Gauhati High Court
Biswajit Sinha And Anr. vs Dibrugarh University And Ors. on 23 May, 1990
Equivalent citations: AIR 1991 GAUHATI 27, (1990) 2 GAU LR 374
JUDGMENT Homchaudhuri, J.
1. In this writ petition, the petitioner Shri Biswajit Sinha, President of Dibmgarh University Pharmaceutical Sciences Student Union has challenged the appointment of respondent No. 6 in the post of Reader in Pharmaceutical Chemistry, Dibrugarh University and appointment of respondent No. 7 in the post of Lecturer in Pharmaceutical Microbiology/ Bio Chemistry on the ground that none of them possess the requisite qualification prescribed by the staturoty Rules for the post of Reader and Lecturer of the subject and also their appointment in the posts have been made ignoring the qualified eligible candidates who applied for the post in response to the advertisements. The petitioner has also impugned the advertisement No. 9/27 and No. 3/88 issues by the Registrar, Dibrugarn University for appointment to the posts of Reader in Pharmaceutical Chemistry and Lecturer in Pharmaceutical Micro-biology respectively.
2. The petitioners have filed the petition on behalf of the Union as a sort of public interest litigation for upholding the cause of proper teaching in public health science by meritorious, experienced and eligible qualified teahing staff, and that according to the petitioners appointment of respondent Nos. 6 and 7 have been made by the Dibrugarh University in complete disregard to the Rules, norms and standard. Inasmuch as, none of them was qualified for the post to which they are appointed.
3. The Executive Council of the Dibrugarh University in the exercise of power under Section 18(g) of the Dibrugarh University Act, 1965, framed "the Dibrugarh University Teachers' Service Condition Ordinance, 1974", hereinafter referred to as 'the Ordinance', with effect from 1st July, 1974. Article 4 of the Ordinance provides that there shall be following teachers in the University :--
(a) Professor;
(b) Reader;
(c) Lecturer, and
(d) Such other grades as the University may create from time to time.
Art. 5 amongst others, provides that no one shall be eligible for appointment as teacher, unless he possesses the minimum academic qualifications for respective posts as mentioned in the said Article. Article 5(4)(b) prescribed the minimum academic qualification for the post of Reader, while Article 5(4)(b)(i) prescribed the minimum qualification for the post of lecturer. The ordinance having been framed in the exercise of power conferred under Section 18(g) of the Dibrugarh University Act, provisions of the Ordinance are set of statutory rules and are mandatory and are binding on the University and its Executive Council.
4. In the Advertisement No. 9/87 applications were invited for various posts of Professor, Reader and Lecturer including the post of Reader in Pharmaceutical Chemistry. In the advertisement No. 3/88 applications were invited for the post of Lecturer is Pharmaceutical Chemistry. The respondents Nos. 6 and 7 in response to the Advertisement applied for the post of Reader and Lecturer respectively along with other candidate and were appointed to the posts of Reader and Lecturer respectively in preference to the other qualified candidates for the post.
5. We have heard Mr. B.K. Das, learned counsel for the petitioners. Mr. Das has drawn our attention to the essential minimum qualification for the post of Reader as prescribed by Article 5(4)(b) of the Ordinance and the essential qualification required for the post as per Advertisement No. 9/87 and has submitted that the essential qualification as published in the Advertisement for the post of Reader of Pharmaceutical Chemistry is all together different than those prescribed by the mandatory provisions of Article 5(4)(b) and are inconsistent with and lower than the minimum qualification prescribed by the statutory Rules namely, Article 5(4)(b) of the Ordinance.
6. To appreciate the contention of the petitioner, we consider it necessary to have a look into the essential qualifications of Reader of the University as prescribed by Article 5(4)(b) of the Ordinance and the essential qualification as published in the advertisement No. 9/87.
7. The essential qualification as prescribed for the post of Reader and Lecturer under Article 5(4)(b) of the Ordinance is as follows--
Article 5(4)(b) For the post of Reader--
(i) Uniformly good adademic record with a doctorate degree or equivalent published work or equivalent research work in the subject "Or a subject closely allied to it where a suitable candidate with doctorate degree in the subject is not available."
(ii) Research papers or articles of merit published in standard journals :
(iii) Five years' teaching experience at post graduate level or eight years, teaching experience at honours level, preferably with experience of guiding research students preparing for Ph.D. Degree.
Provided that in exceptional cases, this requirement under Sub-clauses (iii) may be relaxed by the Selection Committee.
For the post of Lecturer--
(i) Uniformly good academic record with a first class or high second class Master's degree in the subject preferably with honours in the subject at the degree level;
(ii) One years' teaching experience either at honours level or at post-graduate level or research experience of equal langth is desirable,"
8, Essential qualification for the post of Reader in Pharmaceutical Chemistry as published in the Advertisement are as follows :-- "OFFICE OF THE REGISTRAR :
DIBRUGARH UNIVERSITY : DIBRUGARH:: ESTABLISHMENT BRANCH ADVERTISEMENT NO. 9/87 Applications are invited for the following posts :--
1. ...
2. ...
10. Reader in Pharmaceutical Chemistry -- One .....
Essential Qualifications :
A. B. Reader in Pharmaceutical Chemistry--
(a) A good academic record with M. Pharm or M.Sc. degree in the relevant subject or equivalent published work in the relevant field. Evidence or being actively engaged in (i) research (ii) innovation in teaching methods or (iii) Production of teaching materials.
(b) At least 5 years experience of teaching and or research provided at least 3 years of these were as lecturer or in an equivalent position.
.....
....."
From a plain reading of the provisions of Article 5(4)(b)(i) of the Ordinance, it is clear that essential qualification as advertised for the post of reader of Pharmaceutical Chemistry as per advertisement No. 9/87 was wholly inconsistent with and contrary to the qualifications prescribed by statutory rules. By the advertisement the qualification had been much lowered and the minimum qualification which was prescribed as 'essential' in Article 5(4)(b)(i) of the Ordinance of the Ordinance was dropped in the advertisement. As already observed, that the provisions of the Ordinance are mandatory and statutory and binding on the University and its Executive Council. As such candidates to be elibible for appointment to the post of professor, Reader and Lecturer must possess the minimum qualification as prescribed under the provisions of Article 5 of the Ordinance. Any deviation therefrom would be violative of the mandate of the Rules and would be illegal. We find sufficient force in the submissions made on behalf of the petitioner that the advertisement No. 9/87 so far as it prescribed the minimum essential qualification for the post of Reader in Pharmaceautical Chemistry was inconsistent with, contrary to and grossly violative of the provisions of the Article 5(4)(b) of the Ordinance. The advertisement so far it purported to prescribed essential qualification for the post of Reader in Pharmaceutical Chemistry was therefore arbitrary, illegal and cannot be sustained. However, for the aforesaid illegality in departing from provisions of Rules prescribing the essential qualification for the post of Reader in Pharmaceutical Chemistry in the advertisement, cannot per se render the appointment of the respondent No, 6 to the post of Reader invalid, if otherwise, he possessed the minimum qualification for the post as per Article 5(4)(b) of the Ordinance for being eligible for consideration at the time of making application. If the respondent No. 6 was eligible as a candidate for the post of Reader for possessing minimum qualification as prescribed by Article 5(4)(b) of the Ordinance, this Court would not interfere with his appointment to the post of Reader, even if the statements of the petitioner that candidates possessing higher and better qualifications, were passed over while selecting the respondent No. 6 for the post, is found to be correct. The Court would not sit in appeal over the decision of the selection committee and the Executive Council of the University. If, however, it is found that the respodent No. 6 did not possess the minimum qualification as prescribed by Article 5(4)(b) of the Ordinance and was not eligible to be considered as a candidate for the post of Reader in Pharmaceutical Chemistry, this Court entrusted with the task of enforcing rule of law, cannot fold its hands, but will interfere with the appointment of respondent 6 to the post of Reader.
9. Now it is to be seen as to whether respondent No. 6 possessed the minimum qualifications as prescribed by Article 5(4)(b) of the Ordinance for being eligible to be a candidate for the post of Reader in Pharmaceutical Chemistry. Copy of the synopsis of qualification of the candidates who offered their candidatures, in response to the advertisement No. 9/87 for the post of Reader of Pharmaceutical Chemistry, has been annexed to the petition as Annexure-B which is not controverted or disputed by the respondents. As per the synopsis the qualification of the respondent No. 6 on the date of consideration was, -- HSLC -- 1st Division, Pre-University (Sc) 2nd Division, B.Sc. (Hons)-II Class, M.Sc. 1st Class, teaching experience Lecturer in various institution for short periods but nothing is shown that he had the teaching experience in the Honours Level in any of the colleges. As regards the research experience it is mentioned that thesis submitted, three (3) papers presented.
10. The minimum academic qualification for the post as per Article 5(4)(b) of the Ordinance is :
"(i) Uniformly good academic record with a doctorate degree or equivalent published work or equivalent research work in the subject "Or a subject closely allied to it where a suitable candidate with a doctorate degree in the subject is not available'.
(ii) Research papers or articles of merit published in standard journals;
(iii) xxxxx"
11. From the synopsis it is apparent that respondent No. 6 did not possess the minimum qualification as prescribed by Article 5(4)(b) of the Ordinance, inasmuch as, he was neither M.Sc. in Pharmaceutical Chemistry. There is nothing to show that he has equivalent published work or Doctorate Degree or equivalent research work in the subject to his credit. Besides he did not possess 6 years experience in the post graduate level teaching nor 8 years teaching experience at Honours level, and, as such, was not eligible to be a candidate for the post of Reader in Pharmaceutical Chemistry.
12. As to the appointment to the post of Lecturer in Pharmaceutical Micro-biology/ Bio-Chemistry synopsis of the respondent No. 7 was H.S.L.C. -- 2nd Division, P.U. 2nd Division B.Sc. -- 1st Class, M.Sc. -- 2nd Class, in Micro-biology, Teaching experience worked 3 months as Quality Control Officer in the Assam Industries Development Corporation and the present occupation carrying the work of quality analysis of Bluegreen Aliagae from rice fields of Assam etc. As per Article 5(4)(b)(i) of the Ordinance the minimum qualification for the post of Lecturer in the University is uniformly good academic record with a first class or high second class Master's Degree in the subject preferably with honours in the subject at the degree level and one years teaching experience either at honours level or at post-graduate level or research experience of equal length is desirable. Result in all the examination up to M.Sc. clearly establishes that respondent do not possess uniformly good academic record. His academic records are clearly midocre. Respondent No. 7 has no teaching experience either at Honours level or at post graduate level or has any research experience. As such, respondent No. 7 did not have the minimum qualification as prescribed by Article 5(b)(i) of the Ordinance for the post of Lecturer. Besides, from the synopsis it appears that there are candidates, namely, Tuhinadri Sen and Sri Anup Kr. Ray, who got uniformly good academic record to their credit and possessed the minimum qualification for the post of Lecturer in the subject.
13. With a view to the proper planning and co-ordinated development of the Technical Education system throughout the country, the promotion of qualitative improvements of such education in relation to planned qualitative growth and the regulation and proper maintenance of norms and standards in the technical education system in technical institution and Universities, the parliament enacted "The All India council for Technical Education Act, 1987 (Act 62 of 1987). The Act received the assent of the President on 23-12-87 and was published in Gazette of India on 28-12-87. Mr. B.K. Das, learned counsel for the petitioner has drawn our attention that Govt. of India, Ministry of Human Resource Development Deptt., Eastern Region by letter No. ERO/K-Genl. 8/89/1938 dated 3-8-89 intimated the recommendations as regards qualifications for different faculty position of B. Pharm course by the All India Council of Technical Education constituted under the provisions of Act 52 of 1987, a copy of which is annexed to the affidavit filed by the respondent No. 8. The qualification for the posts in question as recommended are as follows :
1.
Reader in Pharmaceutical Chemistry.
M. Pharma/M.Sc. plus Ph.D.
2. Lecturer in Bio-Chemistry or Micro-biology.
M.Pharma with specialisation in Bio-Chemistry/ Microbiology or M.Sc. in Bio-chemistry with specialisation in Micro-biology.
Mr. Das has submitted that Respondent Nos. 6 and 7 apparently did not possess the aforesaid minimum qualification for the post of Reader and Lecturer respectively recommended by the All India Council of Technical Education. The learned counsel for the petitioner has also drawn our attention to the Inspection Report dated 29-5-89 of the Inspector of the Pharmaceutical Council of India, who submitted after inspection of the Department of Pharmaceutical Science, Dibrugarh University, a copy of which has been annexed to the application filed on 19-2-90 in the writ petition by the petitioner as Annexure-'E' and has submitted that the Inspector has found anomalies in the appointment of Respondent Nos. 6 and 7 in the post of Reader and Lecturer in the University. In the Inspection Report the finding against the column 'discrepency or deficiency' is "Mr. A.K. Saikia and Mr. M.C. Deka should have the M. Pharma as per ER. Mr. A.K. Saikia is respondent No. 6 and Mr. M.C. Deka is respondent No. 7. Further, the Inspector in the said report amongst other recommended "the anomalies in the appointment of teaching staff should be removed forthwith".
14. 'OnbehalfoftherespondentNos. 1,2, 3 and 4 one Shri Jatin Barman has filed affidavit-in-opposition. He has not stated his designation or the part taken by him in the matter of selection of the candidate for the post of Reader in Pharmaceutical Chemistry and Lecturer in Pharmaceutical Mico-biology. In para 2 of the affidavit the deponent has stated "I being connected with the University in conduct to its affairs fully conversant with the facts and competent to swear this affidavit....." When the selection of a Reader and Lecturer had been impugned in the writ petition and the High Court issued Rule to show cause as to why the selection and appointment of respondent No. 6 to the post of Reader and post of Lecturer in the respective subject in the University should not be set aside, some respnsible persons, namely, Registrar of the University or the Member of the Selection Committee of the University should have sworn the affidavit but that has been avoided by the respondents No. 1, 2 and 4, Mr. P.G. Baruah, learned counsel for the respondents has stated that the deponent is a Dealing Assistant in the University. A Dealing Assistant in such important matter of selection of Reader and Lecturer by a Selection Committee and approval thereof by the Executive Council is not expected to state the fact and to take the responsibility of such statement. This deponent, a Dealing Asstt. who cannot take part in the selection, has however sworn that statements made in the affidavit-in-opposition on behalf of the Respondent Nos. 1, 2 and 4 as true to his knowledge although apparently he could (not) have personal knowledge. As such, we find it difficult to place reliance on the statements made in the affidavit-in-opposition on behalf of Respondent Nos. 1, 2 and 4. Neither Respondent No. 6 nor Respondent No. 7 has filed affidavit-in-opposition controverting or rebutting contentions made in the writ petition. Although records were called for no record has been filed in support of the contentions made in the affidavit-in-opposition. Mr. P.G. Baruah learned counsel for the respondent Nos. 1, 2 and 4 has submitted that the petition is not maintainable, inasmuch as, the petition did not fall within the ambit of public interest litigation. The petition is by students' Union, questioning the appointment of teachers on the allegations that they are not qualified and/or did not possess the minimum qualification and that while selecting and appointing respondent Nos. 6 and 7 qualified individuals and/ or better candidates were ignored. The students had no locus standi to file the petition. In support of his contention Mr. Baruah placed reliance on the decisions on Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, State of Himachal Pradesh v. A Parent of a Student of Medical College, Shimla, AIR 1985 SC 910, Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109, Ramsharan Autyanuprasi v. Union of India, AIR 1989 SC 549. In the case of Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, the writ petition was against the existence of alleged bonded labour and the Hon'ble Supreme Court entertained the petition as public interest litigation. The Hon'ble Supreme Court amongst other held in the said case that public interest litigation was not in the nature of adversary litigation but it was a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which was the signature -- tune of our Constitution.
15. In the case of State of Himachal Pradesh v. A Parent of a Student of Medical College, Shimla, AIR 1985 SC 910, it has been told in (para 1) :--
"Public interest litigation is weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the legislature."
A letter written by a guardian of a student of medical college, Shimla was registered as a writ petition and the High Court directed to constitute a Anti-Ragging Committee. The High Court also directed the Chief Secretary to inform the Court as to what action the Govt. proposes to take steps (sic) on the recommendation to initiate legislation for curbing ragging. The direction was given in spite of the categorical assurance of the Chief Secretary in this regard. The Hon'ble Supreme Court held that direction given by the High Court was nothing but a sort of indirect attempt to compel the State Govt. to initiate legislation with a view to curb the evi! of ragging or otherwise. On the facts of the case the Hon'ble supreme Court held that in the guise of public interest litigation the Court should not encroach upon the sphere reserved by the Constitution for the Executives and the Legislature.
16. In the case of Shri Sachidanand Pandey, (AIR 198 SC 1109) (supra), a petition was filed by way of public interest litigation against the administrative action involving environmental problem. The Hon'ble Supreme Court held that since the Govt. was aware of the problem in arriving a conscious decision the Court will not interfere unless mala fide or illegality of breach of public interest was established.
17. In the case of Ramsharan Autyanu-prasi (AIR 1989 SC 549) (supra) a petition under Article 32 of the Constitution was filed by way of public interest litigation in respect of running of a trust created by the erstwhile Maharaja of the Jaipur State for the benefit of the public. A serious dispute was raised by the Jaipur Raj Family about the running of the trust, between the Maharaja who was also the Chairman of the Trust and his step-mother, the Rajmata and also there were several litigations between the said two parties in different courts over those matters. It was held by the Hon'ble Supreme Court that a petition under Article 32 of the Constitution asserting it to be a public interest litigation alleging the running of the trust by its Chairman in an arbitrary and high handed manner, would not be maintainable as it could not be predicted that there was any breach of fundamental right of the petitioner, the section of members of public. It would be a case which was more amenable to the proceedings under Sections 37 and 38 of the Rajasthan Public Trust Act. Moreover it was not 'pro bono publico', for the benefit of the public, but for the benefit of a particular section of people for their personal rights. As it was litigation between the members of the erstwhile Raj Family to settle their own scores and thus not a public interest litigation.
18. Placing reliance on the aforesaid decision Mr. P.G. Baruah, learned counsel for the respondent has submitted that in the instant case the aggrieved parties, if any were the persons who were not selected but not the petitioners.
19. Mr. B.K, Das, learned counsel for the petitioner has placed reliance on the decision of a case of S.P. Gupta v. President of India, AIR 1982 SC 149, wherein a Constitution Bench of the Hon'ble Supreme Court consisting of 7 Judges held that questioning the transfer of the Chief justice of Patna High Court to the Madras High Court, filed by a Advocate, by way of public interest litigation was maintainable and the Advocate had locus standi to file the petition and could not be told off at the gate since the matter concerning judiciary was involved. Placing reliance on the said decision learned counsel for the petitioner has submitted that the norms and standard of imparting technical education to the student in the University involves public interest. It is in the interest of the public the students must get proper teaching by competent teachers. If the teacher lecturers or Readers of the University of a particular technical subject are recruited for which they are not qualified as prescribed by the statutory rules, public interest would certainly suffer, inasmuch as, if proper technical education to the students is not imparted it would affect not only the students but the public at large. With a view to maintaining the proper standard of imparting technical education the Parliament has enacted the All India Council for Technical Education Act, 1987. As such the application by way of public interests litigation is maintainable. We find force in the submission made on behalf of the petitioner. Besides, the students are directly concerned with the standard of teaching imparted to them by qualified teachers. On that count also the petitioner has locus standi to prosecute this petition.
20. Mr. Baruah has submitted that the august body like the Selection Committee constituted for selection and recruitment of Reader, Lecturer in question and the committee had the expertise on the subject and as such this court cannot sit in appeal over the decision of the Selection Committee to scrutinise the relative merits of the candidates and to interfere with the Selection and appointments. In support of his contention, the learned counsel has placed reliance on a recent decision of the Supreme Court in the case of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, AIR 1990 SC 434. There is no gainsaying to hold that this Court in the exercise of jurisdiction under Article 226 of the Constitution of India will not sit in appeal over the decision of the Selection Committee to scrutinise the relative merits of the candidates in the matter of appointment of teachers of University, since the Selection Committee has necessary expertise for the subject to select candidates. But if the Selection Committee selects a candidate who did not possess the minimum qualification as prescribed by statutory Rules or in total disregard to the provisions of the Rules as regards the qualification, the Court can certainly interfere with the Selection to enforce the Rules of law. In para 31 of the case of P. K. Ramachandra Iyer v. Union of India, (19S4) 2 SCC 141 : (AIR 1984 SC 541 at page 557), on similar facts the Hon'ble Supreme Court amongst other held :
"It was urged that once it is concern that as the power of selection and appointment vests in the ICAR, the court should not usurp that power merely because it would have chosen a different person as better qualified. Undoubtedly, the Court must look with respect upon the performance of duties by experts in the respective field as has been said in Dr. M. C. Gupta's case. However, the task of ushering a society based on rule of law is entrusted to this Court and it cannot abdicate its functions. Once it is most satisfactorily established that the selection committee did not have the power to relax essential qualification pertaining to experience, the entire process of selection of respondent No. 6 was in contravention of the established norms prescribed by advertisement and power of the selection committee and procedure of fair and just selection and equality in the matter of public employment and to rectify resultant injustice and establish constitutional value this Court must interfere. Selection of respondent No. 6 is contrary to rules and orders and in violation of prescribed norms of qualification. He was ineligible for the post when selected. His selection and appointment would be required to be quashed and set aside."
21. As already held above none of the respondents Nos. 6 and 7 possessed the minimum qualification prescribed by the Article 5(4)(b) of the Ordinance for the posts they have been selected and appointed that being so we are constrained to hold that the appointment of respondent No. 6 for the post of Reader in Pharmaceutical Chemistry and respondent No. 7 in Pharmaceutical Microbiology cannot be sustained and are therefore set aside and quashed. The petition is allowed. We make no order as to costs.