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2011 DIGILAW 1067 (CAL)

Subhasis Dutta v. Visva Bharati University

2011-08-10

DEBASISH KAR GUPTA

body2011
JUDGMENT 1. THIS writ application is directed against the appointment of the respondent No.4 to the post of Audio Visual Operator in Social Work under the Visva-Bharati University. 2. THE backdrop of the case in a nutshell is as under: By advertisement No.7/2004 the respondent University invited applications from eligible candidates for appointment in the post of Audio Visual Operator, Social Work under the respondent No-1. THE essential qualifications for the above post were graduate with Certificate/Diploma/ Degree in Computer Science. THE petitioner and the respondent No.4 participated in the selection process, amongst other eligible candidates in the above selection process. Interview took place on May 22, 2005 the respondent No.4 was appointed in the post under reference on May 22, 2005. On or about June 4, 2005 the petitioner came to know that under the Recruitment-cum-Promotion rules for General and Non-general/Technical employees of Visva-Bharati University (non-teaching), the essential qualifications were graduate preferably in science followed by a Diploma/ Certificate/Training in Audio Visual Aids from a recognised University. Immediately he submitted a representation dated June 22, 2005 to the respondent No.2 raising objection with regard to selection of the respondent No.4 in the above post on the ground of non-fulfilment of essential qualification. Since the respondent university paid no heed to his representation, this writ application was filed. According to the learned Counsel appearing for the petitioner, the respondent University prescribed the essential qualification for the post of Audio Visual Operator, Social Work under the respondent University (hereinafter referred to as the said post) de hors the essential qualification for the said post as prescribed in the Recruitment-cum-Promotion Rules for General and Non-general/Technical employees of Visva-Bharati University (non-teaching) (hereinafter referred to as the said recruitment Rules). According to him no external expert was included in the selection committee for taking interview of the eligible candidates for the said post. According to him it was done in violation of the provisions of 20(G) of the statute of the respondent university. It is also submitted by the learned Counsel appearing for the petitioner that the respondent No.4 was appointed in a hot haste without publishing a panel for the selected candidates. 3. THE learned Counsel appearing for the petitioners relies upon the decisions of Rajkumar v. Shakti Raj, reported in AIR 1997 SC 2110 , Dr. Md. It is also submitted by the learned Counsel appearing for the petitioner that the respondent No.4 was appointed in a hot haste without publishing a panel for the selected candidates. 3. THE learned Counsel appearing for the petitioners relies upon the decisions of Rajkumar v. Shakti Raj, reported in AIR 1997 SC 2110 , Dr. Md. Ketab Ali, reported in 2001(2) CHN, 419 and Visveswaraya Technological University v. Krishnendu Holder, reported in AIR 2011 SC 1429 . 4. IT is submitted by the learned senior counsel appearing for the respondent Nos. 1 to 3 that the said post remained vacant for a long time of the respondent No.2 prescribed essential qualification in deviation from the recruitment rules. According to him, though the said recruitment rules prescribed Diploma/Certificate/Training in Audio Visual Aids from a recognized institution as one of the essential qualifications, the respondent No.2 changed the above essential qualification to Certificate/Diploma/Degree in Computer Science in exercise of powers conferred upon him by subsection(3) of section 14 of the Visva-Bharati Act, 1951. According to him a Court sitting in writ jurisdiction cannot examine the nexus or necessity of having Certificate/Diploma/Degree in Computer Science with the said post. IT is further submitted by him that the said post was not covered under the provisions of statute 20(G) of the statutes of the respondent University and there was no bar and or impediment for statute a selection committed without external expert. He relies upon the decisions of University of Mysore v. Govinda Rao, reported in AIR 1965 SC 491 , J.P. Kulshrestha v. Allahabad University, reported in AIR 1980 SC 2141 , Medical Council of India v. Sarong, reported in (2001) 8 SCC 427 , Thapar Institute of Engineering and Technology v. Gagandeep Sharma and Anr., reported in (2001) 9 SCC 157 and University of Jammu v. T. S. Khan, reported in AIR 2011 SC 1788 . 5. THE learned Counsel' appearing on behalf of the respondent No.4 adopted the arguments advanced on behalf of the respondent university. It is further submitted that the respondent No.4 fulfilled the eligibility criteria prescribed in advertisement No. 7/2004. Therefore, there was no fault or latches on his part. 6. I have heard the learned counsels appearing on behalf of the respective parties at length and I have given my thoughtful considerations to the facts and circumstances of this case. It is further submitted that the respondent No.4 fulfilled the eligibility criteria prescribed in advertisement No. 7/2004. Therefore, there was no fault or latches on his part. 6. I have heard the learned counsels appearing on behalf of the respective parties at length and I have given my thoughtful considerations to the facts and circumstances of this case. Admittedly, the respondent university prescribed Certificate/Diploma/Degree in Computer Science as one of the essential qualifications for the said post in the advertisement No.7/2004. It is also not in dispute that the said recruitment rules prescribed Diploma/ Certificate/Training in Audio Visual Aids from a recognized university as one of the essential criteries in the said post. Therefore, the respondent university conducted the selection process for the said post in deviation from the recruitment rules. It is the settled principles of law that a candidate should not be allowed to participate in a selection process ignoring the essential qualifications prescribed in the recruitment rules. Reference may be made to the decision of S. Renuka v. State of A.P., reported in AIR 2002 SC 1523 and the relevant portions of the above decision are quoted below: "8. It is settled law that no right accrues to a person merely because a person is selected and his or her name is put on panel The petitioners have no right to claim an appointment Even otherwise, the selection was contrary to the rules in force at that time. There could not be 100% reservation for women. Also the reservation policy had not been adhered to. The posts which are created are posts of District and Sessions Judges, Grade II. There is no separate posts for Judges of Family Courts and Mahila Courts. Thus the petitioners could not be appointed as Judges of Family Courts and Mahila Courts in ex-cadre post even provisionally. This would amount to creation of Ex-cadre posts not sanctioned by the Government. No fault can be found with the High Court being in favour of not appointing the petitioners." (Emphasis supplied) I do not find substance in the submissions made on behalf of the respondent university that the respondent No.2 relaxed the essential qualification for the said post in exercise of power conferred under sub-section(3) and section 14 of Visva-Bharati Act, 1951. For proper adjudication of this case the above provisions are quoted below: "14. The Upacharya (Vice-Chancellor): 1..... 2..... 3. For proper adjudication of this case the above provisions are quoted below: "14. The Upacharya (Vice-Chancellor): 1..... 2..... 3. The Upacharya (Vice-Chancellor) may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority the action taken by him on such matter: Provided that if the authority concerned is of opinion that such action ought not to have been taken, it may refer the matter to the Paridarsaka (Visitor) whose decision thereon shall be final: Provided further that an employee of the University, who is aggrieved by the action taken by the Upacharya (Vice-Chancellor) under this subsection, shall have the right to appeal against such action to the Karma- Samiti (Executive Council) within ninety days from the date on which such action is communicated to him and thereupon the Karma-Samiti (Executive Council) may confirm, modify or reverse the action taken by the Upacharya (vice-chancellor)." 7. UPON the consideration of the above provisions I do not find any power in favour of the respondent No.2 in exercise of which the recruitment rules could be relaxed. That apart a statutory rule should prevail in the event of contradiction in between a statutory rule and administrative instruction. Reference may be made to the decision of C. L. Verma v. State of M. P., reported in 1989 Supp 2437 the relevant portion are quoted below: "6. The question which arose for consideration in the writ petition before the High Court at the instance of the appellant was whether in the fact of the mandate in Rule 29 the administrative order could operate. It is not the stand of the State Government that the order dated 15th of May, 1981, is one under the proviso to Rule 29. In fact, the tenor of the proviso clearly indicates that it is intended to cover specific cases and individual employee. An administrative instruction cannot compete with a statutory rule and if there be contrary provisions in the rule the administrative instructions must give way and the rule shall prevail. We are, therefore, of the view that the appellant, in terms of Rule 29, ceased to be a Government employee on his attaining the age of 58 years, two days prior to the order of dismissal. We are, therefore, of the view that the appellant, in terms of Rule 29, ceased to be a Government employee on his attaining the age of 58 years, two days prior to the order of dismissal. In view of the fact that he had already superannuated, Government had no right to deal with him in its disciplinary jurisdiction available in regard to employees. The ratio of the decision in R. T. Rangachari v. Secretary of State for Indian Privy counsel, 64 Ind. App.40: (AIR 1937 PC 27) supports the position." (Emphasis supplied) 8. I do not find the decisions of University of Mysore (supra) helps the respondent university in any way. In the above decision it was held that ordinarily a Court must be slow to interfere with the selection process. But in case of manifest error, violation of statutory rules or ordinance the Court could interfere in the matter of selection of a candidate. For the same reasons the decisions of J. P. Kulshrestha (supra), Medical Council of India (supra), Thapar Institute of Engineering and Technology (supra) have no manner of application in this case. In view of the discussions and observations made hereinabove I find that the respondent No.4 has not been holding the office of the Audio Visual Operator under the respondent university under valid authority. Since his appointment is contrary to the provisions of recruitment rules in vogue and it is necessary to prevent continuance of usurpation of the above office or perpetuation of an illegality by issuing a writ of quo warranto against the respondent No.4. Since no prayer is made in the prayer portion in this writ application to issue a writ of quo warranto against the respondent No.4, the prayers made by the petitioner in this writ application is molded and a writ of quo warranto is issued against the respondent No.4 for ousting him from the post of Audio Visual Operator, Social Work of the respondent University. 9. THIS writ application is, thus, dispose of. 10. THERE will be, however, no order as costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Later: Date- 10-08-2011 A prayer is made on behalf of the respondent university for staying the operation of this order and that prayer is refused. Writ application disposed of.