Meghalaya High Court
Dr. Sharat Agarwal vs . Union Of India & Ors on 14 February, 2019
Equivalent citations: AIRONLINE 2019 MEG 124
Bench: Mohammad Yaqoob Mir, H. S. Thangkhiew
Serial No.02
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP (C) No.428/2018
Date of Order: 14.02.2019
Dr. Sharat Agarwal Vs. Union of India & ors
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Ms. A Syiem, Adv vice Mr. N Khera, Adv
For the Respondent(s) : Mr. N Mozika Adv with
Mr. S Saraogi, Adv for R/2-4 Mr. SP Mahanta, Sr.Adv with Ms. A Thungwa, Adv for R/5
i) Whether approved for reporting in Yes Law journals etc.:
ii) Whether approved for publication in press: No Per Mohammad Yaqoob Mir, 'CJ'
1. Petitioner an Associate Professor department of Orthopedics and Trauma of North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences in pursuance to the advertisement notice issued in the year 2016 after having been admitted to the interview by the Selection Committee for the post of Professor was not recommended.
2. Fresh advertisement notice for the said post has been issued in the year 2017, the petitioner and respondent No.5 applied for the same but before applying for the post, the petitioner filed an O.A. before the Central Administrative Tribunal, Guwahati Bench with a prayer to quash the report of the Selection Committee dated 20.12.2016 at ICMR, New Delhi and to direct the respondents to select the petitioner in pursuance to the advertisement notice of 2016 with a 1 further prayer to quash the ongoing impugned selection procedure of 2017 notified vide the advertisement notice of 2017. He also prayed for grant of interim direction so as to stay the proceedings initiated in pursuance to the advertisement of the year 2017.
3. Learned Tribunal vide order dated 08.12.2017 after issuing notice had directed the respondents not to go ahead with the selection process for the post of professor, Orthopedics and Trauma. On the application of the respondent authorities for modification of the order, learned Tribunal vide order dated 25.04.2018 directed the respondents to go ahead with the selection process but the result be kept in a sealed cover.
4. In the O.A., it has also been projected that respondent No.5 while applying for the post is not eligible for want of experience but however for accommodating him, requisite experience was provided to be completed up to 31.12.2017, when according to the petitioner, candidates who apply must possess requisite experience on the last date of receipt of the applications.
5. The learned Tribunal after opening the sealed cover result found that the petitioner had secured 54.85 and respondent No.5, 60.85 marks out of 100 marks. Then while disposing of the O.A. opined that the petitioner has not challenged the minutes dated 20.12.2016 before participating in the recruitment process of 2017. Once he has taken part in the selection process knowing fully well the procedure for selection cannot turn around to challenge the process. It has also been opined that in the advertisement notice, condition regarding requisite experience i.e. effective date up to which requisite experience must be completed is 31.12.2017, therefore, in tune with the terms of advertisement notice respondent No.5 was eligible O.A. has been dismissed. Aggrieved whereof, instant petition has been filed.
26. Admitted position as emerged from the records is that the petitioner had joined the services of North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences (hereinafter for short referred to as NEIGRIHMS) as an Assistant Professor in the year 2007. On promotion from the year 2013 has been working as an Associate Professor.
7. For only post of Professor Orthopedics and Trauma, 14 (fourteen) times process for selection was initiated but for want of eligible candidate, no one was appointed.
8. In the year 2016 vide advertisement notice No.NEIGR- E.II/19/2004/Pt.XVI, applications were invited for various posts which include the said post of Professor Orthopedics and Trauma. The essential qualification and experience as prescribed and notified is as under:-
"14 Orthopedics Professor 1 UR i. A medical qualification included in & Trauma the First or second schedule or Part-
II of the third schedule to the Indian Medical Council Act of 1956 (person possessing qualifications included in the part-II of the third schedule should also fulfill the conditions specified in the sub-section (3) of the Section 13 of the Act.
ii. A postgraduate qualification e.g. MS or a recognized qualification equivalent thereto in the respective discipline/subject.
iii. Fourteen years teaching and/or research experience in recognized Institution in the subject of speciality after obtaining the qualifying degree of MS or qualification recognized equivalent thereto.
iv. The candidate must be registered with the Central/State Medical Council."3
9. Last date for receipt of application was 30.06.2016 up to 5:30 pm. Condition No.18 under the head General Information of the advertisement notice is as under:-
"18. The effective date up-to which the requisite experience must be completed is 31.12.2016."
10. In the process so initiated, the petitioner was found eligible by the Screening Committee and then was interviewed by the Selection Committee but not recommended. Pursuant to the said process regarding other posts in other disciplines, candidates who were interviewed and who had made the grade were recommended. About the post of Professor Orthopedics and Trauma nothing was said.
11. It is an admitted fact that in NEIGRIMHS there is only one post of Professor Orthopedics and Trauma for which 14 (fourteen) times advertisement notice was issued but could not be filled up for want of eligible candidate. It is also an admitted fact in the year 2016 petitioner was eligible.
12. For the said post when advertisement was issued in the year 2017, petitioner obtained information under Right to Information Act, 2005 from NEIGRIHMS. In the information furnished to him by NEIGRIHMS under No.NEIGR/L.C/RTI/2017/(Sept.-Oct.) dated 09.10.2017 it has been mentioned that one sanctioned post of Professor Orthopedics and Trauma was lying vacant since 2003. Post was advertised for 14 (fourteen) times but could not be filled up due to non-availability of suitable/eligible candidates. In pursuance to the advertisement notice of 2016, two applications were received but only one candidate was found eligible i.e. the petitioner. Minutes of the meeting of the proceeding of Selection Committee for Group „A‟ (Faculty) posts held on 20.12.2016 copy of which is placed on record reveals that the Screening Committee considered two applications for the post of Professor Orthopedics and Trauma but found one candidate 4 prima facie eligible. The Selection Committee interviewed the candidate, after deliberation the Selection Committee did not recommend the candidate for the post of Professor Orthopedics and Trauma. The Selection Committee comprised of Chairman, two experts and five members.
13. The contention of learned counsel for the petitioner is that the Selection Committee has not assigned any reason for not recommending the petitioner. In the reply affidavit filed by respondents No.1 to 4 it has been mentioned that the Standing Selection Committee under the Chairmanship of Director General, ICMR, New Delhi conducted the interview of the petitioner who obtained 46.44 marks but was not recommended. The decision to recommend or not to recommend a candidate is based on the candidate‟s performance and his evaluation by the Standing Selection Committee. It is further stated that in principle candidates who have secured below 50 marks in the interviews were not recommended by the Standing Selection Committee.
14. The contention of learned counsel for the petitioner is that the petitioner was the only candidate who obtained 46.44 marks no reason has been assigned by the Standing Selection Committee for not recommending him. It is nowhere prescribed or notified that the candidate must obtain more than 50 marks. Therefore, petitioner has been arbitrarily deprived of his selection and appointment.
15. Learned counsel for the respondents with one voice in opposition contended that the Standing Selection Committee is not required to record reason, however, fairness in administrative action has to be observed. The Standing Selection Committee which is not a party to the case, in their wisdom after interviewing the petitioner have not recommended him, no malice is attributed to them. In support of his contention has placed reliance on the judgment rendered in the case 5 of National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman & ors: 1992 Supp (2) SCC 481. The following portion from para 7 of the judgment is relevant to be quoted:-
"7. We will first consider the second point. In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with. ....."
16. Furthermore, following portion from para 8 of the judgment is also relevant to be quoted:-
"8. As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The „fairness‟ or „fair procedure‟ in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. ....."
17. Para 18 of the judgment rendered in the case of Major General I.P.S. Dewan v. Union of India & ors: (1995) 3 SCC 383 is also beneficial to be quoted:-
"18. Shri Ramaswamy then relied upon the decision in Manager, Government Branch Press v. D.B. Belliappa5:
(1979) 1 SCC 477: 1979 SCC (L&S) 39: (1979) 2 SCR 458 in support of his submission that administrative orders affecting the rights of citizens should contain reasons therefor. We are afraid, the said principle cannot be extended to matters of selection. Unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons 6 why they are not selecting a particular person and/or why they are selecting a particular person, as the case may be. If the said decision is sought to be relied upon with respect to the adverse remarks made against the appellant, the attack should fail for the reason that the memo containing adverse remarks in this case does set out the particulars in support of the same. It is equally relevant to note that no allegation of mala fides or arbitrariness has been leveled against the Chief of the Army Staff who made the said remarks."
18. Paras 25 and 26 of the judgment, rendered in the case of B.C. Mylarappa alias Dr. Chikkamylarappa v. Dr. R. Venkatasubbaiah & ors: (2008) 14 SCC 306 are also relevant to be quoted:-
2"25. In University of Mysore v. C.D. Govinda Rao :AIR 1965 SC 491 while dealing with the selection of candidates for academic matters by a Board of experts appointed by the University for the post of Reader and the recommendation of the Board, this Court at para 13 of the aforesaid decision observed: (AIR pp. 496-97) "13. ... Boards of Appointments are nominated by the universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an executive authority, issuing an executive fiat, or was acting like a quasi-judicial tribunal, deciding disputes referred to it for its decision. In dealing with complaints made by citizens in regard to appointments made by academic bodies, like the universities, such an approach would not be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That 7 is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. In this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that Appellant 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified."
26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the expert body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made hereinabove, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction."
19. In the present case, learned counsel for the petitioner has not brought to the notice of the Court any rule or regulation providing that the Standing Selection Committee shall record reason for selecting or not selecting the candidate. Neither from the pleadings or submissions of the petitioner any malice, unreasonableness or unfairness has been attributed to the Standing Selection Committee. The Standing Selection Committee in its wisdom after evaluation did not deem it proper to recommend the petitioner. The Standing Selection Committee also comprises of experts, their decision cannot be faulted 8 with. Therefore, non-selection of the petitioner in the year 2016 is not open to be interfered with.
20. Learned counsel for the respondents No.1 to 4 has produced photo copies of the recommendations and assessment sheets of the candidates who were selected in pursuance to the 2016 selection process so as to show that none of the selected candidates in other disciplines had secured less than 50 marks on average. The petitioner having secured less than 50 marks was not recommended by the Standing Selection Committee.
21. In the stated facts and circumstances, non-recommendation of the petitioner by the Standing Selection Committee in the year 2016 is not open to be questioned.
22. Next contention of learned counsel for the petitioner is that the respondent No.5 who has been selected vide process initiated in the year 2017 was not eligible because on the last date of receipt of the application i.e. 30.06.2017, he did not possess the requisite experience. The Rule has been relaxed so as to accommodate him. The effective date for requisite experience has been taken as 31.12.2017 when as per settled rules and law, last date for possessing requisite experience must correlate with the last date for receipt of application. His further contention is that Rule 9(b) of Recruitment Rules, 2012 for faculty posts has been quoted by the learned Tribunal and in the process has ignored Rule 9(a) according to him, Rule 9(a) and (b) have to be read conjointly. When read together, Rule 9(b) provides for outer limit of relaxation. For appreciating this contention, it shall be advantageous to quote Rule 9(a) and (b) as hereunder:-
"9 Relaxation of Academic a. The academic qualification and qualification/Experience experience in respect of the faculty posts are relaxable at the discretion of the Selection Committee. In order to enable the Selection Committee to interview the 9 candidates with relaxed academic qualification, experience, the Screening Committee is authorized to call candidates with exceptional academic merit for interview in relaxation of the prescribed requirements.
b. For posts, which are advertised in the period from January to June of any calendar year, the effective date up to which the requisite experience must be completed will be 31st December, of that year.
Similarly the post advertised from July to December the effective date up to which the requisite experience must be completed will be 30th June of the following year and so on."
23. On careful examination of Rule 9(a) and (b) inescapable conclusion is that Rule 9(a) and (b) are distinct not to be read together instead have to be read independently in view of its texture and object. Heading of Rule 9(a) is relaxation of academic qualification/experience. Rule 9(a) provides for relaxation and it is the Screening Committee who has to call candidates who require relaxation provided those candidates possess exceptional academic merit. Rule 9(b) as referred to above clearly suggest that the effective date up to which the requisite experience must be completed for the post which have been advertised from January to June shall be completed by 31st December of the year and in case posts advertised from July to December, effective date for completion of requisite experience is 30th June of the following year.
24. Heading of the Rules in the context of independent meaning of clause (a) and (b) will not control clause (b). Heading and title prefixed have to be understood for the purposes of Rule 9(b), title pales into insignificance. In this behalf, it shall be quite relevant to 10 quote following portions from para 15 of the judgment rendered in the case of Bhinka & ors v. Charan Singh: 1959 Supp (2) SCR 798 as under:-
"15. ..... It is dispelled by the heading given to section and also the description of the nature of the suit given in the Schedule. The heading reads thus:
"Ejectment of person occupying land without title."
Maxwell on the Interpretation of Statues, 10th Edn., gives the scope of the user of such a heading in the interpretation of a section thus, at p.50:
"The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statue but they may explain ambiguous words. ....."
25. Para 14 of the judgment rendered in the case of Raichurmatham Prabhakar & anr v. Rawatmal Dugar: (2004) 4 SCC 766 is relevant to be quoted:-
"14. The view is now settled that the headings or titles prefixed to sections or group of sections can be referred to in construing an Act of the legislature. But conflicting opinions have been expressed on the question as to what weight should be attached to the headings or titles. According to one view, the headings might be treated as preambles to the provisions following them so as to be regarded as giving the key to opening the mind of the draftsman of the clauses arranged thereunder. According to the other view, resort to heading can only be taken when the enacting words are ambiguous. They cannot control the meaning of plain words but they may explain ambiguities. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004, pp. 152 and 155). In our opinion, it is permissible to assign the heading or title of a section a limited role to play in the construction of statutes. They may be taken as very broad and general indicators of the nature of the subject-matter dealt with thereunder. The heading or title may also be taken as a condensed name assigned to indicate collectively the characteristics of the subject-matter dealt with by the enactment underneath; though the name would always be brief having its own limitations. In case of conflict between the plain language of the provision and the meaning of the heading or title, the heading or title would not control the 11 meaning which is clearly and plainly discernible from the language of the provision thereunder."
26. Para 10 of the judgment rendered in the case of Maqbool v. State of Uttar Pradesh: 2018 SCC online SC 1930 is also relevant to be quoted:-
"10. The title to the provision need not invariably indicate the contents of the provision. If the provision is otherwise clear and unambiguous, the title pales into irrelevance. On the contrary, if the contents of the provision are otherwise ambiguous, an aid can be sought from the title so as to define the provision. In the event of a conflict between the plain expressions in the provision and the indicated title, the title cannot control the contents of the provision. Title is only a broad and general indication of the nature of the subject dealt under the provision."
27. Position of Rule 9(a) and (b) is quite distinct, therefore, heading of Rule 9 will not control of Rule 9(b).
28. It is in the same background in the advertisement notice issued in the year 2017, last date for receipt of application has been fixed as 30.06.2017, the effective date up to which the requisite experience was to be completed had been fixed as 31.12.2017 as is clear from the condition No.18 under the head General Information of the advertisement notice. Similarly, in the process initiated vide the advertisement notice issued in the year 2016, last date for receipt of application was 30.06.2016 and effective date up to which the requisite experience to be completed was fixed as 31.12.2016.
29. It is also in the same background that the learned Tribunal has quoted Rule 9(b) in the order so as to show that the eligibility vis-à-vis completion of requisite experience was up to 31.12.2017.
30. It is not disputed even otherwise it is quite clear that in the advertisement notice date for completion of requisite experience is shown as 31.12.2017. When it is so, no fault can be found with the eligibility of respondent No.5. In this behalf, it shall be quite relevant 12 to quote para 13 of the judgment rendered in the case of Bhupinderpal Singh & ors v. State of Punjab & ors: (2000) 5 SCC 262 as hereunder:-
"13. Placing reliance on the decisions of this Court in Ashok 1 Kumar Sharma v. Chander Shekhar : (1997) 4 SCC 18: 1997 SCC (L&S) 913: JT (1997) 4 SC 99, A.P. Public Service 2 Commission v. B. Sarat Chandra : (1990) 2 SCC 669: 1990 SCC (L&S) 377: (1990) 13 ATC 708: (1990) 4 SLR 235, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari 3 Devi : (1990) 3 SCC 655: 1990 SCC (L&S) 520: (1990) 14 ATC 766: (1990) 4 SLR 237, Rekha Chaturvedi v. University 4 of Rajasthan : 1993 Supp (3) SCC 168: 1993 SCC (L&S) 951: (1993) 25 ATC 234: JT (1993) 1 SC 20, M.V. Nair (Dr) 5 v. Union of India : (1993) 2 SCC 429: 1993 SCC (L&S) 512:
(1993) 24 ATC 236 and U.P. Public Service Commission 6 U.P., Allahabad v. Alpana : (1994) 2 SCC 723: 1994 SCC (L&S) 742: (1994) 27 ATC 101: JCT (1994) 1 SC 94 the High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice be done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice."
31. Learned counsel for the petitioner placed reliance on following judgments rendered by the Hon‟ble Apex Court, reported in:-
(i) (1980) 3 SCC 393, (ii) 1993 Supp (3) SCC 168,
(iii) (1993) 3 SCC 575, (iv) (1997) 4 SCC 18, 13
(v) (1997) 9 SCC 527, (vi) (1998) 8 SCC 399, (vii) AIR 1999 SC 647, (viii) (2000) 7 SCC 561, (ix) (2006) 8 SCC 671 and
(x) (2012) 9 SCC 545 The said judgments in the facts and circumstances of the case are found of no help to the petitioner.
32. In the selection process of 2017, respondent No.5 being meritorious having secured 60.85 marks as compared to the petitioner who has secured 54.85 marks, therefore recommendation for selection of respondent No.5 is not interfereable. Conclusion of the Tribunal for the stated reasons is maintained.
33. Writ petition being devoid of merit is dismissed.
(H. S. Thangkhiew) (Mohammad Yaqoob Mir)
Judge Chief Justice
Meghalaya
14.02.2019
"Lam AR-PS"
14