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2006 DIGILAW 862 (GAU)

Manidipa Baruah v. Gauhati University

2006-09-13

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. The selection and appointment of the respondent No. 4 in the post of Lecturer in Psychology in the Gauhati University is the subject-matter of challenge in the present writ petition. 2. The facts, in brief, may be noticed at the outset: An advertisement dated 10.9.2005 was issued by the Registrar of the Gauhati University inviting applications for filling up, inter alia, a post of Lecturer in Psychology. The essential qualifications for the posts; advertised including the posts of Lecturer in different departments are mentioned in the addendum enclosed to the advertisement. Under the norms prevailing in the University for selection and appointment, at the first instance, the applications received are required to be considered by the Head of the Department in which vacancies exist in order to determine the eligibility of the candidates. Thereafter, the bio-data of the eligible candidates are required to be sent to 3 experts in the field for their views in the matter. Thereafter, the duly constituted Selection Committee is required to consider the candidatures of the candidates and the recommendations of the Selection Committee are required to be placed before the Executive Council of the University, which, under the Act is the ultimate authority in the matter of appointment. 3. In the present case, as evident from the records in original as placed before the court by the University, 4 applications including those submitted by the writ petitioner and the respondent No. 4 were received pursuant to the advertisement issued. The applications received were scrutinized by the Head of the Department and all the 4 applications were found to be in order. Thereafter, the cases of the eligible candidates were sent to two experts, i.e., one Prof. R.C. Dixit, Department of Psychology, JNB University, Jodhpur and one Prof. Shafique, Department of Psychology, Jamia Milia University. Both the experts sent their opinions to the Registrar of the University, which opinions are to the effect that the petitioner is the most suitable candidate amongst the 4 who had applied. The experts had given the 3rd rank to the respondent No. 4. Thereafter, in a meeting of the Selection Committee held on 24.7.2006, the Committee found both the petitioner and the respondent No. 4 to be suitable and accordingly recommended the names of both the candidates to the Executive Council for its consideration. The experts had given the 3rd rank to the respondent No. 4. Thereafter, in a meeting of the Selection Committee held on 24.7.2006, the Committee found both the petitioner and the respondent No. 4 to be suitable and accordingly recommended the names of both the candidates to the Executive Council for its consideration. The Executive Council in its meeting dated 19.8.2006 resolved to appoint the respondent No. 4 in the post on the ground that the said Respondent No. 4 has a consistently better academic career than the other candidates. Accordingly, this writ petition has been filed seeking interference with the selection and proposed appointment of the respondent No. 4 in the post in question. 4. The present case being one wherein a challenge has been made as against the imminent appointment of the respondent No. 4 with a prayer for appointment of the writ petitioner in place of the respondent No. 4, the court has considered it appropriate to hold that the writ petition needs an immediate disposal. Accordingly, affidavit has been filed by the University and the records in original have also been placed before the court. On the basis of the pleadings made in the writ petition and the counter affidavit, of the University and the records produced, this Court is proceeding to pass final orders in the writ petition. 5. The submissions advanced on behalf of the writ petitioner have been short and precise. The petitioner contends that she has been working for the last 10 years in the University in the same department, i.e., Psychology, first, as a part-time Lecturer and thereafter, as a Guest Lecturer. It is also contended that her name had been recommended by the experts as the first choice for the post of Lecturer in Psychology. In such circumstances, according to the petitioner, the Selection Committee could not have selected the respondent No. 4 and in any event the Executive Council could not have taken the decision to appoint the respondent No. 4 in the post in question. The decision of the Selection Committee and that of the Executive Council is, therefore, contended to be wholly unacceptable being vitiated by apparent non-consideration of the long experience of the petitioner and the views of the experts. The decision of the Selection Committee and that of the Executive Council is, therefore, contended to be wholly unacceptable being vitiated by apparent non-consideration of the long experience of the petitioner and the views of the experts. On, the other hand, the arguments advanced on behalf of the University and the respondent No. 4 has been to the effect that the respondent No. 4 has a brilliant academic career and it is on account of the said fact that the decision to appoint her in the post in question had been taken. It is further submitted by Shri L.P. Sarma, learned Standing Counsel for the Gauhati University and Shri G.N. Sahewalla, Senior Counsel for the respondent No. 4 that the limited parameters within which the court would exercise its jurisdiction under Article 226 of the Constitution of India not being present in the instant case, the selection and appointment of the respondent No. 4 should not be interfered with. Learned counsels have further submitted that in academic matters interference of the courts should be limited and unless there are sufficiently acceptable reasons, the court must permit the decision of the University to prevail. In this regard, it has been further submitted by the learned counsels appearing for the University and the respondent No. 4 that the decision of the University cannot be, in any manner, described as being vitiated on account of mala fides or on extraneous and irrelevant considerations so as to warrant-interference of this Court under Article 226 of the Constitution. 6. The rival submissions advanced on behalf of the respective parties have received the most anxious consideration of the court. Selections made by the duly empowered body be it a Selection Committee or a constitutional body like the Public Service Commission and appointments made on the basis of the recommendation of such a body must be scrutinized by the courts within the limited contours that the courts have carved out for themselves. Courts do not sit in appeal in such matters; it is not for the court to decide who is a better candidate for that is the task of the Selection body and the appointing authority. The. jurisdiction of the courts is to be exercised to ensure fair and equal opportunity to all candidates in the fray and transparency in the selection process so as to ensure accountability. The. jurisdiction of the courts is to be exercised to ensure fair and equal opportunity to all candidates in the fray and transparency in the selection process so as to ensure accountability. To achieve the said purpose the courts will normally scrutinize a selection and appointment made primarily to ensure that there has been no arbitrariness in the decision making process; factors relevant have been considered; matters irrelevant and extraneous have been excluded and the ultimate decision has been reached justly and fairly. The principles outlined are fairly exhaustive and definitely not illustrative. Of course, the "reserve power" to do justice will always spring into action when the cause is apt. Another fact considered significant may be noted at this stage. Amulti-Member Selection Body is naturally expected to arrive at a decision on the basis of the views tendered by all the members. For that, individual assessments made by each member have to be co-related to arrive at the 'consensus'. Such consensus may be spontaneous in a given case but more often than not it has to be arrived at by applying the law of averages. To enable due scrutiny, in the event the selection is challenged in a court of law, records/minutes of the proceedings of the Selection Committee have to be meticulously maintained. This has not happened in the present case where the proceedings of the selection reveal only the ultimate conclusion that both the petitioner and the respondent No. 4 have been found to be suitable. What has been stated above may well be taken by the university as a note of caution. For the present, as the petitioner herself has been selected by following the same process, interference of the court, notwithstanding the irregularities noticed, is being withheld. 7. The court may now proceed to analyze what had happened in the present case. The respondent No. 4, as evident from the minutes of the decision of the Executive Council, has been approved for appointment on the ground that she has a brilliant academic record to her credit. There is no denial of the fact that the academic record of the respondent No. 4 is brilliant. The question that confronts the court is whether academic performance of the candidates is only factor that should have been taken into consideration. The answer to the question posed will have to be in the negative. There is no denial of the fact that the academic record of the respondent No. 4 is brilliant. The question that confronts the court is whether academic performance of the candidates is only factor that should have been taken into consideration. The answer to the question posed will have to be in the negative. The University, as per the norms laid down, had felt the requirement of taking the views of the experts. If the views of the experts were felt necessary, surely and certainly such views would be a relevant factor that should have received the due consideration of the Executive Council. In the present case, the unanimous views of two experts is that the petitioner is the most suitable amongst the candidates. The said view was taken by the experts in view of the long teaching experience that the petitioner has to her credit. If that be so, the court may safety come to the conclusion that teaching experience, opinion of the experts and the academic performance of the candidates are the relevant factors that should have been taken into account as the basic inputs in the decision making process. Admittedly and evidently, the same was not done. Academic performance alone was considered. Relevant factors, therefore, were ignored. In view of what has been stated above, the court is unable to accord its approval to the appointment of the respondent No. 4 as decided in the meeting of the Executive Council held on 19.8.2006. 8. The next question that has to be answered by the court is whether the court should embark upon the next step, i.e., to hold that the petitioner is entitled to appointment. The power of appointment is vested in the Executive Council. The court has held that 3 factors were required to be taken into account in arriving at the correct decision. Two out of the 3 factors were ignored. It was really for the Executive Council to consider all the 3 factors while taking its decision in the matter. It could be that on a consideration of all the 3 factors the decision of the Executive Council is again in favour of the respondent No. 4 or it could be that the said decision of the Executive Council is inclined towards the petitioner. It could be that on a consideration of all the 3 factors the decision of the Executive Council is again in favour of the respondent No. 4 or it could be that the said decision of the Executive Council is inclined towards the petitioner. A correct assessment on the basis of the above factors and the consequential decision thereafter has necessarily to be arrived at in a fresh meeting of the Executive Council. Accordingly, I am of the view that while interfering with the appointment of the respondent No. 4, it would only be appropriate to direct the University to take a fresh decision in the matter in the light of the observations and directions contained hereinabove. Accordingly, the Executive Council will re-decide the matter in the next meeting to be held after the receipt of a certified copy of this order. 9. Writ petition is partially allowed to the extent indicated above.