REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1130        OF 2009 (Arising out of SLP (C) No. 17481 of 2006)  

Mohd. Sohrab Khan  …Appellant

    Versus

Aligarh Muslim University & Ors.  …Respondents

    WITH  CIVIL APPEAL NO.   1131           OF 2009 (Arising out of SLP(C) No. 6718 of 2007)

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The present appeals are directed against the judgment and order dated

3.7.2006  passed  by  the  Division  Bench  of  the  High  Court  of

Allahabad.   By  the  common  judgment  and  order,  we  propose  to

dispose of both the said appeals.  

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3. The High Court by the said order allowed the Writ Petition filed by

Mohd. Sohrab Khan and set aside the Office Memo dated 20.05.2004

issued  by  the  University  regarding  appointment  of  Merajuddin

Ahmed, as a Lecturer in Chemistry in University Polytechnic, Aligarh

Mulsim University, Aligarh.

4. Mohd.  Sohrab  Khan  filed  the  said  Writ  Petition  challenging  the

aforesaid  appointment  and  also  seeking  for  a  direction  that  he  be

appointed  to  the  said  post  on  the  basis  of  his  selection  by  the

Selection Committee.   Since by the said judgment and order the High

Court set aside the appointment of the appellant Merajuddin Ahmed

but, however, as High Court did not grant a direction as sought for by

Mohd. Sohrab Khan, therefore, two appeals came to be filed in this

Court on which we have heard the counsel appearing for the parties.

We have  also  heard  the  learned  counsel  appearing  for  the Aligarh

Muslim University.   In order to deal with the contentions raised in

both the appeals, it would be necessary to deal herein with some of

the relevant facts leading to the filing of the writ petition.  

5. Aligarh  Muslim  University  issued  an  advertisement  through

Advertisement  No. 2 of  2004 dated 6.2.2004 whereby it  called  for

applications for filling up about 79 posts in the University.   One of

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the  said  posts  which  was  advertised  was  the  post  of  Lecturer  in

Chemistry  in  University  Polytechnic,  Aligarh  Muslim  University.

Qualification  that  was  laid  down  by  the  University  as  essential

qualification  was  a  First  Class  Masters’  Degree  in  the  appropriate

branch  of  teaching  post  in  Humanities  and  Sciences.   Both Mohd.

Sohrab Khan as also Merajuddin Ahmad submitted their applications

to be considered as against the aforesaid post which was advertised

namely Lecturer in Chemistry.  Mohd. Sohrab Khan had a First Class

Masters’ Degree in Chemistry (Pure) whereas Merajuddin Ahmad was

holding a First Class Masters Degree in Industrial Chemistry.   

The University  Authority,  however,  called  both of  them for  the

interview.   The  Selection  Committee  which  was  constituted  for  the

purpose of selecting the suitable candidate selected Merajuddin Ahmad

on the ground that he would be more suitable to the aforesaid post as he

holds a Masters Degree in Industrial Chemistry which according to them

would be best  suited to  teach the  particular  subject  for the  University

Polytechnic,  Aligarh  Muslim  University.    The  University  Authority

accepted the aforesaid recommendation of the Selection Committee and

issued an order of appointment in favour of Merajuddin Ahmad.

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6. Mohd. Sohrab Khan, being aggrieved by the aforesaid order passed

by the Aligarh Muslim University filed a writ  petition  in the High

Court of Allahabad.   

7. The  Division  Bench  of  the  High  Court  of  Allahabad  heard  the

aforesaid Writ Petition and by a judgment and order dated 3.7.2006

allowed  the  aforesaid  writ  petition  holding  that  the  aforesaid

appointment of Merajuddin Ahmad to the said post is not legal as he

did  not  possess  the  minimum  qualification.  The  High  Court

consequently set aside the order of appointment with a direction to the

respondent-University  to  initiate  fresh  selection  process  for  the

aforesaid  post  giving  liberty  to  the  University  to  reconsider  the

essential qualification for the post, in question.  The High Court while

coming  to  the  aforesaid  conclusion  clearly  recorded  that  the

University  award  degrees  separately  in  both  subjects  Chemistry  as

well as Industrial Chemistry and that both the subjects are distinct and

separate.

By referring to the course structure of Graduate and Post Graduate

classes in Chemistry and Industrial Chemistry, the High Court came to

the conclusion that  the courses of the aforesaid two subjects are quite

different and distinct  and in the light  of the aforesaid  findings, it  also

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recorded that degree of M.Sc. in Industrial Chemistry cannot be equated

with the degree of M.Sc. in Chemistry.

The High Court referred to the decision of this Court in Dr. Bhanu

Prasad Panda Vs. Chancellor, Sambalpur University and Others [(2001)

8  SCC  532]  for  coming  to  the  conclusion  that  the  eligibility

qualifications cannot be ignored.  The High Court of Allahabad held that

the facts of the present case are similar to that of the abovementioned

case  wherein  there  was  an  advertisement  for  the  post  of  Lecturer  in

Political Science and it was held that the person having degree in Public

Administration cannot be appointed.

8. The contention that is raised on behalf of Merajuddin Ahmad is that

the selection committee being constituted of experts on the subjects

was the only competent authority to decide that the person holding

Masters Degree in Industrial Chemistry is best suited for teaching the

subject for which advertisement was issued and the High Court acted

illegally  and  without  jurisdiction  in  interfering  with  the  aforesaid

opinion of the experts by substituting its own decision.

It  was  also  submitted  that  the  Masters  Degree  in  Industrial

Chemistry is as good as Masters Degree in Chemistry for the post for

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which the advertisement was issued and that  a person having Masters

Degree in  Industrial  Chemistry was better  suited for  teaching the said

subject. Learned counsel also invited our attention to the course contents

which  the  teacher  appointed  to  the  said  post  was  required  to  teach.

Relying  on  the  same,  he  submitted  that  a  candidate  having  Masters

Degree in Industrial Chemistry would have been better suited to teach the

said subjects constituting the course contents.

9. Learned Counsel  appearing for  Mohd. Sohrab refuted the aforesaid

submissions and contended that for teaching Chemistry to Diploma

students  only  the  basic  knowledge  of  Chemistry  is  required  and

therefore  a  person  holding  a  Masters  Degree  in  pure  Chemistry is

better suited to teach the said subject.   It was also submitted by him

that  Masters  Degree  in  Industrial  Chemistry  is  quite  distinct  and

separate from pure Chemistry which is a separate subject altogether

and therefore recommendation made by the Selection Committee and

the appointment made by the University was against the requirements

and norms laid down in the advertisement issued by the University

and therefore the same was rightly set aside by the High Court.

Learned  Counsel  also  submitted  that  since  Mohd.  Sohrab  Khan

was placed at serial No. 2 and the appointment of Merajuddin Ahmad

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was found to be illegal and therefore non est and nullity, Mohd. Sohrab

Khan who was placed at serial No. 2 could have directly been appointed.

It was submitted that as the same has not been done the second part of

the judgment of the High Court be set aside and a direction by this Court

to appoint Mohd. Sohrab Khan on the said post be issued.

10.According  to  the  advertisement  issued  by  the  University,  post  in

Chemistry  had  fallen  vacant  and  in  order  to  fill  up  the  said  post,

applications were invited.   In the advertisement it  is  clearly stated

that what is advertised is a post of lecturer in Chemistry.  Therefore, it

would be necessarily assumed that candidates possessing a Masters

Degree in pure Chemistry should submit their application as against

the        aforesaid post.

11.We have gone through the aforesaid advertisement which was issued

for filling up various posts and on scrutiny, we find that whenever and

wherever the University desired to fill up a post at variance with the

main  subject,  it  is  specifically  notified  and  indicated  in  the  said

advertisement.   For example, advertisement which find place at Serial

No. 59 was for filling up the post of Lecturer in Civil  Engineering

(Environmental  Engg.)  for  University  Polytechnic  for  which

qualification  which  was  necessary  and  essential  was  mentioned  as

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First  Class  Bachelor’s  Degree  in  Environmental  /  Civil  Chemical  /

Petroleum / Biochemical Engineering/ Architecture.

12.Many  more  posts  advertised  in  the  said  advertisement  specifically

indicate that whenever the University desired to have a post filled up

in a particular branch of the Humanities and Science Department, it

specifically indicated as such in the said  advertisement.    If it  was

necessary for  the  University  to  fill  up  the  post  from the stream of

Industrial Chemistry, it would have so indicated in the advertisement

itself for in subsequent years, we find specific advertisement has been

issued by the same University for filling up the post of Lecturer in

Industrial  Chemistry  by  issuing  an  advertisement  specifically  in

that regard.

13.There  is  no  doubt  with  regard  to  the  fact  that  it  is  the  University

Authority who knows best as to what is their requirement.  Aligarh

Muslim University  was  founded  by Central  Act  called  the  Aligarh

Muslim University Act.   It also has a statute made under Section 28

(1) of the said Act.  Statute 22 of the University deals with the Boards

of Studies.  One of the functions of the said Board of Studies is  to

recommend to the Faculty in the manner prescribed in the ordinances,

the field of study of each post at the time of its creation.

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14.Statute 21 on the other hand deals with the powers and functions of

the Faculties.  The aforesaid recommendation of the Board of Studies

is to be decided by the Faculties at Statute 21 of the University and

therefore, it is confirmed by the Academic Council under Statute 19

of the University, and therefore it is to be approved by the Executive

Council  under  Statute  17(2)(1)  of  the  University.   After  such  a

repeated multi-tier  exercise, the essential  qualification is  earmarked

for a particular post and then it is advertised.   It is also established

from the records and there is no dispute with regard to the fact that

pure  Chemistry  and  Industrial  Chemistry  are  two  different  and

separate subjects.  

15.Learned  counsel  appearing  for  Merajuddin  Ahmad  strongly  relied

upon the course contents.   A bare look at the same would indicate

that what is dealt therein is not Industrial Chemistry but Engineering

Chemistry.    We  are  not  informed  as  to  whether  Engineering

Chemistry is considered to be at par with Industrial Chemistry.    

16.Learned Counsel appearing for the University on our enquiry fairly

stated before us that the aforesaid post which was advertised to be

filled up in the aforesaid manner is at present vacant and the same is

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being manned by appointing a Guest Lecturer who holds a Masters

Degree in pure Chemistry.

17.If the requirement was to have a person having Masters  Degree in

Industrial  Chemistry,  then  in  that  event  the  post  would  have  been

manned  through  a  Guest  Lecturer  from  the  Industrial  Chemistry

stream.   Therefore, it cannot be accepted that the person holding a

Masters  Degree  in  Industrial  Chemistry  would  be  better  suited  for

appointment as against the said post.

18.The post  advertised  was  meant  for  a  person belonging  to  the  pure

Chemistry Department for if it was otherwise, then it would have been

so  mentioned  in  the  advertisement  itself  that  a  person  holding  a

Masters Degree in Industrial Chemistry should only apply or that a

person  holding  such  a  degree  could  also  apply  alongwith  other

persons.   It was not so mentioned in the advertisement and therefore,

except  for Merajuddin Ahmad, no other degree holder in Industrial

Chemistry  had  applied  for  becoming  a  candidate  as  against  the

aforesaid post.    

19.According  to  us,  the  Selection  Committee  as  also  the  University

changed the rule in the midstream which was not permissible.  The

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University  can  always  have  a  person  as  a  Lecturer  in  a  particular

discipline that it  desires  to have, but  the same must be specifically

stated in the advertisement itself, so that there is no confusion and all

persons who could be intending candidates, should know as to what is

the subject which the person is required to teach and what essential

qualification  the  person  must  possess  to  be  suitable  for  making

application for filling up the said post.

20.We  are  not  disputing  the  fact  that  in  the  matter  of  selection  of

candidates, opinion of the Selection Committee should be final, but at

the  same time,  the  Selection  Committee  cannot  act  arbitrarily  and

cannot change the criteria/qualification in the selection process during

its midstream. Merajuddin Ahmad did not possess a degree in pure

Chemistry and therefore, it was rightly held by the High Court that he

did not possess the minimum qualification required for filling up the

post  of  Lecturer  Chemistry,  for  pure  Chemistry  and  Industrial

Chemistry are two different subjects.

21.The advertisement which was issued for filling up the post of Lecturer

in Chemistry could not have been filled up by a person belonging to

the  subject  of  Industrial  Chemistry  when  the  same  having  been

specifically not mentioned in the advertisement that a Masters Degree

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holder in the said subject would also be suitable for being considered.

There could have been intending candidates who would have

applied for becoming candidate  as  against  the said advertised post,

had  they  known  and  were  informed  through  advertisement  that

Industrial Chemistry is also one of the qualifications for filling up the

said post.    The Selection Committee during the stage of selection,

which is midway could not have changed the essential qualification

laid down in the advertisement and at that stage held that a Masters

Degree  Holder  in  Industrial  Chemistry  would  be  better  suited  for

manning the said post without there being any specific advertisement

in that regard.   The very fact that the University is now manning the

said post by having a person from the discipline of pure Chemistry

also leads to the conclusion that the said post at that stage when it was

advertised was meant to be filled up by a person belonging to pure

Chemistry stream.   

22. In Secy., A.P. Public Service Commission v. B. Swapna,      [(2005) 4

SCC 154] at para 14 it was held by this Court that norms of selection

cannot  be altered after commencement of selection process and the

rules  regarding  qualification  for  appointment,  if  amended,  during

continuation  of  the  process  of  selection  do  not  affect  the  same.

Further at para 15 it was held that the power to relax the eligibility

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condition, if any, to the selection must be clearly spelt out and cannot

be  otherwise  exercised.  The  said  observations  are  extracted  herein

below:

“14. The High Court has committed an error in holding that the amended  rule  was  operative.  As has  been fairly conceded by learned  counsel  for  Respondent  1  applicant  it  was  the unamended  rule  which  was  applicable.  Once  a  process  of selection  starts,  the  prescribed  selection  criteria  cannot  be changed.  The logic  behind the same is  based on fair  play. A person  who  did  not  apply  because  a  certain  criterion  e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or  statutory  rule  is  prospective  unless  it  is  expressly  or  by necessary implication made to have retrospective effect. Unless there  are  words  in  the  statute  or  in  the  rules  showing  the intention to affect  existing  rights  the rule must  be held to be prospective. If the rule is expressed in a language which is fairly capable  of  either  interpretation  it  ought  to  be  considered  as prospective  only.  (See  P.  Mahendran v.  State  of  Karnataka (1990)  1  SCC 411  and  Gopal  Krushna  Rath v.  M.A.A.  Baig (1999) 1 SCC 544.)

15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon  the  performance  of  duties  by  experts  in  the  respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the  selected  candidate  is  concerned  gets  vitiated.  In  P.K. Ramachandra  Iyer v.  Union  of  India (1984)  2  SCC 141 this Court held that once it is established that there is no power to relax essential  qualification,  the entire process of selection of the  candidate  was  in  contravention  of  the  established  norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.”

In Krushna Chandra Sahu (Dr) v. State of Orissa, [(1995) 6 SCC 1], at

para 34 it was held by this Court the Selection Committee does not even

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have the inherent jurisdiction to lay down the norms for selection nor can

such  power  be  assumed  by  necessary  implication.  In  the  said  case

reference was made to the decision in P. K. Ramachandra Iyer v. Union

of India [(1984) 2 SCC 141], wherein at para 44 it was observed:  

“By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for  the  obvious  reason  that  such  deviation  from the  rules  is likely to cause irreparable and irreversible harm.”

23.After analysing the present issue in the light of the abovesaid legal

proposition laid down by this Court we hold that the High Court was

justified in rejecting the candidature of Merajuddin Ahmad as against

the  said  post  which  was  advertised  for  pure  Chemistry  stream.

However,  with  the  appointment  of  Merajuddin  Ahmad  to  the  said

post, the list recommended by the Selection Committee and approved

by the other competent authority has lapsed.   We, therefore, uphold

the order passed by the High Court giving liberty to the University to

lay down the qualification necessary for filling up the aforesaid post.

The University shall now advertise the said post by laying down exact

essential  qualification indicating the particular subject and subjects-

stream which is required to be possessed for making an application to

fill  up  the  said  post  and  therefore  proceed  to  appoint  a  Lecturer

suitable for the    aforesaid post.

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24.In terms of the above said both the appeals are disposed of.

       ………………………..J.                            [S.B. Sinha]

  ...………………………J.           [Dr. Mukundakam Sharma]

New Delhi,

February   20, 2009

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