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2009 DIGILAW 614 (GAU)

Madhushree Das v. Gauhati University

2009-08-27

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The petitioner, an aspirant for the post of Lecturer in Geography with the Gauhati University (the University) seeks judicial intervention to annul the resolution dated 10.6.2006 of its Executive Council not to act upon the selection initiated by the advertisement dated 31.3.2004 amongst others for recruitment to the aforementioned post. As a corollary, she seeks an appropriate writ and or direction to the respondents to consider the recommendation of the selection committee for that post and to appoint her thereto. 2. I have heard Mr. S.R. Bhattacharjee, senior advocate assisted by Mr. S. Bhattacharjee, advocate for the petitioner and Mr. L.P. Sharma, learned Standing Counsel for the University assisted by Mr. S. Chakraborty, Advocate. 3. The pleaded facts would outline the rival versions. The petitioner who is presently serving as a Lecturer in Geography with the Cotton College, Guwahati, has claimed to have a brilliant academic career and with several years of successful teaching experience. After her Post Graduation in the year, 1997, she also passed the State Level Eligibility Test (Lecturer Degree) in the year 2002 from the State Level Eligibility Test Commission, Assam, (the Commission). She has detailed her achievements in the literary field and has mentioned inter alia the particulars of her participation in important seminars, workshop and conferences. The petitioner at the time of institution of the instant proceeding had been pursuing her research work for the Ph.D. Degree, which has since been conferred, on her. She has also mentioned about the awards bestowed for her academic brilliance. 4. She responded to the advertisement dated 31.3.2004 referred to hereinabove offering her candidature for the post of Lecturer in Geography. Though the University fixed 24.4.2006 as the date of the interview, as nothing was forthcoming in that regard, she submitted a representation before the Vice-Chancellor and the Registrar of the University ventilating her anxiety in connection therewith only to be informed that the interview had been postponed. Though the date of the interview was rescheduled to be held on 17.5.2006 she was not called to participate. She submitted another representation before the Chancellor of the University (Hon'ble Governor of Assam) on 15.5.2006. She also made the same request before the Vice-Chancellor of the University with a request to allow her to appear in the forthcoming interview. Though the date of the interview was rescheduled to be held on 17.5.2006 she was not called to participate. She submitted another representation before the Chancellor of the University (Hon'ble Governor of Assam) on 15.5.2006. She also made the same request before the Vice-Chancellor of the University with a request to allow her to appear in the forthcoming interview. It was thereafter that she received a call letter, which, according to the petitioner, was due to the intervention of the Chancellor of the University. She accordingly appeared in the interview and presented herself before the Selection Committee, which consisted of seven members. 5. As the petitioner performed well in the interview and was waiting in bona fide expectation to be recommended for appointment, she came across a news item published in the issue dated 22.5.2006 of the local daily "Dainik Agradoot" disclosing that she in fact had been recommended for appointment by the Selection Committee. The news item, however, carried the imputation that the said recommendation had been at behest of the Governor of Assam and the influence cast by him as the Chancellor of the Institution on the selection process. The impugned resolution of the Executive Council on 10.6.2006 was thereafter adopted. 6. The petitioner has also referred to another news item reported in the issue dated 10.6.2006 of the local daily "Amar Asom" to the said effect highlighting the intervention of the Chancellor in the process as well as the resolution of the Executive Council to re-advertise the post of Lecturer in Geography. Her subsequent representations before the Chancellor and Vice-Chancellor having failed to evoke any response, she is before this Court. 7. The University in its counter has pleaded that on a scrutiny of the applications submitted for the aforementioned post, it was determined that the petitioner was not possessed of N.E.T. Degree, which was an essential condition of eligibility in terms of the advertisement. She was also not equipped with a Ph.D. Degree and as such she was not initially called for the interview. In clear terms, the University has asserted that she was later permuted to participate in the process at the intervention of the Chancellor. She was also not equipped with a Ph.D. Degree and as such she was not initially called for the interview. In clear terms, the University has asserted that she was later permuted to participate in the process at the intervention of the Chancellor. According to it, the Executive Council resolved to re-advertise the post as it ascertained that a candidate who had not been selected by the Expert Committee for the interview to be held on 24.4.2006 was subsequent thereto allowed to partake in the exercise on the direction of the Chancellor. 8. The University has contended that the said decision followed a threadbare discussion of the Executive Council. While disclosing that as many as 16 candidates had applied for the aforementioned post, the answering respondent has maintained that the details of 15 out of them were forwarded to two experts namely Dr. Nandeswar Sarma, L.N. Mithila University, Darbhanga (Bihar) and Dr. R.K. Rai of Dr. H.S. Gour University, Sagar (M.P.) and eventually on the basis of the opinions expressed by them, it decided to prepare a list of candidates who were common in the panels drawn up by the experts. As the name of the petitioner was not recommended by both the experts, she was, thus not called for the interview initially but on the intervention of the Chancellor of the University, she was later on permitted to take part in it which was conducted on 17.5.2006. 9. In her affidavit in reply, the petitioner in essence has underscored the fact that SLET is a permissible substitute of NET as it is a degree/test duly accredited by the University Grants Commission (the U.G.C.). She reaffirmed that her initial exclusion for the interview was, thus, apparently erroneous and that, therefore, her participation by no means can be faulted with. According to her, on the basis of the recommendation of the Selection Committee, she is entitled to be appointed to the post involved. 10. Mr. Bhattacharjee has emphatically urged that as judged by the conditions of eligibility set out in the advertisement, the petitioner is eligible to be assessed for the post of Lecturer in Geography, the purported opinion of the experts on the basis of which she was sought to be excluded from the process is patently perverse and, therefore, she was rightly allowed to take the interview. According to the learned senior Counsel, the petitioner being eligible and eventually found to be the most suitable candidate, the Executive Council of the University ought not to have abandoned the process. Mr. Bhattacharjee has urged that in the facts and circumstances of the case, the University having initiated a process inviting the eligible members of the public to participate therein, the impugned resolution of the Executive Council, if sustained, would reduce the exercise to a farce. Reliefs prayed for in the petition have, thus, been insisted upon in the above background. 11. Mr. Sharma in reply has argued that the candidature of the 15 out of the 16 candidates including the petitioner though had been found to be valid in terms of the advertisement, as per the prevailing practice of the University their credentials were forwarded to the two experts for their learned opinion about their suitability for being called for the interview for final selection for appointment. As the two experts differed in their ultimate conclusions on the basis of the exercise undertaken by them, the University decided to call only those candidates who were commonly recommended by them. In the process the name of the petitioner got excluded as her name did not figure in the panels of both the experts. The learned Standing Counsel has urged that the above notwithstanding, on the intervention of the Chancellor of the University on her representation, she was subsequently allowed to participate in the interview. According to him, the Executive Council, on a scrutiny of the pros and cons of the matter, keeping in view, the practice of the University, having decided to forsake the process and re-advertise the post, the same is unassailable in law. Mr. Sharma has further urged that as in law, a selectee has no inviolable right to seek appointment on the basis thereof, the prayer for an appropriate writ to the University to appoint her on the basis of the recommendation of the Selection Committee is apparently misconceived. In support of his submissions, Mr. Sharma has produced the original records containing inter alia the recommendation of the Selection Committee on the basis of the interview of the candidates. 12. The competing pleadings and the arguments on advanced thereon have received the conscious consideration of this Court. In support of his submissions, Mr. Sharma has produced the original records containing inter alia the recommendation of the Selection Committee on the basis of the interview of the candidates. 12. The competing pleadings and the arguments on advanced thereon have received the conscious consideration of this Court. The facts bearing on the advertisement dated 31.3.2004, the norms of eligibility contained' therein and the candidature offered in response thereto are not in dispute. The relevant excerpt of the advertisement, which deals with the criteria of the eligibility forming the subject-matter of the debate for immediate reference, is being quoted herein. The qualifications and other details can be had along with the application forms. NET shall remain compulsory requirement for the post of Lecturer, with exemption as per UGC guidelines. 13. Clause 1.3.3. of the Ordinance on Recruitment, Service condition, Workload and Leave Rules for Professors, Principals, Readers, Lecturers and other Officers of the Gauhati University, prescribes the norms of eligibility for the post of Lecturer. An extract thereof would be handy. 1.3.3. Lecturer 1. Good academic record with at feast 55% of the marks or, an equivalent grade B in the 7 point scale with letter grades O, A, B, C, D, E & F at the Master's degree level, in the relevant subject from an Indian University, or an equivalent degree from a foreign University. 2. Besides fulfilling the above qualifications, candidates should have cleared the National Eligibility Test (NET) for Lecturers conducted by the UGC, CSIR or similar test accredited by the UGC. 14. Clause 1.3.3 of the UGC Regulations on Minimum Qualifications for Appointment and Career Advancement of Lecturers, Readers and Professors in the University and Colleges lay down amongst others the precepts of eligibility for the post of Lecturer, a relevant portion whereof having a vital bearing on the issues seeking adjudication is quoted herein below: Besides fulfilling the above qualifications, candidates should have cleared the eligibility test (NET) for Lecturers conducted by the UGC, CSIR or similar test accredited by the UGC. Note: NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidate who have completed M. Phil. Degree or have submitted, Ph.D. thesis in the concerned subject up to 31st December, 1993, are exempted from appearing in the NET examination. 15. Note: NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidate who have completed M. Phil. Degree or have submitted, Ph.D. thesis in the concerned subject up to 31st December, 1993, are exempted from appearing in the NET examination. 15. The learned senior Counsel for the petitioner has, in course of the arguments, produced a copy of the communication No. F.4-2/90(NET) dated 22.2.2002 of the Deputy Secretary of the U.G.C. addressed to the Registrar of Gauhati University, Guwahati, to the effect that a SLET qualified candidate would be eligible to apply for the post of Lecturer only in the University/Colleges belonging to the same state whose SLET Examination he/she has cleared. 16. On a combined reading of the quoted contents as above, it would, thus, be dear that though NET has been prescribed to be a compulsory requirement for the post of Lecturer, a candidate who has cleared a similar test accredited by the UGC would also be eligible. The University has not disputed that at the relevant time, the petitioner was possessed of the SLET degree awarded to her by the Commission. In terms of the letter dated 22.2.2002 as above, on the basis of the said degree, the petitioner even if not possessed of NET was, thus, eligible to apply for the post of Lecturer in Geography as per the requirements of the advertisement. The learned Standing Counsel while abiding by the pleaded stand of the pre-selection scheme of the candidates vying for the post of Lecturer/Header in vogue at the relevant point of time has produced a copy of the resolution dated 16,10.2007 of the Executive Council doing away with the said exercise with prospective effect. The text of the aforementioned resolution clearly demonstrates that in terms of the past practice which was in force at the time when the process involved was initiated and pursued, the applications received in response to an advertisement for the aforementioned teaching posts after screening were to be sent to subject experts for assessing their eligibility and based on the recommendation of at least two such experts, the concerned candidates were called for the interview. The selection committee constituted under Section 15A(i)(a) of the Gauhati University Act, 1947, was to conduct the interviews of the said candidates taking into account the recommendations of the experts, their academic career and performance in the viva-voce and finally select candidates for the approval of the Executive Council. 17. There is, therefore, no denial of the fact that at all relevant time after scrutinizing the testimonials of the candidates found eligible in terms of the eligibility prescribed, those were forwarded to the subject experts for their initial evaluation to shortlist them to be eventually called for the interview. In the instant case, according to the University, out of 16 candidates who had applied, credentials of 15 found eligible were forwarded to the experts namely Dr. Nandeswar Sarma, L.N. Mithila University, Darbhanga (Bihar) and Dr. R.K. Rai of Dr. H.S. Gour University, Sagar (M.P.). This unmistakably demonstrates that the petitioner had been adjudged to be eligible by the University as per the advertisement. 18. The official records disclose that Dr. Nandeswar Sarma on 21.3.2005 recommended the names of 12 candidates including that of the petitioner for appointment to the post of Lecturer in Geography. The said subject expert, however, held that three candidates namely Ms. Moumita Goswami, Ms. Anamika Baruah and Ms. Parijat Borgohain as ineligible as they were not possessed of NET/M Phil/Ph.D. 19. Dr. R.K. Rai recommended eight candidates to be called for the interview. The list of candidates recommended by him did not include the name of the petitioner. According to the said expert, the seven candidates who were rejected did not fulfill the essential qualifications as required for the post of Lecturer involved. The names of the candidates so rejected are Ms. Mala Dutta, Ms. Moumita Goswami, Ms. Parijat Borgohain, Mr. Jogesh Pegu, Ms. Anamika Baruah, Mr. Anil Boro and Ms. Madhushree Das (writ petitioner). On receipt of these two assessment reports, the University short-listed the candidates common in the panels recommended by the experts. The said seven candidates were Dr. Rana Sarma, Dr. Apurba Kumar Das, Ms. Laxmi Roy, Ms. Mousami Gogoi, Dr. Sujeet Deka, Dr. Ms. Rekha Choudhury and Ms. Swapna Biswas Das. 20. It was at this stage that as the materials on record proclaim that on the intervention of the Chancellor of the University, the petitioner was also permitted to take part in the interview, which was eventually held on 17.5.2006. 21. Laxmi Roy, Ms. Mousami Gogoi, Dr. Sujeet Deka, Dr. Ms. Rekha Choudhury and Ms. Swapna Biswas Das. 20. It was at this stage that as the materials on record proclaim that on the intervention of the Chancellor of the University, the petitioner was also permitted to take part in the interview, which was eventually held on 17.5.2006. 21. On a comparison of the list of candidates drawn up by the experts with that of the University called up for, its stand is clearly borne out by the records. In other words, the University confined itself to the candidates whose names were common in the panels of both the experts. In the process, the names of the petitioner and Mr. Anil Boro both possessed of a degree of SLET along with six others were excluded. 22. Having regard to the purpose for which, the testimonials of the eligible candidates had been forwarded to the experts i.e. for a preliminary evaluation of their suitability for the purpose of short listing them to be called for the interview to be conducted by the selection committee under Section 15A of the Gauhati University Act, 1947 (the Act) the approach of the subject expert Dr. Nandeswar Sarma on the face of the records is misdirected. The letter dated 21.3.2005 written by this expert reveals an exercise undertaken by him to assess the candidates on the basis of their academic accomplishments including NET, SLET, participation in seminars, workshops, teaching experience, etc. In other words, this subject expert undertook a drill to evaluate the candidates for the purpose of recommending them for appointment to the post of Lecturer, which in terms of the practice followed by the University, was clearly beyond the purview of his role. The other subject expert Dr. R.K. Rai, however, recommended the candidates on a scrutiny of their essential qualifications for the interview, which is in alignment of the purpose for which the required credentials of the candidates had been forwarded to him. These two diametrically opposite approaches of the two experts, however, did not attract the attention of the University and to say the least it casually drew up a list of eight candidates whose names were found to be common, however, determined by the varying standards of the experts. These two diametrically opposite approaches of the two experts, however, did not attract the attention of the University and to say the least it casually drew up a list of eight candidates whose names were found to be common, however, determined by the varying standards of the experts. This per se, in the opinion of this Court, has vitiated the process inasmuch as thereby the possibility of exclusion of candidates otherwise suitable to be interviewed by the Selection Committee cannot be ruled out. Had the criteria applied for the process undertaken by both the experts been the same, this anomaly could have been obviated. The norms applied being different on the face of the records, the University ought not to have shortlisted the candidates on the basis of the names common in the list forwarded by the experts. True it is that the petitioner being alert and vigilant, had taken timely steps for which on the intervention of the Chancellor of the University she could secure an opportunity of participation in the interview. Her inclusion in the process per se however, in the teeth of the above anomaly, does not validate the process that followed. In that view of the matter, the present being a public participatory exercise for the purpose of appointment to an office under a statutory body which has to be essentially informed with the tenets of fairness, reasonableness, and transparency, this Court in the attendant facts and circumstances is unable to uphold the same on this count alone. 23. The impugned resolution of the Executive Council though not very expressive in its tone and tenor is sufficiently indicative of the fact that the petitioner's participation in the interview on the intervention of the Chancellor had been construed to be in departure from the practice which it had been following in short listing candidates on the basis of the recommendations made by experts. As it is, in law a selectee does not have an unassailable right to be appointed on the basis of his/her selection. 24. In the instant case, the process undertaken by the University being vitiated by the above infirmities, this Court finds it difficult to sustain the same. As it is, in law a selectee does not have an unassailable right to be appointed on the basis of his/her selection. 24. In the instant case, the process undertaken by the University being vitiated by the above infirmities, this Court finds it difficult to sustain the same. It may be relevant to underline that having regard to the nature of the process and the post involved, this Court, in the exercise of its writ jurisdiction as the sentinel on the qui vive need not confine itself to the rival contentions of the parties to the litigation. As the instant proceeding though initiated by the petitioner, is not strictly in the nature of an adversarial lis, this Court cannot be unmindful of the fact that the process of the kind involved to generate a sense of confidence in the public ought to be free from any element of reservation qua its credibility and sanctity in all comprehensions. The impugned resolution of the Executive Council contains a decision, which is plausible and logical in the facts and circumstances of the case and, thus, cannot be dubbed as arbitrary, whimsical and discriminatory. In view of the above, it is not necessary to deliberate upon the minutes of the meeting of the Selection Committee relating to the interview held on 17.5.2006. In the exercise of power of judicial review, this Court does not consider it appropriate to interfere with the impugned decision. The petition, therefore, lacks in merit and is, therefore, dismissed. No costs. Petition dismissed.