vice-Chancellor, Fakir Mohan University, Vyasa Vihar, P.O. Nuapadhi, Dist.-Balasore. 4. Chairman, PG Council, Fakir Mohan University, Vyasa Vihar, P.O. Nuapadhi, Dist.-Balasore. 5. Trilochan Swain, presently working as Associate Professor, PG Department of Chemistry, Fakir Mohan University, Vyasa Vihar (North Campus), P.O. Nuapadhi, Dist.-Balasore. …Respondents Advocates appeared in the case: For the Appellant: Mr. H. M. Dhal, Advocate W.A No.3103 of 2023 Page 1 of 29 For Respondent No.1: Mr. Sameer Kumar Das, Advocate For Respondents No.2 to 4: Mr. Dayananda Mohapatra, Advocate CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE S. S. MISHRA JUDGMENT 31.07.2024 Chakradhari Sharan Singh, CJ. 1. In the present intra-Court appeal, the appellant has put to challenge a judgment and order dated 05.12.2023 passed in W.P.(C) No.21396 of 2023, whereby the learned Single Judge has quashed the selection and appointment of the appellant as an Associate Professor, Post-Graduate Department of Chemistry, Fakir Mohan University and has further directed that the writ petitioner (respondent No.1) be appointed to the said post against which the appellant is working. 2. Facts of the case are not in dispute, the Fakir Mohan University (the „University‟ for short) had come out with an advertisement inviting applications from the eligible candidates for various posts in the Post-Graduate Department of the University including two posts of Associate Professor in the Department of Chemistry. Indisputably, both the posts belonged to Unreserved (UR) category. W.A No.3103 of 2023 Page 2 of 29 3. The Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 („Reservation for Women Rules, 1994‟ for short) framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India provides for reservation for women candidates in States Civil Services and Posts, Rule 4 of which reads thus:- “4. Reservation.- (1) The following percentage of vacancies out of the total vacancies arising in a year in any civil services/posts to which women candidates are eligible to be appointed and which are filled up by way of direct recruitment, shall be reserved for the women candidates. Category (1) Physically Handicapped Sportsman Ex-Servicemen General candidate Women Men (3) 2% 0.67% 3% (2) 1% 0.33% 18.33% 36-67% Total (4) 3% 1% 3% 55% (2) Notwithstanding anything contained in Sub-rule (1), reservation made in favour of women candidates in excess of 30% of the total vacancies in any civil services/posts, shall continue. (3) If in any year, the vacancies reserved for a particular category of women candidates specified under Sub-rule (1) remain unfilled due to non availability of suitable women candidates belonging to the respective category, the unfilled vacancies shall be filled up by suitable male candidates of the same category: Provided that in case of non-availability of suitable male candidate of that category, the vacancy shall be filled up by women candidate of general category.” (Emphasis supplied) W.A No.3103 of 2023 Page 3 of 29 4. In accordance with the said Reservation Policy for Women, 1 post was shown in the advertisement reserved for Unreserved Women (UR-W) candidates. 5. It was mentioned in the said advertisement that in case of non- availability of suitable women candidates, the post shall be filled up by male candidates from the same category. The appellant and the respondent No.1 had applied, amongst others, in response to the said advertisement for the post of Associate Professor of Chemistry in the said category. The respondent No.1 is a woman candidate, who claimed reservation for her selection in terms of the Reservation for Women Rules, 1994. The eligible aspirants were called for interview. In the call letter for interview, it was mentioned that CCRs for last five years of the candidates must reach the University before the date of interview. It was also mentioned that the candidates might bring the CCRs in a sealed cover and submit then on the date of interview. It further provided that in the event the CCRs were not received in due time, no marks would be awarded against that head. Upon interview conducted by a Selection Committee, the appellant and respondent No.5 (both males) were found suitable for appointment against the two vacancies and accordingly their names were recommended for appointment. The selection Committee also reached at a conclusion that no woman candidate was found suitable and accordingly a male candidate was selected, apparently applying Sub-rule 3 of Rule 4 of the Reservation for Women Rules, 1994. W.A No.3103 of 2023 Page 4 of 29 6. Based on the recommendation so made, the appellant joined as Associate Professor in Chemistry, in the University. 7. Respondent No.1 filed a writ petition bearing W.P.(C) No.19275 of 2021 challenging the selection and appointment of the appellant and the respondent No.5. A learned Single Judge of this
Decision
Court disposed of the said writ petition by an order dated 09.09.2022 with an observation that the writ Court could not sit as a Super Selection Committee to decide as to whether respondent No.1 was suitable for appointment or not. The University was however directed to relook into the selection process as in the opinion of the learned Single Judge, the reservation of women candidates flows from the mandate of the Constitution, which must be strictly followed. Acting upon the above direction issued by the learned Single Judge of this Court on 09.09.2022, the University re-examined the case of respondent No.1 and communicated to her that there was no irregularity/indiscretion in the selection process, through a letter dated 19.04.2023 issued under the signature of the Registrar of the University. It was mentioned in the said communication that the Selection Committee had decided that the candidates, who secured 50% or more in aggregate, shall be considered for appointment and since respondent No.1 had not secured 50% of marks, she was not suitable. Accordingly, due to non-availability of suitable woman candidate, a male candidate was appointed against the post meant for UR-W category. W.A No.3103 of 2023 Page 5 of 29 8. Assailing the said communication dated 19.04.2023, respondent No.1 filed a writ petition giving rise to W.P.(C) No.21396 of 2023. Respondent No.1 challenged the selection and appointment of the appellant as well as respondent No.5 with a direction to appoint her as an Associate Professor in the Department of Chemistry. The said writ petition came to be disposed of by the learned Single Judge by a judgment and order dated 05.12.2023. Learned Single Judge quashed the communication dated 19.04.2023 and held that respondent No.1 was suitable for appointment against the vacancy meant for UR-W category for the post of Associate Professor in Chemistry and accordingly directed the University to appoint respondent No.1 in place of the appellant. The said decision of the learned Single Judge dated 05.12.2023 is under challenge in the present intra-Court appeal. 9. We consider it useful to quote hereinbelow the operative portion of the direction issued by the learned Single Judge, which reads thus:- “8.12. Therefore, this Court is inclined to quash the rejection of the Petitioner’s claim on the ground indicated in Annexure-9. While quashing the same, this Court held the petitioner suitable for her selection and appointment as against the vacancy meant for UR women category for the post of Associate Professor in the discipline of Chemistry. This Court accordingly while holding so directs the appointment of the Petitioner as against the post of Associate Professor in the discipline of Chemistry in place of Opposite Party No.5. This Court directs Opposite Party No.1 to comply the aforesaid direction within a period of one (1) month from the date of receipt the University to provide W.A No.3103 of 2023 Page 6 of 29 of this order. However, it is observed that if the Opposite Party No.5 can be adjusted as against any available vacancy as an Associate Professor in the discipline of Chemistry, necessary action be taken in this regard.” 10. It would be beneficial to take note of the gist of the pleadings in the writ proceeding seeking appointment of respondent No.1, in the wake of which, learned Single Judge deemed it fit to issue the mandamus as noted above:- I. The respondent No.1 was allowed to appear at the interview because she was suitable for the post; II. In the counter affidavit filed on behalf of the University in the earlier writ proceeding i.e. W.P.(C) No.19275 of 2021, no stand was taken on behalf of the University that since respondent No.1 could not secure 50% of cut off marks, she was found unsuitable; III. One Dr. Suprava Nayak was also a candidate in terms of the advertisement for the post of Associate Professor in Chemistry had sought an information under the Right to Information Act („RTI Act‟ for short) (Annexure-7 to W.P.(C) No.21396 of 2023). The information provided to her did not indicate anything about the cut off marks rather the same read as under:- “(iv) As per the decision of the selection board no women candidates were found suitable. Hence, a male candidate was selected for UR (W) category. There is no W.A No.3103 of 2023 Page 7 of 29 indication of cut off mark in the proceedings of the Selection Board.” Therefore, it was never the decision of the Selection Committee to fix a cut off marks of 50%, on which ground, the claim of respondent No.1 was rejected; IV. Respondent No.1 was not given required marks against her teaching experience as well as research publication. The Selection Board intentionally and deliberately awarded less marks in favour of the petitioner against teaching experience and research publication. Further, the Selection Committee did not award any marks towards CCRs Performance Appraisal Report while such marks were awarded in favour of the appellant and respondent No.5. V. There was no stipulation in the advertisement nor in the University Statute prescribing cut off marks for selection, stand taken by the University while rejecting the claim of respondent No.1 on the ground that she failed to secure 50% of the cut off marks was unjustified; VI. Following decisions of the Supreme Court were relied upon on behalf of respondent No.1 before the learned Single Judge in support of her case: i. K. Manjusree v. State of Andhra Pradesh and another, reported in (2008) 3 SCC 512; W.A No.3103 of 2023 Page 8 of 29 ii. Goa Public Service Commission v. Pankaj Rane and Others, reported in (2022) 11 SCC 742; and iii. Ramjit Singh Kardam and others v. Sanjeev Kumar and others, reported in (2020) 20 SCC 209; 11. In the counter affidavit filed on behalf of the University, it was stated that the proceedings of the Selection Committee revealed that the Selection Committee was of the opinion that no woman candidate was found suitable and accordingly a male candidate was selected against UR-W category. It was stated, with reference to the information furnished under the RTI Act that the selected candidates had secured more than 50% in aggregate whereas respondent No.1 had secured 47% marks, which was less than 50% of the cut off fixed by the Selection Committee. A plea was also taken that in the absence of any specific Guidelines/Rules/Law, it was open for the Selection Committee to decide the modality and fix up the cut off marks keeping in view the interest of the academic excellence to teach at the level of Post-Graduation. As per the information furnished by the then Vice- Chancellor, who was the Chairman of the Selection Committee and the Resolution of the Selection Committee, it revealed that they acted upon the proceeding and thereafter they resolved to recommend the names of the selected candidates. 11.1. It is pertinent to note that a plea was also taken in the counter affidavit that with the enactment of Odisha University Amendment Act with effect from 04.09.2020, the Odisha Public Service Commission W.A No.3103 of 2023 Page 9 of 29 has been authorized to recommend the names of the teachers to be appointed in the faculties of the University and the University was no more authorised to make recommendations. 11.2. It appears to be an admitted fact that the University could not find any material from the proceedings of the Selection Committee that the Selection Committee had fixed 50% as the cut off marks. The then Vice-Chancellor of the University, who was the Chairman of the Selection Committee, was requested by the University to state the Bench Mark for holding a candidate suitable or unsuitable for a post. In response to the said communication, the then Vice-Chancellor and the Chairperson of the Selection Committee furnished following information (Annexure-A to the counter affidavit filed in W.P.(C) No.21396 of 2023):- “xxx xxx xxx 1. In the Advertisement (No.Estt-11-164/2019/3860/FMU dt.10.07.2019) it was clearly mentioned that, “In case of non-availability of suitable women candidates, the post shall be filled up by male candidates from the same category.” far as I remember, 2. As the selection committee unanimously decided that the candidate who secures 50 or more marks in toto shall be considered as suitable for the post.” 12. A counter affidavit was filed on behalf of the appellant also in the writ petition. It was the case of the appellant in his counter affidavit filed in opposition to the pleadings in the writ petition that the University had given a relook into the selection process in question and W.A No.3103 of 2023 Page 10 of 29 based on the information furnished by the then Vice-Chancellor of the University rightly rejected the claim of respondent No.1 on the ground that she was not found suitable having scored less than 50% marks in aggregate in the process of selection. He has submitted that the Selection Committee consisted of:- I. The Vice Chancellor of the University. II. Academic Nominee of the Vice-Chancellor. III. Chairman of the P.G. Council. IV. Chairman of the P.G. Council in absence of Head of the Department of the Chemistry. 12.1. The members of the Selection Committee were the experts in the subject and administration of the University. On the basis of their expertise in the subject and past experience, they had formulated a procedure to conduct the selection among the eligible candidates. The selection procedure was conducted in setting up a uniform standard for all persons. The method of selection was not only depended upon the career assessment but also upon several other factors for assessment of competence/suitability of a candidate against different attributes as under:- “HEADING 1. General career 2. Research Degree 3. Teaching experience 4. Ph.D. guidance TOTAL MARKS 30 20 10 5 W.A No.3103 of 2023 Page 11 of 29 5. Research publication 6. Viva voce 7. C.C.R./PAR 15 15 5 100” 13. It would be pertinent to note that in the vague of the stand on behalf of respondent No.1 that she was not awarded marks against teaching experience as well as research publication, learned Single Judge had directed the University to provide the original records of the selection in question, which was perused. Learned Single Judge found that though the respondent had provided proof of teaching experience of 17 years, but the same was calculated at 10 years and accordingly she was awarded only 5 marks out of 10. Further, out of 10 marks provided for research publication of international journals, she was awarded only 3 marks and 1 mark for publication in 5 national journals. No mark was awarded against CCR appraisal in favour of respondent No.1. 14. From the impugned judgment and order passed by the learned Single Judge, it can be seen that as the learned Single Judge was not satisfied with award of marks against various attributes in respect of respondent No.1, learned Single Judge passed the following order on 18.10.2023: “xxx xxx xxx 2. This matter was listed in order to clarify certain queries with regard to award of mark to the candidates in terms of the advertisement issued under Annexure-1. This W.A No.3103 of 2023 Page 12 of 29 Court after going through the selection file so produced by learned counsel for the University finds that for award of mark in different heads finds that nothing has been indicated with regard to the basis for awarding of mark towards research publication and CCR appraisal. Nothing has also been indicated as to how many publications in international journal a candidate has to produce in order to get the prescribed “10” marks and how many publications in national journal to get the prescribed “5” marks. Similarly, with regard to award of 859 marks for CCR appraisal, no basis has been prescribed. 3. In such view of the matter, this Court directs learned counsel appearing for the University to apprise this Court about the method of award of mark with regard to research publication and CCR appraisal and the basis adopted by the Selection Committee to award such mark. 4. As requested by Mr. D. Mohapatra, learned counsel for the Petitioner, list this matter on 01.11.2023 under the heading “to be mentioned”. 5. The original selection file so produced by Mr. Mohapatra is returned with due acknowledgment for the purpose of getting instruction as directed by this Court.” learned counsel 15. Relevant records were thereafter produced by the University in relation to award of marks in favour of candidates against research publication, teaching experience as well as CCR appraisal. Learned Single Judge noticed that there was no uniformity maintained by the Selection Board in awarding marks towards research publication, teaching experience as well as CCR appraisal. In the opinion of the learned Single Judge, thus, the Selection Board had conducted the selection in haphazard manner and awarded the marks in the absence W.A No.3103 of 2023 Page 13 of 29 of any fixed criteria. Learned Single Judge recorded in paragraph 8.10 of the impugned judgment and order as under: “8.10. In terms of the order passed on 18.10.2023, learned counsel appearing for the University produced relevant record with regard to award of mark in favour of the candidates with regard to Research Publication, Teaching Experience as well as CCR Appraisal. This Court after going through the records finds that no uniformity has been maintained by the Selection Board in awarding marks towards Research Publication, Teaching Experience as well as CCR Appraisal. Nothing is also in the record with regard to the basis for award of mark in favour of eligible candidates in the aforesaid i.e. Research three categories Publication, Teaching Experience as well as CCR Appraisal. Therefore, it is the view of this Court that the the Selection Board has conducted selection in a very haphazardly manner and awarded marks in absence of any fixed criteria.” 16. Learned Single Judge reached a conclusion that rejection of the petitioner‟s claim on the ground that she had not secured required 50% cut off marks was not sustainable in the eye of law in view of the Supreme Court‟s decision in case of K. Manjusree (supra) and accordingly allowed the writ petition with the direction as has been quoted hereinabove. 17. Mr. H. M. Dhal, learned counsel appearing on behalf of the appellant, assailing the impugned judgment and order has submitted that there was admittedly no allegation of mala fide against the experts, who constituted the Selection Committee. The Selection Committee W.A No.3103 of 2023 Page 14 of 29 comprised of the experts, who found respondent No.1 unsuitable for the post of Associate Professor. Relying on the Supreme Court‟s decision in the case of University of Mysore and another v. C.D. Govinda Rao and another (AIR 1965 SC 491) and Dalpat Abasaheb Solunke and others v. Dr B.S. Mahajan and others, reported in (1990) 1 SCC 305, he has argued that whether a candidate is fit for a particular post or not can be decided by duly constituted Selection Committee having expertise on the subject. Relying on the Supreme Court‟s decision in case of Union Public Service Commission v. M. Sathiya Priya reported in (2018) 15 SCC 796, he has argued that the jurisdiction to make selection vests in the Selection Committee and it is not open for the Courts to interfere in such matters except in cases whether the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. Relying on another Supreme Court‟s decision in case of Tajvir Singh Sodhi v. State of Jammu & Kashmir reported in 2023 SCC Online SC 344, he has argued that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection committee, subject of course to a caveat that if there are proven allegations of malfeasance or violation of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. He has argued that the Selection Committee was empowered to fix a cut off marks and has argued that the Supreme Court‟s decision in case of K. Manjusree (supra) has not rightly been applied by the learned Single Judge, which clearly lays down that where the Rules do not prescribe W.A No.3103 of 2023 Page 15 of 29 any procedure, the Selection Committee may also prescribe the minimum marks. Reliance has also been placed by him on the Supreme Court‟s decision in case of C.P. Kalra v. Air India reported in 1994 Supp. (I) SCC 454. He has further argued that in any event the learned Single Judge could not have reassessed and reevaluated the marks awarded by the Selection Committee. He has relied on Supreme Court‟s decision in case of Madan Lal v. State of J&K reported in (1995) 3 SCC 486 to submit that quantum of marks to be awarded to the competing candidates is the function of the interview committee and the Courts do not act as Appellate body over the assessment made by such expert committee. 18. Assailing the finding of the learned Single Judge on the point of marks awarded to the petitioner against teaching experience, he has submitted that the finding of the learned Single Judge is contrary to the statute, inasmuch as, Clause-3 of the Statute provides that the years of service rendered beyond the eligibility criteria which is 8 years is to be reckoned towards teaching experience for awarding marks @ 0.5 marks for each completed years of service beyond the eligibility period. Therefore, 10 years service beyond the eligibility period had been taken into consideration and thus respondent No.1 was rightly awarded 5 marks for teaching experience. On the point of marks awarded against research publication in favour of respondent No.1, who had 7 number of publications with 4 in International Journal and 3 in National Journal and was awarded 3 marks for publication in International Journal and 1 mark for National Journal and thus 4 marks W.A No.3103 of 2023 Page 16 of 29 towards research publication. On the contrary, the appellant had 54 number of publications which comprised of 52 publications in International Journal and 2 in National Journal. The appellant was awarded 6 marks for International Journal and 1 mark for publication in National Journal. The modality of awarding marks for Journals would show that the equal standards had been uniformly applied for all the candidates including respondent No.1 and the appellant. On the point of award of 0 marks for CCRs, learned counsel for the appellant has submitted that the finding recorded by the learned Single Judge is erroneous as it was clearly mentioned in the call letter that the in- service candidates should ensure that their CCRs for last 5 years are received by the Registrar of the University before the date of interview. Similarly, in the Call letter for interview also it was specifically mentioned that CCRs of the candidates should reach the University on or before the interview. It was also clearly mentioned that in the event CCRs were not received in due time, the marks would not be awarded against the said head. Accordingly, respondent No.1 was rightly not awarded any marks towards CCRs because the same were not available. He has submitted that reassessment of the merit of respondent No.1 done by the learned Single Judge in the impugned judgment and order is contrary to the Supreme Court‟s decision in case of Madan Lal (supra) wherein it has been specifically laid down that determination of quantum of marks is the function of the selection committee and not of the writ Court. Reliance has been placed on a Supreme Court‟s decision in case of Dr. Premachandran Keezhoth v. Chancellor, Kanpur University (AIR 2024 SC 135) to submit that the W.A No.3103 of 2023 Page 17 of 29 suitability of a candidate for appointment to a post is to be judged by the appointing authority and not by the Court unless the appointment is contrary to the statutory provisions. It has accordingly been submitted that the impugned judgment and order of the learned Single Judge is unsustainable and requires interference. 19. Mr. Sameer Kumar Das, learned counsel representing respondent No.1 has argued that the selection committee was under obligation to consider cases of eligible female candidates separately for selection against one UR-W vacancy. He has argued that there were four women eligible candidates available for the post of Associate Professor in Chemistry and, therefore, selection for the said post of ought to have been confined to them. Only in the event, there was no availability of a suitable women candidate, a male candidate could have been selected and appointed. He contends that the selection committee erroneously diluted the provisions of Rule 4 of the Reservation for Women Rules by placing the women candidates along with the male candidates for selection to adjudge the suitability, which is known the aim and object of the Reservation Rule for Women. Defending the impugned judgment passed by the learned Single Judge, he has submitted that the learned Single Judge rightly held the selection of the appellant to be illegal with a direction for selection and appointment in favour of the respondent No.1 as she was the best amongst all eligible women candidates. He has argued that the plea that the selection committee had fixed 50% as the cut off marks for determining the suitability of a candidate. To test the authenticity and W.A No.3103 of 2023 Page 18 of 29 genuineness of the stand so taken, the learned Single Judge had called for the records of the selection committee. The learned Single Judge found that there was no such decision available in the minutes of the selection committee. Accordingly, the learned Single Judge rightly concluded that the letter of the former Vice-Chancellor cannot be treated as the decision of the selection committee. He has argued that upon reading of the said letter of the Vice-Chancellor dated 07.12.2022, no prudent person can arrive at a conclusion that the selection committee had fixed any cut off marks for selection. 20. He has argued that the learned Single Judge on scrutiny of original records of the selection process, noticed the discrepancies in awarding marks to the candidates and recorded its finding, which cannot be decided in a writ appeal with a limited scope of interference. He has relied on the Supreme Court‟s decision in Sureshkumar Lalitkumar Patel and others v. State of Gujarat and others reported in 2023 SCC Online SC 167 to contend that a candidate has a right to be considered for a post in accordance with law. A law which enables a candidate to get a post cannot be changed to facilitate another group of persons, since the candidate acquires the vested right to be considered in accordance with law. Reference has also been made in this regard to the Supreme Court‟s decision in the case of N.T. Devin Katti and others Vs. Karnataka Public Service Commission and others reported in (1990) 3 SCC 157 in which the Supreme Court has held that fixation of cut off marks should have a rationale. He has, accordingly, argued that this writ appeal has no merit and deserves to be dismissed. W.A No.3103 of 2023 Page 19 of 29 21. After having gone through the impugned judgment of the learned Single Judge, the materials available on record and considered the rival submissions on behalf of the parties as noted above, in our opinion, the following questions of seminal importance have emerged to be answered for adjudication in the present intra-court appeal: (i) Is it permissible for this Court exercising power of judicial review under Article 226 of the Constitution of India to hold a candidate suitable for a post who has been found to be not suitable by a duly constituted Selection Committee? (ii) Whether this Court exercising the power of judicial review can sit as an appellate authority over the decision of a duly constituted Selection Committee? (iii) Whether in exercise of power of judicial review, this Court after holding a candidate suitable for a post can issue a mandamus, in the facts and circumstances noted above, directing the University to appoint respondent no.1 as an Associate Professor? 22. The aforementioned questions are to be addressed in the wake of Rule 4 of the Reservation of Women Rules as quoted herein above which provides for reservation for women and stipulates that if in any year, vacancies reserved for a particular category of women candidates remain unfilled due to “non availability of suitable women candidates” belonging to the respective category, the unfilled vacancies shall be filled by suitable male candidates of the same category. A duly W.A No.3103 of 2023 Page 20 of 29 constituted Selection Committee has found respondent no.1 unsuitable for the post of Associate Professor and applying sub-Rule 3 of Rule 4 of the Reservation of Women Rules, 1994 recommended appointment of the appellant for the post of Associate Professor in Chemistry. 23. In this background, it is to be determined as to whether the decision of a duly constituted Selection Committee of experts on the point of suitability or unsuitability of a candidate for a post of Associate Professor in University can be the subject matter of judicial review in the absence of any allegation of mala fide or breach of any mandatory statutory prescription. In the present case, the learned Single Judge by the impugned judgment has not only quashed the rejection of the petitioner‟s claim to be appointed as an Associate Professor but has held her suitable for selection and appointment against the vacancy meant for UR-Women category and has directed the University to provide her appointment to the said post. 24. The Supreme Court has consistently held that the decision of the academic authorities about the suitability of a candidate cannot normally be examined by the High Court under its writ jurisdiction. 25. In case of Dalpat Abasaheb Solunke (supra), the Supreme Court did not approve interference by the High Court in the matter of selection and appointment to the post of Chief Extension Education Officers based on a recommendation of a selection committee laying down the law in no uncertain terms that whether a candidate is fit for a particular post or not has to be decided by a duly constituted selection W.A No.3103 of 2023 Page 21 of 29 committee, which has the expertise on the subject. The Court does not have such expertise. Further, 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 malafides. It will be useful for the benefit of quick reference to reproduce paragraph 12 of the Supreme Court‟s decision in case of Dalpat Abasaheb Solunke (supra), which reads thus: “12. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. 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. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the W.A No.3103 of 2023 Page 22 of 29 ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction. 26. In the case of Madanlal (supra), the Supreme Court has noted that assessment of merit of candidates in a process of selection remains in the exclusive domain of the expert committee to decide whether more marks should be assigned to the petitioners or the respondents concerned. The Supreme Court held “it cannot be the subject matter of an attack before us as whether not sitting as a Court of appeal over the assessment made by the committee………”. (See paragraph 17). 27. The Supreme Court had noticed in case of Madanlal (supra) that there was not even a whisper in the petition about any personal bias of the members of the interview committee against the petitioners of that case and there was no allegation of any malafides on the part of the members of the interview committee. In the present case also, there is no allegation of any malafides or personal bias against the members of the Selection Committee. 28. In a recent decision in case of Tajvir Singh Sodhi (supra), the Supreme Court after having noticed the decisions in case of Dalpat Abasaheb Solunke (supra), Secy. (Health) Deptt. Of Health & F.W. and another v. Dr. Anit Puri and others; (1996) 6 SCC 282, M.V. Thimmaiah and others v. Union Public Service Commission and others; (2008) 2 SCC 119 and Om Prakash Poplai and Rajesh Kumar Maheswari v. Delhi Stock Exchange Association Ltd. and others; (1994) 2 SCC 117, has conclusively held that it is not within the W.A No.3103 of 2023 Page 23 of 29 domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a selection committee, subject to a caveat that if there are proven allegations of malfeasance or violation of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. 29. The Supreme Court emphasised that the Courts while exercising power of judicial review cannot step into the shoes of the selection committee or assume an appellate role to examine whether the marks awarded by the selection committee were excessive or not and no corresponding to their performance in such test. Paragraphs 66 and 67 of the decision in case of Tajvir Singh Sodhi (supra) read as under: “66. Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. 67. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of W.A No.3103 of 2023 Page 24 of 29 the criteria employed by the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective selection board/interview panel in assessing the suitability of candidates, namely, (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20. (ii) that although the writ petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water.” 30. Similar view has been taken by the Supreme Court in the case of Dr. Premachandran Keezhoth (supra), while concluding that the suitability of a candidate for appointment to a post is to be judged by the appointing authority and not by the Court unless the appointment is contrary to the statutory rules/provisions. 31. In view of the aforesaid discussions with reference to the Supreme Court‟s decision, the questions framed in paragraph 21 of the present judgment are answered in negative. We, accordingly, conclude that:- (i) It is impermissible for the Court‟s exercising power of judicial review under Article 226 of the Constitution of India to hold a candidate suitable or otherwise, contrary to the opinion of a duly constituted selection committee. W.A No.3103 of 2023 Page 25 of 29 (ii) The Court‟s exercising power of judicial review cannot sit as an appellate authority over the decision of a duly constituted selection committee. (iii) A fortiori the Court exercising such power of judicial review cannot issue a mandamus, in the present facts and circumstances, directing the University to appointment respondent No.1 as an Associate Professor in Chemistry. 32. The learned Single Judge has interfered with the process of selection also on the ground that 50% of the cut-off marks to determine the suitability of a candidate was not fixed before initiation of process of selection and relying on the Supreme Court‟s decision in case of K. Manjusree (supra), the learned Single Judge concluded that the claim of respondent No.1 could not have been rejected on that ground. It is an admitted fact that there was no mention in the proceedings of the selection committee prescribing 50% as the cut-off marks for determination of suitability of a candidate. A plea was taken by the University in the counter affidavit that it was open for the selection committee to decide the modalities and fix up the cut-off marks keeping in view the interest of the academic excellence to teach at the level of Post-Graduation. The basis for the University to take the plea in the counter affidavit that 50% of the cut-off marks fixed, was a communication made by the Former Vince-Chancellor of the University, who was the Chairman of the selection committee who is said to have communicated based on her memory that the selection committee had unanimously decided that the candidate who secures W.A No.3103 of 2023 Page 26 of 29 50% or more marks in toto shall be considered as suitable for the post. The part of the relevant portion of the communication has been quoted hereinabove, which we reproduced again for reiteration:- the Selection Committee “As far as I remember, unanimously decided that the candidate who secures 50% or more marks in toto shall be considered as suitable for the post.” The said communication of the former Vice-Chancellor of the University based on her memory about the proceedings of the selection committee is the only material based on which the University appears to have taken a plea that 50% was the cut-off marks fixed by the selection committee for determination of the suitability of a candidate and since respondent No.1 had not secured that much marks, she was not recommended against the post reserved for women. Evidently, there is no other basis to reach a conclusion that 50% was the cut-off marks fixed by the selection committee. The records of the selection committee which were perused by the learned Single Judge did not disclose fixation of the same cut-off marks.” 33. In such view of the matter, the finding recorded by the learned Single Judge that 50% cut-off marks was fixed by the selection committee, in our opinion, is erroneous and not sustainable. 34. We reiterate that the stand of the University in the counter affidavit that 50% cut-off marks was fixed, was based on communication made by one of the members of the selection W.A No.3103 of 2023 Page 27 of 29 committee i.e. the former Vice-Chancellor, who was the Chairman of the selection committee. 35. In such view of the matter, the Supreme Court‟s decisions on the point that the rules of the game cannot be changed when the game has been played, as no application in the facts and circumstances of the case. We are rather of the view that as the original records of the selection committee do not exhibit fixation of 50% cut-off marks for determination of suitability, no such cut of marks was fixed by the selection committee. The selection committee consisting of experts evaluated suitability of the candidates including that of respondent No.1. In the opinion of the selection committee, the respondent no.1 was not found suitable for the post of Associate Professor to teach at the Post-Graduation level. This Court exercising power of judicial review cannot go into the assessment done by the selection committee of experts on the question of suitability of respondent No.1. There is no whisper of any allegation of bias or mala fides on the part of the members of the selection committee. 36. In case of Mohd. Mustafa Vs. Union of India and Others reported in (2022) 1 SCC 294 also the Supreme Court has reiterated that the Court‟s in exercise of power under judicial review do not interfere with selections made by expert bodies by reassessing comparative merits of the candidates and interference with selections is restricted to decisions vitiated by bias, mala fides and contrary to statutory provisions. (See paragraph-18). No infraction of in statutory W.A No.3103 of 2023 Page 28 of 29 provision in the process of selection was established in the writ proceeding. 37. Situated thus, we are of the view that the impugned judgment and order dated 05.12.2023 passed by the learned Single Judge in W.P.(C) No.21396 of 2023 requires interference as the same cannot be sustained. Accordingly, the said impugned judgment and order is set aside and the writ petition stands dismissed. 38. With the aforementioned observations, the writ appeal stands allowed. There shall be no order as to costs. (Chakradhari Sharan Singh) Chief Justice S. S. Mishra, J. I agree. (S. S. Mishra) Judge SK Jena/M.Panda/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 06-Aug-2024 15:41:48 W.A No.3103 of 2023 Page 29 of 29