Tripura High Court
Dr. Md. Mijan Hossain vs The State Of Tripura on 31 January, 2017
Author: S.C. Das
Bench: T. Vaiphei, S. C. Das
THE HIGH COURT OF TRIPURA
AGARTALA
WA NO.12 OF 2015
[[[[
Dr. Md. Mijan Hossain,
S/O Md. Mamtaj Uddin Ahamad,
Resident of West Bank of Jagannath Dighi,
P.O. Radhakishorepur, Udaipur,
Gomati District.
............ Appellant
- Vs -
1. The State of Tripura,
Represented by the
Principal Secretary to the
Government of Tripura,
Department of Agriculture,
New Civil Secretariat Complex,
P.O. Kunjaban, P.S. East Agartala,
District-West Tripura.
2. The Director of Agriculture,
Government of Tripura,
Krishi Bhawan,
P.O. Agartala, P.S. West Agartala,
District-West Tripura.
3. Dr. V.K. Bahuguna,
Principal Secretary to the
Government of Tripura,
Department of Agriculture,
New Civil Secretariat Complex,
P.O. Kunjaban, P.S. East Agartala,
District-West Tripura(as Chairman of the
Selection Committee).
4. Professor Rabindra Kumar Sinha,
Representative of the Vice Chancellor,
Tripura University,
P.O. Surjyamaninagar, P.S. Amtali,
West Tripura(as member of the
Selection Committee).
5. Dr. Abdul Haque,
Director of Agriculture,
Government of Tripura,
Krishi Bhawan,
WA NO.12 OF 2015 Page 1 of 20
P.O. Agartala, P.S. West Agartala,
District-West Tripura(as Member of the
Selection Committee).
6. Dr. D. Alice,
Professor & Head,
Department of Plant Pathology,
Tamilnadu Agriculture Universities,
Coimbatore,
P.O. Coimbatore, Tamil Nadu(as
Expert member of the Selection Committee).
7. Dr. R.K. Samanta,
Ex. Vice Chancellor,
Bidhan Chandra Krishi Viswa Vidyalaya,
P.O. Mohanpur, Nadia, West Bengal,
at present residing at Ashirbad,
House No.1-11-12, Bhavani Colony,
Premavatipet, Rajendranagar,
Hyderabad-500030(as Expert Member of the
Selection Committee).
8. Dr. Janmejay Parni,
Assistant Professor,
College of Fisheries,
Central Agricultural University,
P.O. Lembuchera, P.S. Sidhai,
District-West Tripura(as member of the
Scrutiny Committee).
9. Dr. R.K. Saha,
In-charge Dean,
College of Fisheries,
Central Agricultural University, Tripura,
P.O. Lembucherra, P.S. Sidhai,
District-West Tripura(as member of the
Scrutiny Committee).
10. Dr. Durga Prasad Awasthi,
S/O Late Shiv Kumar Awasthi,
C/O Sri Sankar Narayan Awasthi of
79 Hariganga Basak road, Melarmath,
P.O. Agartala, P.S. West Agartala,
District-West Tripura.
11. Shri Niren Majumder,
S/O Shri Rati Ranjan Majumder,
Resident of Udaipur, Madhyapara,
P.O. & P.S. R.K. Pur, District-Gomati.
.............. Respondents
WA NO.12 OF 2015 Page 2 of 20
BEFORE
HON'BLE THE CHIEF JUSTICE MR. T. VAIPHEI
HON'BLE MR. JUSTICE S. C. DAS
For the appellant : Mr. A.K. Bhowmik, Sr. Advocate
Ms. A. Banik, Advocate
For respondent Nos.1 and 2 : Mr. T. Dutta Majumder, G.A.
For respondent No.10 : Mr. D.R. Choudhury, Advocate
For respondent No.11 : Mr. D.K. Daschoudhury, Advocate
Date of hearing : 20.01.2017
Date of delivery of judgment & : 31.01.2017.
order
Whether Fit for Reporting : Yes No
√
JUDGMENT & ORDER
(S.C. Das, J.)
This intra-court appeal under Article 226 of the
Constitution of India is directed against the judgment and order
dated 27.02.2015 passed by a Single Bench of this Court in WP(C)
No.224 of 2014, whereunder a writ petition, filed by the appellant
herein, as petitioner(hereinafter mentioned as petitioner) has been
dismissed.
2. We have heard learned senior counsel, Mr. A.K.
Bhowmik, assisted by learned counsel, Ms. A. Banik for the
appellant, learned G.A., Mr. T. Dutta Majumder for respondent
Nos.1 and 2, learned counsel, Mr. D.R. Choudhury for respondent
No.10 and learned counsel, Mr. D.K. Daschoudhury for respondent
No.11.
WA NO.12 OF 2015 Page 3 of 20
3. By filing the writ petition the petitioner prayed for the
following relief:-
"It is, therefore, humbly prayed that the Honourable
Court would graciously be pleased to issue Rule upon
the Respondents to show cause as to why the
Respondents should not transmit all records relating to
the case of the Petitioners;
AND
As to why a Writ in the nature of certiorari should
not be issued quashing the selection of Private
Respondents 10 and 11 for appointment to the post of
Assistant Professor in plant pathology in the college of
Agriculture, Lembucherra, Tripura vide decision of the
meeting of the council of Ministers held on 27th
February, 2014 and their offer of appointment issued in
the first week of June, 2014 in pursuance to the
advertisement for recruitment issued by the
Government of Tripura, Department of Agriculture vide
No.F.19(18)-Agri/SARS/CAT/2011-12/255 dated 29th
April, 2013;
AND
As to why a Writ in the nature of Mandamus
should not be issued directing the State Respondents to
cancel the selection and offer of appointment in respect
of the Private Respondents 10 and 11 and to fill up one
of the posts of Assistant Professor, Plant Pathology by
the petitioner;"
4. Director of Agriculture(respondent No.2) under the
Department of Agriculture, Government of Tripura vide Memo.
No.F.19(18)-Agri/SARS/CAT/2011-12/255 dated 29th April, 2013
invited applications from the eligible candidates for filling up of 64
WA NO.12 OF 2015 Page 4 of 20
posts of Professor, Associate professor, Assistant Professor, etc. in
the College of Agriculture, Lembucherra, Tripura, which included
two posts of Assistant Professor in Plant Pathology.
5. The petitioner as well as the respondent Nos.10 and 11
applied for the post of Assistant Professor, in Plant Pathology
branch, having all requisite qualifications.
The State Government constituted interview Board
consisting of respondent Nos.3 to 9 and that Board conducted the
interview both subjective and objective. Objective assessment was
of 60 marks and the subjective interview was of 40 marks. The
interview Board recommended the names of respondent Nos.10 and
11 for two posts of Assistant Professor in Plant Pathology and the
Department issued offer to them.
The petitioner returned unsuccessful and he challenged
the advertisement as well as the selection process on different
grounds by filing a writ petition before this Court.
Learned Single Judge dismissed the writ petition and
hence this appeal was filed.
6. In an intra-court appeal, we are not required to re-
examine and re-appreciate the pleadings and evidence adduced by
the parties before the writ Court so meticulously as is required by a
regular appellate authority. In an an-intra court appeal, the
appellate Forum is to consider as to whether the writ Court has
WA NO.12 OF 2015 Page 5 of 20
failed to exercise its power/jurisdiction as conferred under Article
226 of the Constitution and as to whether any finding of the writ
Court was suffered from perversity or that any statutory provision
or settled position of law has been ignored by the writ Court. The
decision of the writ Court is not required to be interfered by this
appellate Forum simply on the ground that another equally possible
view may be taken and thereby to substitute the view taken by the
writ Court. If the decision of the writ Court is supported by some
material and logic acceptable by law, the appellate Forum is not
required to interfere with the decision of the writ Court.
7. The first argument advanced by learned senior counsel,
Mr. Bhowmik was that the petitioner was having with a brilliant
academic career in comparison to respondent Nos.10 and 11 but
the interview Board failed to properly assess the academic
performances of the petitioner and the respondent Nos.10 and 11.
The objective assessment what was made did not correctly reflect
the performances of the petitioner and the respondent Nos.10 and
11, and as a result the petitioner was deprived and respondent
Nos.10 and 11 were wrongly selected.
Countering the submission learned G.A., Mr. Dutta
Majumder submitted that interview Board consists of experts in the
subject and they made both objective and subjective assessments
and the petitioner did not raise any objection before he appeared in
the interview and when he became unsuccessful he filed the writ
WA NO.12 OF 2015 Page 6 of 20
petition raising various unfounded allegations that the assessment
was not correctly made, which was not tenable in law. Once the
petitioner participated in the selection process he cannot challenge
the assessment made by the interview Board and this Court in
exercise of the power under Article 226 cannot sit as an appellate
authority of the departmental experts, who were members of the
interview Board.
8. It was not in dispute that the interview Board was
constituted consisting of respondent Nos.3 to 9. There was no
personal allegation of bias against those members of the interview
Board. There were representatives from Tripura University i.e.
respondent No.4, who was of the rank of Professor of Tripura
University. Respondent No.6 was an expert of Plant Pathology and
he was Professor & Head of the Department of Plant Pathology,
Tamil Nadu Agricultural University. Respondent No.7 was an Ex-
Vice Chancellor of Bidhan Chandra Krishi Viswa Vidyalaya and both
respondent Nos.6 and 7, as it appears were expert members.
It is to be presumed that those expert members made
objective assessment of the qualifications and other extra-curricular
activities of the petitioner and other candidates and this Court has
no expertise to sit over their assessments. In the objective
assessment, it is an admitted position that the petitioner secured
40 marks out of 60, respondent No.10 secured 38.50 marks and
respondent No.11 secured 20.90 marks.
WA NO.12 OF 2015 Page 7 of 20
Learned senior counsel, Mr. Bhowmik while arguing the
case of the petitioner has drawn our attention to several academic
performance of the petitioner which shows his excellence in the
subject, but how that excellence is to be assessed and counted is
the matter of the experts on the subject, who were inducted in the
interview Board and the Court cannot ordinarily sit as super-expert
on the decision of the experts.
9. A three-Judges Bench of the Apex Court in the case of
Dalpat Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan & Ors.
reported in (1990) 1 SCC 305 was constrained to observe that it
is not the function of the Court to hear appeals over the decisions of
the Selection Committees and to scrutinize the relative merits of
the candidates. Whether a candidate is fit for a particular post or
not, has to be decided by the duly constituted selection Committee,
which has the expertise on the subject. We may gainfully refer here
para 12 of the judgment which reads as follows:
"12. It will thus appear that apart from the fact
that the High Court has rolled the cases of the two
appointees in one, though their appointments are not
assailable on the same grounds, the court has also
found it necessary to sit in appeal over the decision of
the Selection Committee and to embark upon deciding
the relative merits of the candidates. It is needless to
emphasise that it is not the function of the court to hear
appeals over the decisions of the Selection Committees
and to scrutinize the relative merits of the candidates.
Whether a candidate is fit for a particular post or not
WA NO.12 OF 2015 Page 8 of 20
has to be decided by the duly constituted Selection
Committee which has the expertise on the subject. The
court has no such expertise. The decision of the
Selection Committee can be interfered with only on
limited grounds, such as illegality or patent material
irregularity in the constitution of the Committee or its
procedure vitiating the selection, or proved mala fides
affecting the selection etc. It is not disputed that in the
present case the University had constituted the
Committee in due compliance with the relevant
statutes. The Committee consisted of experts and it
selected the candidates after going through all the
relevant material before it. In sitting in appeal over the
selection so made and in setting it aside on the ground
of the so called comparative merits of the candidates as
assessed by the court, the High Court went wrong and
exceeded its jurisdiction."
10. Though it was strenuously argued by learned senior
counsel, Mr. Bhowmik that proper assessment of merit was not
made by the selection Committee in their objective assessment, we
are not inclined to interfere in the judgment passed by the writ
Court since neither the writ Court nor this appellate Forum have got
any expertise to assess the performance of the candidates.
11. The next argument advanced by learned senior counsel,
Mr. Bhowmik was that the advertisement itself was vague since
there was no mention in the advertisement as to what should be
the selection procedure and which rule should be followed. He has
also submitted that the College of Agriculture, Tripura was affiliated
WA NO.12 OF 2015 Page 9 of 20
to Tripura University, a Central University and so it was supposed to
follow the UGC norms while conducting interview of the candidates.
According to Mr. Bhowmik, the UGC norm has not been followed.
The norm of Central Agricultural University, Imphal has been
followed but that was also not correctly followed. The procedure
what was followed, as has been stated by the respondents was
contrary to what the petitioner has annexed. Since the
advertisement was silent about the procedure to be followed, the
petitioner was deprived of the legitimate information about the
selection procedure and hence the total interview process was
vitiated.
On the contrary learned G.A., Mr. Dutta Majumder
submitted that the State respondents consistently following the
procedure followed by the Central Agricultural University, Imphal
since long. Petitioner in the year 2011 also appeared in the
interview which was also conducted following the same procedure.
It was also submitted by learned G.A., Mr. Dutta Majumder that the
College of Agriculture, Tripura is affiliated to Tripura University, a
Central University but is not receiving any grant from UGC and
therefore is not bound to follow the UGC norms. According to
learned G.A., once the petitioner participated in the selection
process and did not raise any question about the procedure to be
followed at the time of interview, he cannot now question it by filing
writ petition.
WA NO.12 OF 2015 Page 10 of 20
Learned counsel, Mr. Choudhury also made an emphatic
submission on the point that the petitioner now cannot turn around
the selection process on the ground that he did not know about the
procedure to be followed.
12. Respondent Nos.1 and 2 in their counter affidavit
submitted the scorecard guidelines of Central Agricultural
University, Imphal marked as Annexure-R1. The petitioner in his
reply affidavit annexed a copy of letter dated 26.12.2009 issued by
the Deputy Registrar of Central Agricultural University, Imphal
which is annexed as Annexure-11.
Para 4 of Annexure-11 reads thus--
"4. The interview will consist of two parts.
Part--I : You will have to make a Power Point
presentation on any topic of your choice in the area of
your subject/discipline for a period of 10 minutes. This
presentation will be open to the Faculty and Students.
The audio visual aids required for the purpose will be
made available.
Part--II will consist of personal interview."
The scorecard guideline submitted by the respondents
consists of the details procedure of both objective assessment of
performance and also interview. The API score consists of 60 marks
and interview consists of 40 marks, total 100 marks as specified in
Annexure-R1 which the respondents alleged to have followed.
Annexure-11 to the writ petition shows that some presentations
WA NO.12 OF 2015 Page 11 of 20
were supposed to be made by the candidates and according to the
petitioner that has not been done.
If the petitioner had any confusion about the manner in
which the interview will be conducted he would have seek
clarification from the College about the manner of the interview.
The procedure which was followed was uniformly applied for
selection of candidates of all branches as per advertisement and it
was not isolatedly applied for the petitioner to say that the
petitioner was put in a disadvantageous position. There was no
allegation that Annexure-R1 was vague or that there was no
existence of any such scorecard guidelines. Learned Single Judge
considered the issue assigning reason and we find nothing on the
issue that proper selection procedure was not followed.
13. If the petitioner had any confusion or any doubt in mind
about the interview process to be followed by the interview Board
he would seek clarification from the College. He did not seek any
clarification. He applied according to the advertisement and was
definitely expecting a selection but as soon as he did not get the
selection he challenged the selection process by filing the writ
petition.
14. The Supreme Court in the case of Dr. G. Sarana v.
University of Lucknow & Ors. reported in (1976) 3 SCC 585 in
para 15 of the judgment observed--
WA NO.12 OF 2015 Page 12 of 20
"15. We do not, however, consider it necessary in the
present case to go into the question of the
reasonableness of bias or real likelihood of bias as
despite the fact that the appellant knew all the relevant
facts, he did not before appearing for the interview or at
the time of the interview raise even his little finger
against the constitution of the Selection Committee. He
seems to have voluntarily appeared before the
committee and taken a chance of having a favourable
recommendation from it. Having done so, it is not now
open to him to turn round and question the constitution
of the committee. This view gains strength from a
decision of this Court in Manak Lal's case where in more
or less similar circumstances, it was held that the failure
of the appellant to take the identical plea at the earlier
stage of the proceedings created an effective bar of
waiver against him. The following observations made
therein are worth quoting:
It seems clear that the appellant wanted to take a
chance to secure a favourable report from the
tribunal which was constituted and when he found
that he was confronted with an unfavourable
report, he adopted the device of raising the
present technical point.
In the case of Madan Lal & Ors. v. State of J. & K &
Ors. reported in (1995) 3 SCC 486 the Supreme Court observed--
"Before dealing with this contention, we must keep in
view the salient fact that the petitioners as well as the
contesting successful candidates being respondents
concerned herein, were all found eligible in the light of
marks obtained in the written test, to be eligible to be
WA NO.12 OF 2015 Page 13 of 20
called for oral interview. Up to this stage there is no
dispute between the parties. The petitioners also
appeared at the oral interview conducted by the
Members concerned of the Commission who interviewed
the petitioners as well as the contesting respondents
concerned. Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only
because they did not find themselves to have emerged
successful as a result of their combined performance
both at written test and oral interview, they have filed
this petition. It is now well settled that if a candidate
takes a calculated chance and appears at the interview,
then, only because the result of the interview is not
palatable to him, he cannot turn round and subsequently
contend that the process of interview was unfair or the
Selection Committee was not properly constituted. In
the case of Om Prakash Shukla v. Akhilesh Kumar
Shukla, 1986 Supp SCC 285 it has been clearly laid
down by a Bench of three learned Judges of this Court
that when the petitioner appeared at the examination
without protest and when he found that he would not
succeed in examination he filed a petition challenging
the said examination, the High Court should not have
granted any relief to such a petitioner."
In the case of Manish Kumar Shahi v. State of Bihar
reported in (2010) 12 SCC 576 the Supreme Court in para 16 of
the judgment observed--
"16. We also agree with the High Court that after
having taken part in the process of selection knowing
fully well that more than 19% marks have been
earmarked for viva voce test, the petitioner is not
WA NO.12 OF 2015 Page 14 of 20
entitled to challenge the criteria or process of selection.
Surely, if the petitioner's name had appeared in the
merit list, he would not have even dreamed of
challenging the selection. The petitioner invoked
jurisdiction of the High Court under Article 226 of the
Constitution of India only after he found that his name
does not figure in the merit list prepared by the
Commission. This conduct of the petitioner clearly
disentitles him from questioning the selection and the
High Court did not commit any error by refusing to
entertain the writ petition."
In the case of Ramesh Chandra Shah & Ors. v. Anil
Joshi & Ors. reported in (2013) 11 SCC 309 the Supreme Court
relying on its earlier decisions in para 18 and 24 of the judgment
observed--
"18. It is settled law that a person who consciously
takes part in the process of selection cannot, thereafter,
turn around and question the method of selection and its
outcome.
..................................................................................................................................................
24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
WA NO.12 OF 2015 Page 15 of 20
15. The petitioner was not a fresher. He was working as Assistant Professor in another university. Earlier in the year 2011 also he applied for the post in the College of Agriculture, Tripura. So being an experienced person if the petitioner had any confusion about the procedure to be followed by the interview Board or the College he would gather information from the College well before appearing in the interview. He also did not doubt about the integrity of the members of the interview Board. Had he enquired about the procedure and that was not furnished to him, definitely he would have a genuine and reasonable case, but while he did not make any such inquiry and voluntarily opted to participate in the selection process and also did not raise any objection about the integrity or quality and efficiency of the experts in the interview Board, he cannot now turn around the selection process which was made obviously following a certain procedure uniformly applied to all the candidates in all branches of the subjects of the Agriculture College. So, on this point we find nothing to interfere in the judgment passed by the writ Court.
16. The next point argued by learned senior counsel, Mr. Bhowmik was that the reservation was not mentioned subject-wise, and as a result the petitioner was put to surprise when respondent No.11 was selected for one of the posts in Plant Pathology.
Learned G.A. submitted that in the advertisement it was mentioned that the reservation law shall apply but it was true that WA NO.12 OF 2015 Page 16 of 20 subject-wise reservation was not mentioned. He also submitted that the writ Court considered the point taking into account all materials and that finding of the writ Court may not be disturbed.
17. Law has now been well settled that the reservation shall be subject-wise. In the present case, admittedly, the reservation was not made subject-wise and therefore it was clear that the law laid down by the Apex Court in the case of State of U.P. & Ors. v. M.C. Chattopadhyaya & Ors. reported in (2004) 12 SCC 333 was not followed. This contention has been elaborately dealt with by the writ Court. In para 31 and 32 of the judgment the issue has been decided by the writ Court and the observation of the writ Court reads as follows:
"31. This court has observed that all the posts of Assistant Professors in the College of Agriculture has been clubbed together and the incidence of clubbing together would emerge from the roster inspection report without any equivocality and, as such, the formula that has been followed cannot be sustained. Moreover, such reservation ought to have made known to the petitioner. But, for that reason this court will not make a topsy turvy of the recruitment process, inasmuch as the petitioner has preferred not to implead the other candidates who participated in the selection process by dint of the said employment notification. Hence, the challenge has to be examined within a very narrow confine so far the petitioner and the respondent Nos. 10 and 14 are concerned. This court having carefully studied the enunciation is of the view that it might bring WA NO.12 OF 2015 Page 17 of 20 about or generate a new praxis if the law as decided by the apex court in State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors. is implemented. It appears that there are three posts of Plant Pathology. According to State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors., all the three posts would form a cadre for purpose of Reservation Act and Rules and thus according to 100 point roster as followed in view of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992, two posts are supposed to go to the UR candidates and one post is supposed to go to the ST candidate. It is an admitted fact that no Scheduled Tribe candidate had applied, only one SC candidate, the respondent No.11 applied and he was recommended by the selection committee for appointment. The petitioner cannot have any claim on the post at point No.2, reserved for the ST candidates under any circumstances. As such, even if the reservation policy would have been applied in terms of State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors., only one post was supposed to be earmarked for the UR category candidate.
32. Since the entire cadre has not been filled up as yet, there is no scope of applying the R.K. Sabharwal v. State of Punjab principle. Therefore, this court even though has observed that the respondent Nos. 1 and 2 have acted without complying with the principles of State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors., but in the instant case no prejudice in any manner for pursuing a grossly wrong procedure has been caused to the petitioner. Even though, the procedure as followed is unacceptable but for the impact as deduced in the WA NO.12 OF 2015 Page 18 of 20 context, no interference is at all warranted but the State-respondents are simultaneously directed to follow the law as prescribed in State of U.P. & Ors. Vs. M.C. Chattopadhyaya & Ors. in all future recruitments, meaning that in the employment notice or advertisement they shall notify the vacancy earmarked for various categories such as UR, SC and ST, and the teaching post of various discipline shall not be clubbed together for purpose of applying the reservation policy. The teaching posts of the particular discipline shall form one cadre for the purpose of applying the reservation policy. Any deviation therefrom shall invite the contempt proceeding against the person who would indulge in or be responsible for such breach."
18. We are in full agreement with the above observation of the writ Court. The petitioner did not make all the selected candidates as parties in the writ petition and therefore the issue cannot be decided in absence of all the candidates. An advertisement was made for 31 posts of Assistant Professor and those were clubbed together for the purpose of applying the reservation which was contrary to law laid down by the Apex Court. However, the petitioner has failed to show that respondent No.11 was wrongly appointed as a reserved category candidate in one of the posts. The writ Court discussed the issue in details and we find no reason to interfere in it, especially on the ground that the petitioner did not implead the other candidates, who were selected in the same interview process.
WA NO.12 OF 2015 Page 19 of 20
19. In view of the discussions made above, the writ appeal is found to be devoid of any merit and hence stands dismissed.
JUDGE CHIEF JUSTICE
WA NO.12 OF 2015 Page 20 of 20