N. C. SHARMA, J. - (1.) THIS writ petition under Art. 226 of the Constitution of India has been filed by Dr. Bhika Lal Jain, Dr. Shiv Sharma, Dr. Sudhakar Misra and Dr. T. N. Bhardwaj praying that the selection of Dr. G. S. Nathawat non-petitioner No. 4 as Professor in Botany by the Selection Committee constituted for the purpose, may be declared as void and further the said non-petitioner No. 4 may be removed from the office of Professor of Botany in the University of Rajasthan. A direction is further sought that non-petitioner No. 5 whose name finds place in the reserve list, has no right to be appointed on the post of Professor, Department of Botany, after the retirement of non-petitioner No. 4.
(2.) FACTS as alleged in the writ petition are that Dr. Bhika Lal Jain petitioner No. 1 is working as Associate Professor in the University of Rajasthan since July, 78 and he asserts that he is fully accomplished and duly qualified for being considered for appointment to the post of Professor in the University. At present he is said to be the senior-most Reader in the Department of Botany in the University of Rajasthan. Dr. Shiv Sharma has passed his M. Sc. in Botany in 1952 from the Government College, Ajmer and did his Ph. D. from University of Rajasthan in the year 1973. He states that he has considerable research and teaching experience and is associated with a number of State Government and Central Government bodies. He also fulfils the requisite qualifications for being considered and appointed to the post of Professor in the Department of Botany. The same thing is alleged by Dr Sudhakar Misra, petitioner No. 3 with regard to his academic qualifications' teaching and research experience and there attainments. Dr. T. N. Bhardwai is an Associate Professor in the Department of Botany in the University of Rajasthan for quite a long time. By its Notification No. 1/89/t dated April 15, 1989, the University of Rajasthan, invited applications, inter alia, for the post of Professor in the Department of Botany so as to reach the office of the University on or before April 5, 1989 in the prescribed form. In response to the said advertisement, the petitioners also submitted their applications for the post of Professor in Botany. Besides them, non-petitioner No. 4 and three other persons named Dr. Uma Kant, Dr. Ashwani Kumar & Dr K. C. Jain also submitted their applications for considering them for the post of Professor in Botany. The Selection Committee as constituted under Sec. 5 of the Rajasthan University Teachers and Officers (Selection for Appointment) Act No. 18 of 1974 (for short, hereinafter the "act") held the interview on June 20, 1989 at 3 p. m. Petitioners, non-petitioner No. 4, Dr. Uma Kant and Dr. Ashwani Kumar appeared for interview before the Selection Committee. The Selection Committee selected Dr. G. S. Nathawat non-petitioner No. 4 for the post of Professor in Botany and had also prepared a reserve list. The selection made by the Selection Committee was approved by the University Syndicate in its meeting held on June 21, 1989. It is also mentioned that the Selection Committee also prepared a reserve list as required by Sec. 6 (4) of the Act and in that reserve list, the name of Dr. Uma Kant non-petitioner No. 5, was mentioned. It may be mentioned that Dr. G. S. Nathawat retired on 30th Sept. 1989 and after his retirement Dr. Uma Kant, non-petitioner No. 5 was appointed as Professor in Botany by the University of Rajasthan as his name finds place in the reserve list. The petitioners have challenged the selection and appointment of Dr. G. S. Nathawat as Professor of Botany on the ground that the Selection Committee was not constituted in accordance with the Act. The petitioners have further pleaded that the purpose of preparing reserve list is to appoint the persons mentioned therein case the selected person does not join for some reason or the other. But, once a selected person joins the post, the reserve list exhausts itself, and the person whose name finds place in the reserve list cannot be appointed in place of the person who had beed selected or appointed even on retirement of such person. Non-petitioner No. 5 had been impleaded as a party to the writ petition on his making an application for the purpose and the petitioners have contended that on the retirement of Dr. G. S. Nathawat, non-petitioner No. 5 cannot even be appointed on the basis that his name finds place in the reserve list prepared by the Selection Committee under sec. 6 (4) of the Act, which selected non-petitioner No. 4 for the post of Professor in Botany. Reply to the writ petition has been filed both by non-petitioner No; 1 and 4. So far as the University of Rajasthan, non-petitioner No. 1, is concerned, its reply is that the Selection Committee was properly constituted and that the panel of experts once prepared remains in force until a new panel is made. In connection with the membership of the Selection Committee it is also stated that the constitution of the Selection Committee cannot be questioned and any defect in its constitution would not invalidated the selection with regard to the reserve list, the University of Rajasthan has relied upon a resolution of the Syndicate of the University passed in a meeting held on 3rd December 1983, whereby the validity of the reserve list was extended from 6 to 12 months. It is also pleaded that if any vacancy arises within the validity period of the reserve list, whether that vacancy arises on account of non-joining of the selected person, or by retirement or by creation of extra post, or for any other reason, then the whole process of selection need not be gone through therein by the University and persons whose name find place in the reserve list can be appointed. It is stated that; this has always been the practice of the University. Non-petitioner No. 5 has also taken more or less the same stand as taken by the University of Rajasthan. Non-petitioner No. 5 has cited instances when in the past appointments were made out from out of the reserve list even if the vacancy had arisen subsequent to the selection already made. I have heard the learned counsel for the parties at length. So far as the question relating to defect in the constitution of the Selection Committee is concerned, the contention of the learned counsel for the petitioners is that the applications for the post of Professor in the Department of Botany were invited on April 15, 1989. The Selection Committee interviewed the candidates on June 20, 1989 and it recommended the name of non-petitioner No. 4 for appointment together with a reserve list. It is stated that the Academic Council of the University in its meeting held on December 4, 1985 had considered the revised panel of experts for selection of teachers, inter alia in the subject of Botany for the session 1985-86 and onwards as required by Sec. 5 (l) (v) of the Act. According to the petitioners, this panel remained in force up to the academic session 1988 and the revised panel of experts for the academic session 1988-89 and onwards was framed by the Academic Council in its meeting held on June 28, 1988 on the recommendation of the Staff Council by the Department of Botany. This revised panel has been filed along with the writ petition as Annexure/8, it was urged by Mr. S. M. Mehta appearing for the petitioners that the Dean of Faculty of Science was not representing so far as the experts were concerned, they are already selected out of the obsolete list of panels which was prepared for the Academic Sessions 1985-86 and onwards which stood superseded by the fresh panel of experts prepared for the Academic Session 1988-89. The petitioners learnt about it on reopening of the University after summer vacation on July 21, 1989.
(3.) SEC. 3 (1) of the Act in unambiguous terms provides that notwithstanding any thing contained in the relevant law, as form the commencement of the Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under SEC. 5. Sub-section (2) of this section states that save as otherwise provided in sub-section (3), every appointment of a teacher or of an officer in any University made in contravention of sub-section (1) shall be null and void. Sub-section (3) relaxed this rigour only for stop gap arrangement for a period not exceeding one year. The provision relating to constitution of the Selection Committee finds place in SEC. 5 of the Act. Clause (v) of sub-section (1) of SEC. 5 states that Selection Committee, inter alia will consist of such other persons as members specified in column 2 of the Schedule for the selection of the teachers and officers mentioned in column 1 thereof. Entry of sr. No. 2 of the first Schedule enumerates the persons who would, inter alia be member of the Selection Committee along with others for the selection to the post of Professor. These other persons are Dean or, as the case may be, Chairman of the faculty if he is a Professor. Head of the Department concerned if he is a Professor; otherwise the senior most Professor in the department and three experts not connected with the University concerned having special knowledge in the subject in which a Professor is to be appointed to be nominated by the Vice-Chancellor of the University concerned out of a Panel of names recommended by the Academic Council of such University. Explanation-II. " appended to the Schedule states that the three experts to be nominated by the Vice-Chancellor of the University shall be chosen by him on the advice of a Committee consisting of a member of the Rajasthan Public Service Commission to be nominated by the State Government after consultation with the Chairman of the said Commission, the eminent education list nominated under clause (iii) of sub-section (1) of SECtion 5 and the member of the Syndicate nominated under clause (iv) of the said sub-section of the said section and the said Committee shall from out of the panel of names recommended by the Academic Council recommend to the Vice-Chancellor of the University concerned names of atleast twelve experts for each Selection Committee which shall be in order of priority. It may here be noted that in relation to certain member of the Selection Committee specified, there in is duration of the term of member-ship as specified in sub-clauses (ii), (iii) and (iv) of sub-sec. (1) of section 5 of the Act. For an eminent education list it is provided that he will be nominated by the Chancellor for a period of one year. Then another education list is to be nominated by the State Government for one year. The member of the Syndicate to be nominated by the State Government has also to be for a period of one year. However, for the three experts specified in clause (iii) against entry "professor" in the first Schedule and also of experts pertaining to other posts, no such period is specified. All that is provided for in Sub-section (3) of Sec. 5 of the Act is that no person shall be eligible to be nominated as an expert on any Selection Committee in any one year if he has been a member of any two Selec-tion Committee during the course of the same year. This only implies that if an expert has sat as a member of two Selection Committees during the coure of the same year, he shall not be nominated as member in more than two Selection Committees constituted for the purpose of selection. Sub-section (3) of Sec-5 of the Act by no stretch fixes any term for the experts appointed by the Vice Chancellor out of the panel of names recommended by the Academic Council of such University. Consequently, therefore, the experts appointed by nomin-ation by the Vice Chancellor out of the panel of names recommended to it continue to remain expert till the Vice Chancellor appoints other persons as experts out of fresh panel of names recommended by the Academic Council of the University in the manner provided in Explanation II appended to the First Schedule. It is therefore, wrong for the petitioner to plead and contend that merely because a revised panel experts had been framed by the Academic Council in its meeting held on June 28, 1988, the panel of experts out of which experts were appointed by the Vice Chancellor previously during the Academic Sessions 1985-86 became obsolete. It has not at all been pleaded and, it is not the case of the petitioner that out of revised panel of experts submitted by the Academic Council during the Academic Session 1988-89 the Vice Chancellor had appointed by nomination other experts out of the said panel. Until and unless the Vice Chancellor had appointed by nomination other experts, his old appointment of experts continues. (The submission on behalf of the University of Rajasthan is correct that the panel prepared for the Academic session 1985-86 was the standing panel and since no fresh experts have been nominated by the Vice Chancellor, the old panel continues. So far as the Dean of the Faculty is concerned, there was vacancy of the post. Apart from that Sec. 6 (1) provides that the quorum required for the meeting of the Selection Committee constituted under Sec. 5 shall not be less, than five, out of which at least two shall be the experts, if the selection is to be made for the post of Professor. It is not the case of the petitioners that the required quorum was not present during the selection. The first contention advanced by the learned counsel for the petitioners has, therefore, no force in it and is negatived. I shall next deal with regard to the nature, scope and effect of the reserve list prepared by the Selection Committee under Sec. 6 (4) of the Act. It is not in dispute that the Selection Committee had recommended Dr. G. S Nathawat, non-petitioner No. 4 for appointment to the post of Professor of Botany and Dr. Nathawat had been appointed in pursuance of its recommendations and he retired as Professor in Botany in the University from June 21 1989 till his retirement on September 30, 1989. The name of Dr. Uma Kant (non-petitioner No, 5) was on the reserve list which the Selection Committee had prepared in pursuance of sec. 6 (4) of the Act. The question that arises is whether the University of Rajasthan on the retirement of Dr. G. S. Nathawat could appoint Dr. Uma Kant, non-petitioner No. 5 on the ground that his name was in the reserve list. ;