Calcutta High Court (Appellete Side)
Dr. Sridip Chatterjee vs Dr. Gopa Chakraborty & Ors on 16 December, 2016
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
FMA No. 682 of 2015
With
CAN 1256 of 2016
Dr. Sridip Chatterjee
Versus
Dr. Gopa Chakraborty & Ors.
For the appellant : Mr. Bikash Ranjan Bhattacharya,
Senior Advocate,
Mr. Raghunath Chakraborty
For the respondent no.1/writ petitioner : Mr. Kalyan Bandopadhyay, Sr. Advocate
Mr. Joytosh Majumder,
Mr. Siddhartha Ghosh,
Mr. Avishek Prasad
For the Jadavpur University : Mr. Billwadal Bhattacharyya
Heard on : 18/11/2016, 21/11/2016 and 23/11/2016
Judgment on: 16/12//2016
Debasish Kar Gupta , J. :
This appeal is directed against a judgment dated April 16, 2014, delivered in the matter of Dr. Gopa Chakraborty vs. Jadavpur University & Ors. (in re: W.P. 20619 (W) 2013).
By virtue of the impugned judgment the appointment of the appellant in the post of Assistant Professor in Physical Education (Yoga Therapy) under the respondent University was set aside. The respondent University was also directed to take appropriate steps for a fresh selection from amongst the candidates who had applied pursuant to the advertisement strictly in accordance with law and subject to fulfillment of criteria as laid down in the advertisement.
The respondent University published an employment notification on November 22, 2012 inviting applications for the post of Assistant Professor in Physical Education (Yoga Therapy). According to the above advertisement, Master's in Yoga/Yoga Therapy or Master's in Physical Education with Post Graduate Diploma in Yoga/Yoga Therapy with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) was one of the eligibility criteria. The appellant and the respondent no.1/writ petitioner participated in the above selection process, amongst other candidates. The interview of the candidates was held on March 26, 2013. On March 28, 2013, the respondent no.1 submitted a representation before the respondent no.3 raising dispute with regard to the eligibility of the appellant to participate in the selection process under reference. According to the above representation, the respondent no.1 possessed "Diploma in Yoga Education" which did not fulfil the essential qualification of Post Graduate Diploma in Yoga/Yoga Therapy as mentioned in the advertisement.
Subsequently, in reply to an application under Right to Information Act, the respondent no.1 came to know that the appellant had been appointed to the post in question by a letter of appointment dated March 28, 2013. The respondent no.1 filed the writ application which gives rise to this appeal with a prayer to issue a writ in the nature of mandamus setting aside the selection of the respondent no.1 in the post in question.
At the very outset it is submitted by Mr. Bikash Ranjan Bhattacharya, learned senior advocate appearing on behalf of the appellant that the learned Single Judge failed to appreciate that the respondent no.1/writ petitioner appeared in the interview without raising any protest. After being unsuccessful this writ application was filed. This was not permissible under law.
Mr. Bhattacharya relies upon the decision of Madras Institute of Development Studies & Anr. vs. K. Sivasubramaniya & Ors., reported in (2016) 1 SCC 454 in support of his above submissions.
It is submitted by Mr. Bhattacharya on merit that the Kaivalyadhama Sree Madhava Yoga Mandira Samiti (hereinafter referred to as Kaivalyadhama S.M.Y.M. Samiti) in its letter dated April 12, 2013 clarified that Diploma in Yoga Education and Post Graduate Diploma in Yoga Education were one and same. According to him, the respondent no.1 fulfilled the criteria of possessing equivalent qualification of Post Graduate Diploma in Yoga/Yoga Therapy in view of the above clarificatory note. According to Mr. Bhattacharya, there was no necessity for the respondent University to form any equivalence committee comprising of experts to arrive at a conclusion whether the degree possessed by the appellant was equivalent or not to the degree prescribed in the notification inviting applications for the post of Assistant Professor in Physical Education (Yoga Therapy). It is also submitted by Mr. Bhattacharya that the learned Single Judge was also in error in holding that the respondent University deviated from the qualification which had been laid down in the advertisement while selecting the appellant. It is also submitted by Mr. Bhattacharya that the finding of the learned Single Judge that the respondent University erred in selecting the appellant ignoring qualification of the respondent no.1.
On the other hand, it is submitted by Mr. Kalyan Bandopadhyay, learned senior advocate appearing on behalf of the respondent no.1, that at the time of appearing in the interview it was not known to the respondent no.1 that the appellant had been allowed to participate in the selection process in question without having requisite qualification. She came to know the above fact at the time of her participation in the interview i.e. on March 26, 2013. The next day was a holiday. Representation was submitted by the respondent no.1 before the authority on March 28, 2013. According to Mr. Bandopadhyay, the decision of Madras Institute of Development Studies & Anr. (supra) does not help the appellant in this regard due to the aforesaid distinguishable facts of this case.
According to Mr. Bandopadhyay, the respondent University allowed the appellant to participate in the selection process in question without addressing to the issue as to whether the appellant possessed the requisite qualification of Post Graduate Diploma in Yoga/Yoga Therapy. It is submitted by Mr. Bandopadhyay that Science Graduate with 60% or Diploma in Yoga Education with 55% aggregate was the minimum qualification for asking admission in the course of Post Graduate Diploma in Yoga Therapy in the Kaivalyadhama S.M.Y.M. Samiti. The appellant was allowed to participate in the selection process in question considering his Diploma in Yoga Education as equivalent to Post Graduate Diploma in Yoga Therapy. According to Mr. Bandopadhyay, the respondent University did not ascertain the eligibility of the appellant for participating in the selection process in question taking into consideration any Government Order or notification or guideline from the competent authority to arrive at a conclusion that Diploma in Yoga Education fulfilled the eligibility criteria of Post Graduate Diploma in Yoga/Yoga Therapy. According to Mr. Bandopadhyay, there was no doubt or dispute with regard to fulfillment of the eligibility criteria by the respondent no.1. In view of the above, according to Mr. Bandopadhyay, the impugned judgment does not require our interference.
It is submitted by Mr. Billwadal Bhattacharyya, learned advocate appearing on behalf of the respondent University that the selection committee decided to allow the appellant to participate in the interview on the basis of an opinion formed by the members of the selection committee that the appellant had fulfilled the essential criteria of possessing Post Graduate Diploma in Yoga/Yoga Therapy. It is further submitted by Mr. Bhattacharyya, in his usual fairness, that the above decision of the selection committee was not put on record. According to Mr. Bhattacharyya, the University sought for the opinion in respect of the Diploma possessed by the appellant no.1 on receipt of the objection from the respondent no.1. Referring to the reply dated April 12, 2013 received from of Kaivalyadhama S.M.Y.M. Samiti, it is submitted by Mr. Bhattacharyya that the Diploma in Yoga Education and Post Graduate in Yoga Education were one and same.
We have heard the learned Counsels appearing for the respective parties carefully and we have considered the facts and circumstances of this case.
Before entering into the merits of this appeal we would like to consider the objection raised on behalf of the appellant regarding the maintainability of an application under Article 226 of the Constitution of India. It is true that according to the well settled principles of law that after having taken part in the selection process without protest a candidate is not entitled to challenge the process of selection after being unsuccessful on a ground which was fully known to that candidate at the time of participation in the selection process. In the case in our hand the respondent no.1/writ petitioner came to know during her participation in the interview on March 26, 2013, that the appellant was not possessing Post Graduate Diploma in Yoga/Yoga Therapy with at least 55% marks as prescribed in the advertisement. In other words, the respondent no.1 did not participate in the interview with prior knowledge that the appellant was not possessing Post Graduate Diploma in Yoga/Yoga Therapy. According to the materials on record March 27, 2013 was a holiday. The respondent no.1 submitted a representation in this regard on March 28, 2013.
In Madras Institute of Development Studies & Anr. (supra), the facts and circumstances was altogether different. In the above case the contention of the respondent no.1 was that the shortlisting of candidates was done by few Professors bypassing the Director and Chairman which did not appear to be correct in course of judicial review. Taking into consideration the fact that the candidates selected possessed all requisite qualification and experience the Hon'ble Supreme Court came to a conclusion that their appointments could not be questioned on the ground of lack of qualification and experience. In view of the above distinguishable facts and circumstances the above decision does not help the appellant in any way on the above ground.
Admittedly, the appellant did not possess Post Graduate Diploma in Yoga/Yoga Therapy with at least 55% marks which was one of the essential criteria for participating in the selection process for the post of Assistant Professor in Physical Education (Yoga Therapy). It was also not in dispute that according to the reply dated April 12, 2013, there was no difference in between the Diploma in Yoga Education and Post Graduate Diploma in Yoga Education. But the requisite qualification required for the post in question, as mentioned in the advertisement, was Post Graduate Diploma in Yoga/Yoga Therapy, and not Post Graduate Diploma in Yoga Education. No material was brought on record to show that the Diploma in Yoga Education was equivalent to Post Graduate Diploma in Yoga/Yoga Therapy. Therefore, there was no error in the decision making process of the learned Single Judge in arriving at a conclusion that the above reply did not resolve the dispute.
It was also not in dispute that the selection committee while allowing the appellant to participate in the selection process in question did not bring any decision on record with regard to the fulfillment of the eligibility criteria of possessing Post Graduate Diploma in Yoga/Yoga Therapy. We find no error in respect of the observation of the learned Single Judge that it was incumbent upon the University either to have found that the Diploma in Yoga Education was equivalent to Post Graduate Diploma in Yoga/Yoga Therapy or not to have considered the respondent no.6 for not satisfying the criteria as laid down in the advertisement.
The learned Single Judge further took into consideration that the Diploma which the appellant possessed, i.e. Diploma in Yoga Education awarded by the Kaivalyadhama S.M.Y.M. Samiti was the one of the eligibility criterias for admission to pursue study in Post Graduate Diploma in Yoga Therapy in the same institution. Therefore, there was no error or infirmity in the impugned judgment in setting aside the appointment of the appellant in the post in question as also in directing the respondent University to take appropriate steps for a fresh selection from amongst the candidates who had applied pursuant to the earlier advertisement strictly in accordance with law and subject to criteria as laid down in the advertisement.
In view of the discussions and observations made hereinabove this appeal together with CAN 1256 of 2016 are dismissed accordingly.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. ( Debasish Kar Gupta, J.) ( Md. Mumtaz Khan, J.)