High Court
Case Details
WP(C) 480/2008 BEFORE THE HON’BLE MR. JUSTICE A K GOSWAMI The Writ Petitioner in W.P(C)No.4225/07 is the Respondent No.3 in W.P(C) JUDGMENT AND ORDER(Oral) Heard Mr. D.Baruah, learned counsel for the petitioner in W.P(C)No.4225/07 and M r. A M Buzarbaruah, learned counsel for the petitioner in W.P(C)No.480/2008. Als o heard Mr. L P Sarma, learned Standing Counsel, Gauhati University. 2. No.480/2008. 3.
Legal Reasoning
In W.P(C)No.4225/07, the subject matter of challenge is the direction of the Executive Council of the Gauhati University to re-advertise the post of Lec turer in Arabic by not accepting the recommendation of the Selection Committee i n favour of the writ petitioner for the post in question on the basis of the i nterview held on 28.6.2007. Prayer is also made to appoint the petitioner in the post of Lecturer in Arabic. In W.P(C)No.480/2008, prayer has been made for set ting aside the selection of the writ petitioner in W.P(C)No.4225/07 for the post of Lecturer in Arabic and the decision of the Executive Council to re-advertis e the post. A further prayer is made for directing the Selection Committee to m ake a fresh selection for the post of Lecturer in Arabic from amongst the candid ates who responded to the advertisement dated 15.9.2005. 4. The salient facts as emerging from the pleadings, which are not in disp ute, may, at this stage, be noted for proper appreciation of the contentions adv anced by the learned counsel for the parties, who have extensively argued their respective cases with reference to Section 15-A of the Gauhati University Act, 1947 (for short, ’the Act’).
Decision
5. The Registrar, Gauhati University issued an advertisement, which was pub lished on 15.9.2005 in the Assam Tribune, inviting applications for filling u p of posts of Professor, Reader and Lecturer in many disciplines including a pos t of Lecturer in Arabic. The essential qualification for the post of Lecturer in Arabic, as mentioned in the advertisement is good academic record with at least 55% of marks or, an equivalent grade of B in the 7- point scale with letter gra des O, A,B,C,D,E & F at the Master’s degree level, in the relevant subject from an Indian University, or, an equivalent degree from a foreign University. Apar t from the above qualifications, candidates must have cleared the National Eligi bility Test (NET) for lecturers conducted by UGC, CSIR or similar test accredite d by the UGC. Both the petitioners along with many others responded to the said advertisement and 10 number of candidates who were found eligible, were called for the interview before the Selection Committee, which was held on 28.6.2007. S even candidates appeared before the Selection Committee and the Selection Commit tee recommended only the writ petitioner in W.P(C)No.4225/07 for the post of Le cturer in Arabic. The Executive Council of the Gauhati University considered the recommendation of the Selection Committee in a meeting held on 17.7.2007. The E xecutive Council chose not to accept the sole recommendation made for the post o f Lecturer in Arabic and consequently directed the Registrar, Gauhati University to advertise the vacancy once again. 6. This decision of the Executive Council in its meeting dated 17.7.07 is q uestioned in both the two writ petitions, albeit, on different perspectives and on different planks. The thrust of the argument of Mr. Baruah, learned counsel for the petiti 7. oner in W.P(C)No.4225/07 is that the Executive Council was wholly wrong in not a ccepting the recommendation made by the Selection Committee, which consisted of eminent persons having expertise in the field, without assigning any reason and without there being any cogent or germane material to nullify the recommendatio n so made in favour of the writ petitioner. The learned counsel submits that the decision for re-advertisement to the post in question was wholly uncalled for. It is submitted that such a decision was taken by the Executive Council as a blu e eyed boy of the Executive Council was not recommended by the Selection Committ ee. When the very basis of arriving at a decision for re-advertisement of the po st was based on faulty premise, the decision of the Executive Council is liable to be interfered with and the Executive Council is liable to be directed to appo int the writ petitioner to the post of Lecturer in Arabic. Mr. Baruah places rel iance on Vinodan T. and others -vs- University of Calicut and others , reported in (2002) 4 SCC 726 and Secretary, Department of Home , A.P. and others -vs - B. Chinnam Naidu, reported in (2005) 2 SCC 746. 8. Mr.A.M.Buzarbaruah, learned counsel for the Writ Petitioner in W.P(C) No.480/2008 contends that on the basis of merit, academic career and other exper iences which was evaluated by the Executive Council, it had rightly not accepted the recommendation made by the Selection Committee recommending the writ petit ioner in W.P(C)No.4225/07, as the materials on record, even on a cursory compar ison of the qualifications and credentials among the candidates in the fray, wo uld amply demonstrate that the petitioner is the most suitable candidate. He sub mits that the petitioner is aggrieved by the decision of the Executive Council to re-advertise the post instead of directing the Selection Committee to make a fresh selection of the candidates from the candidates already interviewed and to forward the recommendation after such selection to the Executive Council on ce again for fresh consideration. It has been argued by Mr. Buzarbaruah that in a situation like this where there is only one recommendation, 2nd proviso to Sec tion 15-A (1) (c) of the Act enables the Executive Council to exercise one optio n out of two available options before them, namely, (i) directing re-advertiseme nt or (ii) convening a fresh meeting of the Selection Committee for making fresh recommendation. It is submitted by him that the word (cid:28)and’’ in between the wo rds (cid:28)again (cid:29) and (cid:28)convene (cid:29) is to be read as (cid:28) or (cid:29) as otherwise the words (cid:28) conve ne a meeting of the selection committee for making fresh recommendation (cid:29) will be rendered otiose, which cannot be the intention of the legislature. It is argu ed that while opting to take either of the courses, it will be necessary for the Executive Council to record its reasons. In view of the fact that recruitment i s a long drawn process, when there are large number of candidates in the pool, i n public interest, it would have been only proper for the Executive Council to h ave taken recourse to give a direction to the selection committee for making fre sh recommendation from the available candidates but without recording any reason , mechanically, direction for re-advertisement was issued. It is also submitted by him that the 2nd proviso to Section 15-A(1)(c) is also controlled by Section 15-A (3) and if that be so, the Executive Council ought to have referred the ma tter to the Chancellor. The learned counsel relies, in support of his submission s, on paragraph 26 of Hindustan Ideal Insurance Co.Ltd.-vs- Life Insurance Corpo ration of India , reported in AIR 1963 SC 1083 and in paragraph 9 of Commissi oner of Income-tax, Mysore, Travancore-Cochin and Coorg, Bangalore etc.-v- Indo Mercantile Bank Ltd., reported in AIR 1959 SC 713. 9. Mr.L.P.Sarma, learned Standing Counsel, Gauhati University, does not dis pute on the core facts going to the root of the matter. According to him, the re solution adopted by the Executive Council in the meeting dated 17.7.2007 cannot be invalidated and impeached as the same does not suffer from any infirmity. Su ch decision had been taken in strict compliance of 2nd proviso to Section 15-A(1 )(c) of the Act. He submits that if there is one recommendation made by the Sele ction Committee and if such recommendation is not acceptable to the Executive Co uncil, the only course open for the Executive Council is to record its reason in writing for not accepting the recommendation to the post and thereafter, to dir ect advertisement for the vacancy for a fresh selection. In a given case wher e recommendation consists more than one name and if none of the recommendation s are acceptable to the Executive Council, in terms of Section 15-A(3), the Exec utive Council is mandated to forward the papers to the Chancellor, recording r easons as to why it is not accepting the recommendation of the Selection Committ ee. Learned counsel submits that there is no conflict of 2nd proviso to Section 15-A(1)(c) and Section 15-A(3) and they operate in different fields. Mr. Sarma a lso denounces the submission of Mr. Buzarbaruah that (cid:28)and (cid:29) in 2nd proviso to Se I have heard the learned counsel for the parties and have perused the ction 15-A(1)(c) should be read as (cid:28)or (cid:29) as entirely without any merit. The plea of favourtism taken by Mr. Baruah is also refuted by Mr. Sarma as a figment of i magination. 10. materials on records. 11. Before proceeding further, it will be appropriate to take note of provis ions which are relevant for proper appreciation and understanding of the issues involved in this case. 12. Section 7 of the Act defines the authorities and offices of the Universi ty. They are as follows: (i)The Chancellor, (ii)The Vice-Chancellor, (iii)The Re ctor, (iv)The Court, (v)The Executive Council, (vi)The Academic Council,(vii)The Faculties, (viii) The Standing Finance Committee,(ix)The Construction Committee , (x)The Selection Committee, (xi)The Registrar,(xii)The Treasurer, and (xiii) S uch other Authorities and Officers as may be provided for by the Statute. 13. Section 12 of the Act defines the Executive Council. Executive Council is t he Executive body of the University and consists of, amongst others, the i) Vice -Chancellor, ii) the Rector, iii) the Director of Public Instruction, Assam, iv) the Director of Technical Education, Assam, v) the Director of Health Services, Assam, vi) the Director of Public Instruction, Manipur, vii) the Director of Pu blic Inspection, Arunachal Pradesh and viii) the Chairman, Board of Secondary Ed ucation, Assam. The Executive Council also has two Principals of non-Government affiliated Degree Colleges to be elected from amongst themselves, one Principal of Govt. affiliated Degree Colleges to be elected from amongst themselves, two Heads of Departments who are professors, to be chosen by the Vice-Chancellor by rotation according to seniority for a period of three years, one Dean of Faculty to be chosen by the Vice-Chancellor for a period of three years by rotation acc ording to seniority, three members to be elected by the Court from amongst its members at its Annual General Meeting other than employees and students of the U niversity of the affiliated Colleges, two teachers other than a Dean of Faculty of the University and the Principals of the affiliated Colleges, to be elected b y the Academic Council from amongst such teachers who are its members, three per sons out of whom at least one shall be woman nominated by the Chancellor and th ree persons nominated by the Government. 14. Powers and duties of the Executive Council is delineated in Section 13 o f the Act. Section 13 (f) provides that Executive Council shall appoint officers (other than the Chancellor, the Vice-Chancellor and the Rector), Teachers, Libr arian, the Proctor, the clerical staff and other employees of the University and shall define their duties and conditions of service and shall provide for the f Section 15-A deals with Selection Committee. It will be appropriate to r illing up of temporary vacancies. 15. eproduce Section 15-A in its entirety. (cid:28) 15-A. Selection Committee.-(1) (a) There shall be a Selection Committee for ma king recommendations to the Executive Council for appointment of Professors, Rea ders, Lecturers, Registrar, Treasurer, Librarian and other officers of the Unive rsity as may be provided for by the Statutes consisting of the following members . (i) the Vice-Chancellor as Chairman of the Selection Committees; (ii) three persons not holding any office of profit under the University of w hom one nominated by the Chancellor, or to be nominated by the State Government and the other to be nominated by the Executive Council; (iii) the Registrar shall be the Member-Secretary of the Selection Committee e xcept for the Selection Committee for the appointment of Registrar in which case the Vice-Chairman shall nominate one person as Member-Secretary in consultation with the Executive Council. (b) In making recommendations for the appointment of Professors of the Universi ty, the Selection Committee shall co-opt the Head of the Department concerned, i f he is Professor, one Professor of the Department to be nominated by the Vice-C hancellor and two persons not in the services of the University to be nominated by the Executive Council out of the panel of not less than five names of persons recommended by the Academic Council who have special knowledge of the subject for which the Professor is to be selected. (c) In making recommendations for the appointment of Readers or Lecture rs and other teachers of the University the Selection Committee shall co-opt the Head of the Department concerned, one Professor of the Department to be nominat ed by the Vice-Chancellor and two persons to be nominated by the Executive Counc il out of a panel of not less than five names of persons recommended by the Aca demic Council being persons not connected with the University, who have special knowledge of or interest in the subject for which the Reader of Lecturer is to b e selected: Provided that where the Executive Council proposes to make an appoi ntment otherwise than in order of merit arranged by the Selection Committee in t he post of Professors, Reader or Lecturers it shall record its reasons in writin g and submit them to the Chancellor who may approve the proposal or return it to the Executive Council for reconsideration. After re-consideration, if the Execu tive Council desires to pursue its original proposal, it shall refer the matter again to the Chancellor for his decision which shall be final: Provided further that, where a Selection Committee recommends to th e Executive Council the name of one person only and that person is not acceptabl e to the Executive Council, the Executive Council shall record its reason in wri ting for not accepting the recommendation and direct the Registrar to advertise the vacancy again and convene a meeting of the Selection Committee for making fr esh recommendation, and in so doing, communicate to every member of the Selectio n Committee the reasons recorded as above. (d) Where an appointment is to be made to a temporary vacancy of Tea chers of the University, the appointment shall be made, if vacancy is for a peri od of one year or more, on the recommendation of the Selection Committee in acco rdance with the provisions of the preceding sub-section and no ad-hoc appointmen t shall be made by the Executive Council. (2) If a member of the Selection Committee is unable to attend, he may send his opinion in writing to the Vice-Chancellor and such opinion shall be tak en into consideration by the Committee in making its recommendations. Explanation.- For the purpose of this section the co-opted members wil l be deemed to be members of the Selection Committee for the purpose for which t hey are co-opted. (3) 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 deci sion given by the Chancellor thereon shall be final. (4)The Executive Council shall constitute one or more Committees for mak ing recommendations to the Executive Council for appointment to other administra tive posts and may prescribe by Ordinance the procedure and methods to be follow ed in making such recommendations. (cid:29) 16. The extract of the decision of the Executive Council in the meeting held on 17.7.07 reads as follows: (cid:28)Read the report of the Selection Committee held on 28.6.07 for the post of Lect urer in Arabic, vide Advt. No.T/ 2005/ 3 (SL.No.3 (O) attended by the Vice Chanc ellor (Dr. A. Choudhury), G.U., Dr. P K Choudhury, Dr. Devdad Kakati, Sri Harekr ishna Gayan, Dr. Abdul Majeed, Reader and Head, Deptt. of Arabic, the Registrar (Dr.R.N.Das), G.U. as Member -Secretary, Prof (Dr.) I K Burke, and Prof (Dr.) M. Bhuyan, expert nominated by the Executive Council recommending Syed Khairul Ana m Samsuddin for appointment as Lecturer in the Deptt of Arabic. Considered the report of the Selection Committee. The Executive Council in its meeting held on 17.7.07 considered the recommendati ons of the selection committee for the post of Lecturer in Arabic. The Selection Committee recommended the name of the persons only viz Syed Khairul Anam Samsud din, Sl. No.10. The Executive Council considered the merit, academic career and other experience s of the said candidate and also compared with other candidates. It is apparent from the select list that there are candidates with consistently good academic c areer than the selected one. Hence for the aforesaid reasons, the Executive Coun cil decided not to accept the recommendation of the selection committee and dire cted the Registrar to advertise the vacancy again. RESOLVED that the post be re-advertised. (cid:29) 17. The select list referred to in the decision dated 17.7.2007 of the Execu tive Council is the Statement of Candidates. A perusal of the aforesaid decision shows that the Executive Council had considered the merit, academic career and other experiences of the recommended candidates vis-à-vis other candidates and c ame to a conclusion that there are candidates with consistently good academic ca reer than the recommended candidate. On this consideration, the Executive Counci l decided not to accept the recommendation of the Selection Committee. This cour t is unable to accept the contention of Mr. Baruah that the recommendation of th e Selection Committee was rejected by the Executive Council without there being any reason. No doubt, Selection Committee consists of eminent persons in the fie ld of academics. But the Executive Council is a larger body consisting of simila r eminent and knowledgeable persons, on whom power is vested to appoint Teachers . This court will not sit on appeal on the decision of the Executive Council not to accept the recommendation of the Selection Committee unless it is shown that the decision of the Executive Council is perverse or without any basis. The le arned counsel is unable to show that the reasoning assigned by the Executive Cou ncil is factually not correct. It cannot also be said that the reasons alluded b y the Executive Council are irrelevant or not germane in a selection process. 18. The decision in Vinodan T. (supra) has no application to the facts of th e instant case inasmuch as, the ratio of the said case is to the effect that the appointment to the vacancies must be made in accordance with rules, if any, rel ating to reservation and the appointing authority cannot scrap the panel of sele cted candidates during the period of its validity, except for well-founded reaso ns. It is also noted that a person selected for a post does not acquire a right to be appointed in such post. In Secretary, Department of Home, A.P. and others (supra), the Apex Court laid down that whether a person is fit to be appointed o r not is a matter within the special domain of the Government and for denying ap pointment after one is selected, though there is no inherent right to be appoint ed, such denial has to be on the basis of some statutory provisions or norms. Th is case is also not applicable in the facts of the case as recommendation made b y the Selection Committee was not accepted by the Executive Council on valid gro unds. Before the argument of Mr. Buzarbaruah is considered, it will be necessa 19. ry to note that the word (cid:28)or (cid:29) is normally disjunctive and (cid:28)and (cid:29) is normally conj unctive but there may be times when in order to give effect to manifest intentio n of the legislature as disclosed by the context, they have to be read vice vers a. If the literal meaning of the words produces an unintelligible or absurd res ult (cid:28)and (cid:29) may be read for (cid:28)or (cid:29) and (cid:28)or (cid:29) for (cid:28)and (cid:29). 20. At this stage, it will also be appropriate to take note of the decisions cited by Mr. Buzarbaruah. In Hindustan Ideal Insurance Co.Ltd.(supra), the Supr eme Court laid down that where the main provision is clear, its effect cannot be cut down by the proviso but where it is not clear, the proviso, which cannot be presumed to be a surplusage, can properly be looked into to ascertain the m eaning and scope of the main provision. It will also be appropriate to quote her ein below relevant extract of paragraph-9 of Commissioner of Income-Tax, Mysore, Travancore-Cochin and Coorg (supra) : (cid:28)9 & & & & &.. The proper function of a proviso is that it qualifies the generality o f the main enactment by providing an exception and taking out as it were, from t he main enactment, a portion which, but for the proviso would fall within the ma in enactment. Ordinarily it is foreign to the proper function of a proviso to re ad it as providing something by way of an addendum or dealing with a subject whi ch is foreign to the main enactment. & & & & & & & & & & & & & & & & &.. It is a fundamental rule of construction that a proviso must be consider ed with relation to the principal matter to which it stands as a proviso. (cid:29) & & & & & & & & & & & & & & & & &. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (cid:29) 21. The role of the Selection Committee is to make recommendation to the Exe cutive Council for appointment of Professors, Reader, Lecturers and other classe s of Officers as indicated in Section 15-A. From the scheme of Section 15-A, as a whole, it appears that the Selection Committee may make a sole recommendation for a particular post or recommend number of persons in order of merit arranged by it. In a case where Executive Council accepts the recommendation made by the Selection Committee, 1st proviso and 2nd proviso to Section 15-A(1)(c) or Se ction 15-A(3) will not come to play. 22. There may be cases when the Executive Council may not agree with the ord er of merit arranged by the Selection Committee and it may decide to appoint a p erson otherwise than in order of merit. This eventuality is envisioned in 1st pr oviso to Section 15-A(1)(c). In such an event, the Executive Council shall recor d its reason in writing and submit the same to the Chancellor who may approve th e proposal or return it to the Executive Council for reconsideration. After reco nsideration, if the Executive Council desires to pursue its original proposal, i t shall refer the matter again to the Chancellor for his decision which shall be final. 23. The 2nd proviso to Section 15-A(1)(c) deals with a situation where there is only one recommendation, which is not accepted by the Executive Council. In such a situation, the Executive Council shall record its reason in writing for n ot accepting the recommendation and direct the Registrar to advertise the vacanc y again and convene a meeting of the Selection Committee for making fresh recomm endation. In this context, argument of Mr. Buzarbaruah is that if direction for re-advertisement is given, there is no necessity for a further direction to co nvene a meeting of the selection committee, as in any view of the matter, if the process is initiated by an advertisement , as a logical corollary, consequentia l steps are required to be taken and one of such consequential steps to bri ng the advertisement process to its logical conclusion is to convene a Selectio n Committee to evaluate the candidates and therefore, he had submitted reading of (cid:28)and (cid:29) as (cid:28)or (cid:29) to make advertising the vacancy and convening a meeting of the Selection Committee for making fresh recommendation disjunctive and independent courses of action. The argument is not well founded. A key component of 2nd prov iso to Section 15-A(1)(c) is advertisement of the vacancy. Advertisement has a d efinite connotation in the context of filling up of vacancy by way of appointmen t. Advertising the vacancy would involve inviting applications and thereafter co nvening a meeting of the Selection Committee for making fresh recommendation. Ad vertising the vacancy again and convening a meeting of the Selection Committee f or making fresh recommendation does not produce an unintelligible or absurd resu lt so as to warrant the interpretation which Mr. Buzarbaruah has advocated. It c annot also be said that the expression (cid:28)convening a meeting of the Selection Com mittee for making fresh recommendation (cid:29) is superfluous or wholly meaningless. Th e legislative intent in 2nd proviso to Section 15-A(1)(c) is very clear that in the case of a sole recommendation, in case the recommendation is not accepted by the Executive Council, the only option it has is to direct the Registrar to adv ertise the vacancy and to convene a meeting of the Selection Committee for makin g fresh recommendation. The scheme of Section 15-A does not envisage Selection C ommittee making recommendation twice on the basis of applications received pursu ant to an advertisement. Once the Selection Committee recommends, it does not ha ve any further role in the matter. In case its sole recommendation is not accept ed by the Executive Council, the process of selection has to begin de novo with issuance of fresh advertisement of the vacancy. 24. Section 15-A(3) caters to a situation where the Executive Committee does not accept any of the recommendations of the Selection Committee. The argument of Mr. Buzarbaruah that (cid:28)any of the recommendations (cid:29) in Section 15-A(3) may also mean sole recommendation is without any merit and such submission runs counter to his interpretation of 2nd proviso to Section 15-A(1)(c). 2nd proviso to Sect ion 15-A(1)(c), as has been noted earlier, deals with sole recommendation. (cid:28)Any of the recommendations (cid:29) would mean that the Selection Committee had recommended more than one recommendation. In the event of the Executive Council not acceptin g any of the recommendations, the only course that is open to the Executive Coun cil is to state clearly the reason for not agreeing with the Selection Committee and to refer the matter to the Chancellor. Section 15-A(3) does not, in any man ner, come in conflict with 2nd proviso to Section 15-A(1)(c) and both the provis ions address different situations and contingencies. 25. Thus, an analysis of the 1st proviso to Section 15-A(1)(c), 2nd proviso to Section 15-A(1)(c) and Section 15-A(3) of the Act demonstrate in clear and un ambiguous terms that each of the said provisions caters to a situation distinct from one another and cumulatively taken together, provide a mechanism to the Exe cutive Council to meet all conceivable situations in case of its non acceptance of recommendation(s) made by the Selection Committee. 26. In view of the discussions above, I am of the considered opinion that t here is no merit in both the Writ Petitions and accordingly, both the Writ Peti tions are dismissed. However, I leave the parties to bear their own costs. Inter im order passed earlier stands vacated.