Noel C. T. H. Noronha v. Goa University and others
1994-12-20
A.P.SHAH, E.S.DA SILVA
body1994
DigiLaw.ai
JUDGMENT - Dr. E.S. DA SILVA, J. :---The challenge in this petition is to the illegal and arbitrary selection of the respondent No. 5 to the post of Finance Officer of the respondent No. 1 Goa University by the respondents No. 1 to 4 and his subsequent appointment to the post pursuant to the interview held for that purpose by the Selection Committee on 26th October, 1993. 2. The case of the petitioner is that the post of Finance Officer is provided in the Goa University Act, 1984 and section 46.3 of the Goa University Statutes prescribes the manner of its appointment. According to that Statute 46.3 the Finance Officer shall be appointed by the Visitor on the recommendation by the Selection Committee and the qualifications and the experience required are that the candidate should hold at least High Second Class Degree in Commerce and that he should have experience of at least ten years of work relating to budgeting, accounting or other financial matters in responsible position in a Government Department or Educational Institution or a private organizations of repute. It is further provided that the Visitor may relax the conditions regarding experience and qualifications in deserving cases on the recommendation of the Vice Chancellor. The pay scale of Finance Officer is fixed at Rs. 3700-5700. It was further the case of the petitioner that in February, 1987 when he was the Deputy Director of Accounts of the Government of Goa the petitioner was appointed on deputation to the said post of Finance Officer of the University. After about two and a half years he returned to his parent Department during which period he was promoted as Joint Director. In June 1993 the Under Secretary Finance (Exp.) issued a Circular dated 23rd June, 1993 to all the Joint Directors of Accounts of the Government informing them of the availability of the post of Finance Officer at the Goa University and calling upon them to intimate their willingness to go on deputation for the said post. The Circular was accompanied by two Annexures, one setting out the necessary qualifications, experience and the minimum pay scale the applicant should have in his present post to be eligible to apply and the second regarding certain details of bio-data to be filled in.
The Circular was accompanied by two Annexures, one setting out the necessary qualifications, experience and the minimum pay scale the applicant should have in his present post to be eligible to apply and the second regarding certain details of bio-data to be filled in. By his communication dated 28th June, 1993 the petitioner conveyed to the Goa Government his willingness to go on deputation to the said post and the Goa Government forwarded the petitioner's willingness to the Goa University. On 26th October, 1993 the petitioner was called to appear before the Selection Committee for interview and on that day he found that besides himself there was one more candidate for the interview who is respondent No. 5, a Senior Auditor from the Central Government's Resident Audit Office, Panaji. The petitioner states that respondent No. 5 is not eligible for the post as he has neither experience nor is he having the minimum pay scale required to apply for the post. The pay scale required to apply for the post is that the applicant should hold a post in the same or equivalent pay scale of the Finance Officer or hold a post having a pay scale immediate next below the Finance Officer's pay scale. The petitioner states that the pay scale of respondent No. 5 is Rs. 2200-4000 which is neither the same or equivalent or even immediate next below scale. Respondent No. 5 has no experience whatsoever in budgeting, accounting or other financial matters of responsible position in any Government Department or Educational Institution or private organisation of repute, which is required for the post. The respondent No. 5 has only been doing the work of audit. The petitioner states that he has all the necessary experience and holds the post having immediate scale of pay. Besides he has held the post of Finance Officer on deputation between February 1987 and September 1990 and he has that experience also. The petitioner has reliably learnt that inspite of respondent No. 5 not having the necessary experience and not holding the post having the required immediate pay scale has been recommended to the post by the Selection Committee and the proposal was sent to his parent department requesting his services.
The petitioner has reliably learnt that inspite of respondent No. 5 not having the necessary experience and not holding the post having the required immediate pay scale has been recommended to the post by the Selection Committee and the proposal was sent to his parent department requesting his services. It was further stated that Statute 46.3 permits relaxation of experience and qualifications only in deserving cases but respondent No. 5, however, could not have been selected by the Selection Committee or recommended for relaxation when the petitioner was there having the necessary experience and holding a post having the required pay scale. It was contended that the question of relaxation comes only when there is no candidate available having the necessary experience and qualification. Thus, the selection of respondent No. 5 is dehors the eligibility requirement for the said post. Accordingly a prayer was made by the petitioner that under Article 226 of the Constitution this Court should issue a writ of certiorari or any appropriate writ or direction quashing and setting aside the selection. A further prayer is made that by a writ of mandamus or any appropriate writ or order the respondents may be directed to select and appoint the petitioner for the post of Finance Officer of the Goa University. 3. On behalf of the respondent No. 1 an affidavit was filed by the Assistant Registrar of the Goa University wherein it was stated that the Selection Committee in a meeting held on 26th October, 1993 after going through the bio-data and the personal files of the confidential reports of the petitioner as well as of respondent No. 5 and after interviewing both of them, taking into consideration their experience and knowledge in the field, on its considered assessment recommended appointment of respondent No. 5 to the post. It was contended that while the name of the petitioner was sent by the State Government that of the respondent No. 5 was sent by the Principal Account General (Audit) Maharashtra at the instance of the Controller and Auditor General of India. The bio-data of the respondent No. 5 disclosed that he is holder of B.A. and B.Com. Degree and had joined service of the Senior Deputy Accountant General at Nagpur as Auditor in December, 1959. He was on deputation to Goa in the Directorate of Accounts from 1963 to 1968.
The bio-data of the respondent No. 5 disclosed that he is holder of B.A. and B.Com. Degree and had joined service of the Senior Deputy Accountant General at Nagpur as Auditor in December, 1959. He was on deputation to Goa in the Directorate of Accounts from 1963 to 1968. On passing S.A.S. examination he was promoted as Section Officer in 1970 and then as Audit Officer in the scale of Rs. 2375-3500 in November, 1993 and further as Senior Audit Officer in the scale of Rs. 2200-4000 in April, 1987. He has therefore experience in Accountancy and Audit. As far as pay scale it was stated that the scale of pay for the post of Finance Officer of the Goa University is Rs. 3700-5700 and the immediate next below scale to that of Finance Officer is that of Assistant Registrar (Finance) in the Goa University and the same is Rs. 2200-4000. The respondent No. 5 has a scale of Rs. 2200-4000 also and being so he has the necessary experience and was drawing the immediate pay scale required to apply for the post. It was further stated that when the two candidates, the petitioner and respondent No. 5, appeared before the Selection Committee it was found that both of them had more than 10 years experience as laid down under the Rules but neither of them had High Second Class Degree at graduation level in Commerce. The Committee however considering their long experience in the field and on a total assessment recommended respondent No. 5 for the said post. The Vice Chancellor thereupon recommended the relaxation of prescribed qualifications and accepting the said recommendation the Visitor relaxed the said required qualifications in case of respondent No. 5. It was further stated that the records disclose that respondent No. 5 has experience and knowledge of accounts and auditing in various Government Departments. It was stated that 'budgeting' is preparation of statement of estimated receipts and expenditure. It is planning for co-ordination of resources and expenditures. "Accounting" is preparation of record of pecuniary transactions. "Accountants" are persons skilled in keeping books of accounts and designing and controlling the system of accounts. "Auditing" involves inspection and verification of records regarding accounts. This exercise necessarily requires the knowledge and experience in accounting, budgeting and other financial matters.
It is planning for co-ordination of resources and expenditures. "Accounting" is preparation of record of pecuniary transactions. "Accountants" are persons skilled in keeping books of accounts and designing and controlling the system of accounts. "Auditing" involves inspection and verification of records regarding accounts. This exercise necessarily requires the knowledge and experience in accounting, budgeting and other financial matters. Thus the experience to the credit of respondent No. 5 of the post which he was holding prior to joining Goa University discloses his sufficient knowledge in the matter of accounting, budgeting and other financial matters. 4. A return was also filed by the respondent No. 5 wherein he has sought to maintain that he fulfilled both requirements of eligibility to apply for the post of Finance Officer with regard to the pay scale as well as experience. In respect of the former he has stated that he was holding the post of Senior Audit Officer in the pay scale of Rs. 2200-4000 which is the same scale as that of the post of Assistant Registrar in Goa University. This post of Assistant Registrar is next below to the post of Finance Officer. So far the experience is concerned it was stated that up to March 1984 he had worked as Accounts Officer in the scale of Rs. 2375-3500 and was borne on the common cadre of the Accountant General, Maharashtra. Of the total of 24 years of service upto the said date he had worked for five years on deputation to the office of the Director of Accounts, Panaji (1963-68) and 14 years in the supervisory capacity as Section Officer and Accounts Officer. After his transfer to the office of the Director of Audit (Central) Bombay in March 1984 he had worked as Audit Officer for three years in the scale of Rs. 2375-3500 and as Senior Audit Officer for six years in the scale of Rs. 2200-4000. He has stated that he had experience not only in compiling and finalising accounts of the Government but also experience in accounts and auditing of various Departments of the Government, and other Government undertakings. 5. Mr.
2375-3500 and as Senior Audit Officer for six years in the scale of Rs. 2200-4000. He has stated that he had experience not only in compiling and finalising accounts of the Government but also experience in accounts and auditing of various Departments of the Government, and other Government undertakings. 5. Mr. Dias, learned Counsel for the petitioner, has submitted that respondent No. 5 is not at all eligible for the post of Finance Officer as he has not had any experience as per the eligibility rules or is also not having the scale of pay required to apply for the post. It was thus urged that the said respondent could not have been selected for the post by the Selection Committee or even recommended for the purpose of relaxation, as far as the educational qualifications are concerned, when the petitioner was having the necessary experience and was holding a post having the scale required by the eligibility rules. The learned Counsel contended that the respondents should have therefore selected the petitioner for the post of Finance Officer and the fact of his having been excluded from selection is to be held as an arbitrary and discriminatory action on the part of the said respondents. In this respect the learned Counsel submitted that the petitioner was holding no experience either of accounting or budgeting and the affidavits filed on behalf of the respondents refer to the respondent No. 5's knowledge of accounting and budgeting only. No reference was made at all to the budgeting and much less to any experience in the budgeting. The learned Counsel urged that the respondents were supposed to make a positive statement that respondent No. 5 has actually done the work of accounting and budgeting because knowledge of a matter is quite different from experience. The learned Counsel has relied on the meaning of the words "accounting", and "budgeting" as defined in the Black's Law Dictionary and Mitra's "Law Lexicon" to show to what extent the so-called experience of the respondent No. 2 in the line of accounting and budgeting could not be said as fulfilling the requirement of respondent No.5's eligibility to the post of Finance Officer. 6. Mr.
6. Mr. Khandeparkar, learned Counsel for the respondents No. 1 and 2, in his turn has invited our attention to the Statute 46.3 of the Goa University wherein in its Clause 6 reference has been made to experience of works relating to budgeting, accounting or other financial matters. According to the learned Counsel both the petitioner and the respondent No. 5 were not qualified, as far as educational qualifications are concerned, although both had experience in the line of accounting, budgeting and auditing or other financial matters. The learned Counsel urged that the Selection Committee in its wisdom has selected the case of respondent No. 5 on merits after going through the bio-data and the experience assessed by them in the interview which was held for that purpose. No allegation of mala fide had been made by the petitioner against the members of the Selection Committee or the very constitution of the committee was also not challenged by the petitioner. Therefore, the only challenge which is available to the petitioner in such circumstances would be against the decision making process followed by the Selection Committee. The learned Counsel has stated that respondent No. 5 had sufficient experience of accounting for about 24 years as Accounts Officer and after 1994 when he was transferred to Audit Section of the Comptroller Auditor General he has also different experience of accounting. A reference has been made by the learned Counsel to the definition of some words in the Statute but we do not think that in the facts and circumstances of the case the question of various definitions of the expressions, "budgeting", "accounting" and "finance" and the words relating to accounts which are incorporated in the Statute which were sought to be placed before us by relying on the authority of Black's Law Dictionary and Mitra's Law Lexicon becomes relevant in the context of the actual selection made by the Selection Committee in this case. 7. It is true that Mr. Dias has vehemently urged that the knowledge of a matter is not experience and experience is to be assessed on the aspect of actual and practical knowledge of a matter. Mr.
7. It is true that Mr. Dias has vehemently urged that the knowledge of a matter is not experience and experience is to be assessed on the aspect of actual and practical knowledge of a matter. Mr. Khandeparkar in this respect, however, also contends and rightly that budgeting is a part of financial matters and for that purpose he relies on the scope of the experience clause in the eligibility conditions referred to in the Statute 46.3 wherein reference only to the experience of work relating to budgeting, accounting, auditing or other financial matters is made. It was submitted that it was therefore for the Selection Committee to decide and thus the extent of judicial review available is limited only to the decision making process of the Selection Committee. 8. In order to ascertain and satisfy ourselves as to the correctness and propriety of the decision making process of the Selection Committee we examined the relevant file which was made available to us by Mr. Khandeparkar and on careful perusal of the said file we have no reasons to hold that the procedure adopted by the Selection Committee while assessing the comparative merits and the experience of both the candidates, namely, the petitioner and the respondent No. 5 can be said to be wrong and illegal. In the case of (Dalpat Abasaheb Solunke etc. v. Dr. B.S. Mahajan etc.)1, A.I.R. 1990 S.C. 434, while dealing with the power of the Selection Committee in recommending the appointment of the posts for the University, the Supreme Court held that it is not the function of the Court to hear appeals over decision of the Selection Committee and scrutinize relative merits of candidates. The Court observed that a 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. The Committee consisted of experts and it had selected candidates after going through all the relevant material before it. Therefore setting aside the selection on the ground of the so-called comparative merits of the candidates, as assessed by the Court while sitting in appeal over selection so made would not be permissible. 9.
The Committee consisted of experts and it had selected candidates after going through all the relevant material before it. Therefore setting aside the selection on the ground of the so-called comparative merits of the candidates, as assessed by the Court while sitting in appeal over selection so made would not be permissible. 9. So far the question of pay scale is concerned, in our view, it is not necessary to deal with this point also since the decision of the Selection Committee does not seem to have infringed or violated any specific statutory rules regarding conditions of eligibility. Admittedly no statute does refer to the requisite regarding pay scale. Hence there does not seem to be any violation of the statutory rules of the University in this regard. The learned Counsel has drawn our attention to the fact that nowhere in the statute 46.3 any reference is made to pay scale and the only mention made to pay scale has come in the letter dated 23rd June, 1993, which is a Circular issued by the Under Secretary (Finance) on the strength of a request made by the Government to the Goa University, seeking for candidates to man the post of Finance Officer in the Goa University in the pay scale of Rs. 2700 - 5700 on deputation. Annexure I to the Circular in its Clause (c) refers to the condition that candidates should hold the post in the same or equivalent scale of pay of Finance Officer in the University and that persons holding the post in the immediate next below scale of pay would also be considered. The learned Counsel submitted that in the context of this Circular and Annexure it is to be understood that the scale referred to should be the scale prescribed by the University itself. According to the learned Counsel this appears to be further clear from the Statute 46.3 itself wherein reference to the clause of eligibility regarding experience is related not only to the post in a Government Department or Educational Institution but also in private organizations of repute. 10. We are however satisfied that although there appears to be some substance in the petitioner's submission that it seems against logic to hold that the scale next below to the scale of Rs.
10. We are however satisfied that although there appears to be some substance in the petitioner's submission that it seems against logic to hold that the scale next below to the scale of Rs. 3000 - 4700 should be, in the facts and circumstances of the case and considering that the scales referred to are only University scales, the scale of Rs. 2200 - 4000, we are still of the view that this aspect also is to be deemed as having been taken care of by the Selection Committee while adjudging the eligibility conditions of the petitioner and respondent No. 5 to be considered to the post of Finance Officer. In the case of (University of Mysore v. C.D. Govinda Rao and another)2, A.I.R. 1965 S.C. 491, while dealing with the recommendations of the Board of Experts appointed by the University for selection of candidates for the post of University, the Court held that interference of the High Court should be justified only if the selection has been made in contravention of any statutory or binding rules or ordinance of the University. The Court also observed that normally the courts should be slow to interfere with the opinion expressed by the experts and since there was no allegation about mala fides against experts who constituted the Board it would be wise and safe to leave the decision of academic matters to experts who are more familiar with the problems they face than the courts generally can be. 11. Further it is seen that the petitioner is going to attain the age of superannuation on 1st January, 1995 and therefore, even assuming that the selection and appointment of respondent No. 5 was found to be bad, still it is difficult to accept that a writ of mandamus would lie against respondent No. 1 to select and appoint the petitioner to the post of Finance Officer of the University after securing the competent relaxation from the Visitor of the University regarding his educational qualifications which admittedly were not according to the eligibility rules. 12. In the result we see no merits in this petition which therefore deserves to be rejected. Rules accordingly discharged with however no order as to costs. Petition dismissed.