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2014 DIGILAW 624 (GAU)

Malesee Goswami (DR. ) v. State of Assam and Ors.

2014-06-12

A.K.GOSWAMI

body2014
A.K. Goswami, J:.- Heard Mr. S.S. Dey, learned counsel for the petitioner. Also heard Mr. D.P. Chaliha, learned Senior Counsel appearing for respondent Nos. 3,4 and 5, Mr. K. Dutta, learned Standing Counsel, Education, appearing for respondent Nos. 1 and 2 and Mr. K.K. Mahanta, learned Senior Counsel appearing for respondent No. 6. 2. Under the Gauhati University, in the Department of Assamese, there is a post christened as Jawaharlal Nehru Professor, for short, J.N. Professor. The said Professor, according to the petitioner, is required to take classes in M.A. & M.Phil., in addition to guiding the research students for Ph.D. Degree. 3. The case of the petitioner, briefly, is that she was promoted under the Personal Promotion Scheme as Professor in the Department of Assamese in the year 2001. She has specialization in Sanskrit Literature and Textual Criticism. On 22.02.2012, Registrar of Gauhati University issued an advertisement which was published on 22.02.2012 in the Assam Tribune for filling up of the said post of J.N. Professor. The specialization mentioned in the advertisement for the said post was “Open”. Claiming that she is qualified, she responded to the said advertisement. The respondent No. 6, whose area of specialization is Assamese Language and Linguistics, also responded to the said advertisement. There was no other candidate and they had appeared for the interview before the selection committee on 14.02.2013. 4. The pleaded version in the writ petition is that there was no nomination of a Professor of the Department in the selection committee in violation of Section 15 A (1) (b) of the Gauhati University Act, 1947, for short, the Act, and there was no expert in Literature, i.e., the petitioner’s area of specialization and both the experts invited for the interview were having specialization in Language and, that too, in Oriya and Bengali languages. One of the experts was also the thesis examiner of the respondent No. 6, and therefore, there is likelihood of bias. The Head of the Department of Assamese, who was a member of the selection committee, also has specialization in Language and there was none in the selection committee to assess/judge the suitability of the petitioner. 5. One of the experts was also the thesis examiner of the respondent No. 6, and therefore, there is likelihood of bias. The Head of the Department of Assamese, who was a member of the selection committee, also has specialization in Language and there was none in the selection committee to assess/judge the suitability of the petitioner. 5. With this broad conspectus of material facts and also giving a detailed account of her credentials, the petitioner approached this Court by filing this writ application under Article 226 of the Constitution of India challenging the constitution of the selection committee for the purpose of selection of candidate to the post of J.N. Professor and for a direction to consequently cancel the recommendations of the selection committee and to call for a fresh selection to the post of J.N. Professor. 6. In the affidavit-in-reply filed to the affidavit-in-opposition of the respondent No. 6, to which reference will be made at a subsequent paragraph, the petitioner, while reiterating that for assessing the suitability of the petitioner and the respondent No. 6, having regard to their areas of specialization, subject experts from the field of Literature and Language should have been included in the selection committee instead of experts in the field of Language and Linguistics, which is the area of specialization of the respondent No. 6, an additional ground of attack with regard to the composition of the selection committee in the matter of nomination of the experts had been pressed into service by asserting that the experts were not nominated by the Executive Council but by the Vice-Chancellor, contrary to provision of the Act. The petitioner also pleaded that at the relevant point of time when the interview was conducted, Dr. Lilabati Saikia Bora was serving as a Professor, though on re-employment after retirement, as a Professor of the Department of Assamese. 7. An affidavit-in-opposition was filed by the respondent No. 6 on 21.09.2013. It is pleaded that there was no cause of action for the writ petition as the selection committee was yet to finalise the panel of candidates. The writ petitioner having appeared before the selection committee, she is estopped from challenging the constitution of the selection committee. 7. An affidavit-in-opposition was filed by the respondent No. 6 on 21.09.2013. It is pleaded that there was no cause of action for the writ petition as the selection committee was yet to finalise the panel of candidates. The writ petitioner having appeared before the selection committee, she is estopped from challenging the constitution of the selection committee. The respondent No. 6 is senior to the petitioner as a college teacher and also as Lecturer, Reader and Professor in University level and that she is also holding the post of Head of the Department of Assamese at the time of filing the affidavit. Like the petitioner, the respondent No. 6 has also given her curriculum-vitae and has sought to highlight her achievements. 8. It is also stated that the panel of experts for the selection committee was prepared and submitted during the tenure of the petitioner as the Head of the Department and such panel also included the names of Professor Dr. Khageswar Mahapatra and Professor Dr. Krishna Bhattacharya, who were invited as experts to the selection committee. 9. It was stated that there was no other Professor, apart from the petitioner, the respondent No. 6 and the Head of the Department, to be nominated by the Vice-Chancellor as a member of the selection committee. Responding to the pleading of the writ petitioner that one of the experts was thesis examiner of the respondent No. 6, it is stated that she obtained her Ph. D in 1991, more than 23 years ago and in that view of the matter, same was absolutely inconsequential. It is also stated that the writ petitioner did her Ph.D under the supervision of Dr. M.M. Sarma and at the time of her promotion to the post of Professor, he attended the selection committee as subject expert. 10. The pleaded stand in the affidavit of the respondent Nos. 3, 4 and 5 filed on 20.05.2014 is that the interview was held by two experts in Language and Literature along with others in a duly constituted selection committee as per Section 15 A (1)(b) of the Act. There was no other Professor, apart from the petitioner, respondent No. 6 and the Head of the Department, who was already co-opted. 3, 4 and 5 filed on 20.05.2014 is that the interview was held by two experts in Language and Literature along with others in a duly constituted selection committee as per Section 15 A (1)(b) of the Act. There was no other Professor, apart from the petitioner, respondent No. 6 and the Head of the Department, who was already co-opted. The experts for the interview were invited from the list of experts forwarded by the Head of the Department of Assamese, which was approved by the Academic Council and Executive Council of the Gauhati University. There is no rule that thesis examiner of a candidate is debarred from being called as an expert. Earlier also when the interview was held for the post of J.N. Professor on 18.11.1997, experts from outside the University other than Assamese language were invited. One of the experts, namely, Dr. Khargeswar Mahapatra has specialization in both Language and Literature. The recommendation of the selection committee is still under sealed cover and yet to be considered by the Executive Council. 11. On 26.05.2014, the respondent Nos. 3, 4 and 5 filed an additional-affidavit. In the said affidavit, it is stated that there was a Professor in the Department of Assamese under re-employment scheme, who, in terms of Clause 8 (c) of the Gauhati University Teachers Re-Employment Rules, for short, Rules, was ineligible to be part of the selection committee. Due to increase in the number of departments, appointments, promotions of teachers, it was practically not possible to convene meeting of Executive Council frequently for nominating experts for the selection committee and the Vice-Chancellor, being the Chairman of the selection committee, had been entrusted by the Executive Council to nominate subject experts of the selection committee on behalf of the Executive Council and this practice is going on for a considerable period of time. Both the petitioner and the respondent No. 6 in the year 2007 had applied for the post of J.N. Professor along with some other applicants and the subject experts were nominated by the Vice-Chancellor. On 25.06.2013, vide resolution No. R/EC-04/2013/84, the Executive Council resolved to continue with the procedure of nominating the required number of experts, as far as possible, by the Vice-Chancellor on behalf of the Executive Council from the list of experts approved by the Executive Council. 12. Mr. On 25.06.2013, vide resolution No. R/EC-04/2013/84, the Executive Council resolved to continue with the procedure of nominating the required number of experts, as far as possible, by the Vice-Chancellor on behalf of the Executive Council from the list of experts approved by the Executive Council. 12. Mr. S.S. Dey, learned counsel for the petitioner submits that selection committee in terms of Section 15A(1)(b) for the post of Professor visualizes nomination of two experts by the Executive Council and admittedly, the experts were nominated by the Vice-Chancellor. Executive Council could not have delegated the power of nomination to the Vice-Chancellor and in any case, in the instant case the resolution of the Executive committee dated 25.06.2013 was subsequent to the interview held on 14.02.2013. It is also submitted by him that a wrong practice, which has no legitimacy, cannot be allowed to perpetuate. When the statute provides a particular act to be done in a particular manner, it has to be done in that manner and not at all, he submits. The petitioner became aware of the composition of the selection committee when she had faced the selection committee and not earlier and immediately thereafter, on 25.04.2013, the writ petition was filed and as such it is not a case where the petitioner had taken a chance and having been unsuccessful in the selection process, chose to assail the legality and validity of the selection process. Admittedly, there being one more Professor in the Department, may be on re-employment, it was incumbent on the part of the Vice-Chancellor to have nominated such Professor and the reliance placed by the respondents on Clause 8 (c) of the Rules is absolutely misplaced. He has also submitted that the authorities, in the affidavit, suppressed the fact that there was a Professor in the Department of Assamese other than the petitioner, the respondent No. 6 and the Head of the Department. However, only when the petitioner came up with the details of the Professor on re-employment, the respondent authorities shifted their stand in their additional-affidavit. Earlier also there are numerous examples of Professors under re-employment scheme having been part of various committees of the University and such statement has not been denied by the University. 13. However, only when the petitioner came up with the details of the Professor on re-employment, the respondent authorities shifted their stand in their additional-affidavit. Earlier also there are numerous examples of Professors under re-employment scheme having been part of various committees of the University and such statement has not been denied by the University. 13. Learned counsel submits that selection of an expert is not a mechanical exercise of power but due attention has to be paid to various aspects, more so, when the post is that of an exalted post of J.N. Professor. The petitioner and the respondent No. 6 being in diverse field, the respondents ought to have nominated experts from the area of specialization of the respective candidates. He, however, does not pursue the submission further as it is for the Executive Council to dwell upon such issues, which, admittedly, it had no occasion to consider. Similarly, without emphasising too much on the plea of bias, learned counsel also submits that it is entirely for the Executive Council to take note of various facets while nominating experts so that the entire process of selection can become absolutely fair. 14. In support of his submission, Mr. Dey has placed reliance in the cases of (i) Dr. Triloki Nath Singh vs. Dr. Bhagwan Din Misra and others, reported in (1990) 4 SCC 510 , (ii) Dhanajaya Reddy vs. State of Kamataka, reported in (2001) 4 SCC 9 , (iii) Meera Sahni vs. Lieutenant Governor of Delhi and others, reported (2008) 9 SCC 177 , (iv) Ram Deen Maurya (Dr.) vs. State of Uttar Pradesh and others, reported in (2009) 6 SCC 735 and (v) Jagdish Prasad vs. State of Rajasthan and others, reported in (2011) 7 SCC 789 . 15. It is submitted by Mr. D.P. Chaliha, learned Senior Counsel for the respondent Nos. 3,4 and 5, by drawing attention to paragraph 5 of the additional-affidavit, filed on 26.05.2014, that due to increase in the number of Departments, Appointments/ Promotions over the years, it had become virtually not possible for the Executive Committee to convene and nominate experts and for last many years, beginning from 1996, the task was left to be discharged by the Vice-Chancellor and that is the way appointments including appointments to the post of Professor was made over the years. He has also drawn the attention to Annexure-10 series to demonstrate his point. He has also drawn the attention to Annexure-10 series to demonstrate his point. Attention is also drawn to Annexure-11 of the additional-affidavit. Accordingly, he submits that there is no illegality in nominating experts by the Vice-Chancellor. Regarding nomination of a Professor of the Department by the Vice-Chancellor, in view of Rule 8 (c) of the Rules, a re-employed Professor cannot be part of a selection committee, he submits. The element of bias sought to be introduced by the petitioner has also no legs to stand as her own guide was an expert when she was considered for promotion to the post of Professor under the Personal Promotion Scheme. It is submitted by him that in the aforesaid background, the writ petition deserves to be dismissed. 16. Mr. K.K. Mahanta, learned Senior Counsel appearing for respondent No. 6 submits that one of the experts was indeed an examiner of the thesis of the respondent No. 6 in the year 1991 and in the context of the eminent position that the experts have attained, the argument of Mr. Dey that fact of being an examiner of the guide, at this point of time, may influence the expert is too far-fetched to merit acceptance. According to him, a re-employed Professor is a Professor for a limited purpose and the provision of Section 15 (A)(1)(b) does not contemplate induction of a re-employed teacher, who is otherwise a Professor, for being part of the selection committee to be nominated by the Vice Chancellor. 17. As far as nomination of experts by Vice-Chancellor is concerned, same has been followed for many years and thus, has evolved into an established norm. According to him, when the nomination was made by the Vice-Chancellor from the approved list, at any rate, there is substantial compliance requiring no interference with the selection process. He argues that it would have been a different matter altogether had the Vice-Chancellor, without there being any list recommended by Academic Council, made the nomination, which is not the case here. The provision has been substantially complied and the minor aberration will not invalidate the selection process undertaken. 18. Mr. He argues that it would have been a different matter altogether had the Vice-Chancellor, without there being any list recommended by Academic Council, made the nomination, which is not the case here. The provision has been substantially complied and the minor aberration will not invalidate the selection process undertaken. 18. Mr. Mahanta further submits that even though a resolution in the instant case was taken by the Executive Council on 25.06.2013, and the fact that the selection committee set on 14.02.2013, would not make much of difference in view of the existing practice of Vice-Chancellor nominating the subject expert. 19. According to Mr. Mahanta, the mandate of Section 15 is that there has to be a selection committee. If the selection committee is in place but there is some deviation in the composition of the selection committee, the same will not invalidate the selection process. Accordingly, he submits that the writ petition is liable to be dismissed. 20. I have considered the submissions of the learned counsel for the parties and have also perused the materials available on record. 21. The learned counsel for the respondents has not raised the plea of maintainability of the petition at the time of hearing. One of the moot questions for consideration of this Court is as to whether constitution of a selection committee will stand vitiated because of nomination of the experts by the Vice-Chancellor instead of by the Executive Council. Another issue that will require consideration of this Court is whether a Professor on re-employment after retirement will not be eligible to be a member of the selection committee. If the professor on re-employment after retirement is held to be a person eligible to be a member of the selection committee, whether because of failure on the part of the Vice-Chancellor to nominate such a Professor will vitiate the constitution of the selection committee, is another question which will be needed to be answered by this Court. 22. In order to appreciate the controversy surrounding constitution of the selection committee, it is considered necessary to quote herein below the Section 15 (A)(1)(a) and Section 15 (A)(1)(b): “15A. 22. In order to appreciate the controversy surrounding constitution of the selection committee, it is considered necessary to quote herein below the Section 15 (A)(1)(a) and Section 15 (A)(1)(b): “15A. Selection Committee-(1) (a) There shall be a Selection Committee for making recommendations to the Executive Council for appointment of Professors, Readers, Lecturers, Registrar, Treasurer, Librarian and other officers of the University as may be provided for by the Statutes consisting of the following members:- (i) “The Vice-Chancellor as Chairman of the Selection Committee, (ii) Three persons not holding any office of profit under the University of whom one nominated by the Chancellor, one to be nominated by the State Government and the other to be nominated by the Executive Council. (iii) The Registrar shall be the member-Secretary of the Selection Committee except for the Selection Committee for the appointment of Registrar in which case the Vice-Chancellor shall nominate one person as member-Secretary in consultation with the Executive Council. (b) In making recommendations for the appointment of Professors of the University, the Selection Committee shall co-opt the Head of the Department concerned, if he is a Professor, one Professor of the Department to be nominated by the Vice-Chancellor and two persons not in the services of the University to be nominated by the Executive Council out of a panel of not less than five names of persons recommended by the Academic Council who have special knowledge of the subject for which the Professor is to be selected.” 23. The selection committee as envisaged under Section 15(A)(1)(a) for the appointment of Professors, Readers, Lecturers, Registrar, Treasurer, Librarian and other officers of the University as may be provided for by the statute comprises of the Vice-Chancellor as Chairman of the selection committee, three persons not holding any office of profit under the University of whom one to be nominated by the Chancellor, one to be nominated by the State Government and the other to be nominated by the Executive Council and the Registrar shall be the Member-Secretary of the selection committee except for the selection committee for the appointment of Registrar in which case the Vice-Chancellor shall nominate one person as Member-Secretary in consultation with the Executive Council. 24. 24. Section 15(A)(1)(b) provides that in making recommendations for the appointment of Professor of the University, the selection committee shall co-opt the Head of the Department concerned, if he is a Professor, one Professor of the Department to be nominated by the Vice-Chancellor and two persons not in the services of the University to be nominated by the Executive Council out of a panel of not less than five names of persons recommended by the Academic Council who have special knowledge of the subject for which the Professor is to be selected. 25. The Executive Council is the Executive Body of the University and it has Ex-Officio members as well as other members, as indicated in Section 12, comprising of 25 members in all. On a specific question asked by the Court, Mr. Chaliha, learned Senior Counsel appearing for respondent Nos. 3, 4 and 5 has informed the Court that 1/3rd of the members form quorum of the meeting of the Executive Council. 26. It is not in dispute that there is a panel of 10 persons having special knowledge who have been recommended for the subject of Assamese by the Academic Council. Section 15(A)(1)(b) provides nomination by two authorities: The Vice-Chancellor is to nominate one Professor of the Department whereas the Executive Council is to nominate two persons who have special knowledge of the subject, commonly known as subject expert. 27. The role of an expert in such a selection process is crucial and cannot be over­emphasized. There has to be an endeavour on the part of the selection committee to select the best candidate suitable for the post. 28. If a provision is mandatory, then it is a settled rule of interpretation that it must be strictly construed and followed and an act done in breach thereof will be invalid. But if it is directory, the act will be valid although the non-compliance may give rise to some other penalty if provided by the statute. 29. Before proceeding further, it will be appropriate to refer to a decision in the case of Nazir Ahmed vs. King-Emperor, reported in A.I.R 1936 Privy Council 253 (2), wherein it was observed that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. 29. Before proceeding further, it will be appropriate to refer to a decision in the case of Nazir Ahmed vs. King-Emperor, reported in A.I.R 1936 Privy Council 253 (2), wherein it was observed that when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. In other words, if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. This principle has been reiterated in Ram Deen Maurya (Dr.) (supra), Dhanajaya Reddy (supra) and Meera Sahni (supra). 30. In Section 15(A)(1)(b), the legislature has used the expression “shall” for the purpose of co-opting of members by the selection committee. In Rubber House vs. Excelsior Needle Industries (P) Ltd., reported in (1989) 2 SCC 413 , the Apex Court had observed that the word “shall” in its ordinary import is obligatory but nevertheless, the word “shall” need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the provisions concerned, regard must be had to the content, subject matter and object of the statute in question. 31. Section 15(A)(1)(b) does not specifically say that Executive Committee shall nominate 2 persons from out of the panel of not less than 5 experts recommended by the Academic Council. Appointments of experts require deliberation. The statute itself provides that the experts will be selected from a list of not less than 5 persons approved by the Academic Council. Had the appointment of the expert been a routine matter, such elaborate provisions would not have found place in the Act. The mandate of the selection committee is to select the best person and in attaining that goal, legislature has ordained that the selection committee shall co-opt the persons as indicated in Section 15(A)(1)(b), namely, (i) the Head of the Department concerned, if he is a Professor, (ii) one Professor of the Department to be nominated by the Vice-Chancellor and (iii) two experts to be nominated by the Executive Council. What is striking is that so far as Professor of the Department to be nominated is concerned, the power has been vested on the Vice-Chancellor, but at the same time such power is not vested on the Vice-Chancellor for the purpose of nomination of experts, but has been vested upon the Executive Council, though both power of nomination appear side by side one after the other. It must be held that the advisedly and with a specific purpose, power of nomination of experts is vested with the Executive Council. In view of the distinction made in the matter of nomination of Professor of the Department and the experts, bearing in mind the content, subject matter and object of the statute, it must be held that in the matter of nomination of experts, it is only the Executive Council who has to exercise that power and such power cannot be exercised by the Vice-Chancellor. In Jagdish Prasad (supra), the Apex Court held that a schedule cannot in any way wipe out the statutory provisions of the Act in effect and spirit and once the provisions stand in the statute book, then the respondents cannot escape from complying with them in the appropriate manner. 32. The issue can be viewed from another angle. The selection committee must co-opt experts nominated by the Executive Council. There is no power on the part of the selection committee to co-opt experts who are nominated by the Vice -Chancellor. Having regard to the aforesaid, it is inevitable that the Executive Committee must nominate experts: it cannot say that it will not nominate experts or that it will delegate the power to some other authority. The Executive Council cannot delegate nomination of an expert to some other authority treating it to be a matter of little or of no significance. 33. The plea taken by the Gauhati University that it had become difficult to convene Executive Council meeting for selection of experts is mentioned only to be rejected for the reasons assigned hereinabove. On a specific query of the Court, the Court was informed that last year there were 7 meetings of the Executive Council in all and this year till the month of May, 4 meetings of the Executive Council had been held. In the aforesaid factual background, the plea taken sounds hollow and the same does not commend acceptance even otherwise. 34. In the aforesaid factual background, the plea taken sounds hollow and the same does not commend acceptance even otherwise. 34. In the instant case, issue is also raised to the effect that there was no experts to assess the suitability of the candidature of the petitioner, having regard to her specialization. This Court refrains from making any comment on such contention. But nonetheless, in the forum of the Executive Council, at the time of consideration of nomination of experts from the panel, issues relating to the specialization of the candidates, or any other issue having a bearing in selection of experts, could have been debated upon and a conscious decision taken. It will be relevant, at this juncture, to take note of the observation of the Apex Court in the case of Dr. Triloki Nath Singh (supra) to the effect that the subject of Hindi Language and Literature and the subject of Linguistics are entirely separate subjects of study. 35. In view of the above discussions, the only conclusion that can be derived is that the constitution of the selection committee was not in conformity with Section 15(A)(1)(b) and hence, any recommendation made by the said selection committee cannot be given effect to. Though the writ petition deserves to be allowed on this ground alone, it will also be necessary to decide the other limb of argument of Mr. Dey relating to the Vice-Chancellor not nominating the Professor in the Department on re-employment. 36. A Professor on re-employment is also a Professor. Such re-employment is against the post from which the Professor had retired. The object of Section 15(A)(1)(b) is already noticed. Rule 8 (c) of the Rules debars a re-employed Professor to hold an Administrative Office. A member of the selection committee cannot be construed to have held any Administrative Office. It is also relevant that the plea taken by the petitioner that there are many examples of experts being part of various committees of the University had not been disputed by the respondents. Li the aforesaid view of the matter, a Professor on re-employment can be considered for nomination for the purpose of Section 15(A)(1)(b). As the Vice-Chancellor had not nominated a Professor, though available, the constitution of the selection committee is vitiated on that score also. 37. Li the aforesaid view of the matter, a Professor on re-employment can be considered for nomination for the purpose of Section 15(A)(1)(b). As the Vice-Chancellor had not nominated a Professor, though available, the constitution of the selection committee is vitiated on that score also. 37. In view of the above, the constitution of the selection committee for considering selection of the post of J.N. Professor in the Department of Assamese pursuant to the advertisement dated 22.02.2012 is quashed and consequently, recommendation, if any, made by such selection committee shall not be acted upon by the Gauhati University. 38. The respondent Nos. 3,4 and 5 are directed to proceed with the matter in terms of the observations made herein above and in accordance with law for selecting J.N. Professor in the Department of Assamese. 39. The writ petition is allowed as indicated above. No costs.