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2019 DIGILAW 291 (GAU)

Linee Goswami v. Tezpur University

2019-03-05

MANOJIT BHUYAN

body2019
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. M. Dutta, learned counsel for the petitioner as well as Mr. N.C. Das, learned Senior Counsel representing respondent nos. 1, 2 and 3, assisted by Mr. A. Das, Advocate. Also heard Mr. D.P. Chaliha, learned Senior Counsel representing respondent no. 4, assisted by Mr. U.P. Chaliha, Advocate. 2. Appointment of the private respondent no. 4 i.e. Dr. Pratibha Deka as Assistant Professor in the Department of Environmental Science, Tezpur University vide order dated 07.08.2017, is put to challenge in the present proceedings. 3. To traverse the basic facts leading up to the challenge are that on 18.12.2015 the Tezpur University issued Advertisement No. 18/2015 for filling up backlog and normal vacant teaching positions in respect of the posts of Professor, Associate Professor and Assistant Professor. The present case is confined to the teaching position of Assistant Professors, where the backlog vacancy for Scheduled Caste/Scheduled Tribe/Other Backward Community was specified at one post and normal recruitment drive for Scheduled Caste/Scheduled Tribe/Other Backward Community/Persons With Disability and Unreserved was shown at 19 posts, the grand total being 20 (1+19) posts in the teaching position of Assistant Professors in various disciplines. In respect of filling up the vacant post of Assistant Professor in the Department of Environmental Science, amongst others, as many as 76 candidates applied, out of which 13 candidates were shortlisted and called for personal interview and out of which only 11 appeared, including the petitioner and the respondent no. 4 herein. The Selection Committee published the Select List dated 29.12.2016 for the post of Assistant Professor, Department of Environmental Science, placing one Dr. Nayanmoni Gogoi (OBC) in the 1st position in order of preference. The petitioner was not selected but respondent no. 4 Dr. Pratibha Deka was placed in the 3rd position. The List of Appointments, following the Advertisement dated 18.12.2015 and selection thereof to the various posts, was uploaded in the website of the Tezpur University. The said List of Appointments showed selection of said Dr. Nayanmoni Gogoi as Assistant Professor in the Department of Environmental Science, together with selection of 20 other candidates against the various posts of Assistant Professors in other disciplines. The said List of Appointments showed selection of said Dr. Nayanmoni Gogoi as Assistant Professor in the Department of Environmental Science, together with selection of 20 other candidates against the various posts of Assistant Professors in other disciplines. Although vide Advertisement No. 18/2015 selection was confined to 20 (1+19) posts of Assistant Professors, the List of Appointments, as uploaded in the website, showed selection for filling up 21 posts of Assistant Professors in various disciplines, including Environmental Science. This, however, is not the subject-matter of the present petition. 4. Subsequent to filling up of all the advertised posts of Assistant Professors, including the vacant post of Assistant Professor in the Department of Environmental Science on 23.01.2017 by appointing Dr. Nayanmoni Gogoi, a situation arose in July, 2017 when one of the faculty in the Department of Environmental Science, Dr. Manish Kumar, Assistant Professor, tendered resignation. In the said post falling vacant due to resignation, the respondent no. 4 was appointed on regular basis vide order dated 07.08.2017, issued under the hand of the Registrar of Tezpur University. While marking copies of the order to various authorities including the respondent no. 4, at sl. no. 14 it is indicated that the appointment order has reference to her application dated 15.02.2016 for the post of Assistant Professor against Advertisement No. 18/2015 and subsequent interview for the post held on 29.12.2016. The legality and validity of the appointment order dated 7.8.2017 is the crux of the challenge here. 5. I have heard the learned counsel for the parties and have perused the materials on record. 6. Mr. N.C. Das for the Tezpur University justifies the legality of the appointment order dated 07.08.2017 on the premise that whereas the vacant teaching positions in respect of Professor, Associate Professor and Assistant Professor, with break-up of reservation, were specified in the Advertisement No. 18/2015, however, department-wise distribution of posts were kept open with an objective of maximising the possibility of filling up vacancies. As one post of Assistant Professor fell vacant on 31.07.2017 due to resignation of Dr. As one post of Assistant Professor fell vacant on 31.07.2017 due to resignation of Dr. Manish Kumar and as the Select List was valid for one year as per Clause 5.0 of Ordinance No. 15 framed under the Tezpur University Act, 1993 and the First Statutes under Second Schedule of the Act, therefore, the Respondent University decided to act on the Select List without the necessity to issue any fresh any Advertisement and undertake selection process afresh. It is stated that the sudden vacancy caused had adversely affected the academic activities of the department vis-à-vis the number of students in the said department. Another factor weighing in the mind was in respect of the fact that since during the relevant period the University was run by an Acting Vice-Chancellor, such authority was not competent to initiate fresh recruitment process as per letter dated 17.08.2014 of the Government of India in the Ministry of Human Resource Development, Department of Higher Education. Reference is also made to the condition in the Advertisement which provides that "Any dynamic vacancies occurred during this process of recruitment will be added to the number of vacant positions to be filled up". Clause 18 under "Important Information" of the Advertisement is also referred to which specifies that the actual number of posts in the discipline may increase or decrease depending on the circumstances. Mr. Das further submits that on an exercise carried out it was found that the vacancy occurring due to resignation of Dr. Manish Kumar, who belonged to general category, had to be filled up from Scheduled Caste category in the absence of any candidate belonging to the Other Backward Community figuring in the Select List besides Dr. Nayanmoni Gogoi. Referring to the letter dated 19.07.2018 received from the University Grants Commission it is stated that there was a restrain order for undertaking any recruitment process until further orders. Lastly, it is submitted that the appointment of respondent no. 4 was due to the emergent situation and exceptional circumstances consequent upon resignation of Dr. Manish Kumar. In this regard reliance is placed in the case of Rakhi Ray & Ors. Vs. High Court of Delhi & Ors., reported in (2010) 2 SCC 637 as well as in the case of Prem Singh & Ors. Vs. 4 was due to the emergent situation and exceptional circumstances consequent upon resignation of Dr. Manish Kumar. In this regard reliance is placed in the case of Rakhi Ray & Ors. Vs. High Court of Delhi & Ors., reported in (2010) 2 SCC 637 as well as in the case of Prem Singh & Ors. Vs. Haryana State Electricity Board & Ors., reported in (1996) 4 SCC 319 for the proposition that although filling up vacancies over the notified vacancies is neither permissible nor desirable, however, such rule can be deviated from only in rare and exceptional circumstance and in emergent situation after adopting policy decision based on some rationale. 7. Mr. D.R Chaliha, for respondent no. 4, adopts the contentions put forth on behalf of the University and further submits that no infirmity can be attributed to the appointment order, inasmuch as, the vacancy arising due to resignation of Dr. Manish Kumar had been filled up by respondent no. 4, who belongs to the reserved category, after due exercise being undertaken by the respondent University. Further, whereas in the panel of 5 (five) names in the Select List pertaining to the Department of Environmental Science the name of respondent no. 4 is shown, the name of the petitioner is wholly absent. Submission made is that respondent no. 4 have accrued right, being one of the selected candidates and since the petitioner is not a selected candidate, he is without any locus to challenge the appointment of the respondent no. 4. Further, the appointment had been made during the validity period of the Select List in terms of the Ordinance of the Tezpur University. Lastly, the petitioner having participated in the selection process and not being selected, cannot now turn around to challenge the appointment of the respondent no. 4. 8. At the very outset this Court would like to place on record that the justifications and arguments advanced on behalf of Tezpur University as well as on behalf of respondent no. 4 do not hold any water. There can be no dispute that a vacancy caused due to sudden resignation of a faculty member would cause a pause in the academic activities of the department concerned. This would not, however, countenance filling up of the vacancy in the manner done in the present case. 4 do not hold any water. There can be no dispute that a vacancy caused due to sudden resignation of a faculty member would cause a pause in the academic activities of the department concerned. This would not, however, countenance filling up of the vacancy in the manner done in the present case. Reference and reliance made to the provision in the Advertisement that "Any dynamic vacancies occurred during this process of recruitment will be added to the number of vacant positions to be filled up" has no application in the facts and circumstances of the case for the apparent reason that vacancy due to resignation of Dr. Manish Kumar did not occur "during the process of recruitment" but long after all the advertised posts had been filled up. The justification also made to the effect that appointment was made as there was a restrain order from the University Grants Commission for fresh recruitment process, is also a misplaced submission, in that, the letter dated 19.07.2018 of the University Grants Commission only requested postponement of recruitment process until further orders, if such process was already underway. To reiterate, by the time respondent no. 4 came to be appointed, the recruitment process pursuant to Advertisement No. 18/2015 had already stood completed. As regards the cases in Rakhi Ray (supra) and Prem Singh (supra), indeed, deviation is made permissible in rare, exceptional and emergent situations only after adopting policy decision on some rationale. In the instant case, the vacancy occurring due to resignation of Dr. Manish Kumar cannot be construed as high as a rare, exceptional and emergent circumstance requiring filling up the vacancy by obviating regular recruitment process. Further, in view of the Circular dated 09.10.2014 (Annexure-A1 to the Affidavit-in-Reply) of the Government of India, Ministry of Human Resources Development, Department of Higher Education, the Acting Vice-Chancellors are without any power to make appointment of permanent teaching and non-teaching staff etc. No power vests on Acting Vice-Chancellors to take policy decision towards filling up vacancy on ground of rare, exceptional and emergent situation, which operates as an exception to the settled principle of law that filling up of vacancies over notified vacancies is not generally permissible in law. In the fact situation of the case, reliance placed in Rakhi Ray (supra) and Prem Singh (supra) cannot come to the aid of the respondents. In the fact situation of the case, reliance placed in Rakhi Ray (supra) and Prem Singh (supra) cannot come to the aid of the respondents. It is further observed that the principle of estoppel by acquiescence on the part of the petitioner, closing his right to challenge the appointment of respondent no. 4 in absence of locus, is wholly inapplicable in the facts and circumstances of the case. The petitioner has no truck with the selection process undertaken pursuant to Advertisement No. 18/2015. The issue lies elsewhere. The petitioner cannot be non-suited from challenging the appointment order. 9. There is no gainsaying that altogether 20 (1+19) vacant teaching positions in the rank of Assistant Professor in various departments were specified in the Advertisement No. 18/2015, including the Department of Environmental Science. Admittedly, all the advertised posts were filled up. In respect of the vacant post of Assistant Professor in the Department of Environmental Science, the candidatures of 76 applicants were short listed to 13 for personal interview, out of which 11 appeared in the interview. The lone vacant teaching position of Assistant Professor in the said Department of Environmental Science was filled up by selecting and appointing one Dr. Nayanmoni Gogoi. In fact, from the List of Appointments (Annexure-E) all the advertised vacant teaching positions in the rank of Assistant Professor in various disciplines were filled up. The vacancy arising on account of resignation of Dr. Manish Kumar, which was much after the advertised posts had been filled up, cannot be construed as an anticipated vacancy but a future vacancy, required to be filled up through fresh regular selection process and in accordance with law. It was on an unexpected contingency that the vacancy arose. The same could not have been filled up in the manner as was done by the impugned appointment order dated 07.08.2017. Reliance made in Clause 5.0 of Ordinance No. 15 to say that appointment of respondent no. It was on an unexpected contingency that the vacancy arose. The same could not have been filled up in the manner as was done by the impugned appointment order dated 07.08.2017. Reliance made in Clause 5.0 of Ordinance No. 15 to say that appointment of respondent no. 4 is valid as the same was made within the validity period of the Select List, is wholly misplaced, in that, all advertised posts having been filled up and the Select List in respect of the Department of Environmental Science also having been acted upon, the exhausted Select List could not have been acted upon under the cover of Clause 5.0 of Ordinance No. 15 and/or by the justification made that since the Select List is valid for one year, as such, there was no question of issuing fresh advertisement and for holding selection process afresh. 10. In Mukul Saikia & Ors. Vs. State of Assam, reported in 2009 (2) GLT (SC) 38, the Supreme Court considered and answered a situation where, in respect of filling up 27 posts, there were claims of candidates whose names appeared below 27 for appointment in vacancies which arose after the 27 advertised posts had been filled up. The Supreme Court held that if the requisition and advertisement is only for 27 posts, the State cannot appoint more than the number of posts advertised, in that, the selection list got exhausted when all the 27 posts were filled up. As the currency of the Select List expired as soon as the number of posts advertised was filled up, there can be no right to claim appointment to any vacancy in regard to which selection was not held. Appointments beyond the number of posts advertised would amount to filling up future vacancies. 11. Even in Rakhi Ray (supra), the law with regard to filling up vacancies has been summarised to the effect that appointment made beyond the number of advertised vacancies is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, rendering the same as a nullity, in executable and unenforceable in law. As and when the advertised vacancies are filled up, the unexhausted Select List is meant only to be consigned to record room. Further, a person whose name appears in the Select List does not acquire any indefeasible right of appointment. As and when the advertised vacancies are filled up, the unexhausted Select List is meant only to be consigned to record room. Further, a person whose name appears in the Select List does not acquire any indefeasible right of appointment. The empanelment at the best can be a condition of eligibility for the purpose of appointment and by itself does not amount to selection or creating a vested right to be appointed. When notified vacancies are filled up, the selection process comes to an end and there can be no scope of any further appointment, save by following statutory rules and in conformity with the constitutional mandate. 12. In State of Bihar & Anr. Vs. Madan Mohan Singh & Ors., reported in AIR 1994 SC 765 , the Supreme Court Was confronted with the crucial issue whether there can be any question of the Select List subsisting for one more year for filling up subsequent vacancies when the whole selection process was confined to filling up only the 32 advertised posts. In the facts of that case, the Supreme Court observed that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not fill up other vacancies. The merit list prepared would hold good only for the purpose of filling up those 32 vacancies and no further, inasmuch as, the said process of selection for those 32 vacancies got exhausted and came to an end. In no uncertain words, the Supreme Court also observed that if the same List is allowed to subsist for the purpose of filling up other vacancies also, it would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the advertisement and selection process already completed. 13. The decisions of the Supreme Court, as illustrated above, in Mukul Saikia, Rakhi Ray and Madan Mohan Singh squarely answers the issue raised in this petition. Facts of the case do not permit deviation from the settled principles enunciated by the Supreme Court in the said reported cases. The respondent no. 4, under no circumstances, could have been appointed against a vacancy arising much after the advertised posts pursuant to Advertisement No. 18/2015 had been filled up and after the concerned Select List pertaining to appointment of Assistant Professor in the Department of Environmental Science stood exhausted with the appointment of Dr. Nayanmoni Gogoi. The respondent no. 4, under no circumstances, could have been appointed against a vacancy arising much after the advertised posts pursuant to Advertisement No. 18/2015 had been filled up and after the concerned Select List pertaining to appointment of Assistant Professor in the Department of Environmental Science stood exhausted with the appointment of Dr. Nayanmoni Gogoi. The action of the Tezpur University in filling up the vacant post arising out of resignation of Dr. Manish Kumar without fresh advertisement and selection process cannot have legal sanctity and approval of this Court, the same being done in derogation of the constitutional scheme for making appointments. 14. For all the aforesaid reasons, the writ petition merits consideration having substantial force. The order dated 07.08.2017 appointing respondent no. 4 Dr. Pratibha Deka as Assistant Professor, Department of Environmental Science at Tezpur University, is set aside. The writ petition, accordingly, stands allowed. The respondent Tezpur University shall now make fresh advertisement for filling up the vacant post of Assistant Professor, Department of Environmental Science. Let the required exercise be initiated and completed within an outer limit period of 3(three) months from today. Ordered accordingly.