Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 182 (GAU)

KSHIRESWAR BORAH v. STATE OF ASSAM

2015-02-16

N.CHAUDHURY

body2015
ORDER (CAV) Whether wrong constitution of Selection Body contrary to rules holding the field would vitiate selection process is the only question to be answered in the present case. 2. Brief facts involved in the writ petition are required to be stated first. Writ petitioner who is an Associate Professor of Philosophy in Arya Vidyapeeth College at Guwahati submitted his candidature for selection to the post of Principal of the College pursuant to advertisement on 26.01.2014 in the Assam Tribune and on 21.01.2014 in the Sentinel. Petitioner and thirteen (13) others appeared before the interview board on 02.03.2014 and thereupon a comparative statement was prepared by the Selection Committee under the Chairmanship of the President of the Governing Body. One Ganesh Choudhury was selected in the process and his name was recommended to the Directorate of Higher Education for appointment as Principal of the College. Present writ petitioner had immediately thereafter instituted a writ petition being WP(C) No. 2684/2014 challenging the resolution. The writ petition was disposed of on 30.05.2014 by this Court on the basis of submissions made by learned Standing Counsel of Education Department that Director of Higher Education had already issued direction for re-advertisement of the post and that the selection process under challenge did no longer exist. Submission was also made that the post would be filled up by fresh selection to be conducted in accordance with law. It appears that prior to that on 26.05.2014, the Director of Higher Education had addressed a letter to the President of the Governing Body of Arya Vidyapeeth College intimating that appointment of Principal in the college could not be considered as the procedure of the Selection Committee was not in order. The Director instructed the Principal to initiate fresh selection from among the candidates who had applied earlier pursuant to the advertisement, referred to above and also to reconstitute a new committee with due approval from the Directorate of Higher Education, Assam (for short ‘DHE’). Accordingly, the Governing Body reconstituted the committee as follows: Chair Person : Dr. G.C. Sarma, President, GB, Arya Vidyapeeth College Higher Education expert : Dr. Bhagadutta Kr. Das, Retired Joint Director, Higher Education, Assam Educationist : Dr. Arupjyoti Choudhury Dean, Study Centre, Academic, K.K. Handique Open University, Guwahati. Principal : Dr. Niroda Devi Cotton College, Guwahati- 781001 Professor : Dr. Pranabjyoti Das Dept. Of Chemistry, GU Academician from SC/ST/OBC etc. : Dr. G.C. Sarma, President, GB, Arya Vidyapeeth College Higher Education expert : Dr. Bhagadutta Kr. Das, Retired Joint Director, Higher Education, Assam Educationist : Dr. Arupjyoti Choudhury Dean, Study Centre, Academic, K.K. Handique Open University, Guwahati. Principal : Dr. Niroda Devi Cotton College, Guwahati- 781001 Professor : Dr. Pranabjyoti Das Dept. Of Chemistry, GU Academician from SC/ST/OBC etc. : Dr. Nanda Ram Das, Dept. Of Chemistry, GU Member from the GB : (a) Anusuya Paul Basu (b) Dr. Robin Bhuyan The Governing Body by letter dated 04.07.2014 forwarded its resolution as to reconstitution of Selection Committee for approval of the Director and the Director in turn by letter dated 04.08.2014 modified the composition of the Committee by replacing Higher Education expert Dr. Bhagadatta Kr. Das by one Dr. H.C. Das, retired Director of Secondary Education, Assam. Thereafter, on 30.08.2014 the writ petitioner submitted a representation before the President of the Governing Body of Arya Vidyapeeth College praying for postponing of proposed interview and also to reconstitute the Selection Committee in accordance with the provisions of the rules and thereafter to rearrange a fresh date of interview. The writ petitioner objected to constitution of Governing Body by Director on the ground that under Rule 5(1) of the Assam College Employees (Provincialisation) Rules, 2010 (hereinafter referred to as ‘the Rules’), it is the Governing Body which is empowered to constitute Selection Committee. The manner of selection of experts/ members in the constitution of Selection Committee was also objected to. As the representation did not receive any consideration and the Governing Body proceeded to hold the interview, the writ petitioner approached this Court by filing the present writ petition praying for setting aside of the impugned constitution of Selection Committee and also for appropriate direction. Pending disposal of the writ petition, stay of the proposed interview to be held on 31.08.2014 was also prayed. 3. This writ petition was moved on 01.09.2014 and this Court by an interim order directed the respondents not to fill up the post of Principal pending motion hearing of the case on 03.09.2014. On that day, notice of motion was issued, returnable on 17.10.2014 and interim order passed earlier was continued. 3. This writ petition was moved on 01.09.2014 and this Court by an interim order directed the respondents not to fill up the post of Principal pending motion hearing of the case on 03.09.2014. On that day, notice of motion was issued, returnable on 17.10.2014 and interim order passed earlier was continued. Thereafter, the Governing Body of the College which is impleaded as respondent No. 3 herein, filed an application praying for alteration/ modification/ vacation of the interim order but as the application could not be disposed of within a fortnight, the same was vacated by operation of Article 226(3) of the Constitution on 29.01.2015. The writ petitioner, therefore, has filed a fresh miscellaneous case being MC No. 210/2015 for restoration of the interim order passed on 01.09.2014 and continued on 03.09.2014 till it was vacated. But when the prayer for interim order was under consideration, learned counsel for both sides submitted that the main writ petition may be taken up for disposal in view of the nature and character of the grievances advanced and this Court conceded to the joint prayer of both the sides. This is how the writ petition has been heard. 4. I have heard Mr. N Dutta, learned senior counsel assisted by Mr. T Chutia for the petitioner and Mr. AM Buzarbaruah, learned senior counsel assisted by Mr. UK Nair for the respondent No. 3, Mr. LP Sharma, learned counsel for the Gauhati University and Mr. UK Goswami, learned Standing Counsel of the Higher Education Department, Assam. 5. Mr. N Dutta, learned senior counsel would argue that under Rule 5(1) of the Rules, the post of Principal is to be filled up by direct selection. Governing Body is duty bound to constitute a Selection Committee which on turn is to select a person on the basis of an interview from amongst eligible candidates who had applied in response to an open advertisement in newspapers. The Governing Body thereafter should recommend the candidate to the Director and the Director shall issue orders of appointment. Highlighting that Governing Body has been vested with power and jurisdiction to constitute Selection Committee, Mr. Dutta has drawn attention of the Court to paragraph 5.1.6 of the U.G.C. Regulations on minimum qualifications for appointment of teachers and other academic staffs in Universities and Colleges for the maintenance of standards in Higher Education, 2010. Highlighting that Governing Body has been vested with power and jurisdiction to constitute Selection Committee, Mr. Dutta has drawn attention of the Court to paragraph 5.1.6 of the U.G.C. Regulations on minimum qualifications for appointment of teachers and other academic staffs in Universities and Colleges for the maintenance of standards in Higher Education, 2010. This regulation was framed by the U.G.C. in exercise of power conferred under Clause (e) and (g) of Section 26(1) of the University Grants Commission (U.G.C.) Act, 1956 and so it is a statutory regulation. In Sub-clause 4 of this paragraph 5.1.6, it is laid down that three (3) experts consisting of the Principal of College, a Professor and an accomplished educationist not below the rank of the Professor (to be nominated by the Governing Body of the College) out of a panel of these experts approved by the relevant statutory body of the University concerned must find place in such Selection Committee constituted for selection of Professor and Principal. Mr. Dutta further pointed out that the Academic Registrar of the Gauhati University by his letter dated 30.06.2014 communicated names of 8 (eight) persons approved by the Vice Chancellor of the Gauhati University on 20.06.2014 and these names are as follows: Subject Experts: Higher Education Expert: 1. Dr. Bhagadutta Kr. Das, Rtd. Joint Director, Higher Education, Assam. Educationist: 1. Dr. Arupjyoti Choudhury Dean, Study Centre, Academic K.K. Handique Open University, Guwahati. 2. Dr. Indra Kr. Bhattacharya, Rtd. Principal, Cotton College, Guwahati. Principal: 1. Dr. Niroda Devi, Cotton College, Guwahati. 2. Dr. Balendra Kr. Das Pachim Guwahati College Professor: 1. Dr. Pranabjyoti Das, Deptt. Of Chemistry, G.U. 2. Prof. Bhaben Ch. Kalita, Deptt. Of Mathematics, G.U. Academician From SC/ST/OBC etc. : 1. Dr. Nanda Ram Das, Dept. of Mathematics, G.U. This would show that Dr. Bhagadatta Kr. Das who was nominated by the Governing Body of the College as Higher Education Expert and the names of educationist, Principal, Professor and Academician from SC/ ST/ OBC category were all from among the approved panel of the Gauhati University. He argued that Director of Higher Education is an extraneous authority in so far as constitution of Selection Committee is concerned and so modification of the composition by him replacing Dr. Bhagadatta Kr. Das by Dr. H.C. Das is impermissible. He argued that Director of Higher Education is an extraneous authority in so far as constitution of Selection Committee is concerned and so modification of the composition by him replacing Dr. Bhagadatta Kr. Das by Dr. H.C. Das is impermissible. This is in clear violation of Rule 5(1) of the Rules and so the Selection Committee being incompetent, it cannot be permitted to hold the selection of Principal. With these submissions, the learned counsel would urge that the writ petition be allowed and the letter dated 04.08.2014 (Annexure-G to the writ petition) be set aside with direction to the Governing Body of the college to reconstitute Selection Committee and thereafter to hold selection. 6. Per contra, Mr. AM Buzarbaruah, learned senior counsel appearing for the Governing Body of the college would argue that if modification of Selection Committee by the Director is found to be illegal or without jurisdiction, in that event college may be permitted to go for selection of Principal by the original Selection Committee constituted by the Governing Body of the college on 04.07.2014. This is because Selection Committee constituted by the Governing Body is in conformity with the provisions of U.G.C. guidelines as well as Rule 5(1) of the Rules. 7. Selection process for making appointment to a post is aimed at evaluation of merits of candidate on objective basis. This is done by the Selection Committee. The function of a Selection Committee is to select the most eligible and suitable candidate from among the available eligible candidates on the basis of merit adjudged by adopting fairly laid down criteria. The object of selection, therefore, can be achieved or would fail if the Selection Committee succeeds or fails to discharge this task. This is why constitution of Selection Committee is important. It has to be properly made by following the guidelines laid down by the Rules holding the field and in the event no such prescription is there by following the Principle of Equity and good conscience. Now, the question arises whether erroneous constitution of Selection Committee would render the selection vitiated. It appears, this point came for consideration on earlier occasions not only before this Court but also before the Hon’ble Apex Court of the country. The learned senior counsel Mr. N Dutta has placed reliance on the following two (2) judgments in this regard. 1. 2003 (3) GLR 714 - Dr. It appears, this point came for consideration on earlier occasions not only before this Court but also before the Hon’ble Apex Court of the country. The learned senior counsel Mr. N Dutta has placed reliance on the following two (2) judgments in this regard. 1. 2003 (3) GLR 714 - Dr. Biren Das v. Tezpur University & ors 2. 2000 (10) SCC 278 - Union of India v. R.A. Yadav & anr 8. In the case of Dr. Biren Das v. Tezpur University & ors (supra), this Court held in paragraph 7 & 8 as follows: “7. It would appear that the Selection Committee, as admitted by the respondents, did not consist of Prof Vice-Chancellor and the nominee of the Visitor. In place of Director, Training and Placement, Prof. D. Konwar was nominated as Member by the Vice-Chancellor and Prof. Mihir Choudhury and Prof. R. Bhaskaran are the two persons not in service of the University. It is obvious from the statement in para-18 of the affidavit-in-opposition that Shri M. Ahom, Registrar of Tezpur University and Ms. Achala Bora Senapati, Member Board of Management have been included in place of Prof Vice-Chancellor and the nominee of the visitor. This is, in my considered opinion, not permissible under the provisions of the statute. In the absence of Prof Vice-Chancellor and the nominee of the Visitor, the Selection Board should have consisted of four members. On the face of the pleadings in para-18, the constitution of the Board appears to be in violation of the provisions of the statute. 8. The petitioner in para-8 of the writ petition has described the eight persons who had participated in the selection process. Apart from the six persons admitted by the respondents, the Committee also included Prof. S.K. Doley and Prof. D. Konwar. The respondents pleaded that they were asked to remain present during the course of interview to render assistance and clarify any point that might have arisen during the course of interview. According to the respondents, they did not participate or played any role whatsoever in the interview/in the selection process. In order to decipher the truth, we may refer to the records of the interview produced by Shri P.C. Deka, learned Senior Counsel. From the result sheet, it appears that Shri B.D. Phukan and Mr. According to the respondents, they did not participate or played any role whatsoever in the interview/in the selection process. In order to decipher the truth, we may refer to the records of the interview produced by Shri P.C. Deka, learned Senior Counsel. From the result sheet, it appears that Shri B.D. Phukan and Mr. S.K. Doley did not allot any marks to any of the candidates in the interview, but it appears that both Mr. M. Ahom, Registrar, Tezpur University and Mrs. Achala Bora Senapati, Member Board of Management allotted marks to the candidates. Inclusion of the Registrar of the University and Mrs. Achala Bora Senapati have been in violation of the provisions of the Statute and they could not be inducted as substitute of the Prof. Vice-Chancellor and the nominee of the visitor. From the materials on record, it would appear that the selection process stood vitiated because of illegal composition of the Selection Committee and for participation of persons other than the persons not authorised by the statute. Any recommendation made by the Selection Committee constituted in violation of the statutory provisions is void and cannot be acted upon. In this connection, we may refer to the decision of the Hon’ble Supreme Court in J.K. Public Service Commission v. Dr. Narinder Mohan and Ors. (1994) 2 SCC 630 where the Supreme Court made it clear that where statutory rules are in existence, the appointment has to be made in accordance with those Rules only. Any deviation from the provisions of the Rules in force will render the selection void and illegal (emphasis supplied).” In the case of Union of India v. R.A. Yadav & anr (supra), the Hon’ble Supreme Court held in paragraph 2 as follows: “2. Admittedly, the respondent was promoted to Grade D on 1-7-1980. The promotion in the service is governed by a set of rules framed under Article 309 of the Constitution called “the Defence Research and Development Service Rules, 1979”. Under the rules which were in force at the relevant point of time a person in Grade D could be considered for promotion to Grade E on completion of five years of regular service in Grade D. It further provided that if an officer had earned three successive “outstanding” reports or four successive “very good” reports in the same grade he shall be assessed for promotion to the next higher grade. In other words, if the respondent would have earned three outstanding reports in Grade D then he could have been considered for promotion to Grade E in the year 1983 and if he would have earned four very good reports he could have been considered for promotion in the year 1984 but as he did not earn those remarks he was not eligible for being considered, till 1985, when his case was duly considered but he was found unsuitable by the Board. The Tribunal however, by the impugned judgment came to the conclusion that even non-consideration of the respondent in the year 1983 is vitiated and as such directed that the respondent’s case should be considered afresh with effect from 1983. The said direction of the Tribunal cannot be sustained in view of our conclusion on interpreting Rule 8(2)(d) of the Recruitment Rules. But so far as his consideration in the year 1985 is concerned, wherein he was found unfit, admittedly the Board was presided over by Mr Sampath who was earlier a member of the Union Public Service Commission and by the year 1985 he had superannuated and yet he was made the Chairman of the Board to assess the suitability of the officers of the Defence Research Organisation. The question whether a member of the Union Public Service Commission after his retirement could at all be the Chairman of any other Selection Board came up for consideration before this Court in the case of Union of India v. U.D. Dwivedi. This Court on interpretation of Article 319(c) of the Constitution came to hold that such a retired member of the Union Public Service Commission is ineligible to act as the Chairman of another Selection Board and, therefore, the selection made by such Selection Board gets vitiated (emphasis supplied). The respondent appearing in person relies upon the aforesaid judgment and contends that the Board which disqualified him in the year 1985 was not properly constituted in view of the judgment of this Court and, therefore, he has a right to be considered by a fresh Board for the year 1985 as well as for the year 1986. Mr. P.P. Malhotra, learned Senior Counsel appearing on behalf of the Union of India contends that this question had not been raised before the Tribunal and the respondent will not be entitled to take this plea in this Court. Mr. P.P. Malhotra, learned Senior Counsel appearing on behalf of the Union of India contends that this question had not been raised before the Tribunal and the respondent will not be entitled to take this plea in this Court. The question being one of constitutional requirement and having been answered by this Court and the Union of India does not dispute the fact that Mr Sampath was the Chairman of the Board in the year 1985 which Board considered the case of the respondent and found him unfit, we are unable to accept the contention of Mr Malhotra. In that view of the matter the direction of the Tribunal to consider the respondent for promotion from Grade D to Grade E in the year 1985 and in 1986, must be upheld. We make it clear that notwithstanding the invalidity of the Board which considered the case of 9. In view of what is stated above no room is left for doubt that if a Selection Committee is not duly constituted proper selection cannot be made and any selection made by such Committee would be no selection in the eye of law. 10. In the backdrop of what is discussed above, now let us consider as to what are the criteria for constitution of proper Selection Committee in the present case. As pointed out above, U.G.C. in its regulations published on 30.06.2010 provided in paragraph 5.1.6 that Selection Committee for the post of College Principal must be in accordance with its directive. This means that Chairperson of the Governing Body of the college must be Chairperson of the Selection Committee. Two members of the Governing Body of the college are to be nominated by the Chairperson of whom one shall be an expert in academic administration. Apart from that one nominee of the Vice Chancellor has to be accommodated in the Selection Committee who must be an expert on Higher Education. Three experts consisting of the Principal of college, a Professor and an accomplished Educationist not below the rank of Professor and nominated by the Governing Body of the college out of a panel of six experts approved by the Statutory Body of the University concerned must also be there in the Committee. Three experts consisting of the Principal of college, a Professor and an accomplished Educationist not below the rank of Professor and nominated by the Governing Body of the college out of a panel of six experts approved by the Statutory Body of the University concerned must also be there in the Committee. Over and above, an Academician representing SC/ ST/ OBC/ Minority/ Women/ differently able category, if any of the candidates representing these categories, is the applicant is also to be nominated by the Vice Chancellor. The Assam College Employees (Provincialisation) Rules, 2010 speaks of constitution of Selection Committee by the Governing Body in Rule 5(1). Rule 10(B) governs the method of constitution of Selection Committee for appointment by direct recruitment to any post other than Lecturers and Librarians. Obviously, the post of Principal would fall in this category. Rule 10(B) of the Rules, therefore, is quoted below for ready reference. “10(B). Committee for selection of candidate for appointment of direct recruitment of all other posts shall consist of the following:- (i) President of the Governing Body : Chairman (ii) Secretary of the Governing Body : Member-Secretary (iii) Two heads of Department to be nominated by the President, Governing Body : Member” 11. In the case in hand, as revealed from averments made in the writ petition and the additional affidavit, the objections of the writ petitioner are two-fold. First, inclusion of Dr. H.C. Das as Higher Education Expert is illegal on the ground that he was not nominated by the Vice Chancellor of the University. He has been chosen by Director who is an extraneous authority so far as constitution of Selection Committee is concerned. Secondly, inclusion of Anusuya Paul Basu, a member of the Governing Body is bad as her son is a student of Chemistry in the college and the private respondent Ganesh Choudhury happens to be the Professor of the same department and so there is scope of bias on the part of Anusuya Paul Basu. 12. It is admitted even by the learned counsel for the respondent No. 4 that Dr. H.C. Das as included by the Director in the Selection Committee by modifying the composition of the Selection Committee and replacing Dr. Bhagadatta Kr. Das is contrary to the U.G.C. guidelines referred to above. 12. It is admitted even by the learned counsel for the respondent No. 4 that Dr. H.C. Das as included by the Director in the Selection Committee by modifying the composition of the Selection Committee and replacing Dr. Bhagadatta Kr. Das is contrary to the U.G.C. guidelines referred to above. It is also apparent that under Rule 5 of the 2010 Rules, Director has no role to play in constitution of Selection Committee. The Rules have vested the power on the Governing Body to constitute a selection. Even there is no provision in the Rules warranting approval by the Director so far as constitution of Selection Committee is concerned. After the Selection Committee holds selection, Governing Body makes recommendation to the Director for appointment. The limited role of the Director is to make appointment accordingly. Of course, Director will have jurisdiction to see as to whether in so doing the prescribed Rules and Regulations have been complied with or not. After examining and finding that the selection process was not vitiated by any irregularity or illegality and the process was in compliance with the Rules and Regulations holding the field, the Director is duty bound to accord approval for appointment. So at the stage of constitution of the Selection Committee, Director cannot interfere and put his nominee in the Selection Committee by replacing someone recommended by the Governing Body. The Director, therefore, cannot direct the Governing Body to include any person of his choice. Such person, namely, Higher Education Expert has to be from the panel approved by the concerned Statutory Body of the University. Obviously, it is apparent from the annexure that Gauhati University did not nominate Dr. H.C. Das and so his inclusion in the Selection Committee and that too, by the Director and not by Governing Body is illegal. 13. The allegation of bias against Anusuya Paul Basu also deserves consideration. This is because there is no affidavit in opposition by the Arya Vidyapeeth College and there is no denial of the averments made in paragraph 9 of the writ petition. It is settled position of law that in the absence of a denial by way of filing affidavit in opposition, averments made in the writ petition and deemed to have been admitted. This logic also follows from the provision of Order V Rule 5 of the Code of Civil Procedure. It is settled position of law that in the absence of a denial by way of filing affidavit in opposition, averments made in the writ petition and deemed to have been admitted. This logic also follows from the provision of Order V Rule 5 of the Code of Civil Procedure. Considering all these aspects in entirety, impugned order dated 04.08.2014 issued by the Director cannot be sustained. Writ petition is, accordingly, allowed. Letter dated 04.08.2014 (Annexure-G to the writ petition) is set aside. 14. The Governing Body shall constitute a Selection Committee afresh strictly following U.G.C. Regulation dated 30.06.2010 and taking care of the allegations of bias raised by the writ petitioner herein. Appointment of Principal of a college is a pre-requisite for its proper academic administration and interest of the students at large is also involved in it. So the same shall be done expeditiously preferably within a period of three (3) months from the date of passing of this order. 15. Writ petition is allowed. Interim order, if any, vacated. 16. No order as to costs.