Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 90 (GAU)

Debotosh Chakravorty v. State of Assam

2003-03-03

P.G.AGARWAL

body2003
JUDGMENT P.G. Agarwal, J. 1. I have heard, Mr. P. Roy, learned Counsel for the Petitioner and Mr. N.M. Lahiri, learned senior counsel assisted by Mr. N. Choudhury, learned Counsel for private Respondent No. 5 and Mr. B.M. Sarma, learned Counsel for Respondents No. 3 and 4 and Mr. Phukan, learned Government Advocate for Respondents No. 1 and 2. 2. The matter relates to the appointment to the post of Lecturer in Political Science in G.C. College, Silchar, Cachar (hereinafter referred as College). The College invited application vide an advertisement dated 12.1.2000 stating inter-alia, that the post of Lecturer in Political is Science reserved for S.T. (P), but in case no legible S.T. (P) candidate is available the post shall be unreserved and the applications are invited simultaneously. The Petitioner and Respondents No. 5 and other participated in the said selection process and the selection Committee recommended the S.T. (P) candidate. The said selection Committee also prepared and forwarded Anr. select list wherein the Petitioner and Respondent No. 5 both were shown at Serial No. 1. The post was offered to the S.T. (P) candidate and as he joined in some other College, he refused to accept the same and thereafter the matter was placed before the Governing body of the College. The relevant portion of Resolution No. 4 of the Governing Body of the College held on 30.9.2001 reads as follows: In pursuant of the Resolution No. 4 of the meeting of the Governing Body held on 22.9.2001, a viva-voce was held in the Principal's Chamber to select a relatively and preferably suitable candidate from amongst the two candidates who held the 'first' position jointly in the panel of selected candidates of General Category prepared by the Selection Committee and later on approved by the then Special Body and then by the Governing Body of the College. In consonance with the decision and resolution of the Governing Body, the President of G.B. and the Principal i/c-cum-Secretary conducted the viva-voce and found that Smti. Swarupa Bhattacharjee, apart from her distinctly better performance in the viva-voce, had also an edge over the other candidate by virtue of her additional qualifications like M.Phil, B.Ed. (1st Class), her publications, teaching experiences and extra curricular activities. As such, the President and the Principal i/c-cum-Secretary resolved that the name of Smti. Swarupa Bhattacharjee, apart from her distinctly better performance in the viva-voce, had also an edge over the other candidate by virtue of her additional qualifications like M.Phil, B.Ed. (1st Class), her publications, teaching experiences and extra curricular activities. As such, the President and the Principal i/c-cum-Secretary resolved that the name of Smti. Swarupa Bhattacharjee be recommended to the D.H.E., Assam for appointment against the post of lecturer in Political Science and the D.H.E., Assam be requested to kindly accord his approval at the earliest considering the immense loss already suffered by the students in view of non-appointment of lecturer against the post over the last three years. Thereafter the President and Principal-in-Charge-cum-Secretary recommended the name of Smti. Swarupa Bhattacharjee to the post of Lecturer in Political Science and her name was forwarded to the Director of Higher Education, Assam. In this writ application the Petitioner has challenged the said decision. 3. At the out-set the Petitioner claimed that he was placed at Serial No. 1 whereas the Respondent No. 5 was placed at Serial No. 2 by the Selection Committee. 4. On perusal of the original record which has been produced by the Learned Counsel for the College authority, we find that both the Petitioner and the Respondent No. 5 were bracketed at Serial No. 1 which means that they were both found on equal footings by the Selection Committee. In view of the above, the College authority was required to decide as to who is to be appointed. The Petitioner has challenged the Resolution of the Governing Body on the ground that in such an eventuality they should refer the matter either to the original Committee or to an Expert Committee, and the Resolution No. 4 asking the President and Principal-in-charge to decide the matter was unwarranted and bad in law. Admittedly, there is no rule or Government guidelines or Circular in the matter and as such the Governing Body of the College was required to resolve the issue and in the Resolution No. 4 as quoted above, the Government Body has laid down the parameters to decide as to which one of the candidates is to be appointed. 5. The learned Counsel has placed reliance on a decision of the Apex Court reported in AIR 1990 S.C. 1402 (K.M. Neelima Mishra, Appellant v. Dr. Harinder Kaur and Ors. 5. The learned Counsel has placed reliance on a decision of the Apex Court reported in AIR 1990 S.C. 1402 (K.M. Neelima Mishra, Appellant v. Dr. Harinder Kaur and Ors. Respondents) wherein it was held that Executive Council of the University cannot over-ride the decision of the selection committee which consists or Experts. In the instant case, however, we find that the dispute is not between the recommendation of the Expert Committee/Selection Committee and the decision of the Governing Body. The selection committee which consists of Experts recommended both the Petitioner and Respondents No. 5 at Serial No. 1 which only meant that the Experts found that both the Respondent No. 5 and the Petitioner are on equal standing and merit. There was only one post of Lecturer and as such the matter was required to be further examined/proved to find out of those two, who is better situated/qualified and for the above purpose, the Governing Body of the College laid down certain parameters as quoted above. In the facts and circumstances of the case, and the considering the nature of appointment, it can not be said that these were irrelevant parameters. The rules provided that a candidate who had teaching experience for a certain duration is entitled to certain marks in the selection process. Admittedly, neither of these two candidates had teaching experience of required length and as such the selection committee did not give credit on that count, but in order to find out the relative merit, one is to look to the relative teaching experience and other qualifications. The Respondent No. 5 claimed that she had a teaching experience of more than 4 years and the learned Counsel for the Petitioner fairly admits that the teaching experience of the Petitioner was shorter than Respondent No. 5. Respondent No. 5 had an additional degree of M. Phil and she also claimed credit for three publications. The Petitioner has also submitted that the selection of Respondent No. 5 was not above board as she was appointed on the strength of her representation made to Governing Body although she was not entitled to make any representation. The learned Counsel has placed reliance of the observation of the Apex Court in K.M. Neelima Misra's Supra Paragraph-26 which is quoted below: 26. The learned Counsel has placed reliance of the observation of the Apex Court in K.M. Neelima Misra's Supra Paragraph-26 which is quoted below: 26. In matters relating to public employment whether by promotion or direct recruitment, only employment to be complied with is the mandate of Articles14 and 16 of the Constitution. There shall be equality of opportunity and no discrimination only on ground of religion, race, caste, sex, descent, place of birth or residence or any of them. The eligible candidate has a right to have his case considered in accordance with law. In the instant case, that requirement has been compiled with by the Selection Committee. There is no further right with the candidates to make representation to the Executive Council and much less to the Chancellor. Reference however, was made to the observation of this Court in Dr. G. Sarana v. University of Lucknow (1976) 3 SCC 585 at p. 592 ( AIR 1976 SC 2428 at p. 2433) While dismissing the writ petition challenging the recommendation made by the Selection Committee of the Lucknow University for appointment of a candidate as Professor. It was observed that "the aggrieved candidate has remedy by way of representation to the Executive Council and an application for reference under Section 68 of the Act to the Chancellor." We have carefully perused the decision and that observation. We find that it is of little assistance to the present Case. We are concerned with the scope of Section 31(8)(a) of Act which was not considered in that case. Apart from that Section31 confers no such right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee. There is no provision in the Selection for hearing any candidate or the Executive Council. There is also no provision for receiving evidence. The materials in respect of every candidate has already been collected and collated by the Selection Committee. Every material is on the record and the Chancellor had no power to take further evidence. The Chancellor is authorised to take d decision and he must take it on the available records since the Executive Council has not taken a decision on the recommendation of the Selection Committee. The decision of the Chancellor in the exercise of the statutory function does not, in our opinion, expressly or impliedly require the application of the principles of natural justice. The decision of the Chancellor in the exercise of the statutory function does not, in our opinion, expressly or impliedly require the application of the principles of natural justice. See also the observations of K.N. Singh, J in R.S. Das v. Union of India (1986 (Supp.) SCC 617 633 : AIR 1987 SC 593 603 4). Admittedly the Respondent No. 5 did make representation, but from the record we find that the appointment was not based on the above representation. Both the parties were called for interview and after holding the interview, the decision was taken by the, President and the Principal-in-Charge. Resolution No. 4 dated 30.9.2001 as quoted above, goes to show that Respondent No. 5 was found to be more suitable candidate in respect of appointment. She had more teaching experience and additional qualification like M.Phil and her publications. 6. In view of above stated, we find that the Governing Body was required to take a decision and they have taken the decision following the guidelines and parameter and there was complete transparency and the Petitioner was given the opportunity and a second interview was held. Further the President and the Principal-in-charge had not violated the decision of the selection committee in any manner and they have compiled with the decision of the selection committee. In view of what have been stated above we find no merit in this writ petition and accordingly it is dismissed. The College authority may proceed with the matter in-accordance with existing rules and guidelines. Petition dismissed.