# Dr. Brijesh Kumar Tiwari v. Banaras Hindu University & Ors

- **Citation:** (2016) 4 ILRA 222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-12
- **Bench:** V.K. Shukla, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-brijesh-kumar-tiwari-v-banaras-hindu-university-ors-43574
- **Pages:** 21

## Headnote

Shri Ajeet Kumar Singh, Shri Harshita Raghuvanshi, S.C., Shri V.K.Singh

Held -

Paras 1-10: The Court introduces the parties and the core challenge: the validity of the selection process for
Assistant Professors in Commerce at BHU. It notes the petitioner's request to quash the selection of
respondents 6-10 and identifies the governing laws as Ordinance 11A and the UGC Regulations 2010.
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
223
Paras 11-18: The petitioner's arguments are detailed, claiming that because they ranked first in the
shortlisting stages (FAC-1 and FAC-2), the Selection Committee acted arbitrarily by choosing candidates
with lower preliminary scores. Allegations of "manipulation" regarding interview letters and the "illegal"
appointment of respondent No. 9 (Dr. Vandana Srivastava) are highlighted.

Paras 19-24: The petitioner disputes their quality score, arguing they were denied marks for published
books and journals to prevent them from being categorized as a "very bright candidate." They also challenge
the University's decision to advertise a new vacancy rather than appointing the petitioner from the "waitlist."

Paras 25-40: The University's defense is presented. They argue that API and Quality Scores are strictly
for screening/shortlisting and do not bind the Selection Committee's final assessment. They contend that
once the interview stage is reached, the committee has absolute discretion to assess suitability objectively.

Paras 41-45: The Court addresses the minimum eligibility issue. Citing the P. Suseela case, the Court notes
that the petitioner's Ph.D. was awarded after the mandatory cutoff date, meaning he lacked the requisite NET
qualification or valid exemption.

Paras 46-55: The Court analyzes the legal role of Expert Committees. It emphasizes that courts have a
"very limited role" in reviewing academic selections and should not substitute their judgment for that of
experts unless there is proven malice or patent illegality.

Paras 56-60: Regarding the waitlist, the Court held that a waitlisted candidate has no "indefeasible right"
to appointment. The University is within its rights to advertise a fresh vacancy rather than filling it from an old
list.

Paras 61-68: The Court concludes that the discrepancies pointed out by the petitioners were merely
"human errors" that did not vitiate the selection. It ruled that since the petitioners participated in the
interview without objection, they could not challenge the process after failing to be selected.

Petition dismissed,

 -with the holding that FAC-1 and FAC-2 scores are only for shortlisting and do not
entitle a candidate to selection over others who performed better in the interview. The Court reaffirmed that it
will not interfere with the unanimous recommendations of a duly constituted Expert Selection
Committee in the absence of malafides. Furthermore, it ruled that the petitioner was technic

## Text

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222 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The argument that the technicalities cannot be permitted to defeat justice may sound
logically correct but has no force as logic alone would not over ride the law.

28. It is not a matter of technicality, but that of competence of the authority making the
reference and the jurisdiction of the adjudicating authority. It is well settled vide Taylor vs. Taylor
(1876) 1 Ch. Div. 426 that if the statute provides for doing a thing in a particular manner, then it
has to be done in the manner provides in the statute or not at all. Thus, the reference has to be made
in the manner provided under the Act and not otherwise. Therefore, the dispute which was referable
to the adjudicating authority by the Central Government would not have been decided on a
reference made by the State Government.

29. Therefore, following the law as it stand, the impugned award has to go for want of
jurisdiction.

30. Accordingly, without going into the merits of the various other contentions raised by the
parties the impugned award dated 30.01.2013 passed by the Labour Court Rampur in Adjudication
Case No. 18/2011 is quashed. The writ petition succeeds and is allowed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2016

BEFORE

THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ A No.- 14235 Of 2014
&
Connected With Other Cases

Dr. Brijesh Kumar Tiwari ...Petitioner
Versus
Banaras Hindu University & Ors. ...Respondents

Counsel for the Petitioner:
Shri Anil Tiwari

Counsel for the Respondents:
Shri Ajeet Kumar Singh, Shri Harshita Raghuvanshi, S.C., Shri V.K.Singh

Held -

Paras 1-10: The Court introduces the parties and the core challenge: the validity of the selection process for
Assistant Professors in Commerce at BHU. It notes the petitioner's request to quash the selection of
respondents 6-10 and identifies the governing laws as Ordinance 11A and the UGC Regulations 2010.
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
223
Paras 11-18: The petitioner's arguments are detailed, claiming that because they ranked first in the
shortlisting stages (FAC-1 and FAC-2), the Selection Committee acted arbitrarily by choosing candidates
with lower preliminary scores. Allegations of "manipulation" regarding interview letters and the "illegal"
appointment of respondent No. 9 (Dr. Vandana Srivastava) are highlighted.

Paras 19-24: The petitioner disputes their quality score, arguing they were denied marks for published
books and journals to prevent them from being categorized as a "very bright candidate." They also challenge
the University's decision to advertise a new vacancy rather than appointing the petitioner from the "waitlist."

Paras 25-40: The University's defense is presented. They argue that API and Quality Scores are strictly
for screening/shortlisting and do not bind the Selection Committee's final assessment. They contend that
once the interview stage is reached, the committee has absolute discretion to assess suitability objectively.

Paras 41-45: The Court addresses the minimum eligibility issue. Citing the P. Suseela case, the Court notes
that the petitioner's Ph.D. was awarded after the mandatory cutoff date, meaning he lacked the requisite NET
qualification or valid exemption.

Paras 46-55: The Court analyzes the legal role of Expert Committees. It emphasizes that courts have a
"very limited role" in reviewing academic selections and should not substitute their judgment for that of
experts unless there is proven malice or patent illegality.

Paras 56-60: Regarding the waitlist, the Court held that a waitlisted candidate has no "indefeasible right"
to appointment. The University is within its rights to advertise a fresh vacancy rather than filling it from an old
list.

Paras 61-68: The Court concludes that the discrepancies pointed out by the petitioners were merely
"human errors" that did not vitiate the selection. It ruled that since the petitioners participated in the
interview without objection, they could not challenge the process after failing to be selected.

Petition dismissed,

 -with the holding that FAC-1 and FAC-2 scores are only for shortlisting and do not
entitle a candidate to selection over others who performed better in the interview. The Court reaffirmed that it
will not interfere with the unanimous recommendations of a duly constituted Expert Selection
Committee in the absence of malafides. Furthermore, it ruled that the petitioner was technically ineligible
under UGC norms and that a waitlisted status provides no legal right to a post.

List of Cases Cted:

University of Mysore v. C.D. Govinda Rao: AIR 1965 SC 491
Dr. J. P. Kulshrestha & Others v. Chancellor, Allahabad University & Others: (1980) 3 SCC 418
Maharashtra State Board of Secondary and Higher Secondary Education & Another v. Paritosh
Bhupeshkumar Sheth & Others: (1984) 4 SCC 27
Neelima Misra v. Harinder Kaur Paintal & Others: (1990) 2 SCC 746
Dalpat Abasaheb Solunke & Others v. Dr. B.S. Mahajan & Others: (1990) 1 SCC 305
Bhushan Uttam Khare v. Dean, B.J. Medical College & Others: (1992) 2 SCC 220
Chancellor & Another etc. v. Dr. Bijayananda Kar & Others: (1994) 1 SCC 169
Brij Mohan v. State of U.P. & Ors.: Writ Petition No. 41612 of 1998 (Decided on 18.1.2002)
Arjun Prasad Pathak and Ors. v. State of UP and Ors.: Civil Misc. Writ Petition No. 1204 of 1998
(Decided on 31.10.2002)
224 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Kant Tripathi v. State of U.P.: AIR 2001 SC 3757
U.P. Public Service Commission, Allahabad & Anr. v. State of U.P. & Anr.: 2007 (5) ADJ 280 (DB)
B. C. Mylarappa @ Dr. Chikkamylarappa v. Dr. R. Venkatasubbaiah & Ors.: (2008) 14 SCC 306
P. Suseela & Ors. v. University Grants Commission & Ors.: (2015) 8 SCC 129
Madras Institute of Development Studies & Anr. v. Dr. K. Sivasubramaniyan & Ors.: JT 2015 (7) SC
350

(Delivered by Hon'ble M.C. Tripathi, J.)

1. We have heard Shri Anil Tiwari and Shri Sanjeev Singh, learned counsel for the petitioners.
Shri V.K. Upadhyay, Sr. Advocate assisted by Shri Ajit Kumar Singh appears for Banaras Hindu
University. Shri R.K. Ojha, Sr. Advocate assisted by Ms. Harshita Raghuvanshi appears for Dr.
Vandana Srivastava.

2. As in all the writ petitions, the validity of the selection proceedings held by the Banaras
Hindu University, Varanasi for the post of Assistant Professor in different Departments is under
challenge, the same are being decided by this common judgment.

3. The facts of Writ Petition No.14235 of 2014 are being taken as a leading case for deciding
the writ petitions.

4. By this writ petition, the petitioner has prayed for following reliefs:-

"i. Issue a writ, order or direction in the nature of certiorari calling for the records of
the selection proceedings pertainin g to the post of Assistant Professor in the Department of
Commerce so far as the same pertains to general category candidates, held on 31.01.2014 and
further be pleased to quash the same so far the same pertains to respondent nos.6 to 10.

ii. Issue a writ, order or direction in the nature of mandamus commanding the
respondents to prepare the result of the selection proceedings held on 31.1.2014 strictly in
accordance with Ordinance 11A of the University and the regulations namely University Grants
Commission (Minimum qualifications for appointment of teachers and other academic staffs in
Universities and colleges and measures for the maintenance of standards in Higher Education)
Regulations 2010 as amended from time to time."

5. The present writ petition is directed against the selection proceedings dated 31.1.2014 held
by the Banaras Hindu University, Varanasi (in short "the University"). The University is a Central
University and is governed by the provisions of Banaras Hindu University Act and statute framed
therein. The present matter pertains to appointment of Asstt. Professors, which is governed by
Ordinance 11A framed by the BHU as amended from time to time.

6. Just to improve the teaching standards, the University Grants Commission (in short "UGC")
has framed the regulations on minimum qualifications and for other measures namely "University
Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
225
Staffs in Universities and Colleges and Measures for the Maintenance of Standards in Higher
Education) Regulations, 2010 (in short "the Regulations 2010") as amended from time to time. The
said Regulation of UGC was adopted by the University vide resolution of the Executive Committee
of the University dated 31.08.2010, which is reproduced as under:-

"Resolved that the orders of the Vice-Chancellor for adoption of UGC Regulations on
minimum qualifications for appointment of teachers and other academic staff in Universities and
Colleges and measures for the maintenance of standards in Higher Education, 2010 and the follow
up actions taken in this regard be approved.

Resolved further that further follow-up actions as required in these Regulations be also
initiated.

Resolved still further that UGC/ MHRD may be informed about discrepancies in
qualification for Assistant Professor in Management where NET has not been prescribed as
essential qualifications notwithstanding the fact that NET is conducted in Management.

Resolved still further that the Vice-chancellor be authorized to make the required changes
in the short-listing guidelines for faculty position in the University as approved by Executive
Council, in the light of the provisions of the new UGC Regulations, 2010."

7. As the University is funded by the UGC, therefore, the directives issued by the UGC are
binding on the Banaras Hindu University.

8. As per the aforesaid Regulations and Ordinance of the University a rolling advertisement
was issued by the University in the month of March, 2013 inviting applications from eligible
candidates for 14 posts of Assistant Professors in the Department of Commerce out of which 05
posts were meant for general category candidates. As per the advertisement, this much is reflected
that in consonance with the UGC Regulations and the Ordinance of the University, short-listing
guidelines were also notified, which provides three level procedure for the selection, which for
ready reference, is reproduced as under:-

"(i) The application shall firstly be placed before the Faculty Affairs Committee-Level-1
(FAC-1) which is constituted at the level of the department. The FAC-1 will make the assessment
and award the marks.

(ii) The proceedings of FAC -1 shall be placed before Faculty Affairs Committee-Level-2
(FAC-2) which is the body for assessment at the second stage and constituted at the higher level of
faculty. FAC-2 will again award marks and make a final list in order of merit and recommend the
same to the Selection Committee for interview.

(iii) The records of FAC-2 shall be placed before the Selection Committee which shall
hold the interview and thereafter final recommendation as per merit will be made."
226 INDIAN LAW REPORTS ALLAHABAD SERIES

9. As per the UGC Regulations, the method had been given for awarding the marks in
Appendix-III Table-II (c), which for ready reference is also reproduced as under:-

"APPENDIX-III TABLE-II (c)

Minimum Scores for APIs for direct recruitment of teachers in university department/
Colleges, Librarian/ Physical Education cadres in Universities/ Colleges, and weightages in
Selection Committees to be considered along with other specified eligibility qualifications
stipulated in the Regulation.

Assistant
Professor/
equivalent
cadres
(Stage 1)
Associate
Professor/
equivalent
cadres
(Stage 4)
Professor/ equivalent
cadres (Stage 5)
Minimum API Scores
Minimum
Qualification
as
stipulated
in
these
regulations
Consolidated
API
score requirement of
300
points
from
category III of APIs
Consolidated
API
score requirement of
400
points
from
category III of APIs
Selection
Committee
criteria/
weightages
(Total
Weightages=100)
a) Academic Record
and
Research
Performance (50%)

b)
Assessment
of
Domain
Knowledge
and Teaching Skills
(30%)

c)
Interview
performance (20%)
a)
Academic
Background (20%)

b)
Research
performance based on
API score and quality
of publications (40%)

c)
Assessment
of
Domain
Knowledge
and Teaching Skills
(20%)

d)
Interview
performance: (20%)
e)
Academic
Background (20%)

f)
Research
performance based on
API score and quality
of publications (40%)

g)
Assessment
of
Domain
Knowledge
and Teaching Skills
(20%)

Interview
performance: (20%)

Note: For universities/ colleges for which Sixth PRC Awards (vide Appendix 2) are
applicable, Stages 1, 4 and 5 correspond to scales with AGP of Rs.6000, 9000 and 10000
respectively."

10. On the basis of aforesaid Appendix-III Table-II (c), it has been contended that it is
manifestly clear that 50% marks is to be provided for academic record and research performance,
which is to be assessed at the level of FAC-1; 30% marks is to be assessed on the basis of
knowledge and teaching skills at FAC-II level. Thereafter, the marks obtained in FAC-1 and FAC2 are to be transmitted by the Selection Committee at the time of interview and as such it is claimed
that the discretion of Selection Committee is only for remaining 20% marks. The petitioner, who
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
227
claims to be fully eligible for the said post had proceeded to apply on the prescribed formate along
with academic qualifications. It is also claimed that the petitioner is holding M.Com. and Doctoral
degree (Mergers and Acquisitions in Indian Banking Sector) from the BHU on 26.10.2010. The
petitioner had appeared before FAC-1 and FAC-2 along with all candidates. Consequently, merit
list was prepared and the recommendations were made on the basis of FAC-1 and FAC-2. It is
averred that the petitioner had been recommended at the First position for interview on the basis of
FAC-1 and FAC-2. The petitioner appeared in the interview on 31.1.2014.

11. Learned counsel for the petitioners alleged that from the stage of interview the
manipulations were started by the respondents to oust the meritorious candidates and to favour their
wards. This fact is apparent from the conduct of the respondents in dispatching the interview
letters. From the interview letter dated 24.1.2014 issued in favour of Dr. Namrata Prakash of
Dehradoon, it is apparent that she was required to appear before the Interview Board on 31.1.2014,
but the same was dispatched on 27.1.2014 and which was served on 30.1.2014 resulting in denial
of opportunity to appear before the interview board. Dr. Namrata Prakash was also recommended
at the level of FAC-1 and FAC-2 and stood at merit position 33 in the category of general
candidates for the interview.

12. The result of the Selection Committee was published on 5.2.2014 in which the respondent
nos.6 to 10 were shown as selected. It has also been sought to be contended that as per the
recommendations by FAC-1 and FAC-2, the merit position of the respondent nos.6 to 10 were
19,29,32, 34 and 39 respectively. It is contended that at the level of FAC-1 and FAC-2, the
petitioner was at the top with 80% marks, and by no stretch of imagination the Selection
Committee could select respondent nos.6 to 10 out of 20% marks, which were left open at the
discretion of the Selection Committee.

13. Serious allegations have also been levelled against the selection of Vandana Srivastava-
respondent no.9, who was permitted to participate for FAC-2 on 31.1.2014, the date on which the
interview was to be held and which was not permissible as per the Rules and Regulations.

14. As per the record, this much is also reflected that 572 candidates applied for the post of
Assistant Professor in the Department of Commerce for Post Code No.3978. After scrutiny by
FAC-1 total 315 candidates were found qualified out of which 50 candidates were recommended to
FAC-2. After scrutiny of all the details and credentials, FAC-2 had recommended only 40
candidates for the post in question from Sl.No.1 to 40.

15. It had also been contended on behalf of the petitioner that as per the Ordinance, the merit
of FAC-1 is based on API (Academic Performance Indicator) Score (43%) and Quality Score
(57%). Along with this score average marks, evaluation by the experts of the department and
faculty is also required to be submitted before the Selection Committee. This evaluation is for the
purpose of evaluating the candidate in personal interaction in classroom situation.
228 INDIAN LAW REPORTS ALLAHABAD SERIES

16. It is also alleged that though the proceedings of Selection Committee has already been
filed by the University in its counter affidavit as Annexure No.CA-11 but the University has
attempted a fraud upon the Court as the correct copy of the proceedings has deliberately not been
filed. The said details have been obtained by the petitioner under the Right to Information Act and
consequently it had been claimed that the name of the petitioner find place at wait listed candidate.
It is contended that such deliberate attempt was made by the University not to provide the benefits
of appointment to the petitioner.

17. Reliance has also been placed on the Ordinance of the University by which the Selection
Committee has been empowered to recommend the name of more than the post advertised.
University Ordinance 11A, VI-D clearly states that "the Selection Committee", if it thinks fit, may
also recommend a panel of names in order of merit for appointment against the vacancies likely to
occur during course of the years. The panel will remain operative for one year from the date of
approval by the Executive Council." It is claimed that the said minutes of Selection Committee was
approved on 05.02.2014 and remained operative till 04.02.2015.

18. In this background, Shri Anil Tiwari, learned counsel for the petitioner vehemently
submitted that the malafide and arbitrariness of the University is apparent on the face of record. As
per the record, this much is reflected that one Prof. S.P. Srivastava had to retire on 31.8.2014 and
the University had subsequently proceeded to upload the said vacancy on BHU website. As per
online roster, the said post was available to Asstt. Professor-unreserved category and as such once
the post of Asstt. Professor was available on 1.9.2014 after retirement of Prof. S.P. Srivastava and
the petitioner's name being in panel/ wait list, he must be appointed on the said post. Instead of
giving appointment to the petitioner, the University has proceeded illegally in advertising the said
post. The said advertisement dated 14.1.2015 has also been assailed by means of amendment
application. It had been contended that the University had wrongly advertised the said vacancy,
despite the fact that the petitioner was validly recommended by the Selection Committee and as
such it was incumbent upon the University to provide appointment to the petitioner

19. It is also submitted that the arbitrariness of the University is very much reflected as while
preparation of the API score and quality score, the petitioner was deliberately given lesser marks
intentionally in the quality score so that he could not get more than 70 marks, which could place the
petitioner in the category of 'very bright candidate' as per the Ordinance. In this background,
following discrepancies and anomalies, regarding marks awarded, have been pointed out by the
petitioner:-

"a. Clause 1.3.4 of the Ordinance, which contemplates that the very bright candidate
would be those who obtained a quality score of 70 or above on a 100 point scale.

b. The petitioner has been given 68.48 as quality score.
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
229

c. The petitioner has been given only 3 marks under the category of Books Published,
whereas he is entitled for 12 marks for 4 published books as per shortlisting Guideline ( page 109
of supplementary affidavit).

d. In the Head of Quality of Publication the petitioner has been given 5 marks for "Other
Non Indexed Journals". The petitioner is entitled for 7 marks as per shortlisting guidelines.

e. The petitioner has given the details of 2 Journals of which he is Editor/ Member of the
Editorial Board in the application form. He has been given only 3 marks although he is entitled for
6 marks as per the shortlisting guidelines.

f. If the correct marks are given then the quality score would be more than 70 and the
petitioner will become entitle to be categorized as 'very bright candidate'.

g. In case of Awdhesh Singh, respondent no.6 under the head of Quality of Publication,
he has been given 15 marks for 'Other Non Indexed Journals' though for 5 Journals he is entiled for
5 marks and in this way his marks of quality score has been enhanced.

h. In case of Smt. Vandana Srivastava, Respondent No.9, she has been given 6 marks
under the Head of "Rank Holders separate point for U.G. And P.G." Maximum marks in this
category is 4 (as per the shortlisting guidelines). Smt. Vandana Srivastava is not entitled for any
marks in this category as she has never been a topper either in the U.G. or P.G., which is clear from
her records."

20. Shri Anil Tiwari, learned counsel for the petitioner has also vehemently opposed the
candidature and appointment of Dr. Vandana Srivastava. As per the hard copy of application form
of Dr. Vandana Srivastava, which was provided to the petitioner under the RTI Act, it is clear that
the said application form fails to fulfil the required minimum details. Even her photograph was not
pasted on the said form. Further it had been contended that FAC-1 while scrutinizing her
credentials had clearly made mention "conditional no supporting document". In this background,
necessary information had also been obtained from the University, wherein application forms of
274 candidates were rejected and under Column No.4 'remarks' reasons were recorded for the said
rejections. From perusal of the rejected list of the candidates at Sl.Nos.11, 21, 22, 29, 55, 56, 81,
99, 130, 138, 150, 233 and 265, their forms were rejected due to 'incomplete details' but the form of
Dr. Vandana Srivastava, though incomplete on the face of it, was deliberately not placed in the
rejected list and consequently she had been offered appointment too. .

21. He has also vehemently contended that the recommendation of Selection Committee is per
se bad and the same is affected on account of malice of respondent no.6 and 7.

22. He further submits that so far as academic qualifications of the petitioner-Dr. Brijesh
Kumar Tiwari is concerned, his credentials have been scrutinized by FAC-1 and FAC-2 and only
thereafter he had been permitted to appear before the Selection Committee.
230 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Shri Sanjeev Singh, learned counsel for the petitioner also supported the submissions
advanced by Shri Anil Tiwari but at the same time he has vehemently contended that from the stage
of FAC-1 and FAC-2 this much is reflected that there was complete design to favour the selected
candidates and inspite of the fact that the petitioners were recommended at the top by FAC-1 and
FAC-2, even though at the time of interview, the Selection Committee having discretion only to the
extent of 20%, in utter violation to the Regulations and Ordinance of the University, has used their
discretion for selection of candidates ignoring the marks awarded by FAC-1 and FAC-2. Even
though it was paramount responsibility of the Selection Committee to select the best candidates but
instead of best candidates they have compromised and given appointment to the candidates, those
have scored very less marks on FAC-1 and FAC-2 stage. As there is trust deficit in the whole
selection process, the same is liable to be set aside and this Court should come to rescue and
reprieve of the petitioner.

24. Per contra, Shri V.K. Upadhyay, Sr. Advocate assisted by Shri Ajit Kumar Singh, learned
counsel for the University has vehemently opposed the writ petition and contended that in the
present matter the API score and Quality Score were given as per the prescribed guidelines and the
whole selection process is in consonance with the the U.G.C. Regulations, 2010; UGC (2nd
Amendment) Regulations, 2013 and Ordinance 11.A.1. The same was assessed by the Faculty
Affairs Committee Level-1 (FAC-1) without insisting any kind of percentage of marks. On the
basis of API score and Quality Score, a merit list was prepared of all the qualified candidates and
10 candidates per vacancy strictly in order of merit were shortlisted and sent to FAC-2 for further
consideration. The FAC-2 recommended 8 names of candidates per vacancy to be called for
interview. It is submitted that API score is applied for screening purpose only and will have no
bearing on expert assessment of candidates in direct recruitment/ CAS in terms of the provisions as
contained under UGC (2nd Amendment) Regulations, 2013. The petitioners have wrongly
presumed the UGC Guidelines 2010 for giving 50% weightage to academic record and 30%
weightage to domain knowledge and teaching skill. They are meant for the Selection Committee
making the final selection and not FAC-1 and FAC-2, which have only to make assessment based
on objective verifiable criteria stipulated in Short-Listing Guidelines. Once the FAC-1 and FAC-2
stage is over, the Selection Committee would have discretion to assess the candidate objectively.
Consequently, it had been pleaded that the Selection Committee would have absolute discretion to
assess the suitability of a candidate for the post and FAC-1 and FAC-2 stages are only meant for
short listing. As per the record, this much is reflected that huge number of candidates had applied
for the post in question and the University had put tremendous effort in scrutinizing the credentials
and track record as per the provisions contained in FAC-1 and FAC-2 and at no point of time the
University has vitiated the guidelines enunciated by the U.G.C. Regulations, 2010; UGC (2nd
Amendment) Regulations, 2013 and Ordinance of the University.

25. Shri V.K. Upadhyay, learned senior counsel has submitted that API score and quality score
are applied only for the purposes of screening and will have no bearing on expert assessment of
candidates in the direct recruitment/CAS in terms of the provisions contained in UGC (2nd
Amendment) Regulations, 2013, which clearly provides that the assessment of candidates is to be
strictly based their academic performance, research performance, domain knowledge, teaching
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
231
skills and interview performance and the Selection Committee had given due weightage to each
parameters as prescribed by UGC.

26. He vehemently opposed the contention advanced by Shri Anil Tiwari to the effect that
there was certain design in it and extra benefit had been conferred to Dr. Vandana Srivastava. He
contended that the presentation and personal interaction of Dr. Vandana Srivastava was ensured on
31.1.2014 as per the guidelines prescribed in Clause III 1.4 of sub-clause (vii) of Ordinance 11.A.1,
which is reproduced as under:-

"(vii) Those, who are not able to be available for visit or video-conferencing within the
desired period, may visit the Department later at their convenience upto a day prior to the selection
committee meeting and their cases shall also be evaluated by FAC-1. Applicants not having the
interaction/ presentation may not be considered by the Selection Committee for interview."

27. It is submitted that the schedule of presentation and personal interaction depends on the
mutual convenience of the applicant and FAC-1, though having the interaction prior to interview is
mandatory. It is further submitted that the UGC Regulations on Minimum Qualifications for
Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for
the Maintenance of Standards in Higher Education, 2010 was adopted and approved by the
Executive Council on 31st August, 2010. Reliance has been placed in Ordinance 11.A.1, which
prescribes the following provisions for procedure of short-listing of applications under Clause III
1.4 (xi):

"III 1.4 (xi): The FAC-1 shall prepare the final merit in order of the short-listed
candidates based on the API score, reference letters and Quality Score. The said components shall
have following relative weightages for deriving the overall score of a candidate/ applicant:

(a) API score:30%

(b) Reference letters:30%

(c) Quality score:40%.

Subsequently, the score of the reference letters:30% has been deleted from the above
parameters and it was modified as under:-

"III 1.4 (xi) : The FAC-1 shall prepare the final merit in order of the short-listed
candidates based on the API score, reference letters and Quality Score. The said components shall
have following relative weightages for deriving the overall score of a candidate/applicant:
(a) API score:43%
(b) Quality score:57%

28. Shri V.K. Upadhyay, learned Senior Counsel further submits that in exercise of the powers
conferred under clause (e) and (g) of sub-section (1) of Section 26 of University Grants
Commission Act, 1956, the UGC under UGC (Minimum Qualifications for Appointment of
Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance
232 INDIAN LAW REPORTS ALLAHABAD SERIES
of Standards in Higher Education) (2nd Amendment) Regulations, 2013 amended and submitted
the following provisions under the Clause 6.1.0 of the UGC (Minimum Qualifications for
Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for
the Maintenance of Standards in Higher Education) Regulations, 2010:-

"6.1.0 The overall selection procedure shall incorporate transparent, objective and
credible methodology of analysis of the merits and credentials of the applicants based on
weightages given to the performance of the candidate in different relevant dimensions and his/ her
performance on a scoring system proforma based on the Academic Performance Indicators (API) as
provided in this Regulations in Table I to IX of Appendix III.

Provided that API scores will be used for screening purpose only and will have no
bearing on expert assessment of candidates in Direct/Recruitment/CAS.

Provided also that the API score claim of each of the sub-categories in the Category-III
(Research and Publications and Academic contributions) will have the following cap to calculate
the total API score claim for Direct Recruitment/CAS:

Sub-Category
Cap as % of API Cumulative score in
application
III(A) Research papers ( Journals etc.)
30.00%
III (B) Research publications ( Books etc)
25.00%
III(C) Research Projects
20.00%
III(D) Research Guidance
10.00%
III(E)
Training
Courses
and
Conferences/Seminar etc.
15.00%

In order to make the system more credible, university may assess the ability for teaching
and/ or research aptitude through a seminar or lecture in a class room situation or discussion on the
capacity to use latest technology in teaching and research at the interview stage. These procedures
can be followed for both direct recruitment and CAS promotions wherever selection committees
are prescribed in these Regulations."

29. The UGC (Minimum Qualification for Appointment of Teachers and Other Academic
Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher
Education), Regulations,, 2010 under Appendix-III Table-II(c) prescribed the following provisions:

Minimum Scores for APIs for direct recruitment of teachers in university departments/
Colleges, Librarian/ Physical Education cadres in Universities/ Colleges, and weight-ages in
Selection Committees to be considered along with other specified eligibility qualification stipulated
in the Regulations.
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
233

Assistant
Professor/
equivalent
cadres
(
Stage-1)
Assistant
Professor/
equivalent
cadres
(
Stage-4)
Professor/ equivalent
(Stage-5)
Minimum
API
Scores
Minimum
Qualification
as
stipulated
in
these
regulations
Consolidated
API
scores requirement of
300
points
from
category III of APIs
Consolidated
API
scores requirement of
500
points
from
category III of APIs
Selection Committee
criteria/ weightages (
Total=100)
a) Academic Record
and
Research
Performance ( 50%)

b)
Assessment
of
Domain
Knowledge
and Teaching Skills (
30%)

c)
Interview
performance ( 20%)
a)
Academic
Background (20%)

b)
Research
performance based on
API score and quality
of publications (40%)

c)
Assessment
of
Domain
Knowledge
and Teaching Skills
(20%)

d)
Interview
performance (20%)
e)
Academic
Background (20%)

f)
Research
performance based on
API score and quality
of publications (40%)

g)
Assessment
of
Domain
knowledge
and Teaching Skills
(20%)

h)
Interview
performance (20%)

30. It is submitted that from the above it is ample clear that these guidelines for giving
weightages are for the Selection Committee and not FAC-1 and FAC-2, which are performing the
short-listing based on the short-listing guidelines. Therefore, considering his shortlisting merit as
merit in the Selection Committee is erroneous. The FAC-2 has recommended 40 names of the
candidates strictly in order of merit to be called for interview by the Recruitment & Assessment
Cell. This short-listing score was used only for short-listing of candidates to be called for interview
and it was not used for expert assessment of candidate by the Selection Committee for direct
recruitment of the post of Assistant Professor. Similarly, the FAC-1 has also sent the average score
of the presentation and personal interaction so received by an applicant/ candidate for use of the
Selection Committee. The aforesaid average score of each candidates shortlisted for interview were
placed before the Selection Committee for its use.

31. On overall assessment of (I) Academic record and Research Performance (ii) Domain
Knowledge and Teaching Skill (iii) Interview Performance as well as average score of the
presentation and personal interaction was made by the duly constituted Selection Committee in the
interview giving due weightage to three parameters, five candidates were recommended for
appointment to the post of Assistant Professor in Commerce (General Category) in the Faculty of
Commerce, BHU. Weightage score sheet was prepared by the Selection Committee in its meeting
held on 31.1.2014 for the post of Assistant Professor in Commerce, as the proceedings of Selection
Committee are in-camera and records of discussions and/ or score of the candidates against each
234 INDIAN LAW REPORTS ALLAHABAD SERIES
parameter are not maintained for the sake of confidentiality. Only the final recommendation of the
Selection Committee are drafted as minutes.

32. Shri Upadhyay, learned senior counsel has submitted that the allegations levelled
regarding the anomalies and discrepancies while giving marks to the petitioners, which have been
highlighted by the Shri Anil Tiwari, is purely an human error. So far as the favouritism part is
concerned, he has contended that the petitioner -Shri Brajesh Kumar Tiwari was an internal
candidate, whereas Dr. Vandana Srivastava is absolutely outsider, and therefore the said allegation
cannot be held to be justified.

33. Shri V.K. Upadhyay, Sr. Advocate has also raised an issue regarding the petitioner's
minimum eligibility and has placed reliance on Para 3.3.1 of the UGC Regulations, 2010, which
reads as under:-

"3.3.1. NET/SLET/SET shall remain the minimum eligibility condition for recruitment
and appointment of Assistant Professor in universities/ college/ institutions:

Provided, however, that candidates, who are or have been awarded a PhD degree in
accordance with the University Grants Commission (Minimum Standards and Procedure for Award
of PhD Degree) Regulations, 2009, shall be exempted from the requirement of the minimum
eligibility condition of NET/ SLET/SET for recruitment and appointment of Assistant Professor or
equivalent positions in universities/ college/ institutions."

34. In support of his contentions, he has also placed reliance on the judgment passed by
Hon'ble Apex Court in P. Suseela & Ors. v. University Grants Commission & Ors., (2015) 8
SCC 129. As per the said judgment the UGC opined that all candidates having Mphil degree on or
before 10.07.2009 and all persons who obtained the PhD degree on or before 31.12.2009 and had
registered themselves for the PhD before this date, but are awarded such degree subsequently shall
remain exempted from the requirement of NET for the purpose of appointment as Lecturer/
Assistant Professor. The Central Government vide letter dated 3.11.2010 informed UGC that they
were unable to agree with the decision of the Commission and stated that consequently a candidate
seeking appointment to the post of Lecturer/ Assistant Professor must fulfil the minimum
qualifications prescribed by UGC including the minimum eligibility condition of having passed
NET test. The said objections have been answered by Hon'ble Apex Court in P. Suseela (Supra),
the operative portion of which is reproduced as under:-

"23. We have already pointed out how the directions of the Central Government under
Section 20 of the UGC Act pertain to questions of policy relating to national purpose. We have also
pointed out that the regulation making power is subservient to directions issued under Section 20
of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC
Act contemplates that such expert body will have to act in accordance with directions issued by the
Central Government.
4 All. Dr. Brijesh Kumar Tiwari Vs Banaras Hindu University & Ors.
235

24. The Allahabad High Court adverted to an expert committee under the Chairmanship
of Professor S.P. Thyagarajan which laid down that if six out of eleven criteria laid down by the
Committee was satisfied when such University granted a Ph.D. degree, then such Ph.D. degree
should be sufficient to qualify such person for appointment as Lecturer/Assistant Professor without
the further qualification of having to pass the NET test. The UGC itself does not appear to have
given effect to this recommendation of the Thyagarajan Committee. However, the High Court
thought it fit to give effect to this Committee's recommendation in the final directions issued by it.
When the UGC itself has not accepted the recommendations of the said Committee, we do not
understand how the High Court sought to give effect to such recommendations. We, therefore, set
aside the Allahabad High Court judgment dated 6th April, 2012 in its entirety.

25. In SLP (C) NO.3054-3055/2014, a judgment of the same High Court dated 6th
January, 2014 again by a Division Bench arrived at the opposite conclusion. This is also a matter
which causes us some distress. A Division Bench judgment of the same High Court is binding on a
subsequent Division Bench. The subsequent Division Bench can either follow it or refer such
judgment to the Chief Justice to constitute a Full Bench if it differs with it. We do not appreciate
the manner in which this subsequent judgment, (even though it has reached the right result) has
dealt with an earlier binding Division Bench judgment of the same High Court.