Gauhati High Court
The Gauhati University 2 Ors vs The State Of Assam & 3 Ors on 20 June, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
IN THE GAUHATI HIGH COURT,
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO.359 OF 2014
APPELLANTS :
1. The Gauhati University
An University established under the
Gauhati University Act, 1947,
represented by its Registrar,
Gauhati University, Guwahati-14
2. The Registrar,
Gauhati University, Guwahati-14
3. The Selection Committee
represented by its Member Secretary
constituted for the purpose of interview
and selection to the post of Assamese -
JN Professor - Spl - Open under the Gauhati
University, Guwahati-14
R ESP ONDENTS :
1. The State of Assam
Represented by the Commissioner & Secretary
to the Government of Assam,
Department of Education (Higher)
Dispur, Guwahati
2. The Director of Higher Education,
Kahilipara, Guwahati-19.
3. Dr. Malinee Goswami
W/o Sri Birendra Mohan Goswami
Resident of House No.49, Navagiri Road,
Chandmari, PO Silpukhuri, Guwahati-3.
4. Dr. Dipti Phukan Patgiri,
W/o Dilip Patgiri, through the Registrar,
Gauhati University, Guwahati-14.
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BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE MANOJIT BHUYAN
For the appellants: Mr.MK Choudhury, learned senior counsel,
assisted by Mr.N Deka and Mr.M Gogoi, learned
counsel for the appellants.
For the respondents:Mr. K Gogoi, learned counsel for Respondent
Nos.1 and 2, Mr. M Nath and Mr. A Bhattacharjee, learned counsel for Respondent No.3 and Mr. SN Krishnatraya, learned counsel for Respondent No.4.
Date of hearing & judgment: 20.6.2017 JUDGMENT AND ORDER (Ajit Singh, C.J.) This intra court appeal is directed against the order dated 12.6.2014 passed by the learned Single Judge of this High Court, whereby he has allowed WP(C) No.941/2013 of Respondent No.3 - Dr. Malinee Goswami.
2. On 22.2.2012, Registrar of Gauhati University (appellants) issued an advertisement for filling up the post of Jawaharlal Nehru Professor (in short "J.N.Professor") in the Department of Assamese. The specialization mentioned in the advertisement for the post was "Open". Both Respondent No.3 and Dr. Dipti Phukan Patgiri (Respondent No.4) claiming themselves to be eligible for the post responded to the advertisement. Admittedly, except for Respondent Nos.3 and 4, there was no other candidate and both of them appeared for the interview before the Selection Committee on 14.2.2013. Respondent No.3 then filed WP(C) No.941/2013 challenging the recommendation of Selection Committee on the ground that the recommendation of illegally constituted Selection Committee cannot be acted upon. Although the appellants strongly averred that the Selection Committee was properly constituted, the learned Single Judge agreed with Page 2 of 5 Respondent No.3 and by the impugned order allowed the writ petition. The learned Single Judge has also directed the appellants to proceed afresh in accordance with law for selecting the J.N. Professor in the Department of Assamese. The learned Single Judge has even held that the Vice Chancellor could have nominated the re-appointed Professor of the Department in the Selection Committee because being its member cannot be construed to have held any administrative office. Aggrieved, the appellants have filed the present appeal.
3. The sole question which calls for our consideration is whether the Selection Committee was legally constituted and if not whether its recommendation can still be acted upon ?
4. Section 15A (1) (a) & (b) of the Gauhati University Act, 1947 (in short "Act") deals with the constitution of Selection Committee for making recommendation to the Executive Committee for appointment of Professor, Readers etc. The relevant extract of Section 15A(1)(b) of the Act reads as under:-
" 15A (1) SELECTION COMMITTEE:
(a) ........
(b) In making recommendations for the appointment of Professors of the University, the Selection Committee shall co-opt the Head of the Department concerned, if he is a Professor, one Professor of the Department to be nominated by the Vice-Chancellor and two persons not in the services of the University to be nominated by the Executive Council out of a 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."
5. A bare reading of the above quoted Section 15A(1)(b) makes it clear that in making recommendations for the appointment of Professors of the University, the Selection Committee shall co-opt the Head of the Department concerned, if he is a Professor, one Professor of the Department to be nominated by the Vice-Chancellor and two persons not in the services of the Page 3 of 5 University to be nominated by the Executive Council out of a 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.
6. Admittedly, in the case at hand, the Selection Committee was not constituted in terms of Section 15A(1)(b) of the Act, as the Vice Chancellor himself nominated two persons as members instead of calling for the nomination of such two persons by the Executive Council. Section 15A(1)(b) of the Act clearly states that Vice Chancellor is to nominate one Professor of the Department whereas Executive Council is to nominate two persons who have special knowledge of the subject. The role of participation of such experts is crucial in the selection process because it is expected from the Selection Committee to make endeavour to select the best suitable candidate. Section 15A(1)(b) does not permit the Executive Council to delegate its power on the Vice Chancellor to nominate two persons who have special knowledge of the subject. Therefore, the nomination of such two persons can be made only by Executive Council and not by the Vice Chancellor. It is well settled principle of law that a statutory power must be exercised only by the authority or the person on whom it is conferred unless the statute by express words or necessary implication permits delegation. From the language used in Section 15A(1)(b) also, it is apparent that requirement of nomination of two persons by the Executive Council from the panel of experts is mandatory, which the learned Single Judge has rightly held by giving cogent reasons in paragraph 31 of the order. There is yet another settled principle of law which says that when power is given to do a certain thing in a certain way, the thing must be done in that way and not at all. In other words, if the manner of doing a particular act is prescribed under any statute the act must be done in that manner and not at all. Therefore, in the constitution of Selection Committee even this principle of law was violated by the appellants.
Page 4 of 57. We are, however, unable to agree with the learned Single Judge that the Vice Chancellor could have nominated the reappointed Professor of the Department in the Selection Committee. According to the learned Single Judge being a member of the Selection Committee does not amount to holding of administrative post. As per Rule 8(c) of the Gauhati University Teachers' Re-employment Rules, a re-employed teacher cannot hold administrative post in the University. The Supreme Court in National Institute of Mental Health and Neuro Sciences vs. Dr.K. Kalyana Raman, 1992 Supp (2) SCC 481 has clearly held that function of the Selection Committee is neither judicial nor adjucatory and is purely administrative. Therefore, having regard to the decision of the Supreme Court, the Vice Chancellor cannot nominate a re-appointed Professor as member of the Selection Committee.
8. Be that as it may, we are of the considered view that since the Selection Committee was not constituted as mandated in Section 15A(1)(b) of the Act, its recommendation cannot be permitted to be acted upon. Subject to our finding in paragraph 7, we find no merit in the appeal. It is accordingly dismissed.
JUDGE CHIEF JUSTICE
skd
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