Mr. Ali Mohammad Magrey, J. - The petitioner is aggrieved of selection and appointment of respondent No. 3 as Technical Assistant (Forestry) in Sher-i-Kashmir University of Agricultural Sciences and Technology, Kashmir, Shalimar, Srinagar (for short, SKUAST), and has filed this writ petition seeking quashing of order No. 1098 of 2013 dated 23.12.2013 whereby respondent No. 3 has so been appointed. The petitioner has also prayed for a mandamus to command respondents 1 and 2 to select and appoint him on the post in question.

2. The facts germane to the case are that SKUAST vide notice No. 05 of 2013 dated 06.06.2013 advertised, inter alia, two posts of Technical Assistants (Forestry) - one in the open merit category and the other in RBA category - prescribing Bachelors Degree in Forestry from a recognised Institution as essential qualification and Masters Degree in Forestry from a recognised Institution as desirable qualification.

3. The petitioner claims to be possessing M. Phil and Ph. D. in Forestry, and accredited with National Eligibility Test (NET). He also asserts to have more than nine publications in national and international journals and three years teaching experience - one year at university level and two years at college level. According to the petitioner, comparably, respondent No. 3 has very poor academic record and is just M. Sc. Forestry with absolutely poor credits and no experience, muchless on the post so advertised. Respondent No. 3, however, had been working as Field-cum-Laboratory Assistant in SKUAST on ad hoc basis pursuant to order dated 08.01.2010.

4. Both, the petitioner and respondent No. 3 applied for the open merit category post. They were called for interview and respondent No. 3 was selected and appointed in terms of order no. 1098 of 2013 dated 23.12.2013 on the post in question.

5. The petitioner, as mentioned above, feeling aggrieved of the selection and consequent appointment of respondent No. 3 on the post, has filed this writ petition on the grounds that he possessed far more higher merit than respondent No. 3; that respondent No. 3 had no requisite experience on the post, yet he was awarded 6 points for experience; that it defies legal logic and reason that candidates with Ph. D or NET to their credit are not given preference or even credit to such qualifications in the selection process; that the interview was conducted by the selection committee in absolutely sham manner; that the process of selection was kept shrouded in mystery, inasmuch as the criterion adopted in interview, especially distribution of marks between viva voce and academic record, including experience, was not revealed to the candidates at any stage during the process of selection; that different criteria are being adopted by respective selection committees in selection processes conducted vis-a-vis different posts while eligibility qualifications are same; that the University did not resort to short listing of candidates as was mandated by the advertisement notice and, according to the petitioner, if that had been done, respondent No. 3 would not make it to the interview stage. It is asserted that all these acts tantamount to malice in law and the respondents 1 and 2 have, thus and therefore, violated the rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution. Hence the prayer for grant of the reliefs mentioned first here in above.

6. Respondents 1 and 2 in their reply/objections have vehemently contested the contentious averments made in the petition and the claims put forth by the petitioner. It is, inter alia, stated that a Selection Committee comprising Dr. Shafiq Ahmad Wani, Director Research as its Chairman with Dr. Mushtaq Ahmad Teli, Dean, Agriculture; Dr. Mohammad Yousuf Zargar, Dean, Forestry; Dr. Sarfaraz Ahmad Wani, Dean, Veterinary Sciences as its Members, and Mr. Mohammad Yaqoob, Deputy Registrar, as its Member Secretary was constituted to conduct the interview of the candidates. The petitioner appeared before the said Committee on 11.10.2013. According to the respondents, the said Committee drew the score sheet on the basis of overall performance of candidates and that the petitioner secured 60.75 points; whereas respondent No. 3 secured 68.18 points. The maximum allocation of points under different components is stated to have been as under:

B. Sc. Forestry

50 points

M. Sc. Forestry

10 points

Additional (Experience/Achievements/Awards)

10 points

Viva voce

30 points

It is stated that respondent No. 3 was selected and appointed as an open merit candidate on the recommendations of the Selection Committee on the basis of his overall performance. The assertion of the petitioner that he was meritorious than respondent No. 3 is controverted by respondents 1 and 2 by reference to the marks secured by the two at the Graduation and Post Graduation levels. It is shown that whereas respondent No. 3 had obtained 61.47 % marks at Graduation level (B. Sc. Forestry) and 64.43 % marks at Post Graduation level (M. Sc. Forestry); the petitioner had secured 59.65 % and 64.15% marks at the aforesaid two levels. It is stated that since the essential qualification for the post of Technical Assistant was Bachelors Degree in Forestry and desirable qualification prescribed was Masters Degree in Forestry, candidates were assessed as per the said prescribed qualifications and that there was no weightage prescribed for any higher qualification. According to the respondents, respondent No. 3 had more than three years experience as Field-cum-Laboratory Assistant in the University, out of which he had served the Faculty of Forestry for more than two years on ad hoc basis. It is on that count that he was awarded 6 out of 10 points for experience. It is pleaded that once the petitioner had applied and competed for selection pursuant to advertisement notice, he was estopped from calling in question the qualifications laid down therein. It is further stated that the essential qualifications prescribed for direct appointment to any post of the University is reflected in the University Statutes; therefore, possession of higher qualifications than the required qualifications would not confer any benefit on the petitioner as per the prescribed norms. It is asserted that none of the fundamental rights of any candidate were violated as the selection to the post was made under prescribed norms. The allegation of any nepotism or favouritism in the selection process or bias against any candidate has been refuted. It is averred that short listing of candidates was not done because their number was not much; the total number of applicants for the post of Technical Assistant was only 38. It is, however, stated that short listing was done vis-a-vis the candidates who had applied for the post of Programme Assistant, as their number was bigger, viz. 144. It is further averred in the reply that criterion of selection for the teaching as well as non-teaching posts is being followed in accordance with SKUAST Statutes and approval is sought from the competent authority for adopting any procedure/criterion proposed by a Selection Committee.

7. Respondent No. 3 has also filed his reply/objections and the same are identical on all fours to what respondents 1 and 2 have stated in their reply/objections, as narrated above. There is nothing specific mentioned therein as would warrant narration herein.

8.I heard learned counsel for the parties and considered the matter.

9. At the hearing, learned counsel for the petitioner raised several points and advanced his arguments in relation thereto. The learned counsel submitted that in terms of the mandate of Clause 5 of the advertisement notification, the University was obliged to resort to short listing of the eligible candidates to be called for interview before the Selection Committee. But that was not to be; the University called all the candidates for interview before the Selection Committee. It was contended by the learned counsel that if the University had adhered to the mandate of Clause 5 of the advertisement notice, respondent no. 3 would not have been short listed and, instead, on the basis of petitioners academic superiority and merit, he alone would have made it to the interview stage. According to the learned counsel, the University had no option but to resort to short listing of candidates as had been mandated in Clause 5 of the advertisement notice and represented to the candidates desiring to compete in the selection process. The learned counsel submitted that since the University authorities have failed to adhere to the mandate of the condition of the advertisement notification, the selection and subsequent appointment of respondent no.3, therefore, cannot withstand the scrutiny of law.

10. On behalf of the respondents, it was submitted that recourse to short listing is had only when the number of candidates applying for a post is unmanageably large; not where the number of candidates is so small as can be easily handled in the selection process. In the instant case, it was submitted, the number of candidates was only 38; therefore, there was no need to resort to short listing of candidates.

11. In Clause 5 of the notification, under the caption General Conditions it was provided that the University shall resort to short listing of the eligible candidates to be called for interview before the Selection Committee. It is true that word "shall" occurs in the clause, creating an impression that it was mandatory for the University to do so, but in order to understand the real import of its contents, the whole clause would need to be read and considered. It reads as under:

"5) The University shall resort to short listing of the eligible candidates to be called for interview before the Selection Committee. The short listing can be done on the basis of merit obtained in the academic qualification and/ or any other standard method including a written test to be adopted by the University, if need arises."

(Underlining supplied)

As is seen above, the Clause ends with the words if need arises, meaning thereby that the contents of the Clause did not make it mandatory for the University to resort to short listing, but it had reserved only a discretion with itself to do so if need would arise. The word "shall" used in the clause, therefore, in true sense of the contents thereof has been used to express only the instructive future tense; not a command to make it mandatory. Even otherwise, law does not saddle a candidate with a right, or even a privilege, to seek short listing to limit the process of selection only to him on the basis of any qualification over and above the one prescribed for the post. Short listing is resorted to remove cumbersomeness in the selection process so as to lend some convenience to the selection process without compromising on the real object of fair selection. Where the number of candidates responding to the advertisement is manageable, a candidate cannot raise any grievance why such process was not resorted to. The point raised is over ruled.

12. It was next argued by the learned counsel for the petitioner that no weightage was given to the higher qualification possessed by the petitioner. As against that, it was submitted, respondent No. 3 was awarded 06 points for experience despite the fact that he did not possess any experience in teaching and/or in the relevant field. Not only that, it was submitted that respondent No. 3 was awarded 25 points out of 30 in viva voce which is unreasonably excessive, given the fact that, as is depicted by the score sheet, no other candidate was awarded so high points in the interview. It was argued that the authorities concerned and the members of the Selection Committee seem to have had made up their mind to select and appoint respondent No. 3 on the post; that is why no weightage was provided for higher qualifications, like Ph.D and NET, and respondent No. 3 was awarded points for experience which he, in reality, did not have, and, at the top of it, he was awarded the highest points in viva voce. Learned counsel submitted that the whole exercise undertaken by the Selection Committee has been malicious, objected at ensuring an undue advantage and benefit to respondent No. 3 at the cost, detriment and in total disregard and violation of the rights of the petitioner and other candidates. Reference in this connection was made to score sheet prepared by the Selection Committee which is placed on record of the writ petition as annexure J thereto. Learned counsel for the petitioner in this regard sought to draw support from the judgments of the Supreme Court in Swaran Singh Chand v. Punjab State Electricity Board, AIR 2010 SC 151 and R.S. Gard v. State of UP, (2006) 6 SCC 430.

13. Learned counsel for the respondents, on the other hand, contended that the University statutes, which govern the selection process, did not provide for any weightage to the qualifications possessed by a candidate over and above what was prescribed. It was, however, submitted that due weightage to the extent of 8.5 points out of a total of 10 points were given to the petitioner by the Selection Committee under the head additional on account of the experience, achievements and awards; whereas respondent No. 3 was awarded only 6 points under the said heading. It was further submitted that the petitioner cannot find any fault in the assessment of the Selection Committee and that this Court will not sit in appeal over the judgment of the Members of the Selection Committee who had awarded points to the competing candidates on the basis of their performance before them.

14. It may be true that the petitioner possessed a higher qualification than prescribed for the post; that fact by itself would not confer on him any preferential or superior right to be selected and appointed on the post. It is not that the selected candidate did not possess the eligibility criteria. The grievance of the petitioner that he was not given any weightage for the higher qualification possessed by him is unfounded and misplaced, as according to the respondents, the University Statutes did not prescribe any such weightage. As a matter of fact, since no such weightage was notified in the advertisement notification, the petitioner having even then applied and participated in the selection process cannot now raise any such grievance after having failed to make the grade. He could have challenged the advertisement notification at the appropriate stage before the interviews were conducted and the results were declared. He having not done so and instead chosen to participate in the selection process and wait for the results, he cannot now turn around and raise such an issue after the selection process has come to an end.

15. The petitioner by saying that the Selection Committee awarded the highest marks to respondent No. 3 in viva voce, in effect and in essence, is seeking to impute bias and mala fides to the members of the Selection Committee. In fact, the learned counsel for the petitioner argued that the Selection Committee conducted itself with a malicious intention to confer undue benefit on respondent No. 3. Apart from the fact that the allegation lacks in essential and material particulars to establish malice, the members of the Selection Committee have not been arraigned as party respondents in the writ petition. In their absence such a plea cannot be gone into, more so when no particulars in that regard are given. In Swaran Singh Chand v. Punjab State Electricity Board (supra), the Supreme Court held that when an order suffers from malice in law, neither any averment as such is required to be made, nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable. Therein the directions contained in circular letter dated 14.08.1981 containing the guidelines of the State on the subject had not been complied with. The Supreme Court in paragraph 18 of the judgment in that context observed as under:

"18. In a case of this nature the appellant has not alleged malice of fact. The requirement to comply with the directions contained in the said circular letter dated 14.08.1981 were necessary to be complied with in a case of this nature. Non-compliance whereof would amount to malice in law..."

In the instant case, it is not the case of the petitioner that the Selection Committee did not comply with any guideline, Statute or rule of the University. In R. S. Gard v. State of UP (supra) the facts were entirely different. In fact, therein the allegation of malice was duly supported by a chain of events reflected in paragraph 28 of the judgment which is quoted hereunder:

"Another aspect of the matter cannot also be overlooked. Apart from the fact that the authorities concerned had made up their minds to promote the 3rd respondent herein from the very beginning, as an approval therefor appears to have been obtained from the Chief Minister only on 20.4.1997; the post was in fact created on the next date i.e. on 21.4.1997 and the order of promotion was issued on 25.4.1997, although, decision thereupon, as would be evident from the note sheet, had been taken on 15.4.1997 itself. Such ah action is undue haste on the part of the respondents smacks of mala fide."

Such is not the case herein. The above judgments do not advance the case of the petitioner, nor do they help him in any manner.

16. Learned counsel also contended that Selection Committee cannot lay down the selection criteria. In this regard he cited and relied upon Umesh Chandra Shukla v. Union of India, (1985) 3 SCC 721 and Dr. Krushna Chandra Sahu v. State of Orissa, (1995) 6 SCC 1 However, on behalf of the respondents, it has vehemently been argued that the selection process was conducted in accordance with the University Statutes. In fact, there is nothing on record to show that the selection criterion was formulated and adopted by the Selection Committee without authorisation or approval of the competent authority. The point raised is noted only to be rejected.

17. It may additionally be mentioned here that it is not the case of the petitioner that the Selection Committee did not comprise of experts. Once the competent body of experts, i.e., the Selection Committee, found respondent no. 3 eligible and awarded him certain points for experience and for his performance in the interview, the question is would it be open for this Court to sit in appeal over the decision of such expert body The issue is not resintegra. Similar controversy has come up before the Supreme Court from time to time, beginning from the case of University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 to Basavaiah (Dr.) v. Dr. H.L. Ramesh (supra). In the latter case, the Supreme Court, referring to its earlier judgments on the point and the law laid down therein, reiterated and reaffirmed the legal position that in academic matters, the Courts have a very limited role, particularly when no mala fides have been alleged against the experts constituting the Selection Committee, that it would normally be prudent, wholesome and safe for the Courts to leave the decisions to the academicians and experts. It has been further laid down that, as a matter of principle, the Courts should never make an endeavour to sit in appeal over the decisions of the experts and that the Court must realize and appreciate its constraints and limitations in academic matters.

18. It would also be relevant to quote hereunder what was laid down by the Apex Court in some of the numerous cases mentioned in Basavaiah (Dr.) v. Dr. H. L. Ramesh (supra).

J.P. Kulshrestha (Dr.) v. Allahabad University, (1980) 3 SCC 418.

"17. Rulings of this Court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."

Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27.

"29. As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them..."

Bhushan Uttam Khare v. B.J. Medical College, (1992) 2 SCC 220.

"8. the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice.."

Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305.

"12. 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 ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."

Chancellor and Another v. Dr. Bijayananda Kar, (1994) 1 SCC 169.

"9. This Court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a candidate fulfils the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection."

19. Coming to the instant case, the appellant has neither alleged any irregularity, muchless material irregularity, in the constitution of the Selection Committee or its procedure, nor levelled any specific allegations of mala fides supported by relevant material against any of its members. Even members of the Selection Committee are not respondents in the writ petition, as already mentioned. Above being the position of the law on the point, established over a long period stretching nearly to half a century, this Court would not sit in judgment over the decision of the Selection Committee of the University.

20. Learned counsel for the petitioner also contended that since the marks allocable to experience, achievements and awards under the heading "additional" were not distributed, the selection process is rendered sham and, consequently, selection of respondent No. 3 is liable to be quashed. In this regard the learned counsel cited and sought to rely upon the judgment of the Supreme Court in State of Karnataka v. M. Farida, (1976) 4 SCC 153. In that case, the Supreme Court laid down that whether a block mark should be given after the interview on a consideration of the qualities evinced by a candidate, or marks are to be allotted separately under each head, depends upon the rule regulating the examination. Even where the qualities to be tested are intangible qualities, such as aptitude and personality, if the relevant rule required that separate marks should be allotted for each, the interviews have to follow the rule and do the best under the circumstances. But it would not be correct to assume as a general proposition that in every case where the interviewing body is asked to take into consideration several specified qualities they must be of equal value and separate marks should be allotted under each head; on the contrary, where the rules do not contain a clear direction, it would be reasonable in such cases to suppose that the intention is that there should be a block assessment on an integrated test. It is thus seen that the judgment, in fact, is against the petitioner. No rule or procedure prevalent in the University providing for such a course has been brought to the notice of the Court. Therefore, no fault can be found in the action of the Selection Committee to have awarded block marks for experience, achievements and awards under the heading additional.

21. Lastly, the learned counsel submitted that it was incumbent upon the respondents to publish the criteria for information of the competing candidates. The University having failed to do so, renders the selection process arbitrary. Learned counsel in this connection relied upon the judgment of the Supreme Court in Indian Council for Agricultural Research v. D. Sundara Raju, (2011) 6 SCC 605 In that case 50% marks had been allocated for interview. It was in that context that in paragraph 42 of the judgment, the Supreme Court held that the appellants therein were totally unjustified in allocating 50% marks for interview particularly when the appellants had not disclosed to the respondent therein that interview would also be held to evaluate the suitability of the candidates for the post. In fact, in paragraph 43 of the judgment it was observed that the appellants themselves had found 50% marks for interview highly excessive and had been later changed to 10%. Herein the petitioner is not aggrieved of allocation of 30 marks out of 100 for interview, nor is it his case that the University/Selection Committee was obliged not to conduct any interview. The judgment is of no help to the petitioner.

22. No further point was argued on behalf of the petitioner.

23. For all what has been discussed above, this petition fails and is, therefore, dismissed.

24. Parties to bear their respective costs. The original record produced by learned counsel for respondents 1 and 2 is returned to him in the open Court.