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2008 DIGILAW 203 (ORI)

SRI BISWAJIT PRADHAN v. SAMBALPUR UNIVERSITY

2008-03-11

L.K.MISHRA, P.K.TRIPATHY

body2008
JUDGMENT : 1. Chancellor, Sambalpur University is opposite party No. 3. He has entered appearance but has not filed counter to answer to the averments made in the writ petition. 2. Learned Counsel for the Petitioner and other opposite party members are present. Heard them and on consent of the parties the writ petition is disposed of at the stage of admission. 3. Pursuant to the advertisement Annexure-I, dated 20.12.2003 issued by the Sambalpur University Petitioner and Dr. S.K. Patel and others applied for the post of Lecturer in History reserved for S.E.B.C. candidates. Petitioner faced the interview before the Selection Committee. The Selection Committee awarded 51.25 marks to the Petitioner whereas 50.00 marks to Dr. S.K. Patel and their position in the merit list respectively remained as first and second. Accepting recommendations of the Selection Committee the Syndicate in its meeting held on 27.05.2004 issued a direction for appointment of the Petitioner as Lecturer in History, as per the minutes Annexure-3. On the basis of that minute, on 01.06.2004 letter of appointment Annexure-4 was issued by opposite party No. 2. Pursuant to that appointment letter Petitioner joined the post. While the matter stood thus, or 18.05.2005 notice to show cause was issued from the office of the Chancellor, vide Annexure-5, questioning the appointment of the Petitioner. In substance, the allegation therein was that Petitioner could not have been awarded 10 marks as against the prescribed maximum of 5 marks for publication in national journals. Therein it was also stated that the other candidate, i.e., Dr. S.K. Patel also could not have been awarded 6 marks when the maximum marks allotted is 5. In the said show-cause notice the view of the Vice Chancellor communicated in a letter dated 19.03.2005 was also quoted. According to that, on removing the excess marks and awarding full marks in Publication in National Journals to each of the aforesaid two candidates, Petitioner should have been second in the rank and Mr. Patel should have been first. Thereafter, on 31.10.2007 order of the Chancellor was communicated annulling the resolution of the Syndicate dated 25.07.2004 and the consequential appointment order of the Sambalpur University in favour of the Petitioner with a further direction to conduct the interview afresh as per law. Patel should have been first. Thereafter, on 31.10.2007 order of the Chancellor was communicated annulling the resolution of the Syndicate dated 25.07.2004 and the consequential appointment order of the Sambalpur University in favour of the Petitioner with a further direction to conduct the interview afresh as per law. On receipt of that order, which the Chancellor passed in exercise of the power under Sub-section (10) of Section 5 of the Orissa University Act, 1989 (in short the Act), opposite party No. 2 on 01.11.2007 passed order Annexure-7 terminating the service of the Petitioner. 4. Petitioner has challenged the aforesaid order of termination, Annexure-7, inter alia on the ground that awarding of 10 marks in favour of the Petitioner is not illegal and the Chancellor and Vice Chancellor cannot sit over the judgment of the Expert Committee for evaluation of the publication, and under such circumstance the whole exercise undertaken in Annexures 5, 6 and 7 are illegal and liable to be quashed. Opposite party Nos. 1 and 2 have filed a joint counter affidavit. Factual aspect is not in dispute relating to the advertisement, interview by the Selection Committee, resolution of the Syndicate and the reaction from the office of the Chancellor besides the action of termination pursuant to the order of the Chancellor. However, they challenge to the averments in the writ petition on the question of authority and jurisdiction of the opposite party members and justify the order of the Chancellor, Annexure-6 and the consequential order of the University, Annexure- 7. 5. Challenging to the order of termination as well as the direction for fresh recruitment, Mr. Aswini Kumar Mishra, learned Senior Advocate for the Petitioner argues that Schedule-A in relation to Statute 258, as amended on 02.04.2003, prescribes for 15 marks on Research Publication in National/International Journals and, therefore, it could not have been confined to a maximum of 5 marks. He adds that the Selection Committee might have considered publication of international standard for awarding such mark and, under such circumstance the marks awarded by the Selection Committee should not have been found to be incorrect or illegal. Mr. Biswa Mohan Pattnaik, learned Senior Advocate arguing on behalf of the Vice Chancellor and the Registrar (O.Ps. He adds that the Selection Committee might have considered publication of international standard for awarding such mark and, under such circumstance the marks awarded by the Selection Committee should not have been found to be incorrect or illegal. Mr. Biswa Mohan Pattnaik, learned Senior Advocate arguing on behalf of the Vice Chancellor and the Registrar (O.Ps. 1 and 2), counters the aforesaid argument and states that the relevant provision in Schedule-A makes it explicitly clear that for publication in national journals a maximum of 5 marks is provided and, therefore, as a necessary corollary the remaining 10 marks is for publication in international journals. That provision does not speak about awarding more than prescribed marks for publication in national journals or the grounds that the article or thesis published is of international standard. According to him, before the Selection Committee the research publications of the Petitioner and Mr. Patel were relating to publication in national journals and therefore the Selection Committee could not have exceeded the maximum mark of 5 provided for that purpose. We find sufficient force in the argument of Mr. Pattnaik, in as much as the relevant provision in Schedule-A reads as hereunder: (5) Research Publications (15 Marks) (10 Marks For Publication In International Journals and 5 marks for publication in the National Journals) Therefore, we reject the contention of the Petitioner that for publication in national journals any of the candidates could have been awarded more than the prescribed maximum marks. In a case of this nature, undoubtedly the Chancellor has the jurisdiction, power and authority to annul any proceeding of the Senate, Syndicate, Academic Counsel or any other authority, if such proceeding is not in conformity with the provision in the Act, the Statute and the Regulations. To that extent, i.e., till annulling the minutes of the Syndicate the consequential cancellation of the appointment order Annexure-7 issued by the University comes within the purview of Sub-section (10) of Section 5 of the Act. 6. Being cognizant of the provision of law in the Act and the jurisdiction of the Chancellor, Mr. Mishra, learned Counsel for the Petitioner advances an alternative argument and contends that if the resolution of the Syndicate and the appointment of the Petitioner is annulled, then also there is no authority with the Chancellor to direct for a fresh recruitment. Mr. Being cognizant of the provision of law in the Act and the jurisdiction of the Chancellor, Mr. Mishra, learned Counsel for the Petitioner advances an alternative argument and contends that if the resolution of the Syndicate and the appointment of the Petitioner is annulled, then also there is no authority with the Chancellor to direct for a fresh recruitment. Mr. Pattnaik, learned Counsel for opposite parties 1 and 2 however argues that such a direction is ancillary and incidental to the order of annulment. That argument of the opposite parties is without any merit because Section 5(10) of the Act does not provide authority with the Chancellor beyond annulment of the proceeding. It has to be left to the wisdom of the University to repair the damage, set-right the whole thing by removing the incorrect or illegal action and to find out what best can be done under the given facts and circumstances. Therefore, in the present case the direction of the Chancellor for fresh recruitment, as contended in Annexure-6, is not approved and not to be accepted being non-est in the eye of law. It is for the University to take a decision to adopt a course either by conducting a fresh recruitment or to take up the matter from the point where the action found to be illegal. 7. In this case there was advertisement, applications filed by the candidates and the process of selection was taken up. For the mistake in awarding marks on publication in journals, persons, who could have come out successful in the first and second position, should not be penalized. Therefore, equity demands that the matter should be relegated to that stage and the matter be afresh considered on awarding proper marks for publication in national journals. For that, none of the candidates may be provided with opportunity to supplement further publication in journals. In other words, the publications which were scrutinized by the Selection Committee, be made available for fresh scrutiny for awarding fresh marks within the limit, as provided in Schedule-A of the University's First Statute, 1991, as amended in 2003. Mr. Pattnaik appearing for the University and Mr. Mishra appearing for the Petitioner have no objection to such a solution and they undertake to go by the ultimate result which comes on following that exercise. 8. Mr. Pattnaik appearing for the University and Mr. Mishra appearing for the Petitioner have no objection to such a solution and they undertake to go by the ultimate result which comes on following that exercise. 8. Regard being had to the aforesaid facts involved, submission made, the provision of law and the law of equity, we dispose of this writ petition with the following directions: (1) On annulment of the Syndicate's Resolution, the order of appointment issued under Annexure-4 is no more available for continuance of the Petitioner as a validly appointed Lecturer; (2) Petitioner is continuing as Lecturer in History by virtue of the interim order passed on 12.11.2007, staying operation of the order of termination. (3) The interview, which was conducted, is relegated to the stage of evaluation of the Publication in Journals. In that respect the opposite parties 1 and 2 may reconstitute the Selection Committee by the same persons, if available, or else to constitute a Selection Committee manned by any other experts, but the Selection Committee must be constituted in accordance with the provision in the statute. The Selection Committee so constituted would evaluate the Publications in Journals and award marks to the Petitioner and Mr. Patel. The marks awarded on other counts shall remain unchanged. On addition of marks, the result be declared determining the merit position of the Petitioner and Mr. Patel according to the total marks secured. Thereafter the person who comes out in the first rank in the Selection List be offered the job, and in the event of non-availability or unwillingness, as the case may be, of the first candidate, the second candidate may be offered the job subject to his availability and willingness. This whole exercise be undertaken and completed within a period of four months from the date of receipt of a copy of this order; (4) As prayed for by the Petitioner, we direct him to continue in service till the above exercise is over and fresh appointment order is made in favour of the successful candidate, if he files an undertaking before opposite party No. 1 that for such continuance he shall not claim equity or any other service benefit. Such undertaking together with a certified copy of this order be produced before opposite party No. 1 within a period of four weeks for information and necessary action. 9. Such undertaking together with a certified copy of this order be produced before opposite party No. 1 within a period of four weeks for information and necessary action. 9. The writ petition is disposed of accordingly by maintaining the order of cancellation of the appointment but rejecting the direction for fresh recruitment. No cost. Final Result : Dismissed