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2019 DIGILAW 279 (CAL)

ABHIJIT GUHA v. VIDYASAGAR UNIVERSITY

2019-02-27

SUBRATA TALUKDAR

body2019
JUDGMENT : SUBRATA TALUKDAR, J. 1. This writ petition originating in the year 2008, came up for consideration before this Court in 2017 with the hearings concluding in 2018. Under challenge in this writ petition is the appointment of the Private Respondent No.4 (PR) as Professor of Vidyasagar University (for short the University) by the Petitioner (P), himself a contender for the post. Affidavits were directed to be exchanged in 2009 and have been so exchanged by and between the parties. 2. The facts essential to the adjudication are as follows. 3. That on 22nd of March, 2007, the University by way of an advertisement, invited applications for the post of a Professor in Anthropology (for short the said post). Intending candidates were directed to apply on or before 12th April, 2007. The selection norms were prescribed as follows:- "An eminent scholar with published work on high quality, actively engaged for research with 10 (ten) years of experience in post Graduate teaching and/or experience in research at the University/ National Level Institutions, including experience of guiding research on doctoral level OR An outstanding scholar with established reputation who has made significant contribution to knowledge. In exceptional cases, the teachers with 15 (fifteen) years of U.G.C teaching/research experience could also to be considered. I crave leave to refer to the said U.G.C Notification at the time of hearing of this application;" 4. Three persons, including P and PR, applied for the selection. The Selection Committee (for short SC) of the University recommended only one name, that of PR for appointment. No second person was recommended by the SC. The recommendation was made pursuant to an interview held by SC on 30th September, 2008. The Executive Council (EC) of the University thereafter offered the appointment to PR at its meeting held on 4th November, 2018. 5. During the long interregnum pending final hearing of this Writ Petition, both P and PR have retired from service. It is also a fact that P was granted promotion to the post of Professor subsequently. Using the long passage of time to their advantage, the Respondents/the University now argue that the relief, if at all P is found eligible for one, is now merely academic. 6. It is also a fact that P was granted promotion to the post of Professor subsequently. Using the long passage of time to their advantage, the Respondents/the University now argue that the relief, if at all P is found eligible for one, is now merely academic. 6. However, while proceeding to examine the merits of this Court is required to juxtapose the above noted argument of the University against its interim direction dated 17th March, 2009 which, inter alia, mandates that the promotion of PR shall be subject to the ultimate result of the writ petition. No material has been disclosed by the contesting parties that such interim direction did not subsist up to the stage of final hearing. 7. Mr. Hati, Learned Counsel appearing for P, strenuously argues that the view taken by the SC recommending only one name of PR is surely fallible. The SC failed to record reasons in favour of a single recommendation ignoring the heavy credentials of P. It is submitted that academic experts cannot be deified to heights which precludes them from liquefying their thoughts conveying the minimum objectivity. Such objectivity is all the more desirable since: (a) the appointment is to a senior post in the public domain; and (b) the selection carries with it the flavour of UGC Guidelines/Notifications. 8. Relying upon authorities reported in 1997 (3) Supreme 572 and 2015 (8) SCC 519 , Mr. Hati points out that the intention to invoke the Article 226 Jurisdiction by a common citizen is flexible enough not to be tied down to rigid routine. 9. Arguing on behalf of the University, Mrs. Sen Gupta, Learned Counsel, relies upon her Affidavit in Opposition (A/O) placing emphasis on the eminent composition of the SC namely, the Vice Chancellor, the Dean of the Faculty of Science, Professor Ranjana Ray (nominated by the Hon'ble Chancellor of the University), Professor R.K. Kar (EC nominee of the University) and Professor Bapukan Chaudhury (again an EC nominee of the University). 10. Mrs. Sen Gupta submits that the SC interviewed each of the three applicants and made a single recommendation in favour of PR. No second name was recommended. Therefore, on behalf of the University the point is taken that being an unsuccessful candidate, the petitioner at this stage cannot challenge the selection. 11. 10. Mrs. Sen Gupta submits that the SC interviewed each of the three applicants and made a single recommendation in favour of PR. No second name was recommended. Therefore, on behalf of the University the point is taken that being an unsuccessful candidate, the petitioner at this stage cannot challenge the selection. 11. It is argued that P has been unable to establish a case of bias or mala fides against the SC as a whole or, any of its members severally. It is submitted that the relief claimed by P is negatively addressed only to seek setting aside of the appointment of PR, without claiming that he (P) be declared as the successful candidate. 12. In support of her submissions, Mrs. Sen Gupta relies upon the authorities of 2010 (12) SCC 576 ; 2016 (7) Supreme 408 ; 2013 (11) SCC 309 and, 2016 (1) SCC 455. 13. The University takes a parting shot at P by pleading the following at Paragraphs 4(N) and 4(O) of its A/O. "(N) In this connection, it will not be out of place to mention that the petitioner was given promotion to the post of Reader in Anthropology on 29th September, 2000 with retrospective effect from July 27, 1998 by upgrading the post of Senior Scale Lecturer held by the petitioner with the condition that he had to complete 2 (two) refresher courses or summer institutes of approved duration by 3001. It is pertinent to mention that a lecturer in the Senior Scale is eligible for promotion to the Post of Reader if he or she has inter alia, after placement in the Senior Scale participated I tow refresher course/summer institutes approved duration etc. But the petitioner did not undergo two refresher courses and has completed only one refresher course. It is stated that required informations have been furnished to the petitioner. I crave leave to reserve my right to make appropriate submissions in this regard at the time of hearing of this application, if necessary. A Xerox copy of the appointment letter as Reader is annexed hereto and marked as Annexure "R-1/7". (O) It is pertinent to mention that for the Post of Professor, completion of two refresher course is urgently required." 14. Appearing on behalf of PR, Mr. A Xerox copy of the appointment letter as Reader is annexed hereto and marked as Annexure "R-1/7". (O) It is pertinent to mention that for the Post of Professor, completion of two refresher course is urgently required." 14. Appearing on behalf of PR, Mr. Pattanayak, Learned Counsel, takes the preliminary point that the writ petition is not maintainable since the petitioner participated in the selection process without demur. On the weight of authorities reported in 2013 (11) SCC 309 and 2008 (4) SCC 171 , it is argued that a failed selectee cannot be permitted to turn around and challenge the selection. 15. Relying on the High Court Appellate Side Rules, Learned Counsel argues that a demand for justice must be addressed to the authorities concerned prior to filing a writ petition. The authorities must have the option to redress the wrong. By rushing to Court P has burnt all his bridges with the University, assuming that he had one. The petition therefore deserves not to be entertained at all. 16. Mr. Pattanayak reiterates the position taken by the University at Paragraphs 4(N) and 4(O) of its A/O (supra), that the petitioner not having completed two refresher courses while serving in the post of Reader under the University, is not qualified to be a candidate for selection to the next higher post of Professor. 17. Having heard the parties and considering the materials placed, this Court arrives at the following findings:- (A) That the position barring a failed selectee from challenging the selection after participation is a well-recognized legal proposition. However, it is equally well recognized that propositions require to be tested on their own facts. (B) It is equally well settled that the Court sitting in Article 226 jurisdiction will not substitute its views with that of experts in their respective fields. It is thus axiomatic that a selection by academic experts should be normally presumed to be correct unless coloured by nepotism. (C) The requirement of reasons from academic experts may not, arguably, be of universal insistence but, stands on its own facts. The closer the competition, the greater becomes the need for umpiring. (D) To the mind of this Court there is not an iota of reflection in the SC' recommendation of the stand taken by the University at Paragraphs 4(N) and 4(O) (supra). The closer the competition, the greater becomes the need for umpiring. (D) To the mind of this Court there is not an iota of reflection in the SC' recommendation of the stand taken by the University at Paragraphs 4(N) and 4(O) (supra). It does not appear from the record that merely two refresher courses would have turned the tide overwhelmingly in favour of PR. Such also does not appear from the selection norms prescribed and extracted above. (E) Therefore, to the further mind of this Court what the SC did not recommend in as many words cannot be post facto supplied by the University on affidavit as a possible reason. In Re: Mohinder Singh Gill ( AIR 1978 SC 851 ) is by now an authority in its own class on this point. (F) It is equally trite that justice must not only be done, but seen to be believed. The recommendation of the SC, extracted below, can, within the permissible four corners of law, can be described as cryptic:- "Meeting of the Selection Committee for appointment to the post of Professor of Anthropology. Date: 30.09.2008 Time: 11-30 A.M Venue: Committee Room- I of the Administrative Building Vidyasagar University, Midnapore-721102. Total number of candidates called for interview : 03 Total number of candidates appeared : 03 The Selection Committee recommends Dr. Falguni Chakraborty for appointment to the post of Professor of Anthropology. In the event of above mentioned candidate not joining the post the Selection Committee recommends ___________________ for appointment to the post of Professor of Anthropology as second choice. (Crossed out as per record). 01. Prof. Swapan Kumar Praminick : Vice-Chancellor, Chairman. 02. Prof. Ranjana Ray : Chancellors nominee. 03. Prof. R.K. Kar : EC nominee. 04. Prof. Bapukan Choudhury : EC nominee. 05. Prof. Susanta Kumar Chakraborty : Dean of Faculty of Science." (G) Therefore, no second candidate was recommended. (H) Presumably, in the event the two refresher courses pleaded at Paragraphs 4(N) and 4(O) above went against P, in such event P ought not to have been allowed to make it at all to the final list of three candidates to appear before the SC. In other words, if P did not meet the qualifying criterion as post facto emphasised in the University' A/O, the SC could have eliminated him at the threshold and said so. In other words, if P did not meet the qualifying criterion as post facto emphasised in the University' A/O, the SC could have eliminated him at the threshold and said so. (I) This Court further finds that the stand taken by Learned Counsel for PR on non-compliance of the Appellate Side Rules is not fatal to the facts of this case. The proceedings before the SC were neatly wrapped up and ratified by the University' EC. By no stretch of imagination the University could have rolled back the carpet for P. The concept of Exhaustion of Remedies requires realistic reading. (J) It is again relevant to note that nothing has been brought to the notice of this Court by the Respondents that notwithstanding the so-called handicap of P in not completing the two refresher courses, the University did promote him subsequently to the post of Professor. (K) Upon a conjoint consideration of the above facts this Court finds that the principle of discretion, even applicable to expert academic bodies, is not the principle of unfettered discretion. In other words, the academic body may comprise of experts in their own fields. However, the experts are under an obligation to furnish the minimum reasons when the conclusion arrived at by them is of a nature visiting the selected with adverse civil consequence. (L) It may be noted that the expert committee or, in this case the SC, chose not to recommend a second name for the post of Professor. At Paragraph 8 of 1992 SUPP (2) SCC 481, the Hon'ble Apex Court was pleased to, inter alia, hold as follows:- "As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle4. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. The High Court however, observed, that Dr Kalyana Raman did not receive a fair and reasonable consideration by the Selection Committee. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. The High Court however, observed, that Dr Kalyana Raman did not receive a fair and reasonable consideration by the Selection Committee. The inference in this regard has been drawn by the High Court from the statement of objections dated February 18, 1980 filed on behalf of the Selection Committee. It appears that the Selection Committee took the stand that Dr Kalyana Raman did not satisfy the minimum requirement of experience and was not eligible for selection. The High Court went on to state that it was somewhat extraordinary for the Selection Committee after calling him for the interview and selecting him for the post by placing him for the post by placing him second, to have stated that he did not satisfy the minimum qualifications prescribed for eligibility. According to the High Court the stand taken by the Selection Committee raises serious doubts as to whether the deliberations of the Selection Committee were such as to inspire confidence and reassurance as to the related equality and justness of an effective consideration of this case. It is true that selection of the petitioner and the stand taken by the Selection Committee before the High Court that he was not eligible at all, are, indeed, antithetical and cannot coexist. But the fact remains that the case of Dr Kalyana Raman was considered and he was placed second in the panel of names. It is not shown that the selection was arbitrary or whimsical or the Selection Committee did not act fairly towards Dr Kalyana Raman. The fact that he was placed second in the panel, itself indicates that there was proper consideration of his case and he has been treated fairly. It should not be lost sight of that the Selection Committee consisted of experts in the subject for selection. They were men of high status and also of unquestionable impartiality. The Court should be slow to interfere with their opinion." (M)Apropo the facts of this case, the subtlety in the law specific to the subject domain requires to be underscored. It should not be lost sight of that the Selection Committee consisted of experts in the subject for selection. They were men of high status and also of unquestionable impartiality. The Court should be slow to interfere with their opinion." (M)Apropo the facts of this case, the subtlety in the law specific to the subject domain requires to be underscored. While it is presumptive that reasonableness does not require reasons to be stated, it is equally trite that the only significance of withholding reasons is that if the facts point overwhelmingly to one conclusion. (Administrative Law (10th Edition): Wade & Forsyth). (N) This Court was required to apply its mind as to whether the Curriculum Vitae of the principal contestants, viz. P and PR, were of a nature dispensing with the requirement on the SC to exhibit reasonableness in its action. In colloquial words, it is as if apples were wanted and mangoes came up for offer instead. The overwhelming requirement of apples dispenses with the idea of stating reasons while rejecting the mangoes. (O) To the mind of this Court the idea whether P and PR belonged to the same genre of apples and mangoes (supra) is highly questionable. The recommendation not to place a second name had the effect of declaring in the public domain that P was unfit to be a Professor. The A/O of the University at Paragraph 4(j) thereof rubs the salt into the wounds of P by stating, inter alia, that the Selection Committee did not EVEN (emphasis supplied) recommend any other name for appointment to the post of Anthropology (sic.) as second choice which indicates the performance of the petitioner at the interview. The emphasis on the purported poor opinion of the SC connected to the performance of P at the interview is reiterated at Paragraph 11 as following: That they (the SC) have selected the private respondents and not EVEN recommended the name of the Writ Petitioner (P) as a second choice which invariably signifies the worth of the writ petitioner. (P) To the mind of this Court the unworthy writ petitioner (P) was at the material point of time serving as a Reader in Anthropology at the same University which so extravagantly commented on his worth (supra). Furthermore, having regard to such worth P ought not to have been found suitable subsequently to don the hat of a Professor. (P) To the mind of this Court the unworthy writ petitioner (P) was at the material point of time serving as a Reader in Anthropology at the same University which so extravagantly commented on his worth (supra). Furthermore, having regard to such worth P ought not to have been found suitable subsequently to don the hat of a Professor. (Q) Assuming that the worth of P stood as assessed by the University, the A/O of the University ought not to have been so defensive with regard to the need for P to undergo two refresher courses. In any event the refresher courses did not feature as part of the terms of selection before the SC. The SC also did not discuss such aspect. (R) The refusal of recommendation of any one of the selectees at the level at which such selection takes place, i.e. the appointment of Professors to Universities, has the effect of visiting the non-selected candidate with adverse civil consequences. In other words, the non-selected candidate is told without reason by an expert body that he/she is not fit to be a Professor. Such conduct/action of an expert body, in this case the SC, in the absence of an overwhelming fact, is unreasonable. (S) This Court is conscious of the fact that the Proforma Sheet of selection supplied to the SC, gave it room to say either a Yes or a No. The SC therefore did what it was told, i.e. fill up the Proforma Sheet of selection (already extracted above), striking out the column for any second selectee leaving it to the University to supply the reasons for evaluating the worth of P in its A/O. The unanimity of opinion across the lines within the SC, notwithstanding the absence of materials against the aggrieved selectee as supplied by the University before it (the SC), is a phenomenon as subtle as a whale. In the backdrop of the above discussion, this Court finds that P deserves to be cumulatively compensated for the dishonor suffered by him at the hands of the SC. 18. In the backdrop of the above discussion, this Court directs that the recommendation of SC qua P at its meeting dated 30th September, 2008, is declared as invalid. 19. In the backdrop of the above discussion, this Court finds that P deserves to be cumulatively compensated for the dishonor suffered by him at the hands of the SC. 18. In the backdrop of the above discussion, this Court directs that the recommendation of SC qua P at its meeting dated 30th September, 2008, is declared as invalid. 19. Since P has already completed his service tenure, the Registrar of the University/the Respondent No.3 to this writ petition is directed to take steps to collect costs of Re.1/- (Rupee One each) from each of the members of the SC. In passing such direction, this Court is acutely conscious of the fact that the principles of natural justice have been complied with since the defence of the SC action has already been taken by the University in this hearing and, the SC could not have bettered its own record as presented by the University. 20. The Registrar/the Respondent No.3 shall also take steps for payment of costs on behalf of the University itself, which is assessed as Re.1/-X 10,000/- = Rs.10,000 (Rupee One multiplied by Ten Thousand equal to Rupees Ten Thousand only) payable to P. 21. The total costs of Rs.10,005/- (Rupees Ten Thousand Five Only) shall be actually disbursed by the Registrar/the Respondent No.3 within three weeks from the date of communication of this order to the Registrar/the Respondent No.3. 22. W.P. 30119 (W) of 2008 stands accordingly allowed on the terms as above. 23. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. Later:- Stay of operation of this judgment and order is prayed for by Ms. Sengupta, Ld. Counsel for the University. The prayer for stay stands refused.