Gauhati High Court
Krishna Chandro Goudo vs The State Of Assam And 4 Ors on 30 September, 2022
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/10
GAHC010157952022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5201/2022
KRISHNA CHANDRO GOUDO
SON OF LATE CHAKRAPANI GOUDO
R/O BIDYAPUR, MALIKUCHI CHOWK, BYELANE 4, HOUSE NO. 113, P.O.
AND DIST NALBARI, ASSAM, PIN-781335
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION
(HIGHER) DEPARTMENT, DISPUR, GUWAHATI- 781006
2:THE KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
RANI
GUWAHATI
REP. BY ITS REGISTRAR
SATGAON
RANI
GUWAHATI-781017
DIST. KAMRUP (METRO)
ASSAM
3:THE CHANCELLOR
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
REP. BY THE SECRETARY TO THE GOVERNOR
RAJ BHAVAN
GUWAHATI- 781001.
4:THE ADVISORY BOARD/SEARCH COMMITTEE
FOR SELECTION OF THE VICE- CHANCELLOR
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
Page No.# 2/10
REP. BY ITS CHAIRMAN/NOMINEE OF THE CHANCELLOR.
5:PROF. (DR.) SUSHMA YADAV
CHAIRMAN OF ADVISORY BOARD
KKHSOU
MEMBER OF SELECTION COMMITTEE
KKHSOU AND MEMBER UNIVERSITY GRANTS COMMISSION
NEW DELHI
26
INDUSTRIAL ESTATE
REWARI
UTTAR PRADESH
PIN-123401
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, HIGHER EDU
BEFORE HONOURABLE MR. JUSTICE NELSON SAILO Date of hearing : 28.09.2022 & 29.09.2022 Date of judgment : 30.09.2022 J U D G M E N T & O R D E R (CAV) Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. R.J. Das, learned counsel for the petitioner and Mr. D. Saikia, learned Advocate General, Assam assisted by Mr. B. Choudhury and Mr. K. Gogoi, learned counsels for all the respondents. Mr. K.N. Choudhury, learned Senior Counsel submits that the petitioner is aggrieved by the selection process initiated vide Advertisement dated 26.04.2022 (Annexure - 1) for the post of Vice Chancellor, Krishna Kanta Handique State Open University (University).
Page No.# 3/10 Referring to Clause - 1 of the terms and conditions of the Advertisement, the learned Senior Counsel submits that the eligibility of the applicants is to be strictly ascertained on the basis of UGC Regulations, 2018. The learned Senior Counsel further submits that in terms of Clause 1.1 of Chapter-IV of the first statutes of the University notified on 30.03.2009, the Vice Chancellor is to be appointed by the Chancellor on the recommendations of an Advisory Board constituted by the Chancellor for the purpose consisting of three (3) members, of whom one (1) member shall be elected by the Board of Management, one (1) member shall be nominated by the State Government and one (1) member shall be nominated by the Chancellor. The Chancellor shall appoint one (1) of them as Chairman of the Advisory Board. Further, as per Clause 1.2 of the same Statutes, the Advisory Board shall recommend a panel of names of three (3) persons to the Chancellor, who may appoint one (1) of the persons recommended to be the Vice Chancellor. If the Chancellor does not approve any of the person recommended by the Advisory Board, he may call for a fresh recommendation.
[2.] The learned Senior Counsel submits that in exercise of the powers vested under Section 6 (i) (b) of Section 6 (ii) (b) of Chapter-II of the Statutes as amended, the Chancellor of the University nominated the respondent No. 5 to be the Expert Member of the Selection Committee for selection of Teachers of the University along with another Expert Member for selection of Officers in the University. The said nomination was issued by the Governor's Secretariat, Assam on 09.02.2021 (Annexure - 4) and by the Office of the Registrar of the University on 17.02.2021. As per the 2 notifications, the term of office of the members nominated is for 3 years in terms of the Statutes.
Page No.# 4/10 [3.] The learned Senior Counsel submits that as per Clause 7.3 ii of the UGC Regulations, 2018, notified on 18.07.2018 (Annexure - 5), the selection for the post of Vice Chancellor should be through proper identification by a panel of 3 - 5 persons by a Search-cum-Selection Committee through public notification or nomination or a talent search process or a combination thereof. The members of such Search-cum-Selection Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. However, in clear violation of this provision, the respondent No. 3 vide Notification dated 03.03.2022 (Annexure - 2) in exercise of the powers conferred under Sub-Section 1.1 of Section 1 of Chapter-IV of the Statutes, constituted a panel of 3 persons for the purpose of appointment of Vice Chancellor of the University, which included the respondent No. 5 as the nominee of the Chancellor and also as the Chairman of the Advisory Board. The learned Senior Counsel submits that since the respondent No. 5 is already associated with the University with her appointment as an Expert Member of the Selection Committee for selection of Teachers of the University, she could not have been nominated as one of the member and Chairman of the Advisory Board to appoint the Vice Chancellor. The same being in clear violation of Clause 7.3 ii of the UGC Regulations, 2018, any selection made by the constituted Advisory Board is unauthorized, illegal and cannot be acted upon in any manner. He therefore submits that the impugned Notification dated 03.03.2022 should be set aside and the respondent authorities should be directed to reconstitute the Advisory Board in terms of Clause 7.3 (2) of the UGC Regulations, 2018.
Page No.# 5/10 [4.] The learned Senior Counsel further submits that as per the stand taken by the respondent No. 3 in its affidavit filed on 25.08.2022, the appointment of the respondent No. 5 as an Expert Member for appointment of Teachers of the University is said to be only a honorary assistance and for which, as a member of the Selection Committee, she is eligible to get a sitting fee and T.A/D.A for any assistance rendered and no salary or fixed pay is provided. Her assistance in the meeting of the Selection Committee is also voluntary and she may or may not attend the meeting. It is further contended that the respondent No. 5 has neither responded to the nomination nor attended any meeting of the Selection Committee pursuant to her nomination vide Notifications dated 09.02.2021 and 17.02.2021. She has also not received any remuneration including sitting fee, T.A/D.A etc., from the University. To these contentions, the learned Senior Counsel submits that the issue is not as to whether the respondent No. 5 has accepted her nomination as Expert Member for selection of Teachers of the University or whether she has received any remuneration on this count but the fact is that she was appointed as an Expert Member of Selection Committee for selection of Teachers of the University vide Notifications dated 09.02.2021 and 17.02.2021 and therefore, during the subsistence of the said Notifications, the impugned Notification dated 03.03.2022 being in clear violation of Clause 7.3 ii of the UGC Regulations, 2018, any selection process undertaken pursuant to the said Notification is only unauthorized and illegal and therefore, cannot be sustained. He therefore submits that the impugned Notification dated 03.03.2022 is so far as the nomination and appointment of the respondent No. 5 is concerned should be set aside and quashed.
Page No.# 6/10 [5.] Mr. D. Saikia, learned Advocate General, Assam on the other hand submits that as per Sl. No. 1 of the terms and conditions of the Advertisement for the post in question, it is clearly provided that the eligibility of the applicants will be strictly ascertained on the basis of the UGC Regulations, 2018 but the same is not the case in respect of the selection process. He submits that the eligibility and selection process are two (2) different things and in fact, the State of Assam has not adopted the UGC Regulations of 2010 or 2018. Therefore, the UGC Regulations do not strictly apply to the present case. He further submits that a Coordinate Bench of this Court in Prof. Archana Sharma -Vs- State of Assam & Ors. 2019 (3) GLT 392 in the given facts of that case came to a finding that the UGC Regulations having not been formally adopted by the State, the Resolution of the Executive Council of the Gauhati University constituting an Advisory Board for selection of Vice Chancellor of the University was not interfered with. In the appeal filed before the Division Bench of this Court by the writ petitioner, namely W.A No. 109/2019, the Division Bench upheld the decision of the learned Single Judge while observing that the UGC Regulations are to be considered directory and not mandatory. He therefore submits that the ratio laid down squarely covers the present case. [6.] The learned Advocate General by further referring to the affidavit-in-opposition filed by the respondent No. 5 on 21.09.2022 more particularly at paragraph Nos. 4 & 5 of the said affidavit submits that the respondent No. 5 never received the Notifications dated 09.02.2021 and 17.02.2021 from the concerned authorities and therefore, she never attended any Selection Committee meeting for Teachers at the University as the nominee of the Chancellor. Therefore, the respondent No. 5 is not connected in any manner with Page No.# 7/10 any of the activities of the University concerned other than being a nominee member and Chairman of the Chancellor in the Advisory Board-cum-Search Committee for recommending the panel of three (3) persons for appointment as Vice Chancellor of the University.
[7.] Similarly, by referring to the affidavit-in-opposition filed by the respondent No. 3, the learned Advocate General submits that the respondent No. 5 did not respond or accept her nomination as an Expert Member for the Selection Committee for selection of Teachers of the University. Although a copy of the Notification was sent by the respondent No. 3, but the respondent No. 5 did not respond to the same nor did she participated in the selection process for appointment of Teachers. Under the circumstance, the learned Advocate General submits that the petitioner cannot have any legitimate grievance against the respondents and the writ petition should be dismissed. In support of his submissions, he relies upon the following authorities:-
(i) Kalyani Mathivan -Vs- K.V. Jeyaraj & Ors. (2015) 6 SCC 363
(ii) State of Uttarakhand -Vs- Sudhir Budakoti & Ors. 2022 SCC OnLine SC
420
(iii) Archana Sharma -Vs- University Grants Commission & Ors. 2019 (3) GLT 392
(iv) Judgment & Order dated 16.08.2019 in W.A No. 109/2019, Prof. Archana Sharma -Vs- UGC & 4 Ors.
Page No.# 8/10 [8.] I have heard the submissions made by the learned counsels for the rival parties and I have also perused the materials available on record. [9.] As may be noticed, the grievance projected by the petitioner is with regard to the nomination and appointment of the respondent No. 5 as the Member and Chairman of the Advisory Board for appointment of the Vice Chancellor of the University in view of the fact that the respondent No. 5 was nominated as the Expert Member of Selection Committee or selection of Teachers of the University. It may be seen that such appointment has been made in exercise of the powers vested under Section 6 (i) (b) and Section 6 (ii) (b) of Chapter - IV of the Statutes. The appointment of the respondent No. 5 as member of the Advisory Board and also the Chairman vide Notification dated 03.03.2022 is also under the Statutes. In the terms and conditions for appointment to the post in question, it provides for the eligibility of the applicants to be ascertained on the basis of the UGC Regulations, 2018 but does not otherwise provide that selection for the post in question would be done in terms of the provisions of the UGC Regulations, 2018. The constitution of the Advisory Board is found at Sub-Clause 1.1 of Clause 1 of the Statutes. There are no materials on record to show that the UGC Regulations has been formally adopted by the State.
Page No.# 9/10 [10.] It is further noticed that the case referred to by the learned Advocate General i.e., Prof. Archana Sharma (supra) both before the Single Bench and the Division Bench speaks for itself on the non-adoption of the UGC Regulations in the State. The Division Bench of this Court relying upon the case of Kalyani Mathivan (supra) held that the UGC Regulations, 2010 has to be considered as directory for Gauhati University and therefore, in the given facts of the case that was being considered, the Court held that there was no necessity to take recourse to Clause 7.3.0 of the UGC Regulations for selection of Vice Chancellor of the University and that the same can be undertaken in terms of the relevant provision of the Gauhati University Act. [11.] The Apex Court decision in Kalyani Mathivan (supra) was also subsequently referred to in State of Uttarakhand -Vs- Sudhir Budakoti & Ors. (supra). Coming to the present case, as already stated herein above, the UCG Regulations has not been adopted by the State Government and the only reference made in respect to the selection to the post of Vice Chancellor of the University is the screening of the applicants on their eligibility on the basis of the UGC Regulations, 2018 and that by itself in my considered view cannot be construed to mean that the UGC Regulations, 2018 will have to be strictly applied in the selection process as well particularly, when the University has its own Statutes for the purpose . In fact, the Statutes particularly at Chapter - IV provides for the manner and term of appointment of Vice Chancellor of the University including the powers and functions to be exercised or performed in detail. For this reason, the other contentions raised by the petitioner need not be gone into.
Page No.# 10/10 [12.] Thus, upon due consideration, I do not find merit in the writ petition and the same is accordingly dismissed. No cost.
JUDGE Comparing Assistant