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1980 DIGILAW 73 (CAL)

Ranjan Kumar Lahiri v. University of Kalyani

1980-03-11

T.K.BASU

body1980
ORDER 1. The petitioner was appointed as a Lecturer in Commerce in the University of Kalyani hereinafter referred to as the University) on the 5th January, 1978 on the recommendation of a Selection Committee. According the petitioner, for the academic session 1977-78 when the Department of Commerce was started as a new one, he was the only teacher in that Department. At the time when the petitioner joined, there was no Head of the Department of Commerce till after about nine months from the date of his joining. The respondent No.6 who was the Chairman of the Faculty was acting as the Head of the Department of Commerce along with the Department of Economics and Political Science under orders of the Vice Chancellor of the University in that behalf. 2. On the 11th April, 1978 an advertisement dated 6th April, 1978 issued by the Registrar of the University appeared in the Calcutta edition of the Statesman. The relevant portion of the advertisement may be set out below. “University of Kalyani Advt No.4/78 Application in prescribed forms are invited for the posts of Professors, Readers and Lecturers for the following departments in the pay scale of Rs.1200-50-1, 300-60-1, 900(for Readers) ...................... plus admissible allowances.......... 9. Department of Commerce: One Reader: (Specialisation – Preferably Industrial/Form Management) Qualifications (for all posts): (a) Consistently good academic record with less or high 2nd class (B+) Master’s Degree following a good Honours Degree in the relevant subject (b) A doctoral degree or published work of equivalent standard............. Qualifications, experience and age may be relaxed in cases of the candidates of outstanding merit at the discretion of the Selection Committee. A higher initial pay in the scale may be granted on the basis of qualifications, experience and present emoluments.” 3. According to the petitioner, he has had teaching experience of about 19 years in under-graduate Honours and Post Graduate Honours and Publication in different journals in India to his credit as also a Ph. D degree in Economics and was thus duly qualified for the above post of a Reader in Commerce. 4. On the 8th January, 1979 the petitioner was called for an interview for the above post of the Registrar of the University. D degree in Economics and was thus duly qualified for the above post of a Reader in Commerce. 4. On the 8th January, 1979 the petitioner was called for an interview for the above post of the Registrar of the University. Pursuant to the letter he was duly interviewed by a Selection Committee which admittedly was constituted in terms of the Ordinance promulgated under the Kalyani University Act, 1960 (hereinafter referred to as “the Act”). 5. It is the admitted case of the parties that the petitioner was unanimously selected by the above mentioned Selection Committee for appointment to the post of Reader in Commerce and an extract of the relevant minutes of the meeting of the Selection Committee has been annexed to the petition. 6. The recommendation of the Selection Committee as aforesaid came up before the University Executive Committee (which was replaced by the University Council) mentioned in the Ordinance of the University at its meeting held on the 25th June, 1979. The relevant resolution of the Council on this item of the Agenda would be important for the purpose of appreciating the contentions of the parties and is set out below in full. “Item 2(e) of the Aganda Reader in Commerce Some members pointed out that the specialisations i.e., Industrial/Farm Management were not suggested by the Head of the Department of Commerce because the Head of the Department did not join at that time. It is decided that suitable specialisation for the Department would be asked form the present Head of the Department and the post of Reader in Commerce would be advertised with the new specialisations. Hence, the Council did not consider the recommendations of the Selection Committee. It was decided that the U.G.C. would be approached to extend the period for filling up the third priority posts of the Fifth Plan upto March 31, 1980. “ 7. Pursuant to the above decision of the Council, the officer on Special Duty of the University addressed a letter to the respondent No.5 for recommending specialisations which is also an Annexure to the petition. The answer of the respondent No.5 to that letter is interesting and certain arguments were advanced on the basis thereof. Hence the letter is set out hereunder in fall. The answer of the respondent No.5 to that letter is interesting and certain arguments were advanced on the basis thereof. Hence the letter is set out hereunder in fall. “Sir, The decision regarding specialisation for Readership in Commerce for which the Selection Committee met on 8.1.79 had been taken before I took charge of the Department of Commerce. I acquiesced in that decision by my participation in the meeting of the Selection Committee. This decision regarding specialisation does not seem unreasonable to me. The O.S.C. has written as follows : “The University Council at its meeting (adjourned) held on 25.2.97 decided that the post would be readvertised with the specialisation as suggested by the Head of the Deptt. of Commerce.” Here is my reply. This department is interested not only in specialisation like ‘Farm Management & Industrial Management’ but also in such specialisation as ‘Accounting’, Quantitive Methods’, ‘Taxation’, ‘Corporate Finance’, Public Enterprise’. The intention is gradually to have people with these specialisations.” 8. Thereafter the Council met again on the 18th May, 1979 to consider the above letter from the respondent No.6 and passed the following resolution. “Shri T.K. Chatterjee abstained from the discussion.” “The University Council considered the letter from Sri S.R. Dutta Gupta and resolved unanimously that there were no procedural lapses in the action on the part of Prof. S.R. Dutta Gupta. The University Council decided by majority opinion that the previous decision of the University Council for readvertising the post of Reader in Commerce with the specialisation suggested by the present Head of the Department of Commerce would remain unchanged.” 9. Pursuant to this above decision, an advertisement was issued in the Statesman, Calcutta Edition of the 11th June, 1979 advertising inter alia the post of the Reader for the Department of Commerce with the specialisations as indicated in the letter of the respondent No.6. This Rule was obtained on or about the 27th June, 1979. I issued an interim order restraining the respondents from making any appointment pursuant to the impugned advertisement in respect of the post of Reader in the Department of Commerce at the University for a period of two weeks. After hearing both the parties, I modified the interim order to the extent that the University will be directed not to fill up in any manner whatsoever the post of Reader in Commerce till the disposal of the Rule. 10. After hearing both the parties, I modified the interim order to the extent that the University will be directed not to fill up in any manner whatsoever the post of Reader in Commerce till the disposal of the Rule. 10. As already indicated, it is this decision of the University Council to readvertise the post and make appointment in pursuance thereof that is challenged before me in the present application. 11. Mr. Nigam Chakraborty, learned advocate appearing for the petitioner drew my attention to certain Ordinances framed by the University in exercise of powers conferred upon it by S.20 of the Act in support of his arguments. It would be useful to set out the material portion of Ordinance 5 for appreciating these arguments:- “U.ord.5(T.U.) : (1) When the post of a teacher of the University is created for the first time or when a vacancy arises, the post shall normally be advertised. .......................... (2) Every teacher of the University belonging to any of the categories mentioned in U.Ord.3(T.U.) of these Ordinances shall be appointed by the Executive Council on the recommendation of a Selection Committee consisting of: (i) the Vice-Chancellor, who shall be the Chairman of the Committee: (ii) the Dean of the Faculty concerned (iii) two persons having special knowledge of the subject in question, in the case of recruitment to the post of a Professor or Reader, and one such person, in any other case, out of a panel of experts approved by the University for two years at a time: (iv) one person nominated by the Chancellor for two years at a time; and (v) the Head of the Department concerned. ......................................... (4) If a candidate recommended by the Selection Committee is not acceptable to the Executive Council the matter shall be referred back to the Committee for re-consideration, giving reasons for non-acceptability. The Committee shall then re-consider the matter in the light of the remarks of the Executive Council and communicate its view or revised recommendation to the Executive Council in order to enable it decides the matter finally." ..................... ................................" 12. Shortly put the argument of Mr. The Committee shall then re-consider the matter in the light of the remarks of the Executive Council and communicate its view or revised recommendation to the Executive Council in order to enable it decides the matter finally." ..................... ................................" 12. Shortly put the argument of Mr. Chakraborty for the petitioner is that under Ordinance 5(4) in the event of the Council not being able to accept the recommendation of the Selection Committee, it is the mandatory obligation of the Council to refer the matter back to the Selection Committee for reconsideration giving reasons why it could not accept the recommendation of the Selection Committee. Thereafter the Selection Committee is to reconsider the matter in the light of the reasons given by the Council and thereafter communicate its views or revised recommendation to the Council in order to enable the Council to decide the matter finally. 13. Indisputably the petitioner was unanimously recommended by the Selection Committee for appointment to the post of Reader in Commerce at the University. That being so, when the matter came up before the Council, the Council had only two options. Either it could accept the recommendation or it could send it back to the Selection Committee in the manner aforesaid. Referring once again to the Minutes of the proceedings on the 25th February, 1979 which is to be found at page 59 of the Annexures Mr. Chakraborty contended that in deciding to readvertise the post with new specialisations, the Council acted in clear contravention of its mandatory obligation cast upon it by Ordinance 5(4) which has been quoted above. In other words, the Council was guilty of breach of a statutory duty. 14. The second branch of Mr. Chakraborty's contention was that in coming to the decision "Hence, the Council has failed to perform a duty which is cast upon it by law. To put it differently, it was incumbent on the Council to exercise one of the two options indicated above viz. either to accept it or to send it back to the Selection Committee. The council could not shirk its statutory duty by simply saying that they refused to consider the recommendations of the Selection Committee. As indicated above, it had to make up its mind one way or the other and could not shelve the issue. 15. The third branch of Mr. The council could not shirk its statutory duty by simply saying that they refused to consider the recommendations of the Selection Committee. As indicated above, it had to make up its mind one way or the other and could not shelve the issue. 15. The third branch of Mr. Chakraborty's contention was that this decision of the Council to readvertise the post was clearly contrary to the rules of natural justice. It is not disputed that before coming to the decision to readvertise the post no reference was made to the petitioner at all. He was not given any notice nor any opportunity of stating his case. According to Mr. Chakraborty, a valuable right of the petitioner viz. the right of being appointed to the post by the Council pursuant to the unanimous recommendation of the Selection Committee was being taken away without giving him an opportunity of being heard. This is clearly contrary to the rules of natural justice. 16. Coming to the authorities relied upon by Mr. Chakraborty, on the first and second branch of his contentions as noted above, Mr. Chakraborty relied on a decision of the Supreme Court in the case of Hukum Chand Shyam Lal v. Union of India reported in AIR 1967 SC 789. At paragraph 18 of the report, the following observation occurs. "It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice." 17. On the question of violation of the principles of natural justice Mr. Chakraborty relied on the well-known decision of the Supreme Court in the case of Smt. Maneka Gandhi v. Union of India & anr, reported in AIR 1978 SC 597 . Special reference was made to a portion of the judgment of Bhagwati, J of the Supreme Court which is to be found at paragraph 57 of the report : "The question immediately arises does not procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement ? Special reference was made to a portion of the judgment of Bhagwati, J of the Supreme Court which is to be found at paragraph 57 of the report : "The question immediately arises does not procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., kin Cooper v. Wandsworth Board of Works, (1863) 14 C.B.N.S. 180 : "A long course of decisions, beginning with Dr. Bentley's case (1723) 1 Str 557 and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of common law will supply the omission of the legislature." The principle of audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and adui alteram partem. We are not concerned here with the former since there is no case of bias urged here. In fact there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and adui alteram partem. We are not concerned here with the former since there is no case of bias urged here. The question is only in regard to the right of hearing which involved the audi alteram partem rule. Can it be imported in the procedure for impounding a passport ?' 18. Mr. Arun Prokash Chatterjee appearing for the respondent University principally contended before me that the petitioner had no legal right to maintain the present application. As a branch of this argument, Mr. Chatterjee contended that unless the decision is communicated to the petitioner, he does not get the right to move this Court. In this connection, Mr. Chatterjee relied on a recent decision of the Supreme Court in the case of Kedar Nath Bahl v. State of Punjab & ors reported in AIR 1979 SC 220 . Reliance was placed on paragraph 21 of the report where it appears that a certain decision with regard to the appellant which was taken by the Chief Minister of the State was never issued. That being so, the Supreme Court held that it was open to the Government to come to a different decision later on as the earlier had not given rise to any right in favour of the appellant. 19. Mr. Chatterjee also placed strong reliance on an earlier decision of the Supreme Court in the case of Bachhitter Singh v. State of Punjab & anr. reported in AIR 1963 SC 395 . The relevant portion of the observations are at paragraph 9 of the report and as follows : "The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. (1) of Art. 66 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. (1) of Art. 66 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones." 20. In my view, the above two decisions of the Supreme Court relied upon by Mr. Chatterjee are clearly distinguishable. In both the cases, as will appear from what has been stated above, the purported decisions remained locked up in the office of the Chief Minister and the Revenue Minister respectively and were never acted upon. In the instant case however, although no reference has been made to the petitioner with regard to the decision to readvertise the post, that decision has been clearly acted upon as is evident from the fact that fresh advertisement have been issued and applications received pursuant thereto. In that view of the matter, this argument of Mr. Chatterjee must be regarded as without any substance. 21. On the question of legal right, Mr. Chatterjee referred to a decision of the Supreme Court in the case of Varananassaya Sanskrit Vishwavidyalaya & anr. v. Dr. Rajkishore Tripathi & anr. reported in AIR 1977 SC 615 . In that case it was held that the Vice Chancellor does not have the power to make a permanent appointment. The Executive Committee has the final power to appoint and to specify the conditions of service under S. 22(1)(g) of the Varananassaya Sanskrit Vishwavidyalaya Adhiniyam. That case appeared to have turned on its own facts and I do not see how it is of any assistance to Mr. Chatterjee in support of his legal proposition. At paragraph 12 of the report there is the following observations on which Mr. Chatterjee relied. "We would also like to observe that in a matter touching either the discipline or the administration of the internal affairs of a University, Courts should be most reluctant to interfere. They should refuse to grant an injunction unless a fairly good prima facie case is made out for interference with the internal affairs of educational institution." On this point, Mr. They should refuse to grant an injunction unless a fairly good prima facie case is made out for interference with the internal affairs of educational institution." On this point, Mr. Chatterjee also referred to certain decisions of Madras, Delhi and Assam High Courts which I do not propose to deal with because there is a Supreme Court decision on a similar point. That is a decision in the case of Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif & ors. reported in AIR 1962 SC 1210 . Mr. Chattterjee relied on the following observations of the Supreme Court at paragraph 5 of the report : "In order that Mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of Mandamus…………..Our attention has not been drawn any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that rights he cannot come to Court and ask for a writ to issue." 22. Mr. Chatterjee also relied on an another decision of the Supreme Court in the case of State of Punjab v. Jagdip Singh & ors. reported in AIR 1964 SC 521 . In that case, certain Tahsildars in the erstwhile State of Pepsu were confirmed on October 23, 1956 and after the State of Pepsu merged with the State of Punjab by an Order of the Punjab Government dated the 31st October, 1957, these Tahsildars were, to use a rather curious English expression used by the learned Judges of the Supreme Court "de-confirmed". On a challenge against this order on the ground that they have been reduced in rank, it was held, inter alia, that the original order of confirmation was invalid and as such there was no question of reduction in rank. I do not see how this decision is of any assistance to the respondents in the present case. 23. Mr. On a challenge against this order on the ground that they have been reduced in rank, it was held, inter alia, that the original order of confirmation was invalid and as such there was no question of reduction in rank. I do not see how this decision is of any assistance to the respondents in the present case. 23. Mr. Chatterjee generally contended that the petitioner had no right to be appointed to the post of Reader in Commerce and s such he is not entitled to maintain the present application. 24. In my opinion, the contention of Mr. Chatterjee with regard to legal right and maintainability of this application is entirely misconceived. Once, as I have indicated, the Selection Committee unanimously recommended the petitioner, he acquired a right under Ordinance 5(4) that his case be considered by the Council who as already indicated had two options viz., either to accept the recommendation or to send it back to the Selection Committee for reconsideration. If there has been a contravention of the duties and powers of the Council in terms of the above mentioned provisions, the petitioner, in my view, has a clear right to come before this Court and seek redress. As such, I hold that this submission of Mr. Chatterjee with regard to the maintainability of the application is entirely without any substance. 25. Thereafter Mr. Chatterjee advanced a general contention that the Council having been invested with the power of appointment has also the power to indicate the nature of appointment and conditions of service and therefore has also the right to countermand any advertisement which it thinks had been wrongly issued and on the basis of which the application of the petitioner was made. In my view, this contention of Mr. Chatterjee is only partly valid. Undoubtedly the petitioner cannot claim an automatic appointment by virtue of the recommendation by the Selection Committee even though unanimous. But he certainly can claim that the recommendation of the Selection Committee be dealt with as statutorily provided by Ordinance 5(4). In other words, in my view, the Council in this limited field, has no general powers outside the four corners of that Ordinance 5(4). 26. For the reasons indicated above, I hold that the Council was in breach of its statutory duty under Ordinance 5(4) in deciding to readvertise the post as contended by the petitioner. In other words, in my view, the Council in this limited field, has no general powers outside the four corners of that Ordinance 5(4). 26. For the reasons indicated above, I hold that the Council was in breach of its statutory duty under Ordinance 5(4) in deciding to readvertise the post as contended by the petitioner. I further hold that before the decision to readvertise was made, the petitioner was entitled to an opportunity of being heard because a valuable right that accrued to the petitioner, although contingent, was being taken away by the impugned order of readvertisement. 27. This disposes of all the contentions raised on behalf of the parties. 28. In the result, this application succeeds and the Rule is made absolute to the extent indicated below. 29. There will be a writ in the nature of Mandamus directing the respondents to forthwith, recall, cancel and withdraw the impugned resolutions dated the 25th February, 1979 and the 26th April, 1979 respectively and the impugned advertisement dated the 5th June, 1979 referred to in the petition. The respondents are further directed by a Writ of Mandamus to forbear from giving effect to the above mentioned resolutions and the advertisement in any manner whatsoever. The matter will now go back to the respondents for being dealt with in accordance with law in the light of my observations indicated above. There will be no order as to costs. Rule made absolute.