Calcutta High Court (Appellete Side)
Dr. Debasis Dutta vs The State Of West Bengal & Ors on 19 November, 2009
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 3291 (W) of 2009
Dr. Debasis Dutta
Vs.
The State of West Bengal & Ors.
For the Petitioner: Mr. Lakshmi Gupta,
Ms. Rajyasri Chanda,
Mr. Anjan Bhattacharya.
For the State Respondent/University of North Bengal: Mr. Tarun Kumar Ray,
Mr. Asish Kumar Das.
For the Respondent No. 5 : Mr. Subrata Mukhopadhyay, Mr. Debasish Saha, Ms. Basabi Raichowdhury.
For the State: Mr. Ashim Kumar Halder. Judgment on : 19.11.2009.
S.P. Talukdar, J.: The subject matter of controversy, as raised in the instant application under Article 226 of the Constitution, is the selection procedure for the post of Controller of Examinations of the University of North Bengal.
The petitioner herein claiming to be the proper candidate for selection in the said post and alleging that the private respondent does not possess the requisite qualification, nor the experience, sought for setting aside of the interview held on 10th February, 2009 for 2 selection to the said post. The petitioner further alleged that the respondent authorities acted in violation of the North Bengal University Act, 1981 and the Ordinances relating to the procedure and method of selection of persons for appointment to the post of officers and other non-teaching posts. There had been violation of statutory provisions and Government orders and the desirable qualification prescribed by the respondent authorities in its advertisement for the post of Controller of Examinations exceeded the parameters laid down in G.O. No. 559 Edn (U). The petitioner specifically claimed that the respondent authorities ought not to have short-listed and/or interviewed the private respondent No. 5 who neither had consistent good academic record nor had the minimum 55% marks in the masters degree preceded by three years Honours degree in the concerned subject which are the minimum eligibility criteria for consideration for the said post of Controller of Examinations. The petitioner accordingly alleged that the selection procedure is vitiated by arbitrariness.
The respondent No. 5 contested the case by filing Affidavit-in-Opposition wherein all the material allegations made by the petitioner had been denied.
Such respondent No. 5 specifically claimed that the Executive Council of the University and the authorities of the University were well competent to prescribe minimum qualification for the post of officers. The petitioner having accepted such criteria and/or conditions participated in the selection process and being unsuccessful, cannot now be permitted to challenge the selection procedure. Such respondent No. 5 claimed that the circular being G.O. No. 756 Edn (CS) dated 28.11.2008 read with G.O. No. 627 Edn (CS) dated 17.06.1999 are not at all relevant and have no applicability for selection of candidate 3 for the post of Controller of Examinations. Respondent No. 5 specifically claimed that he duly satisfied the eligibility criteria for selection in the post of Controller of Examinations and he is not only properly equipped but more experienced in discharging the function of the Controller of Examinations. Respondent No. 5 challenged the competence of the petitioner to judge whether he has uniformly good academic career or not. Referring to Government order No. 559 Edn (U) dated 3rd April, 1980, he claimed that for the post of Second Council of Post Graduate studies and even for the post of Joint Registrar, the qualification of uniformly good academic record with a B+ Master Degree or its equivalent is required. He served in such post for a considerable period and never any dispute was raised regarding his qualification.
Respondent Nos. 2, 3, 4 and 6 also contested the case by filing separate Affidavit-in- Opposition wherein the material allegations made by the writ petitioner had been denied.
They claimed that the writ petitioner while holding the post of Deputy Controller of Examinations of the North Bengal University without raising any objection about qualification as prescribed in the advertisement in question made application for appointment to such post of Controller of Examinations pursuant to the advertisement. Even after short-listing of the names of the candidates by the constituted Screening Committee, the petitioner appeared in the interview held on 10th February, 2009 and that too, without raising any objection regarding eligibility criteria. In the application, the petitioner had not attributed any mala fide against the Screening Committee/Standing Committee and/or any member of such committee. There had been no violation of any statutory rules or regulations and as such, the procedure adopted for selection to the post of 4 Controller and subsequent appointment of respondent No. 5 in such post are outside the purview of judicial review.
Dismissal of the writ application had so been prayed for.
The Controller of Examinations is one of the many persons in the service of the North Bengal University, which are declared to be officers of the University under clause
(iv) of Section 7 of the North Bengal University Act, 1981. Statute 4(g) of the 'Statutes relating to the appointments, powers and duties of the officers of the University other than the Vice-Chancellor' lays down that an officer of the University shall possess such qualifications as may be prescribed by the Executive Council with the approval of the State Government.
Qualifications for the post of Controller of Examinations are :-
" (a) Essential :
(i) Uniformly good academic record with a B+ Master's degree or its equivalent.
(ii) At least 10 years experience in an academic institution like University or in an institute of higher learning of which 5 years must be at high level administration in a University or in an Institute of Post Graduate Study.
(iii) Age not less than 40 years. Relaxable in the case of exceptionally qualified candidates.
(b) Desirable :
(i) A Doctorate Degree or published research work of merit.
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(ii) High level administrative experience in a Government or Quasi-Government
organization or a good background in administration and management in senior position.
(iii) Experience in examinations and admission related works either in Institute of higher learning or in Service Commission.
(iv) Experience in Information Technology application products and operations associated with examination systems.
Provided that in absence of suitable candidates having the required administrative experience, if the candidate has been either a Professor/Reader/Principal for at least two years, the essential qualifications pertaining to administrative experience required for such posts may be reduced or waived on the recommendations of the Standing Committee. For candidates having required administrative experience, the essential academic qualifications may be relaxed on the recommendation of the Standing Committee, but the selected candidate must have at least the academic qualifications prescribed for teacher of the colleges."
Copy of the advertisement had been annexed to the writ application, being Annexure-'P-1' at page 32. Admittedly, the writ petitioner as well as private respondent No. 5 and others responded to such advertisement. No grievance was raised. None objected to the same. This assumes more significance since both the petitioner and respondent No. 5 were 'in-house' candidates.
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Mr. Lakshmi Gupta, learned Counsel appearing for the writ petitioner, referred to the Ordinances relating to the procedure and method of selection of persons for appointment to the posts of Officers and other Non-teaching posts of the University of North Bengal.
Ordinance 4 reads :-
"4. The necessary qualifications required for appointment to the posts of officers shall be such as may be prescribed by the University in accordance with the orders issued by the State Government from time to time. The qualifications required for appointment to different non-teaching posts shall be such as may be determined by the Executive Council."
Inviting attention of the Court to the Appendix-I to Government order No. 559 EDN (U) dated 3rd April, 1980, being Annexure-'P-3' to the writ application, it was submitted by Mr. Gupta that all the required qualifications were shown as desirable for the post of Controller of Examinations. It is essential to have experience in conducting examinations either in institution of Higher learning or in Service Commission. Mr. Gupta on behalf of the writ petitioner claimed that the selected candidate being respondent No. 5 did not have the essentially required 'uniformly good academic record with a B+ Master's Degree or its equivalent'. While submitting that by virtue of notification No. 171(6)-Edn(U) dated 19th February, 1982 (Annexure-'P-4'), there could be scope for relaxation of the essential academic qualification for candidates having the required administrative experience on the recommendations of the selection committee but there was no scope for any compromise regarding the academic qualification, which was required to be at least the academic qualifications prescribed for teachers of colleges.
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Mr. Gupta then submitted that the eligibility criteria for the teachers of degree colleges is consistently good academic record with at least 55% marks (without any sort of grace) or an equivalent grade in the master's degree preceded by three years Hons. Degree in the concerned subject with at least 2nd class marks.
On behalf of the writ petitioner, it was then submitted that the selected candidate, being respondent No. 5 herein, does not satisfy such eligibility criteria relating to either academic career or administrative experience. Mr. Gupta referred to the academic background of respondent No. 5 while submitting that he cannot be said to possess consistently good academic record with B+ i.e. 55% marks in his Masters Degree in Chemistry which is the relevant subject in which he has done graduation. It was contended that the appointment of respondent No. 5 was in violation of the guideline, as he does not have 55% marks in Masters Degree in the relevant subject of his graduation. The respondent No. 5 two years after his Ph.D. passed M.Tech. in Instrumentation Technology but that could not be a Master Degree in Chemistry which is the relevant subject of his graduation. The selection procedure has been further sought to be assailed on the ground that the advertisement issued was tailor-made and not free from bias. The desirable conditions indicated therein, according to the petitioner, are in excess of the criteria laid down in the relevant Government orders. The NBU made it desirable for the candidate to have in addition to the qualification prescribed by G.O. a) experience in admission related works either in institute of higher learning or in Service Commission; b) experience in information technology application products and operations associated with examination systems. According to the writ petitioner, the additional desirable qualifications in the 8 NBU advertisement were tailor- made to give leverage to the private respondent No. 5 who has experience in admission work and a masters degree in technology, to cover up his shortfalls in academic scores and lack of experience in conducting examinations. Mr. Gupta then submitted that the respondent authorities acted in violation of statutory provisions and Government orders prescribing procedure for selection of Controller of Examinations and acted arbitrarily in appointing an ineligible candidate.
Referring to paragraph 13 of the writ application, it was submitted that the petitioner possesses academic qualification and administrative experience required for the post and is, thus, eligible as per relevant statutory provisions read with Government orders.
In response to this, Mr. Tarun Roy, appearing as learned Counsel for the official respondent, submitted that there was open advertisement and the post of Controller of Examinations of North Bengal University is not a promotional post. He mentioned that all concerned knew about the eligibility criteria and no grievance was raised. There is no allegation of any mala fide against members of the Screening Committee. Both the petitioner and respondent No. 5 as well as two others passed the test of scrutiny. They faced interview on identical footing. It was contended on behalf of such respondent that there is no specific pleading of mala fide against any named individual. Mr. Roy submitted that there could be no justification for any grudge alleging any undue haste on the part of the respondent authorities. Mr. Roy then contended that an application under Article 226 of the Constitution cannot be construed as an 'appeal'. It is this Court's power of 'judicial review'. Accordingly, as submitted by Mr. Roy, the scope of judicial interference in matter of selection is extremely limited. In absence of any violation of the statutory rules and 9 when there is no allegation of any mala fide, this Court can have no justification for interference.
Mr. Subrata Mukhopadhyay, appearing as learned Counsel for the private respondent No. 5, first submitted that the composition of the selection committee is not under challenge. It was contended that the circulars referred to on behalf of the petitioner have no applicability. Mr. Mukhopadhyay submitted that the same are applicable only in absence of a competent candidate. Reference was made to the rich experience of the private respondent No. 5. The fact that the petitioner silently and ungrudgingly participated in the selection process was highlighted in course of argument. Mr. Mukhopadhyay categorically submitted that there could be no violation of any legal right - far less, any constitutional right.
Mr. Lakshmi Gupta emphatically submitted that the authorities did not follow the procedure. He wondered as to how could the petitioner raise grievance at any earlier stage. It was then submitted that there could be no estoppel against statute and participation of the writ petitioner in the interview cannot justify an act of illegality on the part of the respondents.
Relying upon the decision of the Apex Court in the case between Allahabad Development Authority Vs. Nasiruzzaman & Ors., as reported in (1996) 6 SCC 424, it was submitted on behalf of the writ petitioner that the principle of estoppel or res judicata does not apply where to give effect to them would be to counter some statutory direction or prohibition.
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Mr. Gupta referred to the decision in the case between Rajkumar & Ors. etc. Vs. Shakti Raj & Ors. etc., as reported in AIR 1997 SC 2110, while submitting that when there are glaring illegalities in the procedure adopted for selection, the principle of estoppel by conduct or acquiescence has no application.
In Bholanath Chakraborty & Ors. Vs. Steel Authority of India Limited & Ors., as reported in 1999 CWN 583, the learned Single Bench of this Court held that 'it cannot be said that in each case, a person who has taken part in the selection process is estopped from questioning the same inasmuch as if an action has been taken in contravention of a statute or the Constitution of India, rule of estoppel will not apply.' On the other hand, it was submitted on behalf of the respondent No. 5 that the facts and circumstances of the present case do not justify any interference by this Court. Deriving support from the decision in the case between Dr. M. C. Gupta & Ors. Vs. Dr. Arun Kumar Gupta & Ors., as reported in (1979) 2 SCC 339, it was submitted that the Courts, while enforcing the rule of law should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the authorities acted. If the recommendations made by the experts, keeping in view the relevant rules and regulations, manifest due consideration of all the relevant facts, the Court should be very slow to interfere with such recommendations. In fact, the Apex Court in the said case held that Court can broadly examine whether requirement is satisfied and cannot be expected to work out figures with mathematical precision.
In R. K. Jain Vs. Union of India & Ors., as reported in (1993) 4 SCC 120, the Apex Court held that the Court in exercise of its power of judicial review, is not concerned 11 with the merits of the decisions, but its legality. The function of the Court is to see that lawful authority is not abused.
It is settled law that in exercise of power of judicial review, the writ Court can only examine the decision making process and not the decision itself.
Attention of the Court was invited to the decision of the Apex Court in the case between Dalpat Abasaheb Solunke & Ors. Vs. Dr. B. S. Mahajan & Ors., as reported in (1990) 1 SCC 305. This was in the context of the submission 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. The Apex Court in the said case held that '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. 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.' If an authority is required to take a decision in accordance with the provisions of the Act and the statutes, it cannot be guided by extraneous or irrelevant consideration. It must not act illegally, irrationally or arbitrarily. The Apex Court in the case between Neelima Misra Vs. Harinder Kaur Paintal & Ors., as reported in (1990) 2 SCC 746, held that 'any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi-judicial exercise of power is liable to be quashed being 12 violative of Article 14. The principle of equality enshrined in Article 14 must guide every State action, whether it be legislative, executive or quasi-judicial.' In the facts and circumstances of the present case, the submission as made on behalf of the respondent No. 5 that the Court is not to evaluate comparatively but to adjudicate on legal flaws, cannot just be brushed aside. (Ref: State of Bihar & Ors. Vs. Dr. Asis Kumar Mukherjee & Ors., (1975) 3 SCC 602).
It is well settled that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made, particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. In Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, as reported in (1997) 7 SCC 622, the Apex Court held that the Court's concern should be, (i) whether the decision-making authority exceeded its powers?; (ii) committed an error of law; (iii) committed a breach of the rules of natural justice; (iv) reached a decision which no reasonable Tribunal would have reached; or (v) abused its power.
While highlighting the fact that the writ petitioner ungrudgingly participated in the selection process, it was submitted that having unsuccessfully participated in the process of selection without any demur, the petitioner is estopped from challenging the selection criteria. In Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors., as reported in (2008) 4 SCC 171, the Apex Court held that if there is any valid objection, the petitioner should have challenged the advertisement and selection process without participating in the selection.
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A similar view was taken by another Bench of the Apex Court in the case between Trivedi Himanshu Ghanshyambhai Vs. Ahmedabad Municipal Corporation & Ors., as reported in AIR 2008 SC 148.
On behalf of the official respondents as well private respondent No. 5, allegations were made that the writ application suffers from suppression of material facts. It was submitted that there are 'twist and turns' which did not allow the truth to surface.
In this context, reference was made to the decision of the Apex Court in the case between Prestige Lights Ltd. Vs. State Bank of India, as reported in (2007) 8 SCC 449.
In the case between K. D. Sharma Vs. Steel Authority of India Limited & Ors., as reported in (2008) 12 SCC 481, the Apex Court held :-
"The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim."
So far the present case is concerned, it is not in dispute that both the writ petitioner as well as the private respondent No. 5 were holding different posts in the North Bengal 14 University at the time of advertisement for selection to the post of Controller of Examinations was published. The writ petitioner was holding the post of Deputy Controller of Examinations. He knew about the qualifications prescribed both 'essential' as well as 'desirable'. He was very much aware of the steps being taken by the respondent authorities in the matter of selection to the said post. The Screening Committee was duly constituted and the said Committee came out with the names of candidates who were short-listed. The petitioner participated in the interview held on 10th February, 2009 and that too, without any protest. The petitioner was very much aware of the academic background as well as the experience of the respondent No. 5. He did not choose to ventilate any grievance in this regard. It was never his claim at the time of selection that the respondent No. 5 was truly not eligible to be considered for selection to the post of Controller of Examinations. Question that arises is whether he can be permitted to raise such point taking the plea that there cannot be any estoppel against statute.
I am afraid, the said principle does not, strictly speaking, apply to the facts and circumstances of the present case. Moreover, the petitioner by his conduct has led others to believe that he has no objection to what the others are doing. He cannot now be allowed to go back on what he has led the other to believe.
In the words of Lord Denning, '........this operates by reason of his conduct - what he has led the other to believe - even though he never intended it'.
The stand of the respondent authorities as strongly contended by learned Counsel on their behalf that the Government circulars and the orders relied upon by the writ petitioner 15 only prescribed their qualification for recruitment to the post of officers of the University who are new entrance cannot just be brushed aside.
According to the official respondent, there had been suppression of relevant provision particularly regarding the coram of the Standing Committee. It was contended that in the interview for appointment to the post of Controller which was held on 10th February, 2009, four members of the Standing Committee including two external experts and one nominated person of the State Government were present.
It cannot be disputed that the power and authority of the University has been defined under the North Bengal University Act, 1981. It empowers the Executive Council of the University to prescribe the minimum qualifications for post of Officers and the Executive Counsel is the authority to appoint Officers and define their duties in accordance with the statutes and the Ordinance made under the said Act. The materials on record indicate that the Executive Council of the University in its meeting dated 29.02.2008 approved the advertisement and nominations of members of the Selection Committee for the post of Controller of Examinations. In pursuant to the said decision taken by the Executive Council, an advertisement was published prescribing qualification both essential and desirable commensurate with the Government order issued by the Government of West Bengal from time to time. Learned Counsel for the respondent, in this context, added that the authority took into consideration the rational nexus with practical requirements in respect of the post of the Officer in question. The applications were duly screened by the Committee appointed by the Vice-Chancellor. There could, thus, be no illegality in the selection procedure. It was further contended that regarding appointment of the Controller 16 of Examinations, it was not prescribed and/or specified in any manner that the candidate having B+ Master Degree must be preceded by three years Honours degree in the concerned subject for the purpose of good academic record. The proposition that the selected candidate being respondent No. 5 did not have the required marks in his Honours paper, Chemistry, cannot lend any support to the claim of the writ petitioner.
Submission of Mr. Roy that reference cannot be made to the eligibility of a teacher while examining the qualification for consideration to the post of Controller can very well be appreciated. He was perfectly justified in mentioning that how could there be a relevant subject so far the post of Controller is concerned. On careful consideration of the entire relevant facts and materials, I find it difficult to appreciate the grievances raised on behalf of the writ petitioner regarding lack of qualification and experience of the respondent No. 5 for appointment to the post of Controller of Examinations. The parallel study, as has been made, regarding the qualification for recruitment to the post of teacher gets effectively and substantially diluted while considering that the proviso as regards the qualification for the post of Controller as indicated in the relevant advertisement does not have any role to play.
While summing up, I find no rational justification for raising any grievance alleging lack of academic qualification or experience of respondent No. 5 for his appointment to the post of Controller of Examinations.
Both the petitioner and respondent No. 5 were linked up with the North Bengal University since prior to their applying for the post of Controller. The academic background as well as the experience could not be said to be not known to each other. Never before any grievance was made alleging any lack of qualification or experience. 17 This Court finds no reason for entertaining with the selection procedure at this stage and particularly, when the petitioner actively participated in the same and that too, without any protest. This Court cannot get engaged in measurement of the respective strength and merit of the petitioner and respondent No. 5. In absence of any concrete instance of mala fide, institutional or otherwise and since there had been no violation of any statutory rules, I find it beyond the scope and ambit of the instant application under Article 226 of the Constitution to appreciate the grievance.
The present application being W.P. No. 3291 (W) of 2009 fails and be dismissed. Interim order, if any, stands vacated.
There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)