Gauhati High Court
Gauhati University & 3 Ors vs Dr.Tarini Pathak on 19 April, 2016
Author: T Vaiphei
Bench: T Vaiphei
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
WRIT APPEAL NO.362 OF 2015
1. Gauhati University
Represented by its Registrar,
Gauhati University, Guwahati- 14
2. Vice Chancellor, Gauhati University,
Guwahati- 14
3. Executive Council
represented by its Secretary.
4. The Registrar, Gauhati University
Guwahati- 14.
----- Appellants
Vs.
Dr. Tarini Pathak
Son of late Birendra Pathak
R/O Swadesh Nagar, P.O. Khanapara, Guwahati- 22
Kamrup(M) Assam.
----- Respondent
BEFORE THE HON'BLE MR JUSTICE T VAIPHEI THE HON'BLE MR JUSTICE MANOJIT BHUYAN For the appellants : Mr. L.P. Sharma, SC, Gauhati University Mr. S. Chakraborty Mr. R. Thakuria, Advocates.
For the respondent : Mr. A.C. Borbora, Sr. Advocate Ms. M. Dutta, Advocate.
Date of hearing : 16-03-2016
Date of judgment : 19-04-2016
Aggrieved by the judgment dated 24-6-2014 passed by the learned Single Judge in WP(C) No. 4090 of 2008 holding that the reasons given by the Executive Council in rejecting the selection of the respondent as Lecturer, Criminal Law and Criminology in the Department of Law appeared to be untenable and arbitrary and accordingly allowed the writ petition, the Gauhati University is preferring this appeal.
WA No. 362/15(Estoppel) Page 1 of 142. The facts material for disposal of the writ appeal are not in dispute. The Gauhati University ("University" for short) issued the advertisement for filling up the post of Lecturer, Criminal Law and Criminology) in the Department of Law. The requisite qualifications for the post of Lecturer are Post Graduate with good academic record with at least 55% marks or equivalent grade of B in the 7 point scale with letter grades O, A, B, C, D, E and F at the Master's degree level in the relevant subject from an India University or equivalent degree from foreign university. In addition to that, the candidates should also have cleared NET conducted by the UGC, CSIR or similar test accredited by the UGC. It was, however, provided therein that the candidates, who have completed M.Phil degree before 31st December, 1993 or submitted Ph. D. thesis in the concerned subject within 31st December, 2002 are exempted from the requirement of NET/SLET. The respondent applied for the post, was called for interview along with two other candidates by the Selection Committee, which recommended him for the post and forwarded his name to the Executive Council. The Executive Council, however, did not agree with the recommendation of the Selection Committee on the ground that the respondent did not have uniformly consistent good academic record, and accordingly rejected his selection and directed the Registrar to initiate fresh process for recruitment. It is against this decision that the respondent filed the writ petition.
3. While allowing the writ petition, the learned Single Judge recorded the following findings:
"14. The proposition of law laid down by the Apex court makes it very clear that the State is under no legal duty to fill all or any of the vacancies. However, it does not mean that the State has the license to act in an arbitrary manner. The provision of Section 15-A of the [Gauhati University] Act also makes it mandatory that whenever the Executive Council disagrees with the Selection Committee, it shall have record reasons for its disagreement and the reasons have to be bona fide and acceptable in law. In this case, the Executive Council has WA No. 362/15(Estoppel) Page 2 of 14 evidently acted in an arbitrary manner. The scrutiny of the academic record of the candidates for selection beyond the basic qualification is totally on extraneous consideration. The performance at High School level and college level are totally extraneous. The teaching experiences of the candidates other than in subject of Law are also not a relevant factor for consideration. The Notification insisted a Master's Degree in law in Criminology with 55% of marks and above and also Ph. D. qualification and NET. If one has Ph. D., the requirement of NET is exempted.
15. Here, in the present case, if one goes by the academic record of Dr. Bhupesh Malla Buzabaruah and the petitioner, both of them appear to be evenly poised. However, the Selection Committee appears to have been impressed by the performance of the petitioner and selected him. The respondent authority has not produced the record of the viva voce test conducted to know the assessment of the interview of the candidates. In the absence of such material, it is to be held that the Selection Committee had the advantage of assessing the performance of the candidates at the viva voce test and has found the petitioner to be more suitable. Merely because the other candidate had secured about 2 % marks higher than the petitioner at the qualifying examination, it does not mean that there was any mala fide on the part of the Selection Committee in selecting and recommending the name of the petitioner because the performance at the oral interview also becomes one of the relevant factor for consideration for the selection. In that context, it is to be seen that the petitioner fulfilled all the requisite qualifications and was found suitable by the Selection Committee. The Executive Council appears to have done a strained exercise to disagree with the Selection Committee by citing extraneous reasons like the petitioner does not have consistent good academic record. The consideration of the WA No. 362/15(Estoppel) Page 3 of 14 academic record from the stage of HSLC appears to be a very frivolous approach adopted by the Executive Council. What was needed was to assess performance on the basis of basic qualification and onwards. In that view of the matter, the reasons given by the Executive Council in rejecting the selection of the petitioner appears to be untenable and arbitrary. Accordingly, the writ petition is allowed."
4. In our opinion, the construction placed by the Executive Council on the expression "Good academic record with at least 55% of marks or, an equivalent grade of B in the 7 point scale with letter grades O,A,B,C,D,E & F at Master's degree level...." prescribed in the recruitment rules, to mean "having uniform and consistently good academic career of the candidate" is somewhat perverse. When the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. As stated by the Privy Council: "We cannot aid the Legislature's defective phrasing of an Act, we cannot add or mend, and, by construction make up deficiencies which are left there". "It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words of the statute. Speaking very briefly, the court cannot reframe the legislation for the very good reason that it has no power to legislate".─ See Justice G.P. Singh's "Principles of Statutory Interpretation", 14th Ed., at pp 55 and 68-69. If that is the principle of interpretation to be adopted by Courts, then, a fortiori, that principle should also guide the Executive Council while construing such expression. True, in the field of education, a Court of law cannot act as an expert. Normally, therefore, whether a candidate possesses the requisite qualifications, should better be left to the expert committee. In the instant case, the Selection Committee found the respondent to be qualified for the post and selected him accordingly, but, by a strange process of interpretation, his selection was rejected by the Executive Council by holding that he did not have "uniform and consistently good academic career", which condition did not find a place in the recruitment rules and WA No. 362/15(Estoppel) Page 4 of 14 the advertisement. Recruitment to public services should be held strictly in accordance with the terms of the advertisement and the recruitment rules. If the construction placed by the Executive Council is accepted, then that will amount to changing the rule of the game after the recruitment process has started, which is impermissible in law. In the view that we have taken, we are in respectful agreement with the learned Single Judge that the respondent has the requisite qualification and reject the contention to the contrary made by the learned counsel for the University.
5. In the course of hearing, the learned standing counsel for the University took a new plea on a question of law, namely, the respondent does not have NET or SLET nor did he obtain Ph. D. degree prior to the coming into force of University Grants Commission (Minimum Standards and Procedure for Award of M. Phil/Ph. D. Degree) Regulations, 2009 and is, therefore, not exempted from possessing NET/SLET. He, therefore, vehemently contends that the respondent could not have been selected by the Selection Committee by overlooking statutory qualifications. As this new plea taken by the learned standing counsel is on the question of law, we permit him to do so. However, the learned standing counsel does not appear to have improved his case. We are not unmindful of the fact that there can be no estoppel against a statute. Having said that, the question calling for consideration now is whether the respondent can be estopped from raising the issue once he was allowed to take part in the interview without concealing/suppressing any fact and when the University-appellants knowingly allowed him to participate in the interview despite the deficiency in his qualification. To appreciate this controversy, we refer to the essential qualifications for the post of Lecturer, which are as under:
"Lecturer:
1) Good academic record with at least 55% of marks or an equivalent grade of B in the 7 point scale with letter grades O,A,B,C,D,E & F at the Master's degree level, in the relevant subject from an India University, or, an equivalent degree from foreign University.WA No. 362/15(Estoppel) Page 5 of 14
2) Besides fulfilling the above qualifications, candidate should have cleared the National Eligibility test (NET/SLET) for lecturers conducted by the UGC, CSIR, or similar test accredited by the UGC.
Provided that NET/SLET or similar test accredited by the UGC, shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph. D. degree. However, the candidates who have completed M. Phil. before 1st December, 1993 or have submitted Ph. D. thesis in the concerned subject within 31st December, 2002, are exempted from the requirement of NET/SLET or similar test.
Provided further that any relaxation in the qualification prescribed above can be made by the University in a particular subject in which NET/SLET is not being conducted or enough number of candidates are not available with NET/SLET qualifications for a specified period only on the basis of sound justification and with reference to the University Grants Commission."
(Underlined for emphasis)
6. The second proviso extracted above plainly shows, among others, that if there is not enough number of candidates available having NET/SLET qualifications for a specified period, relaxation in the aforesaid qualification can be made by the University. In the instant case, from the own showing of the University-appellants, it is obvious that there is not enough number of candidates having NET/SLET qualifications applying for the post of Lecturer in Criminal Law and Criminology; the post had been advertised time and again. In our opinion, this is not a case where the University-respondent can seek the protection of the principle of no estoppel against statute inasmuch as appellant is entitled to invoke the second proviso engrafted in the essential qualifications. As already noticed, indisputably, there has not been enough number of candidates with NET/SLET qualifications who applied for WA No. 362/15(Estoppel) Page 6 of 14 the post in question unless the related rule is relaxed by the University- respondents as indicated above. A case of this nature came up for consideration before the Full Bench of Madhya Pradesh High Court in Bal Krishna v. Rewa University, AIR 1978 MP 86. That was case where the petitioner was a regular student of LL.B. (Part-I) in 1967 in the teaching department of the Saugor University. He did not succeed in the examination. In October 1975, he applied to the Registrar for permission to appear in LL.B. (Part-I) examination of the Rewa University and on the recommendation of the Dean, the Registrar issued a letter dated December 17, 1975, according him permission to appear in the examination. He submitted a regular application form. On April 24, 1976, he got an admission card from the Superintendent of the Examination. On April 26, 1976, the examination commenced. The petitioner appeared in all the papers. Then he went away to his village in the interior. There, on May 14, 1976, he got an envelope from the University conveying to him that his admission card had been cancelled. That was a case where the petitioner was an ex-student of the Saugor University but he was not an "ex-student candidate of the Rewa University". That being so, he could not appear as an ex-student candidate in the LL.B (Part-I) examination of Rewa University. The Registrar was persuaded by the recommendations of the Professor of Law and it was by mistake that the Registrar granted him permission. That permission was erroneous and contrary to the provisions of the rules. The petitioner was not eligible to appear in the LL.B. (Part-I) examination as an ex-student candidate. It was on April 22, 1976, that the University cancelled the admission card and conveyed this both to the Superintendent of the Examinations and the candidate. Learned counsel for the University placed before us the Despatch Register for our inspection. It is clear that the envelope addressed to the petitioner was sent by post to his village address. Perhaps that was the only address with the University. However, the fact remains that the envelope was never delivered to the petitioner until he reached his village after taking the whole of the examination.
7. The petitioner's contentions therein are that since the letter of permission was issued to him as back as on December 17, 1975, and, that WA No. 362/15(Estoppel) Page 7 of 14 apart, an admission card was issued to him, and further he actually appeared in the examination without any objection, the University is estopped from withholding his result. Quashing the order of the University cancelling the examination of the petitioner and directing the University to declare the result of his examination, the Full Bench enunciated the following important propositions of law:
"Cases where occasion arises for refusal to permit "a candidate to appear in an examination or cancel his examination may broadly be categorised thus:
(i) Where the candidate practised fraud on the authorities, or was guilty of mis-statement or suppression of facts in his application, form on the basis of which admission to examination was granted;
(ii) where there is some technical defect in the filling of the form or where there was any deficiency, such as shortage in attendance, which defect or deficiency could be condoned by the authorities in exercise of discretion vested in them under the statute, Rules or Regulations;
(iii) where the candidate was patently ineligible on the particulars supplied by him; and
(iv) where the question of eligibility depends upon interpretation of any provision of law, or rules or regulations having the force of law, and two interpretations are reasonably possible.
In our opinion (i) in the first category of cases, no question of estoppel arises. The authorities will be within their rights to cancel the admission card or the examination on the discovery of fraud. This is because a person, who practices fraud or makes a mis-statement or suppresses material facts cannot claim estoppel. Fraud vitiates WA No. 362/15(Estoppel) Page 8 of 14 everything, (ii) In the second case, if admission card has been issued to the candidate and he has appeared even in one paper of the examination, estoppel will operate against the authorities. The reason is that the authorities will be deemed to have represented to the candidate that the defect has been cured or the deficiency has been condoned. Where the examination has not yet begun, whether the authorities will be estopped from cancelling the admission card will depend upon the facts of each case. (iii) In the third category of cases, there will be no estoppel, the principle being that there can be no estoppel against the statute. For instance, if a candidate has not passed the B.A. examination and has applied for appearing in LL.B. examination, even if an admission card has been issued and even if the candidate had stated the facts truthfully, the authorities will be entitled to cancel the admission card and the examination, (iv) It will depend upon the peculiar facts of each case falling under the fourth category whether or not estoppel will operate against the authorities to cancel the examination once a candidate has appeared in a single paper. In such a case, the authorities may be deemed to have accepted the other possible interpretation, which is in favour of the candidate.
The present case falls under the fourth category. We have pointed out above that the interpretation of the expression "ex-student candidate"
admits of two reasonable interpretations, when examined in the light of all the relevant definitions. The petitioner first received permission from the Registrar as back as in December 1975. Secondly, admission card was issued by the University and delivered to the petitioner through proper authority. The petitioner appeared in and took part in the entire examination. In these circumstances, the University could not turn round and say that there was a mistake in issuing the admission card on the other possible interpretation of the definitions. This is a case of promissory estoppel.WA No. 362/15(Estoppel) Page 9 of 14
In Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718 their Lordships observed (at p. 727):
"Even though the case does not fall within the terms of Section 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution."
It was strenuously contended for the University that the admission card was issued under a mistake and the University was, therefore, within its power under Clause 21 (3) (a) of Ordinance No. 6 to cancel the admission card. In this context, it must be recalled that the Registrar of the University had issued a letter to the petitioner informing him that he was eligible to appear in the examination. That was as back as in December 1975. But that apart, the University was well aware on April 22, 1976, that it had issued an admission card for the petitioner, and that the examination was going to commence on the 26th April. What the University did was merely to send the cancellation order to the Superintendent of the examination. Firstly, the University did not take care to see that the order of cancellation was served on the petitioner. It was a very important decision taken by the University so far as the candidate was concerned, and that decision was taken only four days before the commencement of the examination and that too behind his back. That being so, it was the duty of the University to ascertain that the cancellation order was served on the candidate before the examination began. This it did not do. On the contrary, the admission card was handed over to the petitioner by proper authority on the 24th April and he appeared in the first paper on the 26th April and also in all the subsequent papers to the last, without any one objecting. Secondly, although the University issued the cancellation order directly to the candidate, what it did was to send it on the 22nd April by post at the petitioner's WA No. 362/15(Estoppel) Page 10 of 14 village address which is in the interior. The University could not rest assured that the cancellation order would be received by the petitioner before the 26th April in his village. It was 'bound to presume that the candidate would have started for Rewa to appear in the examination. If the University did not act with care and caution, which was reasonably expected, the candidate cannot be made to suffer. It was held in Geeta Mishra v. Utkal University: AIR 1971 Ori 276, that the principle of estoppel applies also to a representation made under mistake, and a fraudulent intention is not necessary to create an estoppel. See also Registrar v. Sundara AIR 1956 Mad 309, and Delhi University v. Ashok Kumar: AIR 1968 Delhi 131. In the Delhi case, it was, however, made clear that their decision had no application to a case where a student is guilty of fraud, deception or concealment of material particulars, while seeking and obtaining admission. Although these are cases relating to admission, we think the principle applies to the present case as well."
8. Though the aforesaid decision was rendered in the context of admission in LL.B. examination, we do not see why the same principles cannot be extended to recruitment process. In the instant case, the respondent did not commit any fraud or misrepresentation while applying for the post; his application for the post mentioning his qualifications was accepted by the University-appellants with their eyes wide open. Moreover, the second proviso with respect to essential qualifications extracted above offered enough discretion to the appellant-University-respondent to relax the qualifications if they find, inter alia, that there is not enough number of candidates available with NET/SLET qualifications. In our opinion, the University-appellants have taken a hyper-technical view of the matter or are otherwise guilty of non-application of mind inasmuch as they knew that they were in need of Lecturer in Criminal Law and Criminology in the faculty and failed to invoke the said proviso. However, it is quite possible, we hope our suspicion is not true, that the Executive Council knowingly refused to relax the qualification with respect to NET/SLET for some extraneous reasons. After all, this was not the reason disclosed by them in the minutes WA No. 362/15(Estoppel) Page 11 of 14 of their meeting or in their affidavit for rejecting the selection of the respondent; his selection was rejected solely on the ground of lack of uniform and consistently good academic record, which, as rightly held by the learned Single Judge, is arbitrary and untenable in law. You cannot simply multiply the reasons for taking a particular decision, which are obviously not there at the relevant time. In this context, we are reminded of the observations made by the Apex Court in Hindustan Petroleum Corporation Ltd. V. Darius Shahpur Chennai, (2005) 7 SCC 627:
"24. Submission of Mr Chaudhari to the effect that the circumstances pointed out in the counter-affidavit filed in WPMP No. 27633 of 2003 should be held to be substitute for the reasons which the State must be held to have arrived at a decision, cannot be countenanced. When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records.
25. In Commr. of Police v. Gordhandas Bhanji 17 it is stated:
"We are clear that public orders, publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
26. Yet again in Mohinder Singh Gill 12 this Court observed:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be 17 1952 SCR 135 : AIR 1952 SC 16 12 (1978) 1 SCC 405 WA No. 362/15(Estoppel) Page 12 of 14 supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji17:"
27. Referring to Gordhandas Bhanji17 it was further observed:
"Orders are not like old wine becoming better as they grow older."
(The said decisions have been followed by this Court in Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia 18.)"
9. The last question for consideration is what relief can be granted by this Court to the respondent. Normally, from the proposition that Courts do not probe into the merits of an administrative decision, it follows that where the authority has not acted according to law, Courts would only quash the administrative action in question but do not direct the authority to act in a particular manner. However, when the range of discretion has been cut down to such an extent that only one decision is possible, Courts may specifically direct the authority to act in that particular way.─ Union of India (UOI) and ors. V. Indo-Afghan Agencies Ltd., AIR 1968 SC 718. In the case at hand also, once we found that the two reasons assigned by the appellant-University for rejecting the selection of the respondent for the post of Lecturer in Criminal Law and Criminology are not tenable in law, it has no discretion left but to appoint the respondent to that post without any loss of time. Such positive direction is all the more called for when the respondent has been forced to move from pillar to post to get the elusive appointment for the post which was advertised as early as 2004. In our judgment, the respondent has been given a raw deal and inhuman treatment by the appellant-University.
10. For the reasons afore-mentioned, this writ appeal fails and is, accordingly, dismissed. The impugned resolution of the Executive Council No. 2008/6(II)/77 dated 9-4-2008, in so far as the respondent is concerned, 18 (2004) 2 SCC 597 WA No. 362/15(Estoppel) Page 13 of 14 is hereby quashed. The Executive Council is, therefore, directed to take appropriate action for relaxing the deficiency in the qualification of the respondent vis-à-vis NET/SLET and appoint the respondent to the post of Lecturer in Criminal Law and Criminology in the Department of Law, Gauhati University subject to police and medical verification, if found necessary, within a period of three months from the date of receipt of this judgment.
JUDGE JUDGE
Upadhaya
WA No. 362/15(Estoppel) Page 14 of 14