Calcutta High Court (Appellete Side)
Visva Bharati & Others vs Baidya Nath Saha & Others on 3 December, 2008
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble CHIEF JUSTICE SURINDER SINGH NIJJAR
And
The Hon'ble JUSTICE SANJIB BANERJEE
MAT No. 847 of 2008
CAN 9225 of 2008
CAN 9224 of 2008
WP No. 16366 (W) of 2007
VISVA BHARATI & OTHERS
-Versus-
BAIDYA NATH SAHA & OTHERS
For the Appellant: Mr. Joydeep Kar,
Mr. Srenik Singhvi.
For the Respondent No. 1: Mr. Tapabrata Chakraborty.
For the Respondent No. 2: Mr. A.K. Gupta.
Heard on: November 18, 2008 & November 20, 2008.
Judgment on: December 3, 2008.
SANJIB BANERJEE, J. : -
The appellants say that the Court in exercise of its authority under Article 226 of the Constitution of India may not issue a writ of mandamus commanding an appointment to be given to a person initiating the writ proceedings. In isolation, the contention appears to be reasonable and is the generally accepted norm.
The appellant university sought applications for a post reserved for scheduled castes in the year 2003. On June 11, 2003 the first respondent-writ petitioner was called for an interview. Till or about 2006 no appointment was made and on a query from the writ petitioner the appellant university cited the failure of the University Grants Commission (UGC) to respond to a clarification sought by the university as the reason for the delay in appointment. It transpires that on February 26, 2006 the selection committee - comprising eminent personnel - forwarded a resolution. There is a dispute as to the tenor and interpretation of the resolution. The initial words of the resolution would suggest that a panel consisting of more than one name had been recommended, yet the photocopy of the resolution relied upon by the university shows only one person - Ajit Kumar Mondal - as the recommended candidate.
Mondal did not respond to the letter of appointment apparently issued by the university. The writ petitioner inquired as to why upon Mondal not taking up the post, the writ petitioner had not been called upon to do so. The university replied that the selection committee had recommended a one-person panel and no name other than Mondal figured in it. The reply indicated that fresh applications would be invited for the post. The writ petitioner sought information under the Right to Information Act and received a response that may be not be altogether irrelevant in assessing the matters in issue. The re-advertisement was issued on or about May, 2007. The first respondent challenged the re- advertisement and succeeded in having it quashed and a consequential direction given that the writ petitioner be issued the letter of appointment.
Six applicants had responded to the initial advertisement. Three of the applicants were either called to or turned up at the interview. The university gives a distinct impression that the third of the candidates other than Mondal and the writ petitioner should not be considered and says that as the selection committee had only recommended one name, and upon that one person declining to accept appointment, fresh advertisements had to be called for. The university insists that the writ petitioner was ineligible to apply in the first place. It says that one of the essential criteria stipulated in the advertisement for the post was that the candidate should have eight years' experience in fieldwork research in adult education. The university relies on item 14 in the application form submitted by the writ petitioner to say that it would be evident therefrom that the writ petitioner did not have the requisite experience in fieldwork research.
In the re-advertisement, fresh criteria were stipulated, some of which including age would debar the writ petitioner from applying for the re-advertised post. The university says that the criteria had been set out in accordance with the UGC guidelines and there is no reason to deduce that the original criteria had been modified to specifically exclude the writ petitioner.
In the affidavit used by the university in the trial court it had set out a chart indicating, inter alia, the experience of the three candidates who had appeared at the interview. The fifth column of the chart shows that both Mondal and the writ petitioner had eight years' experience. The learned Single Judge has accepted this as an admission by the university as to the writ petitioner fulfilling the criterion as to requisite experience. The university argues that the chart relied upon in its affidavit before the learned Single Judge indicated the length of experience but did not specify, nor can it be read to have been an admission of, the quantum of fieldwork research experience. The university has relied on a chart at page 18 of the stay petition filed in connection with this appeal to show that the writ petitioner lacked the requisite experience that the post demanded. It is of some significance that this document at page 18 of the stay petition had been prepared a few weeks after the order under appeal had been passed.
The university contends that no mandamus for appointment could have been issued; that the university should have been left free to choose the best candidate upon undertaking the selection exercise afresh; that the writ petitioner had waited long and till the publication of the re-advertisement to come to Court; and, that upon the learned Single Judge coming to a finding that the selection process was anomalous, the writ petitioner could not have been given any benefit as the writ petitioner had undergone the same faulty selection process.
The appellants first refer to a judgment reported at (1991) 3 SCC 239 (U.P. State Road Transport Corporation & anr. v. Mohd. Ismail & ors.) to suggest that the court cannot take upon itself the role of the statutory authority and take a decision on its behalf. In that case the writ petitioners had been appointed as drivers in the erstwhile U.P. Government Roadways. Upon the formation of a corporation to take over the Roadways, the writ petitioners were absorbed in the corporation. The corporation framed regulations prescribing medical tests for drivers every year for assessing their suitability for the job. The corporation issued a circular that all drivers should be medically examined and the services of those found unfit should be terminated upon payment of retrenchment compensation. The writ petitioners were subjected to medical examination and their eyesight being found defective, they were discharged. The High Court allowed the writ petitions directing the corporation to offer alternative jobs to the writ petitioners. On such facts the law as enunciated by the Supreme Court is found at paragraph 12 of the report:
"12. The High Court was equally in error in directing the Corporation to offer alternative job to drivers who are found to be medically unfit before dispensing with their services. The court cannot dictate the decision of the statutory authority that ought to be made in the exercise of discretion in a given case. The court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The court could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law. Whether alternative job is to be offered or not is a matter left to the discretion of the competent authority of the Corporation and the Corporation has to exercise the discretion in individual cases. The court cannot command the Corporation to exercise discretion in a particular manner and in favour of a particular person. That would be beyond the jurisdiction of the court."
The appellants next refer to a judgment reported at (2003) 10 SCC 136 (Ludhiana Central Cooperative Bank Ltd. v. Amrik Singh & ors.) and the following sentence in paragraph 8 thereof:
"8. ... Even otherwise, it is well settled by now that a person whose name is said to find place in a select panel has no vested right to get appointed to the post in spite of vacancies existing. ..."
Judgments reported at 1988 (Supp) SCC 542 (Bihar State Construction Corporation & ors. v. Thakur Munendra Nath Sinha & ors.) and (1994) 4 SCC 448 (State of Haryana v. Naresh Kumar Bali) are relied upon by the appellants in support of their contention that a Court cannot direct appointment as such a direction does not fall within the scope of the writ of mandamus. The Bihar State Construction order runs into four paragraphs with the Supreme Court observing that it was not a proper exercise of jurisdiction on the part of the High Court to have issued a writ of mandamus for the appointment on ad hoc basis of the respondent before the Supreme Court. In the Naresh Kumar Bali matter the High Court had directed an appointment on compassionate ground to a promotional post.
The writ petitioner refers to the university's excuse proffered to him on September 10, 2005 that "on the issue of filling up the post certain clarifications are awaited from the UGC" and the stand taken on affidavit by the UGC that no clarification had, in fact, been sought by the university. The writ petitioner insinuates that there was mala fides on the part of the university in waiting to accommodate an in-house candidate (Mondal) and resort to the process of re- advertisement upon Mondal declining to accept the post. The writ petitioner refers to the scheduled castes and tribes' local federation's query of September 18, 2006 and the university's response of November 11, 2006 that only one person was empanelled by the selection committee and upon the recommended candidate not joining, the university had decided to re-advertise the post. The writ petitioner sought information concerning appointment to the post and demanded, inter alia, material as to the process of evaluation, the marks awarded and the reason behind empanelling only one candidate. The Central Public Information Officer informed the writ petitioner that the evaluation was "on the basis of all aspects including performance in the interview" and that only one person had been empanelled though no reasons were given for empanelling only one candidate.
The learned Single Judge referred to the eligibility criteria and inasmuch as there was no objectivity in the selection process in the sense of marks being awarded, concluded that the procedure adopted by the selection committee could not be said to be fair. The learned Single Judge noticed the resolution and took a view that the single-member panel said to have been put forth did not agree with the preceding words of the resolution. The relevant resolution reads as follows:
"RESOLVED that the recommendation of the Selection Committee in the meeting dated 11-06-2003 for the post of Assistant Director Adult Continuing Education and Extension as stated below be approved and acted upon.
Name of the post Recommendation of the
Selection Committee & terms of
appointment
Assistant Director Six candidates were called for interview
(Adult & Continuing and
Education & three appeared before the Selection
Extension) Committee.
The Committee recommended the following
panel of
name in order of preference for
appointment to the
position in the Scale of Pay of Rs. 12000-
18300/-
1. Ajit Kumar Mondal"
The learned Single Judge was of the view that the conduct of the university in allowing four years to drift since the initial advertisement was published and in "elbowing out the petitioner" by setting new benchmarks for qualification were not bona fide and against the principles of fair play. The learned Single Judge relied on a judgment reported at (1986) 2 SCC 679 (The Comptroller and Auditor General of India, Gian Prakash, New Delhi & anr. v. K.S. Jaganathan & anr.) and paragraph 20 thereof to ultimately direct that the university and its appropriate officers were to issue a letter of appointment to the writ petitioner within four weeks from the date of communication of the order. The operation of the order was stayed to enable the university to test the matter. In this appeal the stay has been continued till the disposal of the matter.
The appellants say that the reliance on the K.S. Jaganathan case was misplaced as such matter dealt with the implementation of a government policy of reservation which had been ignored by the office of the Comptroller and Auditor General of India. The university points out that the directions ultimately issued by the Supreme Court were in exercise of its powers under Article 142 of the Constitution. But the principle laid down in that case appears from paragraph 20 of the report that in a fit and proper case a High Court may, in exercise of its jurisdiction under Article 226 of the Constitution, itself pass an order or give directions that the statutory authority whose action is questioned should have passed or given:
"20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
The writ petitioner had not come to court to challenge the process of selection but had instituted the proceedings upon the re-advertisement being issued. The grievance as to the process of selection was irrelevant at such stage as the writ petitioner had not complained of the letter of appointment being issued to Mondal at the appropriate stage. There were six applicants and of them three showed up for the interview. Substantial correspondence were exchanged between the writ petitioner and the university and at no stage was the writ petitioner told that he had failed to meet one of the essential criteria to be considered for the post. The discussion in the impugned order as to the faulty selection procedure should be read only in the light of the belated stand taken by the university that the writ petitioner was ineligible since the court found that a strict adherence to the criteria should have disqualified Mondal by the same token.
While it is true that upon the court finding that the selection process was awry, the court could not have relied on the selection process to justify the candidature of a person not first placed in the panel, the facts as they present themselves in the instant case did not call for any inquiry into the process of selection. Upon Mondal being selected and issued the letter of appointment and the writ petitioner not complaining despite being made aware of the letter of appointment having been issued to Mondal, it was no longer open to the writ petitioner to challenge the selection process. The writ petitioner's case should have been viewed merely as that of an eligible candidate who ought to have been considered for appointment upon the best-placed candidate not responding to the letter of appointment.
If such was the contention of the writ petitioner that merited adjudication, the process of selection need not have been looked into. It was then only a question of assessment of the right of a lesser-placed candidate to have the university consider his candidature upon the best-placed candidate being unavailable. With respect, the scope of the writ petition ought to have been so confined. Just as the writ petitioner could not have been permitted to flog the dead horse by attacking the selection process when the best-placed candidate had not turned up to take up the post, the university was not entitled to urge that the writ petitioner was ineligible as there was no material on record to show that the selection committee had said as such. It was also reasonable, given the facts, to infer that the distinguished members of the selection committee would not have worded the opening lines of the resolution in the way they had or used the expression "from the following panel of name in order of preference" to forward a solitary-name panel.
The educational qualifications of the three interviewees were set out in the university's affidavit and are quoted in the judgment under appeal. On Mondal not being interested, only the writ petitioner and the other candidate, Subrata Biswas, were left in the fray and in the absence of anything to show that either of them was ineligible, it was incumbent on the university to choose between the two for the post.
The university's sitting over the matter for a substantial period of time, its having offered the post to an in-house employee who apparently did not meet the requisite educational qualifications and its subsequent decision to re-advertise the post without offering the job to the two other eligible candidates, were ground enough to infer mala fides on the part of the university to keep the other candidates at bay. There was no reason, now that UGC has confirmed that the university had sought no clarification from it, for the appellants to have dawdled over the appointment and lingered till the writ petitioner stood disqualified on account of age under the new set of guidelines prescribed by UGC to invite fresh applications for the post. There is more than a whiff of prejudice about the university's dealing with the writ petitioner.
The learned Single Judge found that the process of selection had gone awry. With the best-placed candidate getting cold feet and the university insisting that the third interviewee was altogether unfit to be considered, the direction to appoint the writ petitioner was merely consequential as it may have been perceived to be the only thing left to do in the circumstances. The only difficulty with the solution is that the third candidate appears to have been left high and dry. The third candidate cannot be given the short shrift only because he chose not to come to court; he cannot be held to have been ineligible in his absence. If the original selectee could have been allowed to come through the process when it was doubtful as to whether he possessed the necessary academic prerequisite - and it must be remembered that Mondal's initial selection is not in question in these proceedings - the third candidate cannot be dealt with harshly for his alleged disqualification. In fact, the disqualification argument needs to be discarded all around. For one, it is expected that the basic minimum eligibility screening would have been completed before an invitation was sent out to an applicant to attend the interview; it would be irrational to call aspirants to the interview if they were bound to be rejected on being unable to meet the essential minimum norms for the post.
The response of the university to the writ petitioner's query under the Right to Information Act is informative, in the sense that there is acknowledgement therein that there were no objective guidelines as to evaluation that had been set for the interview or for the academic qualifications of the interviewees. Though it is more than likely that the panel recommended by the selection committee contained another name in addition to Mondal or it contained the names of the two other candidates who had been called to the interview, upon the university insisting that the panel contained only Mondal's name, there is nothing from which it can be gauged as to which of the other two candidates was better placed or is the more meritorious. The order under appeal is affirmed in so far as it quashed the re-advertisement and is modified in its remaining part by directing the university to undertake a selection process between the two remaining candidates - the writ petitioner and Subrata Biswas - upon setting down objective standards of evaluation; giving weightage by way of marks to the educational qualifications, experience and performance at a fresh interview of the two candidates that may be taken. In the event, however, that Subrata Biswas is not interested or does not show up at the interview, the appellant should be appointed. The entire exercise should be completed by the university within a period of six weeks from date.
The appeal and the applications are disposed of accordingly. There will be no order as to costs.
Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
I agree.
(Surinder Singh Nijjar, C.J.) (Sanjib Banerjee, J.)