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2017 DIGILAW 1483 (GAU)

Rajib Bordoloi v. Dibrugarh University

2017-11-30

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. M.K. Choudhury, learned senior counsel for the petitioner and also heard Mr. R. Goswami, learned counsel appearing for the respondent Dibrugarh University. The petitioner obtained his Ph.D in Physics in the year 2008 and his topic of research was "A study of Laser induces changes in the threshold behaviour and other non-linear transient phenomena in molecular media". The petitioner also had his Masters Degree in physics in the year 1985 having secured 73% marks with special paper of Theoretical Physics (Advance Quantum Mechanics). It is stated that the petitioner was the best Post Graduate of that particular year in the Dibrugarh University. The petitioner also had some prior experience of working in the Tinsukia College from the year 1986, where he was the Head of the Department of Physics and it is stated that presently he is also the Principal of Tinsukia Women College. The petitioner also has wide experience in participating in various conferences and seminars and he had also presented a research paper in the Second International Conference on current development in Atomic, Molecular and Optical Physics with application held in the year 2006, as organized by the Department of Physics and Atomic Physics of Delhi University. 2. Pursuant to an advertisement dated 01.12.2007 inviting applications for amongst others, the post of Reader in Physics, the petitioner had offered his candidature. As per the advertisement, the required qualification was MSc in Physics with special paper of Atomic and Molecular Physics/Spectroscopy. As per the proceeding of the Selection Committee constituted u/s. 29(c) of the Dibrugarh University Act, 1965, the petitioner was the only candidate who was recommended for consideration of the Executive Council for the post of Reader in the Department of Physics of Dibrugarh University. 3. But the Executive Council through its endorsement dated 17.07.2008 had not accepted the recommendation of the Selection Committee by stating that the petitioner has special paper in Theoretical Physics, whereas the requirement of the advertisement was special paper in Atomic and Molecular Physics/Spectroscopy. The said decision of the Executive Council has been assailed in this writ petition. 4. 3. But the Executive Council through its endorsement dated 17.07.2008 had not accepted the recommendation of the Selection Committee by stating that the petitioner has special paper in Theoretical Physics, whereas the requirement of the advertisement was special paper in Atomic and Molecular Physics/Spectroscopy. The said decision of the Executive Council has been assailed in this writ petition. 4. One of the grounds taken in the writ petition is that the Selection Committee being an expert body as contemplated in Section 29(c) of the Dibrugarh University Act, 1965, the Executive Council may not have the expert knowledge to overturn the decision/recommendation of the Selection Committee. But without going into the aforesaid question what is noticeable is that by the endorsement dated 17.07.2008, the Executive Council had found the recommendation of the Selection Committee to be unacceptable on the ground that the petitioner, had the special paper in Theoretical Physics whereas the requirement of the advertisement was special paper in Atomic and Molecular Physics/Spectroscopy. 5. A contention has been raised by the learned senior counsel for the petitioner that the special paper of Theoretical Physics and the special paper in Atomic and Molecular Physics/Spectroscopy are to a great extent one and the same and it is only a matter of giving different nomenclature where the subject matter to be studied is same. A further contention has also been raised by Mr. M.K. Choudhury, learned senior counsel for the petitioner that the said endorsement dated 17.07.2008, which appears in the recommendation of the Selection Committee is not a resolution of the Executive Council inasmuch as, the same bears the signature of only one person and secondly, it does not refer to any resolution nor any such averment had been made by the Dibrugarh University indicating that the said decision is in fact a depiction of a resolution which otherwise had been taken. In any view of the matter, it is noticed that in the endorsement dated 17.07.2008, what has been provided is that the petitioner has his special paper in Theoretical Physics, which is contrary to the requirement of the advertisement requiring the special paper in Atomic and Molecular Physics/Spectroscopy. In any view of the matter, it is noticed that in the endorsement dated 17.07.2008, what has been provided is that the petitioner has his special paper in Theoretical Physics, which is contrary to the requirement of the advertisement requiring the special paper in Atomic and Molecular Physics/Spectroscopy. Apart from a mere depiction that the nomenclature of the special paper of the petitioner is different that of what has provided in the advertisement, no further reason had been stated by the Executive Council as to why the special paper of the petitioner is a divergence from the requirement of the advertisement. 6. The materials produced from record had been examined but the required reason is not forthcoming from any such material. In this background, when the provisions of Section 29(c) of the Dibrugarh University Act, 1965 is examined, it is seen that the second proviso thereof provides that where a Selection Committee recommends to the Executive Council the name of only one person and that person is not acceptable to the Executive Council, the Executive Council shall record its reason in writing for not accepting the recommendation and direct the Registrar to advertise the vacancy once again. 7. On a bare perusal of the said second proviso to Section 29(c), what is noticeable is that in order to invoke the power under the second proviso, the condition precedent is that the Selection Committee, ought to recommend only one person and secondly, that person is not acceptable to the Executive Council. In contradistinction it can be said that had the recommendation by the Selection Committee been for more than one person, the second proviso would not have been applicable. Therefore, the dominant purpose of the second proviso is that if the only person that has been recommended by the Selection Committee is otherwise not acceptable to the Executive Council as a person, in such event, the Executive Council shall record its reason in writing for not accepting the said person for appointment and direct the Registrar to re-advertise the vacancy. In other words, the unacceptability of the Executive Council would be as regards the person, who is recommended, which is again distinguishable from his academic achievement and suitability based upon which the recommendation of the Selection Committee had been made. 8. In other words, the unacceptability of the Executive Council would be as regards the person, who is recommended, which is again distinguishable from his academic achievement and suitability based upon which the recommendation of the Selection Committee had been made. 8. In the instant case, it is noticed that the Executive Council had not accepted the recommendation of the Selection Committee on the ground that the special paper of the petitioner was Theoretical Physics, whereas the advertisement required the special paper of Atomic and Molecular Physics/Spectroscopy. The ground for not accepting the recommendation has nothing to do with the petitioner as a person de-hors his academic evaluation by the Selection Committee. In the considered view of this Court an interpretation of the second proviso to Section 29(c) to the Dibrugarh University Act, 1965 does not empower the Executive Council to refuse the recommendation of a Selection Committee which is, in fact, related to an academic evaluation of a candidate by the Selection Committee rather than for a reason as regards the acceptability of the recommended candidate as a person. 9. A further reading of the first proviso to Section 29(C) of the Dibrugarh University Act would show that, in the event, the Executive Council proposes to make the appointment otherwise than in the order of merit as recommended by the Selection Committee, it shall record its reasons in writing and submit the same to the Chancellor, who may or may not approve the proposal. The first proviso gives an indication that it is applicable to a situation where more than one candidate has been recommended by the Selection Committee in the order of merit and, in the event, the Executive Council for its reasons to be recorded is of the view that the person highest in the order of merit is not to be given the appointment, in such event, the persons below him can also be offered the appointment but the reasons thereof must be stated and be also approved by the Chancellor. The indication of the first proviso is that the Executive Council cannot alter the order of merit of the candidates, but what it can do is by retaining the order of merit as recommended by the Selection Committee, the person first in the order of merit may not be offered appointment and the appointment can also be offered to a person below in the order of merit. The said provision in the first proviso is also an indication that the Executive Council is not empowered to act in a supervisory role over and above the recommendation made by the Selection Committee and the Executive Council on its own cannot change such recommendation. But at the same time, if the Executive Council is of the view that the person recommended by the Selection Board is not desirable for any other reasons, such person may not be offered the appointment in spite of such recommendation made by the Selection Committee subject of course to the procedure provided therein. 10. Apart from the above, it is also noticed that even if the second proviso to Section 29(c) is applicable, the Executive Council is required to record its reason in writing for not accepting the recommendation. The legal meaning of the word reason means that the justification must be given while recording as to why the decision had been taken. In the endorsement dated 17.07.2008, what has been stated is that the petitioner has the special paper in Theoretical Physics whereas the requirement of the advertisement is special paper in Atomic and Molecular Physics/Spectroscopy. No justification had been given by the Executive Council as to why the special paper of Theoretical Physics is substantially and subjectively different from that of special paper in Atomic and Molecular Physics/Spectroscopy. A further decision is also required to be taken as to whether it is merely a difference in the nomenclature given to two special papers or as to whether there is a substantial difference in the subject matter contained in the two concerned special papers. 11. A further decision is also required to be taken as to whether it is merely a difference in the nomenclature given to two special papers or as to whether there is a substantial difference in the subject matter contained in the two concerned special papers. 11. In such view of the matter also, even it is considered that the Executive Council had the jurisdiction under the 2nd proviso to Section 29(c) of the Dibrugarh University Act, 1965, this Court is of the considered view that the endorsement dated 17.07.2008 does not record the reason in writing for not accepting the recommendation of the Selection Committee as required under the second proviso to Section 29(C) of the Dibrugarh University Act, 1965. For both the reasons as indicated herein above, the endorsement dated 17.7.08 of the Executive Council is hereby set aside. However, liberty is granted to the Executive Council to proceed in the matter by following the procedure as provided under the law. In terms of the above, the writ petition stands disposed of.