Gauhati High Court
Ms. Banashree Bharaddash @ Banashree ... vs The State Of Assam & Ors on 29 April, 2015
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
WRIT PETITION (C) No. 3413/2012
MS. BANASHREE BHARADDASH @
BANASHREE BHARDWAJ,
D/O LATE DHANESWAR SARMA,
VILL. AGDALA, PO- BAIHATA CHARIALI, PS. BAIHATA
CHARIALI, DIST. KAMRUP, ASSAM -781381 AT PRESENT
WORKING AS LECTURER IN PHILOSOPHY IN KOKRAJHAR
GOVT. COLLEGE, PO- KOKRAJHAR, PIN- 783470, DIST.
KOKRAJHAR, ASSMA
.......Petitioner.
-VS-
1. STATE OF ASSAM,
REPRESENTED BY REPRESENTED BY THE COMMISSIONER &
SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (HIGHER)
DEPARTMENT, DISPUR, GUWAHATI-6
2. THE ASSAM PUBLIC SERVICE COMMISSION,
JAWAHARNAGAR, KHANAPARA, GUWAHATI-22
3. THE SECRETARY, ASSAM PUBLIC SERVICE
COMMISSION, JAWAHARNAGAR, KHANAPARA, GUWAHATI-22
4. ADDL. SECRETARY TO THE GOVT. OF ASSAM,
EDUCTION (HIGHER )DEPARTMENT, DISPUR, GUWAHATI-6
5. THE DIRECTOR,
HIGHER EDUCATION, ASSAM, KAHILIPARA, GHY, ASSAM, PIN-
781019.
6. THE SECRETARY, DEPARTMENT OF EDUCATION,
BODOLAND TERRITORIAL COUNCIL, BTAD, ASSAM
7. THE PRINCIPAL, KAKRAJHAR GOVT. COLLEGE,
KOKRAJHAR, ASSAM, PIN -783370
8. MRS. TANUJA KALITA,
D/O LATE DHIREN KALITA,
RESEARCH SCHOLAR OF SOCIAL SCIENCE AND HUMANITIES
DEPARTMENT, INDIAN INSTITUTE OF TECHNOLOGY, NORTH
GUWAHATI
9. SHRI MRIGEN KALITA,
MEMBER, ASSAM PUBLIC SERVICE COMMISSION,
JAWAHARNAGAR, KHANAPARA, GUWAHATI- 22.
WP(C) No. 3413/12 Page 1 of 19
...... Respondents
PRESENT HON'BLE MR. JUSTICE T. VAIPHEI For the Petitioner ... Mr. B.D. Das, Sr. Adv., Mr. RC Saikia, Mr. M. Kalita, Mr. J. Kalita, Mr. P. Khatoniar, For the respondents ... Mr. M Choudhury, SC, Higher Edn.
Mr. C. Baruah, SC, APSC Mr. MK Choudhury, Sr. Adv.
Date of Hearing .... 12.3.2015
Date of Judgment .... 29-04-2015
JUDGMENT & ORDER (CAV)
In this writ petition, the petitioner is questioning the legality of the select list dated 15-6-2012 published by the respondent authorities recommending the respondent No. 8 for the post of Assistant Professor of Kokrajhar Government College vis-à-vis the composition of the Selection Committee as well as the pattern of marks awarded by the Interview Board.
2. The facts giving rise to the writ petition may be briefly noticed at the outset. The case of the petitioner is that she passed HSLC examination with First Division by scoring 71.33% in the year 2001, passed the HSS Examination with First Class by securing 76.8%, passed BA (Honours in Philosophy) with First Division by obtaining 61.5% and passed MA (Philosophy) as First Star in the year 2008 with 67.56%. While working as Lecturer in the Department of Philosophy at Kokrajhar Government College ("the College" for short) on temporary basis, she passed the National Eligibility Test (NET) in the lecturership for the subject of Philosophy in the year 2009. On 17-11-2011, the Assam Public Service Commission ("the APSC" for short) issued the advertisement No. 10/11 in the local daily "Assam Tribune" in its issue dated 14-11-2009 inviting application from eligible candidates for various posts including WP(C) No. 3413/12 Page 2 of 19 the post of Assistant Professor in Philosophy with the qualifications prescribed therein. Having fulfilled the criteria for the post of Assistant Professor in Philosophy, she duly applied for the same by submitting the application in the prescribed form with the requisite documents/testimonials to the Commission in time. The petitioner has been favourably recommended by the Principal of the College keeping in mind the service continuously rendered by her as Assistant Professor of the College on contractual basis since 2010. She was also recommended by the Director of Education, Bodoland Territorial Council (BTC) and the Secretary of the BTC for the vacant post. The petitioner was called for, and interviewed on 11-5-2012 by the Board of interview constituted by the APSC comprising of two members, one of them Professor and Head of Department of Philosophy of Handique Girls College and the other being a Government nominated member, namely, Sri Mrigen Kalita.
3. According to the petitioner, having been satisfied with her performance in the interview, she was all along expecting her selection for the post by the Interview Board. However, when the result was declared on 15-6-2012, her name did not find a place in the select list and the respondent No. 8 was rather selected for the post. She immediately filed an application under the RTI Act on 18-6-2012 requesting a copy of the pattern of awarding marks by the Interview Board for all candidates but in vain. The recommendations made by the BTC authorities were thus completely ignored by the Interview Board. On further enquiry, she found that the respondent No. 8 is the daughter of the late Dhiren Kalita, an Assistant Teacher of Bamuni High School where the said Mrigen Kalita (respondent 9) used to be a student and was directly related to her: the respondent No. 9 was, therefore, biased and unduly favoured the respondent No. 8 which resulted in her selection. The respondent No. 8 has not been recommended by the Department till now where she has been working as a Research Scholar of Social Science and Humanities Department, IIT, Guwahati. It is contended by the petitioner that as per Section 4 of the Assam Public Service Commission's Regulation, 1951 ("the Regulation" for short), the APSC is to consist of a Chairman and such other members not exceeding six members, but in the present case, WP(C) No. 3413/12 Page 3 of 19 there was no Chairman in the Interview Board: there were only one expert and another member. The respondent No. 8 is an outsider, and the Commission has no power to appoint any candidate outside the purview of the BTC or who was not even recommended by the BTC authorities: the selection so made is, therefore, illegal and is liable to be quashed.
4. Subsequently, the petitioner filed an additional affidavit wherein she incorporated new facts which came to light after production of the evaluation records of all candidates for the post in question. The evaluation records disclosed that the petitioner secured 76 marks whereas the respondent No. 8 was awarded 78 mark; that in respect of qualifications, she got 33 marks whereas the respondent No. 8 received 32 marks, that for knowledge of subject, she secured 18 marks whereas the respondent No. 8 was allotted 16 marks. However, in respect of "general bearing", she was awarded 23 marks while the respondent No. 8 secured 28 marks. According to the petitioner, the selection is wholly illegal inasmuch as the selection process was conducted with only one subject expert, which is violative of the Regulation for appointment of teachers in University and College particularly 5.1.4(c) requiring that the Recruitment Board must consist of at least 3 subject experts. It is also submitted that against the name of the respondent No. 8, there is subsequent insertion under the column of additional qualification, namely, Published Articles in Research at 3rd year IIT(G)-Published Work 10 nos, two in International Journals, for which she was awarded 2 additional marks totalling the marks under the head additional qualification as 7, but such remarks were not available in respect of other candidates. It is further submitted that under the head "experience" against the name of the respondent No. 8, there was a remark "Bongaigaon Girls College", but no such remarks were made in respect of any other candidates, thereby enabling the respondent No. 8 to unduly secure more marks than the petitioner. According to the petitioner, for all these reasons, the respondent authorities are evidently showing undue favour to the respondent No. 8 and, conversely, subjecting the petitioner to hostile discrimination. These are sum and substance of the case of the petitioner in challenging the selection of the respondent No. 8, which, according to her, is not only illegal but smacks of favouritism and nepotism.
WP(C) No. 3413/12 Page 4 of 195. The writ petition is opposed by the Commission as well as the respondent No. 8 and 9 by filing separate affidavits-in-opposition. According to the APSC, a Board of interview consisting of one member of the Commission and one expert deputed by the Government was constituted for conducting the interview for the post of Assistant Professor of the college, and the Board assessed the performance of the candidates under different head of marks distributed out of 100 for the purpose of interview: the APSC on the basis of the overall merit and performance in the interview/viva voce so conducted recommended the respondent No. 8 for the post. It is contended by the APSC that it is an autonomous body constituted under Article 315(1) of the Constitution of India, and is an independent body and is not influenced by any extraneous consideration:
it is guided only by the parameters provided for by the Constitution. Trying to influence its selection process by any body in favour of any candidate in any manner either directly or indirectly will amount to a disqualification for the candidate. The allegations of bias made against the respondent No. 9 vis-à-vis the respondent are baseless and are accordingly denied: the selection was based on merit keeping in mind her academic qualifications and performance in the interview.
6. The stance taken by the APSC on the composition of the Board of interview is that under Para 21 of the Assam Public Service Commission (Procedure & Conduct of Business) Rules, 2011 ("the APSC Rules" for short), it is the Chairman who constitutes the Board for interview/viva voce either by a single Member or multiple Member taking into account various factors such as the grade, status and importance of the post and that where the number of candidates is large or the posts are of different grade and discipline, the Chairman may constitute more than one single member Board or multiple Member Board. It is, therefore, not necessary for the Chairman to participate in the Interview Board in question. The composition of the APSC should not be confused with the constitution of the Interview Board. The APSC is not aware of any rule whereby it is debarred from selecting candidates residing outside the purview of the BTC area. As mandated by Section 7(1)(g) of the Assam Fiscal Responsibility and Budget Management Act, 2005, the APSC is required to WP(C) No. 3413/12 Page 5 of 19 prepare the select list recommending the candidates equal to the number of vacant posts notified at the time of inviting applications for filling up the vacancies. It is asserted by the APSC that it has well established marking systems which gives importance to academic career, experience and performance in the viva voce/interview.
7. In the affidavit filed by the respondent No. 8, she contends that the APSC recommended her on the basis of her performance in the interview and her academic career. She maintains that the recommendation or objection made the Principal and other authorities cannot confer any right on her to be selected and that she participated in several national and international seminars organised by different authorities on the subject of philosophy, but most of the seminars participated by the petitioner or the papers submitted by her in such seminars are not related to this subject. She has already worked in Bongaigaon College, Pandu College and Bongaigaon Junior College apart from working as Subject Expert in Philosophy for preparing study materials for K.K. Handique State Open University. She asserts that she does not know whether the respondent No. 9 was a student of Bamundi High School where her father used to be a teacher. Though the college is situated within the area of BTC, the Commission is the competent authority to select eligible candidates as Assistant Professor of a Government College such as Kokrajhar Government College. The respondent No. 9, who was one of the members of the Interview Board and against whom allegation of bias is made by the petitioner, has also filed his affidavit wherein he denies that he recorded the marks of all candidates including the petitioner appearing in the interview by wooden pencil. He, however, admits that he had once studied in Bamundi High School where the Dhiren Ch. Kalita might have been a teacher at that time or some other period, but he discharged his duty responsibly and did not show any bias to anyone and evaluated the performances of the petitioner and the respondent No. 8 strictly adhering to the selection norms. He vehemently denies that any illegality was committed by the Interview Board I the selection of the respondent No. 8.
8. On perusing the pleadings of the parties and the materials placed by them before me in support of their respective contentions and after WP(C) No. 3413/12 Page 6 of 19 giving my anxious consideration to the rival submissions advanced by the learned senior counsel appearing for the parties, the first question which falls for consideration is whether the APSC is bound by the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 ("UGC Regulations" for short) or by its own rules called "the Assam Public Service Commission (Procedure and Conduct of Business) Rules, 2010 ("the APSC Rules" for short) in so far as recruitment of teachers of Government Colleges is concerned. The UGC Regulations have been enacted in exercise of the powers conferred under clause (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956 (UGC Act). The UGC Act, in turn, comes within the purview of Entry 66 of List 1 of the Seventh Schedule to the Constitution of India. It has been enacted to make provision for the coordination and determination of standards in universities and for that purpose, to establish the UGC. The UGC was established by the Central Government in terms of Section 4 of the UGC Act. The powers and functions of the UGC have been laid down in Chapter III thereof. Section 12 of the UGC Act deals with the functions of the UGC, some of which are reproduced below:
"12. Functions of the Commission.--It shall be the general duty of the Commission to take, in consultation with the universities or other bodies concerned, all such steps as it may think fit for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research in universities, and for the purpose of performing its functions under this Act, the Commission may--
* * *
(d) recommend to any university the measures necessary for the improvement of university education and advise the university upon the action to be taken for the purpose of implementing such recommendation;
* * * WP(C) No. 3413/12 Page 7 of 19
(i) require a university to furnish it with such information as may be needed relating to the financial position of the university or the studies in the various branches of learning undertaken in that university, together with all the rules and regulations relating to the standards of teaching and examination in that university respecting each of such branches of learning;"
9. The Commission is also empowered to make regulations by notification in terms of Section 26, inter alia, for the following purposes:
"26. (1)(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the university, having regard to the branch of education in which he is expected to give instructions;
(f) defining the minimum standards of instruction for the grant of any degree by any university;
(g) regulating the maintenance of standards and the coordination of work or facilities in universities;
(h) regulating the establishment of institutions referred to in clause (ccc) of Section 12 and other matters relating to such institutions;"
10. Clause 1.2 of the UGC Regulations categorically says that the regulations shall apply to every university established or incorporated by or under the Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the university concerned under Clause
(f) of Section 2 of the UGG Act and every institution deemed to be a university under Section 3 of the Act. Clause 5 then provides for the constitution of the Selection Committee and the guidelines on selection procedures for the teaching private and government colleges. Clause 5.1.4 deals with the composition of the selection committee for selection for the post of Assistant Professor in colleges including private colleges, which is as follows:
WP(C) No. 3413/12 Page 8 of 19"(a) The Selection Committee for the post of Assistant Professor in Colleges including Private College shall have the following composition:
1. Chairperson of the Governing Body of the College or his/her nominee from among the members of the Governing body to be the Chairperson of the Selection Committee.
2. The Principal of the College.
3. Head of the Department of the concerned College.
4. Two nominees of the Vice Chancellor or Acting Vice Chancellor of the affiliating university of whom one should a subject expert. In cases of colleges notified/declared as minority educational institutions, two nominees of the Chairperson of the college from out of the panel of five names, preferably from minority communities, recommended by the Vice-Chancellor or Acting Vice Chancellor of the affiliating university from the list of experts suggested by the relevant statutory body of the college, of whom one should be a subject expert.
5. Two subject experts not connected with the college to be nominated by the Chairperson of the Governing Body of the college out of a panel of five names recommended by the Vice Chancellor or Acting Vice Chancellor from the list of subject expert approved by the relevant statutory body of university concerned. In cases of college declared/notified as minority educational institutions, two subject experts not connected with the University to be nominated by the Chairman of the Governing Body of the College out of the panel of five names, preferably from minority communities, recommended by the Vice-Chancellor or Acting Vice Chancellor from the list of subject experts approved by the relevant statutory body of the College.
6. An academician representing SC/ST/OBC/Minority/ Women/Differently able categories, if any of candidates representing these categories is the applicant to be nominated by the Vice Chancellor or Acting Vice WP(C) No. 3413/12 Page 9 of 19 Chancellor, if any of the above members of the selection committee do not belong to the category.
(b) To constitute the quorum for the meeting five of which at least two must be from out of the three subject-experts shall be present.
(c) For all levels of teaching positions in Government colleges, the State Public Service Commissions/Teachers Recruitment Boards must invite three subject experts for which the concerned University be involved in the selection process by the State PSC.
(d) For all levels of teaching positions in Constituent colleges(s) of a university, the selection committee norms shall be similar to that of the posts of departments of the university."
(Underlined for emphasis)
11. Even a cursory look at the provisions extracted above will reveals that the guidelines on the selection procedure contemplate three types of colleges for which separate Selection Committee is to be constituted, namely, Selection Committee for private colleges, Selection Committee for Government Colleges and Selection Committee for Constituent Colleges of a university. Clause 5.1.4(a) deals with the Selection Committee for every institutions including private colleges whereas Clause 5.1.4.(c) provides for constitution of the Selection Committee for teaching positions in Government colleges. Then, Clause 5.1.4(d) is concerned with the constitution of the Selection Committee for Constituent College of a university. The fact that Clause 5.1.4(a) deals only with the procedure for constituting the Selection Committee for the post of Assistant Professor is evident from the absence of Governing Body in a Government College or Constituent College; the Governing Body of a college, in terms of Clause 5.1.4(a), is invariably associated with the composition of the Selection Committee in every college other than a Government College or Constituent College. Therefore, the composition of the Selection Committee of the teaching staff of every institution other than the teaching staff of a Government College or of a Constituent College of a WP(C) No. 3413/12 Page 10 of 19 University shall have to be made in accordance with Clause 5.1.4(a). Thus, in the case of a private college or any college where there is a governing body, the constitution of the Selection Committee for recruitment of the post of Assistant Professor does not contemplate the involvement of a Public Service Commission: an entirely different Selection Committee is thus envisaged in Clause 5.1.4(a)1, 2, 3, 4, 5 and 6. However, in the case of recruitment for the teaching staff of a Government College, the composition of the Selection Committee shall have to be made in accordance with Clause 5.1.4(c), which mandates that for the teaching staff of all levels in a Government Colleges, the State Public Service Commissions/Teacher Recruitment Boards must invite three subject experts in the selection process for the teaching staff of a government college. However, in the case of Constituent Colleges of a university, the Selection Committee norms shall have to be similar to that of the posts of departments of the university. What stands out from Clause 5.1.4(c) is that the Selection Committee for all levels of teaching positions in a Government College should be either the State Public Service Commissions or Teacher Recruitment Boards with the rider that three experts from the concerned University must be invited for the interview in that Selection Committee.
12. In the instant case, the function of the Selection Committee for selection of Assistant Professor in a Government College has apparently been entrusted to the APSC, and not to the Teacher Recruitment Board. If the selection for the post of Assistant Professor in a Government College is to be made by the APSC, what should be the composition of such Selection Committee? As already noticed, under Clause 5.1.4.(c), the APSC is required to invite three subject experts from which the concerned University be involved in the selection process. Though the clause is not happily drafted, in my judgment, it can only mean that three subject experts from the concerned university should be invited in the selection process. This was not done by the APSC in the impugned selection process since, according to the APSC, it has it own mechanism for constitution of the Selection Committee as provided for in Rule 21 of the APSC Rules and is, therefore, not required to follow the UGC Regulations. The Chairperson of the APSC accordingly constituted the Board for WP(C) No. 3413/12 Page 11 of 19 Interview comprising of one Member of the APSC and one expert deputed by the Government for conducting the interview in question. At this stage, it may be apposite to refer to Clause 21 of the APSC Rules, which reads thus:
21. (i) The Chairperson shall constitute Boards for interview/viva voce test of candidates for various posts for which selection is to be made.
(ii) Single member or Multiple-member Boards may be constituted taking into consideration the grade, status and importance of the post in respect of which the selection is to be made.
(iii) Ordinarily a Single Board either with a Single Member or multiple Members shall be constituted for selection to a particular post or posts. But where the number of candidate is large or posts are of different grade and discipline, the Chairperson may constitute more than one Board for the purpose.
(iv) Where more than one Multiple Member Boards are constituted, the constitution of the Boards may be changed by rotation as often as the Commission thinks proper.
12. Reading the UGC Regulations and the APSC Rules extracted in the foregoing in juxtaposition unmistakably indicates some evidence of conflict between the two sets of provisions with respect to the composition of the Selection Committee for the post of Assistant Professor in a Government College. The question to be considered now is which of the two sets of provisions shall prevail. The rule of construction is that even where there are in two enactments two provisions which cannot be reconciled with each other, they should be interpreted in such a manner that, if possible, effect should be given to both. Thus, a construction that reduces one of the provisions to a useless "lumber" or "dead letter" is not harmonious construction. To harmonise is not to destroy. In Afjal Imam v. State of Bihar, (2011) 5 SCC 729, the Apex Court, permits the WP(C) No. 3413/12 Page 12 of 19 principles of making cross reference to such sections of two enactments to read them harmoniously. This is what it said: (SCC, para 55 and 56) "55. One of the methods adopted in such situations is to make cross-reference to the relevant sections to read them harmoniously. Thus, way back in Ram Kissendas Dhanuka v. Satya Charan Law19 the Privy Council was faced with such a situation in a case arising under the Companies Act, 1913. One of the articles of association i.e. Article 109 of the company concerned prescribed a maximum of four and a minimum of three Directors without any qualifying words. Another article i.e. Article 126 authorised the company in a general meeting from time to time to increase or reduce the number of Directors subject to the provisions of Section 83-A(1) and to alter their qualification and change the order of rotation of the increased or reduced number. The question was whether the power of the company by ordinary resolution to "increase or reduce" the number of Directors conferred by Article 126 was only exercisable within the limits set by the maximum and the minimum prescribed by Article 109, and whether a special resolution altering Article 109 was required to increase the number of Directors beyond the prescribed maximum. After considering the relevant articles, the Privy Council held that Articles 126 and 109 were two textually inconsistent provisions.
56. The proposition that emerges from the judgment is that it is permissible to read words such as "subject to", etc. in order to reconcile two apparently inconsistent provisions. To reconcile Article 109 with Article 126 and to give effective content to them, it was necessary to imply words such as "subject to". The Court, therefore, observed in AIR para 5 as follows: (Ram Kissendas case 19, IA p. 133) " ... The omission to make such cross-references as may be required to reconcile two textually inconsistent provisions is a common defect of draftsmanship. There is thus no insuperable 19 (1949-50) 77 IA : AIR 1950 PC 81 WP(C) No. 3413/12 Page 13 of 19 difficulty in reconciling Article 109 with Article 126 either by implying in the former some such opening words as 'subject to "Article 126" or implying in the latter some such opening words as "notwithstanding anything contained in Article 109".' "
13. I am not unmindful of the fact that the APSC is a high constitutional body constituted under Article 315 of the Constitution, has a distinct status under the Constitution, apart from the Government of the State and cannot be identified with such Government. It is undoubtedly an important institution to whom it is entrusted a valuable and important task of selecting personnel who may be entrusted with the duty of running the administration. Thus the administration or so to say the destiny of the people in the State depends very much on the fair and just decision of the Commission. The power conferred on the APSC must be deemed to necessarily carry with it the power to regulate the manner in which the Commission should discharge its function. The APSC Rules is obviously framed by it to regulate the manner in which it should carry out its business. As already noticed, under Rule 21 of the APSC Rules, the manner in which the Board for Interview/viva voce is to be constituted for selection of various posts by direct recruitment is provided for, which evidently comes into conflict with the provisions of UGC Regulations. It must be noted that in the matter of selection of Assistant Professor in a College, the association of three experts from the concerned University in the Board for interview/viva voce constituted by the APSC as stipulated by the UGC in Clause 5.1.4(c) of the UGC Regulations cannot be given ignored by the APSC so that the minimum standard of teaching prescribed by the UGC is maintained at all times. On the other hand, the power of the APSC to regulate the manner in which it should its business should not also be ignored. In my judgment, this conflict can be harmonised and resolved by resorting to the principles of making cross-reference to the two sections as propounded in Afjal Imam case (supra). So read, we can imply in Rule 21(i) of the APSC Rules the words "Subject to Clause 5.1.4(c) of the UGC Regulations", in so far as recruitment to the post of Assistant Professor in a Government College is concerned, so that effect can be given to both the provisions of the APSC Rules and UGC Regulations.WP(C) No. 3413/12 Page 14 of 19
14. The matter can also be viewed from another angle. Rule 19 of the APSC Rules is in the following terms:
"19. The advertisement for selection to various posts by Direct Recruitment shall be issued and applications from eligible candidates invited by the Commission in accordance with the provisions of the Service Rules or ad-hoc principles agreed to by the Commission where there are no Service Rules."
(Underlined mine) If literal interpretation is given to the aforesaid provision, it can very well be argued that the provision only speaks of advertisement and, so read literally, cannot include the procedure for recruitment including the constitution of the Board for interview/viva voce. Such narrow interpretation can lead to absurdity and cannot be allowed. Any service rules provides for the manner in which the recruitment is to be conducted apart from the qualifications to be fulfilled. If we give literal construction to Rule 19, all that the APSC shall have to do is to advertise the post to be filled up and then conduct the selection process in accordance with the APSC Rules thereby completely ignoring the selection procedure prescribed in the UGC Regulations; this will render the UGC Regulations nugatory. A statute or any enacting provision must be so construed as not to reduce it to a useless lumber or dead letter but to make it effective and operative on the principle expressed in the maxim: ut res magis valeat quam pereat (It is better to validate a thing than to invalidate it). "If the choice is between two interpretations", stated VISCOUNT SIMON, L.C. "the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result".─ See G.P. Singh's Principles of Statutory Interpretation, 9th Edn. p. 41.
WP(C) No. 3413/12 Page 15 of 1915. True, the intention of the Legislature has always to be gathered by the words to be used by it, giving to the words their plain, normal and grammatical meaning. However, if strict grammatical interpretation gives rise to an absurdity or inconsistency, such interpretation should be eschewed and an interpretation which will give effect to the purpose the Legislature may reasonably be considered to have had, will be put on words, if necessary even by modification of the language use. After all, "it is not a sound principle of construction", said PATANJALI SHASHTRY, CJI, "to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute". In other words, the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons.─ See G.P. Singh's Principles of Statutory Interpretation, 9th Edn., p. 68. So construed, it becomes obvious that the "service rules" referred to in Clause 19 of the APSC Rules cannot but be the UGC Regulations in the case of selection process for the post of Assistant Professor of a Government College affiliated to UGC. Consequently, the APSC while constituting the Board for interview/viva voce for Assistant Professor of a Government college affiliated to UGC is, under Clause 5.1.4(c) of the UGC Regulations, required to invite three subject experts of the concerned University for the selection process. Needless to say, this will be in addition to, and not in derogation of the power of the Chairperson of the APSC to constitute the Board in accordance with Clause 21 of the APSC Regulations. In this way, effect can be given to both the provision of Clause 5.1.4(c) of the UGC Regulations as well as Clauses 19 and 21 of the APSC Rules. Any other interpretation is likely to reduce the provision of Clause 5.1.4(c) of the UGC Regulations to redundancy, which is impermissible. In this connection, I am tempted to quote the observations of the Apex Court in Annamalai University v. Secy. to Govt., Information & Tourism, (2009) 4 SCC 590: (SCC, p.607, para 42) "42. The provisions of UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g) and (h) of WP(C) No. 3413/12 Page 16 of 19 sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions are required to be defined by UGC. The standards and coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under sections 26(1)(f) and 26(1)(g) are very broad in nature. Subordinate legislation as is well-known when validly made becomes part of the Act. We have noticed herein before that the functions of UGC are all-pervasive in respect of the matters specified in Clause (d) of subsection (1) of Section 12-A and clauses (a) and (c) of sub- section (2) thereof."
16. In the instant case, the APSC in not inviting three experts from the Gauhati University while interviewing the candidates including the petitioner for the post of Assistant Professor of Kokrajhar Government College has contravened the provision of Clause 5.1.4(c) of the UGC Regulations and has committed illegality in the impugned selection process. The selection of the private respondent for the post of Assistant Professor for Kokrajhar Government College is, therefore, dehors the Regulations and is, therefore, not sustainable in law. It is, however, contended by Mr. M.K. Choudhury, the learned senior counsel for the respondent No. 8 that once the petitioner has already participated in the selection process, as in this case, knowing fully well the composition of the Board for the interview without any protest, but was not selected eventually, she cannot now turn around and challenge the legality of the composition of the Board for interview: she is thus barred by the principles of estoppel/waiver/acquiescence. To bolster his submission, the learned senior counsel relies on the decisions of the Apex Court in Dhananjoy Malik and others v. State of Uttaranchal and others, (2008) 4 SCC 171; Marripati Nagaraja and others v. Government of Andhra Pradesh and others, (2007) 11 SCC 522 and Madan Lal and others v. State of J & K and others, (1995) 3 SCC 171. He, therefore, strenuously urges this Court to dismiss the writ petition.
WP(C) No. 3413/12 Page 17 of 1917. In my opinion, any selection made in contravention of the provision of recruitment rules will render the same illegal and cannot be sustained in law; perpetuation of illegality cannot be allowed. It is not a question of estoppel; there can be no estoppel against statute. The composition of the Board for interview made by the APSC is rather ultra vires the provision of the UGC Regulations. Moreover, if an illegal selection is not challenged by an unsuccessful candidate, who will challenge it? After all, an unsuccessful candidate is held to be barred from filing a writ of quo warranto inasmuch as he is said to have a personal interest: PIL in service matter is not maintainable either. In my judgment, to non-suit the petitioner on the mere ground of his participation in the selection process, no matter how illegal the selection process was, will amount to conferring immunity to the illegal action of the APSC or perpetuation of illegality. We live in an age when whistle blowers are welcomed to expose any commission of bribery and corruption by public officials, can we really non-suit a candidate, who wishes to bring to the notice of the court of equity/writ court the violation of recruitment rules by the APSC while constituting the Board for interview for the selection process just because he had already participated therein? The answer must be in the negative:
any view contrary to this will give a wrong signal to others. It must be a remarkable candidate, who is practically begging for job, to challenge the recruiting agency on the composition of the Board for Interview board even before she faces the interview. However, I hasten to add that this observation is not a reflection on the integrity of the Chairman APSC or the Board of interview nor is this the case of the petitioner. In my opinion, violation of UGC Regulations by the APSC in the instant case could stem from bona fide mistake in construing the UGC Regulations and not due to extraneous considerations or malice in fact. Nevertheless, an illegality can be committed even for bona fide reason or unwittingly, but illegality is still illegal no matter even when it is committed due to bona fide reason or ignorance of law or for mala fide reason. The impugned selection is, therefore, liable to be quashed for this reason alone. In this view of the matter, it is not necessary for me to examine the other contentions of the learned senior counsel for the petitioner for the simple reason that Courts do not decide more than what is necessary.WP(C) No. 3413/12 Page 18 of 19
18. For what has been stated in the foregoing, this writ petition succeeds. The Select List dated 15-6-2012 selecting the respondent No. 8 for the post of Assistant Professor (Philosophy) of Kokrajhar Government College is, accordingly, quashed. The APSC is, therefore, directed to re- constitute the Board for interview/viva voce for the post of Assistant Professor (Philosophy) of Kokrajhar Government College in accordance with the UGC Regulations and also keeping in mind the observations made by me in the foregoing and hold fresh interview/viva voce to all eligible candidates who had already participated in that interview in terms of the advertisement published in The Assam Tribune in its issue dated 14-11-2009 and complete the recruitment process within a period of three months from the date of receipt of this judgment. No costs.
JUDGE SINHA WP(C) No. 3413/12 Page 19 of 19