Gauhati High Court
Baharul Islam vs The State Of Assam And 4 Ors on 10 December, 2015
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Writ Petition (C) No. 4996 of 2013
1) Sri Baharul Islam, Son of Md. Suraj Ali,
Resident of Village and P.O- Luchanabori,
District- Morigaon, Assam, Pin-782126.
............ Petitioner
- Versus -
1) The State of Assam, represented by the Commissioner
& Secretary to the Government of Assam, Department of
Education, Dispur, Guwahati-6.
2) Dibrugarh University, represented by the Vice-Chancellor
Dibrugarh, Pin-786004, Assam.
3) The Registrar, Dibrugarh University, Dibrugarh,
Pin-786004, Assam.
4) University Grants Commission (UGC), represented by
its Secretary Bahadur Shah Zafar Marg, New Delhi,
India, Pin-110002.
5) Ms. Aparajita Dutta, C/o- Sri Jiten Dolakasaria,
House No.6, Aaruhan Path, Pubsarania, Chandmari,
Rajgarh, Guwahati-781003.
........ Respondents
BEFORE HON'BLE MR. JUSTICE T. VAIPHEI, CHIEF JUSTICE (ACTING) For the petitioner: Dr. M.L. Gupta, Advocate For the respondents: Mr. N.C Das, Mr. N. Baruah, Mr. A. Chamuah, Mr. M. Choudhury, Advocates Date of Hearing : 10-09-2015 WP(C) No. 4996/13 Page 1 of 9 Date of Judgment: 10-12-2015 JUDGMENT & ORDER (CAV) In this writ petition, the petitioner is questioning the legality of the order dated 19-8-2013 issued by the University-respondent appointing the respondent No. 5 (Smt. Aparajita Dutta) for the post of Assistant Professor in the Centre for Juridical Studies, Dibrugarh University and the other show cause notices against him for the alleged acts of his misconduct.
2. The facts of the case are not in dispute. The petitioner applied for the post of Assistant Professor in the Centre for Juridical Studies of the University-respondent in response to the advertisement dated 18-10-2012. The petitioner has LL.M. degree with specialization in Business Law and obtained National Eligibility Test (NET) for lectureship in the subject of Law. By the time the advertisement was issued, the petitioner had completed 4 years and 7 months as Lecturer in the same Centre on contract basis, which had hitherto been extended from time to time, and had also acted as the Warden for the Hostel for PNGBCN Block B for a period of three years. The respondent No. 5 also has LL.M. degree with special paper in Criminal Law, but has NET in Criminology. Both the petitioner and the respondent No. 5 were called for, and appeared in the interview. According to the petitioner, the respondent No. 5 is not eligible for the post as she is having NET in Criminology and not in Law. However, the respondent No. 5 was selected and eventually appointed for the post. Aggrieved by this, he lodged a complaint to the University-respondents against the selection and appointment of the respondent No. 5 to the said post. When his complaint did not lead to in any tangible result, he filed this writ petition for appropriate reliefs. The writ petition is contested by both the University- respondent and the private respondent by filing their respective affidavits-in- opposition. The common thread running through their respective affidavits is that the requirement of the advertisement is that the candidate should have either "NET" or "Ph.D. in Law" and that there is no requirement to have NET in Law. The petitioner has LL.M. in Business Law with 59%, NET in Law with specialization in Business Law whereas the respondent No. 5 has WP(C) No. 4996/13 Page 2 of 9 LL.M. in Criminal Law and Constitutional Law and both are eligible for the post. The Selection Committee, after making comparative assessment of their suitability in accordance with the extant criteria so laid down, found the respondent No. 5 to be more meritorious than the petitioner and accordingly placed him in the 1st position above the petitioner who was placed in the 2nd position vide their recommendation dated 19-7-2013. Two other candidates were not recommended by the Selection Committee. The Executive Council thereafter appointed the respondent No. 5 for the post.
3. As the bone of contention of the rival parties is about the dispute relating the eligibility for the post of Assistant Professor in Juridical Studies prescribed by the advertisement, it will be apposite to refer to it, which is as follows:
"15. Juridical Studies (1) LLM with 55% marks; NET or Ph.D. in Law; Special Labour Law/Criminal Law/Business Law.
4. The question for decision is whether the expression "in Law"
appearing after the term "Ph.D." will not only qualify the term "Ph.D." but also NET to mean "NET in Law". According to Dr. M.L. Gupta, the learned counsel for the petitioner, NET in Law and NET in Criminology, as per the Syllabus of the University Grants Commission, are two different and distinct subjects with separate Codes, namely, Code No. 58 for the former and Code No. 68 for the latter and they cannot be equated. The qualification, among others, so advertised was NET in Law and not NET in Criminology and, so construed, possession of LL.M. degree with 55% and NET in Law is essential to be eligible for the post of Assistant Professor. As the respondent No. 5 does not have NET in Law, she is not eligible for the post and her selection and appointment to that post is illegal and is liable to be quashed. Per contra, Mr. N.C. Das, the learned senior counsel for the University- respondents, submits that in the advertisement, the requirement was to have NET or Ph.D. in law and the petitioner has misunderstood/misconstrued the qualification prescribed in the advertisement by reading the words "in Law" after the term NET so as read as "NET in Law", which is unwarranted and perverse. Therefore, according WP(C) No. 4996/13 Page 3 of 9 to the learned senior counsel, the words "in Law" does not qualify the term "NET" and only qualifies the term "Ph.D." and so understood, there is no requirement for the respondent No. 5 to have NET in Law to be eligible for the post of Assistant Professor. Moreover, submits the learned senior counsel, Court should show deference to the interpretation adopted by the Selection Committee comprising of experts in their field, particularly, when no mala fides have been alleged against the experts constituting the Selection Committee. Contending that the decision of the Selection Committee not being tainted by mala fides or perversity, he strenuously urges this Court to dismiss the writ petition. Interestingly, from the affidavit filed by the UGC, it is seen that no definite stance was taken by them but merely leave it to the University-respondents to construe the said qualification as they think it fit. The learned standing counsel for the UGC also submits that as there is no clear directive on the subject matter in the UGC Regulation, the inter-disciplinary nature of subject or relevance of subject is decided by the concerned Appointing Authority with the help of subject experts in the concerned field: the employer would be the best judge to decide whether the qualification should be construed as the words "in Law" qualifies only Ph.D. and not NET.
5. As already noticed, the qualification prescribed for the Assistant Professor in the University, among others, is having NET or Ph.D. in Law. The respondent authorities have taken the view that the candidate does have either NET or Ph.D. in Law and that the word "or" clearly suggests that the term "in Law" only qualifies "Ph.D." and cannot qualify NET, which stands independent of the subsequent qualification of "Ph.D. in Law. The post in question is the post of Assistant Professor in Juridical Studies. I am not oblivious of the fact that a writ court has a limited power of interference in the decision taken by the Selection Committee in the matter of recruitment of candidates for educational institutions. Normally, it is wise and safe for the courts to leave the decision of academic matters to experts who are more acquainted with the problems they face than the courts generally are. If any authority is needed, I may refer to the decision of the Apex Court in Mohd. Sorab Khan v. Aligarh Muslim University, (2009) 4 SCC 555, which is as under:
WP(C) No. 4996/13 Page 4 of 9"25. We are not disputing the fact that in the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process during its midstream. Merajuddin Ahmad did not possess a degree in Pure Chemistry and therefore, it was rightly held by the High Court that he did not possess the minimum qualification required for filling up the post of Lecturer in Chemistry, for Pure Chemistry and Industrial Chemistry are two different subjects."
(Underlined for emphasis)
6. Thus, for example, if the interpretation placed by the Selection Committee suffers from irrationality or arbitrariness or misreading of the applicable rules, this Court can certainly correct such infirmity to prevent perpetuation of injustice. It is against the backdrop of the aforesaid principle of law laid down by the Apex Court, I propose to examine the controversy at hand. As already noticed, the post in question is the post of Assistant Professor in juridical studies. The term "juridical" is defined by Black's "Law Dictionary", 7th Edn. to mean 1. Of or relating to judicial proceedings or to the administration of justice. 2. Of or relating to law; legal.─ Also termed juridic. Cf. NON-JURIDICAL. Therefore, the expression "Juridical Studies" is to be understood as studies on law. As there are many disciplines in NET, it cannot, for the purpose of teaching law, be said that as there is no specific requirement of having NET in law, the term NET cannot mean "NET in Law". Ideally speaking, just as the qualification of Ph.D. is qualified by the term "in Law", the term "NET" should be qualified by the words "in Law" so that the NET qualification should be NET in Law as otherwise a person possessing LL.M. will become eligible for the post of Assistant Professor in Juridical Studies even if he has NET in History or Geography. This cannot be the intention of the rule-framing authority. It is not in dispute that the petitioner has NET in law and specialization in Business Law, whereas the respondent No. 5 has NET in Criminology and specialization in Criminal Law and Constitutional Law. There is no dispute that "Criminology" is also one of the optional law subjects for undergoing NET course and is one of the disciplines of law even though it is somewhat a specialized one. But then, it WP(C) No. 4996/13 Page 5 of 9 is nevertheless one of the disciplines of criminal law. The term "Criminology" is defined by Black's Law Dictionary, 7th Edition, as "the study of crime and criminal punishment as social phenomena; the study of the causes of crime, comprising (1) criminal biology, which examines causes that may be found in the mental and physical constitution of an offender (such as hereditary tendencies and physical defects), and (2) criminal sociology, which deals with inquiries into the effects of environment as a cause of criminality."
7. As already noticed, the respondent No. 5 has NET in Criminology whereas the petitioner has NET in Business Law. Considering the fact that the respondent No. 5 has specialization in Criminal Law and Constitutional Law and has obtained NET in Criminology and not in History or Geography, etc. which has nothing to do with law disciplines, I am of the considered opinion that the view taken by the Selection Committee that the respondent No. 5 having NET is Criminology is equally eligible for the post of Assistant Professor in Juridical Studies is a possible view. The law is now well-settled that where there are two possible views on any matter, this Court cannot substitute its view for the view of the Selection Committee on the ground the view taken by the Court could be a better view. It is also a well-settled proposition of law that in academic matters, a court of law cannot act as an expert. Normally, therefore, whether or not a candidate possesses requisite qualifications, should better be left to the educational institutions. This is particularly so when it is supported by an Expert Committee ─ the Selection Committee in the instant case. When the Selection Committee considered the matter and came to the conclusion that the respondent No. 5 who possesses LL.M. in Criminal Law and Constitutional Law, NET in Criminology and specialization in Criminal Law and Constitutional Law is a better candidate than the petitioner, who has LL.M. in Business Law, NET in Law and specialization in Business Law, such conclusion cannot by any stretch of imagination be termed as perverse or arbitrary. As already noticed, such view is a possible view and not an irrational view. It is, however, quite possible that the other view could have been a better view, but then this Court cannot substitute the view taken by the respondent authorities by its view on such ground. Under the circumstances, the WP(C) No. 4996/13 Page 6 of 9 interference of this Court in the selection of the respondent No. 5 is not warranted.
8. The limited power of interference of a writ court in the matter of academic matters is reiterated by the Apex Court in Rajbir Singh Dalal (Dr.) v. Chaudhury Devi Lal University, (2008) 9 SCC 284. In that case, the short question was whether the appellant fulfilled the requisite academic qualification for appointment to the post of Reader in Public Administration in Chaudhary Devi Lal University, Sirsa. The respondent University issued an advertisement for direct recruitment for various posts, including the post of Reader in Public Administration. The appellant therein, claiming to be fully eligible and qualified for the post of Reader in Public Administration, applied for the aforementioned post on the prescribed format. A Selection Committee interviewed the appellant on 18-7-2004 as per the call letter dated 8-7-2004. The appellant was selected as Reader and he joined as such on 4-4-2005. The Respondent 2 therein, Dr. Raj Kumar Siwach, who was a Lecturer in Public Administration, had also applied for the post of Reader, but he was not selected and instead the appellant was selected. Hence, Respondent 2 filed a writ petition in the Punjab and Haryana High Court being CWP No. 6642 of 2005 in which he alleged that the appellant therein, Dr. Rajbir Singh Dalal, did not possess the requisite qualification for the post of Reader in Public Administration. It was alleged in the writ petition that the appellant was an MA and PhD in Political Science and not in Public Administration. Hence, it was alleged that the appellant was not eligible for being selected and appointed as Reader in Public Administration. Allowing the appeal, the Apex Court held:
31. We agree with Mr Patwalia, learned counsel, that it is not appropriate for this Court to sit in appeal over the opinion of the experts who are of the view that Political Science and Public Administration are interrelated and interchangeable subjects, and hence a candidate who possesses Masters degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa. We are told that a large number of persons having qualifications in the interchangeable/interrelated subjects WP(C) No. 4996/13 Page 7 of 9 have been appointed Readers/Professors/Lecturers and are continuing as such in various colleges and universities in the State.
32. In Para 5 of the counter-affidavit filed by the respondent University before the High Court, it has been specifically stated that Public Administration is one of the branches of Political Science, and the appellant was selected by a Selection Committee consisting of eminent experts after evaluating his qualifications and work.
33. As regards the decision in Bhanu Prasad Panda (Dr.) v.
Chancellor, Sambalpur University 1 we have carefully perused the same. In para 5 of the said judgment it has been observed:
(SCC pp. 535-36) "5. ... Though the Department concerned for which the appointment is to be made is that of 'Political Science and Public Administration', the appointment with which we are concerned, is of Lecturer in Political Science and not Public Administration and subject-matter wise they are different and not one and the same. It is not in controversy that the posts of Lecturers in Public Administration and in Political Science are distinct and separate and on selection the appellant could not have been appointed as Lecturer in Public Administration...."
A perusal of the above passage shows that the observation that Political Science and Public Administration are distinct and separate subjects was apparently given on a concession, because what has been stated therein is that "it is not in controversy" that the post of Lecturer in Public Administration and Political Science are distinct and separate. The use of the words "it is not in controversy" shows that a concession was made on the point by learned counsel for the respondent in that case. Hence the observation cannot be regarded as a precedent. Moreover, no reasoning has been given in the aforesaid passage (quoted above) 1 (2001) 8 SCC 532 WP(C) No. 4996/13 Page 8 of 9 as to why it has been held that Political Science and Public Administration are distinct and separate subjects."
9. The result of the foregoing discussion is that there is no merit in this writ petition, which is, accordingly, dismissed. Interim order, if any, stands vacated. The parties shall bear their respective costs.
ACTING CHIEF JUSTICE Alam WP(C) No. 4996/13 Page 9 of 9