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2014 DIGILAW 665 (GAU)

Tarini Pathak v. Gauhati University

2014-06-24

K.SREEDHAR RAO

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JUDGMENT K. Sreedhar Rao, J. 1. The Gauhati University issued advertisement for filling the post of Lecturer, Criminal Law and Criminology, in the department of Law vide Annexure-P/2. The requisite qualification for the post of lecturer is mentioned as Post Graduation with good academic record with at least 55% marks or equivalent grade of B in the 7 point scale with letter grades O, A, B, C, D, E and F at the Master's degree level in the relevant subject from an Indian university or equivalent degree from foreign university. The candidate should also have cleared NET conducted by the UGC, CSIR or similar test accredited by the UGC. The candidates, who have completed M. Phil degree before 31st December, 1993, or submitted Ph. D thesis in the concerned subject within 31st December, 2002, are exempted from the requirement of NET/SLET or similar test for the post of lecturer. The petitioner applied for the post. Besides the petitioner, two others also applied for the post. The Selection Committee held the interview. The Selection Committee selected the petitioner and recommended his name to the Executive Council. The Executive Council did not agree with the selection on the ground that the petitioner does not have uniformly consistent good academic record and, thus, rejected the selection and directed the Registrar to initiate process for fresh appointment. The petitioner, aggrieved by the said rejection, has filed this writ petition. 2. The counsel appearing for the University, vide Annexure-VI, has given the comparative table of performance of the petitioner and as well of one Dr. Bhupesh Malla Buzarbaruah, who also participated in the interview. The said comparative statement of merit assessment of the petitioner and the other candidate is as follows: 3. The above chart of assessment, however, pertains to pre-interview on the basis of academic records produced by the candidates. 4. Counsel for the petitioner submitted that the scrutiny of the academic record of candidates behind the academic qualification is totally unnecessary. Only the basic qualification required for the post alone should be considered. Consideration of performance at the high school level and teaching experiences in the subjects other than Law, which have been taken as inputs in the comparative chart are all extraneous considerations. It may be that Dr. Bhupesh Malla Buzarbaruah has scored 57.91% in LL.M and he has also done Ph. D in Criminology and Penology and as well Administrative Law. Consideration of performance at the high school level and teaching experiences in the subjects other than Law, which have been taken as inputs in the comparative chart are all extraneous considerations. It may be that Dr. Bhupesh Malla Buzarbaruah has scored 57.91% in LL.M and he has also done Ph. D in Criminology and Penology and as well Administrative Law. The petitioner might have secured 55.8% in LL.M. The petitioner has also done Ph. D in Criminal Law and Criminology and both the petitioner and the other candidate do have the basic qualifications prescribed. However, the Selection Committee had the advantage of conducting viva voce and personally assessing the merit of the candidate at the interview. The Selection Committee, having personally interviewed the candidates, has found the petitioner to be suitable to the post and selected and recommended his name to the Executive Council for appointment. 5. The reason given by the Executive Council is illegal and arbitrary. Based on the comparative chart produced by the University, the Executive Council comes to the conclusion that the petitioner does not have uniformly consistent good academic record, which is the academic performances prior to his basic qualification. The reason given being arbitrary and illegal, the order of the Executive Council is to be set aside and the relief in the writ petition to be granted. 6. Counsel for the respondent-University relies upon the decision of the Supreme Court in Union of India & Ors. vs. Kali Dass Batish & Anr., reported in 1 SCC 779. The facts of the cited case disclose that one Advocate was recommended by the Selection Committee presided over by the Judge of the Supreme Court for filling the post of Judicial Member in Central Administrative Tribunal. The Government did not select him on the ground that be had political affiliations. The non-appointment by the Government was challenged before the Jharkhand High Court. It was held that mere inclusion of a candidate's name in the selection list give him no right and if there was no right, there could be no occasion to maintain the writ petition for enforcement of non-existing right. The Supreme Court upheld the decision of the Jharkhand High Court. In this case also, it is canvassed that mere selection by the Selection Committee does not give any right on the petitioner and the petitioner has no locus standi to file the writ petition. The Supreme Court upheld the decision of the Jharkhand High Court. In this case also, it is canvassed that mere selection by the Selection Committee does not give any right on the petitioner and the petitioner has no locus standi to file the writ petition. The counsel for the respondent-University next contended that good uniform consistent academic record would include the petitioner's previous academic qualifications. The petitioner has not maintained a consistent, uniform, good and high performance. Therefore, the reasons given by the Executive Committee cannot be termed as arbitrary. Sl Name of Candidates Date of app Date of birth Exam pass Class/ position Unv/ Ins Yr of passing Agg of mark exp Remarks 1. Dr. Bhupesh Mall Buzar- Baruah 12.2.05 1.3.70 HSLC HS BA MA LLB LLM Ph.D I I II II II II II SEBA ASHEC GU GU GU GU GU 1985 1987 1990 1992 1994 1998 2005 77.8 72% 53.2 50.75 48.8 57.91 Teaching Exp. 5yrs 9 months Research Exp. 4 Yrs 5 months Research publication National 9 present occupation lecturer, JB Law Collage Spl. Criminology and 2. penology administrative Law. 2. Dr. Tarini Pathak 18.2.05 1.1.62 HSLC PU B.Sc M.Sc LLB LLM Ph.D B.ed Diploma in Journalism II II II II II II II II SEBA GU GU GU GU GU GU GU 1976 1978 1981 1983 1992 1995 2006 1993 1991 52 49 41 62.5 48 55.08 44 57 Teaching exp. 17 yrs Desig: Subject Teacher Employer, Director, Secondary Education Assam Spl. Criminal Law & Criminology 7. It is further pointed out that Section 15-A of Gauhati University Act, 1947, provides for constitution of a Selection Committee for the post of Readers, Lecturers and Professors. In the case of Lecturers, when there are more than one person is to be filled up in any category by the Selection Committee and if there is any difference of opinion between the Selection Committee and the Executive Council with regard to merit and seniority of the selected candidates, the Executive Council can disagree and with reasons recommend the same to the Chancellor. The Chancellor may return to the Executive Council if he is not in agreement with the opinion of the Executive Council. Then, after reconsideration if the Executive Council desires to pursue the original proposal, it shall refer the matter to the Chancellor again and his decision shall be final. 8. The Chancellor may return to the Executive Council if he is not in agreement with the opinion of the Executive Council. Then, after reconsideration if the Executive Council desires to pursue the original proposal, it shall refer the matter to the Chancellor again and his decision shall be final. 8. The proviso to Sub-Section (c) declares that where the Selection Committee recommends to the Executive Council the name of only one person and that recommendation is not acceptable to the Executive Council, it shall record the reason in writing for not accepting and direct the Registrar to advertise the vacancy again and convene a meeting of the Selection Committee for making fresh recommendation and in doing so, communicate to every member of the Selection Committee the reasons recorded as above. 9. Section 15-A(3) declares that if the Executive Council does not accept any of the recommendations of the Selection Committee, it shall refer the matter to the Chancellor stating clearly the reasons for not agreeing with the Selection Committee and the decision given by the Chancellor thereon shall be final. 10. The legal proposition laid down in the textual law makes it clear that in the case of selection made by the Selection Committee, the order of merit arranged in the case by the Selection Committee where more than one person is appointed to the particular subject post, if there is any difference of opinion between the Executive Council and the Selection Committee, the Selection Committee has to give reasons and send it to the Vice Chancellor, who, if he does not agree with the Executive Council, may refer the matter to the Executive Council again for reconsideration. The Executive Council, on reconsideration, were to reiterate their earlier opinion and the decision of the Chancellor will be final. The proviso declares that when in a particular subject, only one person is to be appointed and only one name is recommended, the Executive Council can reject by stating reasons and direct fresh advertisement for filling up of the post. While doing so, the reasons stated by the Executive Council have to be communicated to the members of the Selection Committee. While doing so, the reasons stated by the Executive Council have to be communicated to the members of the Selection Committee. Sub-Section (3) declares that when the Executive Council does not accept any of the recommendations and the issue is not with regard to the order of seniority, if the Executive Council does not agree with the recommendations of the Selection Committee, then, by giving reasons, the Executive Council shall refer the matter to the Chancellor and the decision of the Chancellor shall be final. 11. The analysis of the above textual law discloses that there appears to be a glaring contradiction between the proviso to Sub-Section (c) and Sub-Section (3). The proviso makes it explicit mat when recommendation of the Selection Committee pertains to only one candidate, the Executive Council is given the authority to reject and direct the Registrar to re-notify, but Sub-Section (3), which deals with cases other than the order of seniority and merit, says that if the Executive Council does not accept any of the recommendations of the Selection Committee, it shall refer the matter to the Chancellor stating clearly the reasons. In other words, any of the recommendations of the Selection Committee other than the order of seniority and merit, the Executive Council has to state the reasons for disagreement and recommend the matter to the Chancellor and submit the matter to the Chancellor, whose decision shall be final. If a liberal interpretation to Sub-Section (3) is given, a single recommendation may also get included within the purview of Sub-Section (3). However, the proviso is very specific and it excludes consideration of the matter by the Chancellor and the Executive Council alone is empowered to reject and direct re-notification. However, in this writ petition, the question of legality and validity of the said conflicting provisions is not in issue and there is no pleading and argument canvassed by the parties. Therefore, the said question is kept open. However, only going by the textual law as per the proviso, the Executive Council will have the right to reject the recommendation with reasons and direct the Registrar to notify. 12. The reasons given by the Executive Council are amenable to judicial review and the decision of the Executive Council will not be final and inscrutable in view of the following observations made in para 16 of Kali Dass Batish (supra): "16. 12. The reasons given by the Executive Council are amenable to judicial review and the decision of the Executive Council will not be final and inscrutable in view of the following observations made in para 16 of Kali Dass Batish (supra): "16. In Punjab State Electricity Board & Ors. vs. Malkiat Singh, this Court reiterated the observations of the Constitution Bench of this Court in Shankarsan Dash v. Union of India as under: "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab." (emphasis supplied) This, in our view, is the correct approach to be adopted in dealing with a matter of this nature." 13. The proposition of law laid down by the Supreme Court makes it very clear that the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The provisions of Section 15-A of the Act also makes it mandatory that whenever the Executive Council disagree with the Selection Committee, it shall have record the reasons for its disagreement and the reasons have to be bona fide and acceptable in law. However, it does not mean that the State has the licence of acting in an arbitrary manner. The provisions of Section 15-A of the Act also makes it mandatory that whenever the Executive Council disagree with the Selection Committee, it shall have record the reasons for its disagreement and the reasons have to be bona fide and acceptable in law. In this case, the Executive Council has evidently acted in an arbitrary manner. The scrutiny of the academic record of the candidates for selection beyond the basic qualification is totally an extraneous consideration. The performance at High School level and college level are totally extraneous. The teaching experiences of the candidates other than in subject of Law is also not a relevant factor for consideration. The Notification insisted a Masters degree in law in Criminology with 55% of marks and above and also Ph. D qualification and NET. If one has Ph. D, the requirement of NET is exempted. Here, in the present case, if one goes by the academic record of Dr. Bhupesh Malla Buzarbaruah and the petitioner, both of them appear to be evenly poised. However, the Selection Committee appears to have been impressed by the performance of the petitioner and selected him. The respondent-University has not produced the record of the viva voce test conducted to know the assessment of performance at the interview of the candidates. In the absence of such material, it is to be held that the Selection Committee had the advantage of assessing the performance of the candidates at the viva voce test and has found the petitioner to be more suitable. Merely because the other candidate had secured about 2% marks higher than the petitioner at the qualifying examination, it does not mean that there was any mala fide on the part of the Selection Committee in selecting and recommending the name of the petitioner because the performance at the oral interview also becomes one of the relevant factors for consideration for the selection. In that context, it is to be seen that the petitioner fulfilled all the requisite notified qualifications and was found suitable by the Selection Committee. The Executive Council appears to have done a strained exercise to disagree with the Selection Committee by citing extraneous reasons like the petitioner does not have uniform consistent good academic record. In that context, it is to be seen that the petitioner fulfilled all the requisite notified qualifications and was found suitable by the Selection Committee. The Executive Council appears to have done a strained exercise to disagree with the Selection Committee by citing extraneous reasons like the petitioner does not have uniform consistent good academic record. The consideration of academic record from the stage of HSLC appears to be a very frivolous approach adopted by the Executive Council. What was needed was to assess performance on the basis of basic qualification and onwards. In that view of the matter, the reason given by the Executive Council in rejecting the selection of the petitioner appears to be untenable and arbitrary. Accordingly, the writ petition is allowed. Petition allowed.