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2003 DIGILAW 327 (GAU)

Biren Das v. Tezpur University

2003-07-23

B.BISWAS

body2003
JUDGMENT D. Biswas, J. 1. Registrar, Tezpur University issued the advertisement dated 5.4.2003 calling for applications for the post of Finance Officer and Deputy Director (Training and Placement). The writ petitioner who is an Assistant Registrar of the University having requisite qualification, applied for the post of Deputy Director (Training and Placement). Twelve candidates including the writ petitioner appeared before the Selection Committee on 22.4.2003. The composition of the Selection Committee surprised the writ petitioner. The Selection Committee was comprised of eight members contrary to the provisions in Section 9 of the Statute-2 which provide for the composition of the Selection Committee by six members. The Selection Committee comprising eight members is a nullity and any recommendation made by them is void in the eye of law. According to the writ petitioner, the Selection Committee was constituted with ulterior motive to select a person of their choice. Aggrieved thereby, the petitioner filed this petition for declaration that the recommendation made by the Selection Committee is illegal and void. 2. While issuing Rule by the order dated 3.4.2003, the University was directed not to give effect the appointment order, if any, issued in the meantime. Shri P.C. Deka, learned counsel for the University, during the course of argument, informed that the authority has already issued the appointment orders appointing the candidate recommended by the Selection Committee. 3. The respondents in their affidavit as well as in additional affidavit challenged the statements made in the writ petition. Their plea is that the petition is bared by the principle of acquiescence since the writ petitioner participated in the interview without any protest and, now, he cannot question the legality of the composition of the Selection Committee. According to them, the petitioner being the Assistant Registrar of the University and having full knowledge of the procedure adopted was under an obligation to point out the defect, if any, before initiation of the selection process. The petitioner remained silent obviously with the expectation that he would be selected. The petitioner cannot raise the plea of technical defect to advance his cause after having taken part in the interview. In para-11 of the affidavit, it is pleaded that the petitioner ought to have informed the authority that he was a candidate for the same post. The Selection Committee, according to the answering respondents, comprised of six members and not eight members, as alleged. In para-11 of the affidavit, it is pleaded that the petitioner ought to have informed the authority that he was a candidate for the same post. The Selection Committee, according to the answering respondents, comprised of six members and not eight members, as alleged. According to them, Professor S.K. Doloi and Professor B.D. Phukan were not members of the Selection Committee, but were asked to make themselves available to clarify any point that might have arisen during the course of interview. They did not participate or played any role whatsoever in the interview or the selection process. Besides, it is also pleaded that the petitioner cannot get any relief since the members of the Selection Committee had not been impleaded as respondents. 4. The following questions are formulated for adjudication on the basis of the pleadings :- (i) Whether the composition of the Selection Committee is illegal and void and, whether it has any adverse effect on the recommendation made ? (ii) Whether the petitioner having participated in the selection process and having failed to get recommendation is entitled to challenge the composition of the Selection Committee ? 5. There is no dispute at the bar that the Selection Committee as prescribed by Section-9 , Statute-2 would comprise of following six members :- (a) Vice-Chancellor as the Chairman; (b) The Pro Vice-Chancellor; (c) Nominee of the Visitor (The President of India) (d) The Director, Training and Placement. In absence, a professor to be nominated by the Vice-Chancellor; and (e) Two persons not in service of the University to be nominated by the Board of Management. 6. The petitioner in para-8 of the writ petition has described the composition of the Selection Committee as below :- i) Mr. P. Bhattacharjee, Vice-Chancellor, Tezpur University, ii) Mr. M. Ahom, Registrar, Tezpur University, iii) Prof. S.K. Doloi, Department of Political Science, Tezpur University, iv) Prof. D. Konwar, Department of Energy, Tezpur University, v) Prof. B.D, Phukan, Department of Electronics, Tezpur University, vi) Prof. M.K. Choudhury, Indian Institute of Technology, Guwahati, viii) Prof. R. Bhaskaran, Indian Institute of Technology, Kharagpur. viii) Mrs. Achala Bora, Member, Board of Management. According to the respondent authority, the Committee comprised of the following persons :- a) Prof. P. Bhattacharyya, Vice Chancellor, Tezpur University as the Chairman, b) Shri M. Ahom, Registrar, Tezpur University, c) Mrs. Achala Bora Senapati, Member Board of Management. d) Prof. R. Bhaskaran, Indian Institute of Technology, Kharagpur. viii) Mrs. Achala Bora, Member, Board of Management. According to the respondent authority, the Committee comprised of the following persons :- a) Prof. P. Bhattacharyya, Vice Chancellor, Tezpur University as the Chairman, b) Shri M. Ahom, Registrar, Tezpur University, c) Mrs. Achala Bora Senapati, Member Board of Management. d) Prof. D. Konwar, Department of Energy, Tezpur University (professor nominated by the Vice-Chancellor), e) Prof. Mihir Choudhury, Professor, Indian Institute of Technology (IIT), Guwahati, who as Dean of students was also in charge of placement of IIT, Guwahati. f) Prof. R. Bhaskaran, Professor in charge of Training and Placement, Indian Institute of Technology, Kharagpur. 7. It would appear that the Selection Committee, as admitted by the respondents, did not consist of Prof Vice-Chancellor and the nominee of the Visitor. In place of Director, Training and Placement, Prof. D. Konwar was nominated as Member by the Vice-Chancellor and Prof. Mihir Chodhury and Prof. R. Bhaskaran are the two persons not in service of the University. It is obvious from the statement in para-18 of the affidavit-in-opposition that Shri M. Ahom, Registrar of Tezpur University and Ms. Achala Bora Senapati, Member Board of Management have been included in pace of Prof Vice-Chancellor and the nominee of the visitor. This is, in my considered opinion, not permissible under the provisions of the statute. In the absence of Pro Vice-Chancellor and the nominee of the Visitor, the Selection Board should have consisted of four members. On the face of the pleadings in para-18, the constitution of the Board appears to be in violation of the provisions of the statute. 8. The petitioner in para-8 of the writ petition has described the eight persons who had participated in the selection process. Apart from the six persons admitted by the respondents, the Committee also included Prof. S.K. Doloy and Prof. D. Konwar. The respondents pleaded that they were asked to remain present during the course of interview to render assistance and clarify any point that might have arisen during the course of interview. According to the respondents, they did not participate or played any role whatsoever in the interview/in the selection process. In order to decipher the truth, we may refer to the records of the interview produced by Shri PC. Deka, learned Senior counsel. From the result sheet, it appears that Shri B.D. Phukan and Mr. According to the respondents, they did not participate or played any role whatsoever in the interview/in the selection process. In order to decipher the truth, we may refer to the records of the interview produced by Shri PC. Deka, learned Senior counsel. From the result sheet, it appears that Shri B.D. Phukan and Mr. S.K. Doley did not allot any marks to any of the candidates in the interview, but it appears that both Mr. M. Ahom, Registrar, Tezpur University and Mrs. Achala Bora Senapati, Member Board of Management allotted marks to the candidates. Inclusion of the Registrar of the University and Mrs. Achala Bora Senapati have been in violation of the provisions of the Statute and they could not be inducted as substitute of the Pro Vice-Chancellor and the nominee of the visitor. From the materials on record, it would appear that the selection process stood vitiated because of illegal composition of the Selection Committee and for participation of persons other than the persons not authorised by the statute. Any recommendation made by the Selection Committee constituted in violation of the statutory provisions is void and cannot be acted upon. In this connection, we may refer to the decision of the Hon'ble Supreme Court in J.K. Public Service Commission v. Dr. Narinder Mohan and Ors. where the Supreme Court made it clear that where statutory rules are in existence, the appointment has to be made in accordance with those Rules only. Any deviation from the provisions of the Rules in force will render the selection void and illegal. 9. With regard to the second question, Shri D.K. Bhattacharjee, learned Senior counsel argued that the writ petitioner came to know about the composition of the Selection Committee when he had appeared before the Selection Committee for interview and he had no option but to take part in the interview. The petitioner had no prior knowledge or information about the composition of the Committee and, as such, his claim cannot be thrown out on the ground that he had participated in the selection process. Shri Bhattacharjree, further pointed out that the writ petitioner was not involved in the process of constitution of the Selection Committee and, therefore, it would be wrong to attribute any prior knowledge to him about the composition of the Selection Committee. 10. Mr. Shri Bhattacharjree, further pointed out that the writ petitioner was not involved in the process of constitution of the Selection Committee and, therefore, it would be wrong to attribute any prior knowledge to him about the composition of the Selection Committee. 10. Mr. Deka, learned Senior counsel argued that by Annexure-'C', the letter dated 24.1.2003, the Dean of Administration informed the candidates to contact the writ petitioner for any help or guidance. This letter, Sir Deka argued, suggest that the writ petitioner was involved in the selection process and had prior information about the composition of the Committee. 11. The above letter indicates that the authority informed the candidates to contact the writ petitioner for any help or guidance. This does not mean that the help or guidance included information about the composition of the Selection Committee. A candidate who appears in response to the advertisement has no right to ask for any information about the composition of the Selection Committee. As such, it would be nothing short of fiction to conclude that this letter proves prior knowledge of the writ petitioner about the constitution of the Selection Committee. In the writ petition, it has been clearly stated that the writ petitioner was surprised and shocked to see eight members present at the time of interview. The petition was filed on 31st March, 2003. The interview was held on 24.2.2003. The records produced by the University authority do not show that the result of the interview was published prior to 31.3.2003. The records also do not disclose that the petitioner having come to know that he had not been selected filed the petition. Therefore, it would not be proper to conclude, based on conjectures, that the writ petitioner had prior information about the composition of the Selection Committee, 12. There is no doubt that the writ petition did not raise any objection when he had found that eight members were present in the interview. It was for him to raise protest then and there. But he did not do so. This omission on his part may operate as estoppel for having acquiesced the constitution of the Committee. But in the instant case the selection has been challenged on illegal composition of the Selection Committee in complete violation of the provisions of the Statute. It was for him to raise protest then and there. But he did not do so. This omission on his part may operate as estoppel for having acquiesced the constitution of the Committee. But in the instant case the selection has been challenged on illegal composition of the Selection Committee in complete violation of the provisions of the Statute. The challenge is not on the ground of bias or malafide on the part of any of the member of the Committee. Therefore, if the petitioner succeeds in establishing that the composition of the Committee is contrary to the provisions of law, the fact that he had participated in the selection process will be of no consequence. It is because of the established principles of law that where a power of given to do a certain thing in a certain way, the thing must be done in that way or no at all (Nazir Ahmad v. Emperor and Ramachandran Keshav Adke v. Govind Joti Chavare and Ors.). The principles of acquiescence will operate, as stated above, only on limited ground and it will not deter where it is shown on record that the selection committee was constituted in flagrant violation of the statutory provisions. In this connection, the decision in Raj Kumar and Ors. v. Shakti Raj and Ors. para-16 may be referred to. 13. I have considered the decision in Dr. G. Sarana v. University of Lucknow and Ors. On factual matrix, the ratio available in the aforesaid case cannot be applied in the instant case. For similar reason, the decision in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. is not applicable. I have also considered the decision in Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. with regard to estoppel. This decision is also, in my opinion, cannot salvage the situation for the University in view of the fact that the constitution of the Committee was opposed to be provisions of Section 9 of Statute-2. It has already been emphasised hereinbefore that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Since the constitution of the Committee is contrary to the provisions of law, this Court finds it difficult to uphold the selection process ignoring the claim of the writ petitioner. 14. Since the constitution of the Committee is contrary to the provisions of law, this Court finds it difficult to uphold the selection process ignoring the claim of the writ petitioner. 14. In the result, the writ petition is allowed. The recommendation made by the Selection Committee is hereby declared illegal and void and, hence, set aside. The matter is remitted back to the respondent authority for constitution of the Selection Committee afresh strictly in compliance with the provisions of the statute and, thereafter to proceed for selection and appointment of the candidate. No costs. Writ petition allowed.