Calcutta High Court
Dr. Basabi Bhattacharya vs Jadavpur University And Ors. on 8 March, 2004
Equivalent citations: (2004)3CALLT301(HC)
Author: P. Ray
Bench: Pradipta Ray
JUDGMENT P. Ray, J.
1. Jadavpur University issued an advertisement being its Employment Notification No.A/2/C/7/2002 inviting application for appointment to various teaching posts including the post of Professor of Applied Economics (Financial Economics) at serial No.l(b) (hereinafter referred to as the 'disputed post'). For the disputed post prescribed essential and desirable qualifications were :
Qualification Essential: For the posts of SI. No.l(b) to l(d).
An eminent scholar with published work of high quality actively engaged in research with 10 years' of experience in post-Graduate teaching and/or research at the University/National level Institutions, including experience of guiding research at doctoral level.
OR An outstanding scholar with established reputation who has made significant contribution to knowledge.
For the post of Applied Economics Post Graduate degree in Economics or related relevant disciplines.
Desirable: For the post of Sl. No.l(b) Proven ability to teach Economics Theory, relevant to Financial Economics at the PG Level and conduct research in Financial Economics.
Specialisation : For the post of Sl. No.l(b).
Applied Economics (Financial Economics).
2. In response to the said Employment Notice the writ petitioner Dr. Basabi Bhattacharya, a Rader in the Department of Economics, Jadavpur University, and respondent No.4, Dr. Anajan Chakraborty, a Reader in the Department of Economics of Calcutta University, among others, applied for the disputed post. The Selection Committee constituted for the disputed post in its meeting held on April 8, 2003 recommended the names of the respondent No.4 and the writ petitioner placing respondent No.4 at Serial No.l and the writ petitioner at Serial No.2 in order of preference. The said recommendation of the Selection Committee was sent to the Executive Council of the Jadavpur University (hereinafter referred to as 'the University') for acceptance. Against such selection of the respondent No.4 the writ petitioner submitted a representation to the Chancellor of the University complaining that the respondent No.4 was not eligible to be considered. The said representation was sent to the Executive Council by the Chancellor for consideration. Before placing the said representation before the Executive Council the Vice-Chancellor referred the same to the Dean of the Faculty of Arts. The Dean sent a reply that the Selection Committee regarded the respondent No.4 as an outstanding scholar and selected him although he did not have the required teaching experience. The Executive Council in its meeting held on April 16, 2003 accepted the recommendation of the Selection Committee for appointment to the disputed post. In this writ petition the writ petitioner has challenged the said selection for the disputed post of Professor.
3. Dr. Basabi Bhattacharya, the writ petitioner has pointed out that Dr. Anjan Chakravorty, the respondent No.4 did not have the requisite teaching experience and was not eligible to be considered for the disputed post. Admittedly, Dr. Chakravorty had only seven years' teaching experience In the University and minimum experience required for the disputed post was ten years' experience In Post-Graduate teaching including experience of guiding research at doctoral level. However, an outstanding scholar with established reputation who made a significant contribution to knowledge was also entitled to be considered and no minimum experience was prescribed for such an outstanding scholar.
4. Mrs. Chameli Majumdar, learned Advocate appearing for the Jadavpur University has submitted that the impugned selection having been made by a duly constituted Selection Committee with experts in the field, this Court should not sit in appeal over the decision of the Selection Committee. According to her the scope of judicial review is confined to the decision making process and there being no irregularity therein, this Court should not interfere with the decision of an expert Selection Committee.
5. It is well-settled that the Court in exercise of its power of judicial review should not normally interfere with the selection made by expert Selection Committee in academic bodies if the prescribed decision making process has been substantially followed and principles of fair play adhered to. The Court is to accept the comparative assessment of merit made by the Selection Committee unless such assessment is hit by the Wednesbury principles of unreasonableness'. But in the present case the writ petitioner has raised a substantial and important question regarding eligibility of the respondent No.4. University or its Selection Committee cannot deviate from its own prescribed eligibility criteria and select an ineligible person. Consideration, selection and appointment of an ineligible candidate by any authority within the meaning of Article 12 of the Constitution of India is per se illegal, arbitrary, unfair and violative of Articles 14 and 16 of the Constitution of India. It is now well-recognised that in Constitutional systems governed by rule of law and the principle of separation of power, no authority whether executive or legislative, can claim absolute immunity from judicial review. To appreciate the scope and extent of the power of judicial review reference may be made to the decision of the Supreme Court in Tata Cellular v. Union of India, reported in (1994)6 SCC 651. In the said decision the Supreme Court has approvingly quoted the observations Lord Diplock and explained "Wednesbury unreasonableness": -
'The modern statement of the principle is found in a passage in the speech of Lord Diplock in Council of Civil Service Unions v. Minster for Civil Service:
'By "irrationality" I mean what can now be succinctly referred to as "Wednesbury unreasonableness". (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at."
"At this stage, the Supreme Court Practice, 1993, Vol.1, pp. 849-850, may be quoted :
'4 Wednesbury principle'- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the Court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M R.)".
6. In para 77 of the said decision the Supreme Court has laid down the duty of the Court in this regard:
"77.The duty of the Court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision -making authority exceeded its powers.
2. Committed an error of law,
3. Committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the. fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision-maker must understand correctly the law the regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness,
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, consider whether something has gone wrong of a nature and degree which requires its intervention'."
7. In the present case subject-matter of determination is not assessment of comparative merit of the writ petitioner and the respondent No.4 but whether respondent no. 4 was at all eligible to be considered in exceptional category and selected for appointment as Professor.
8. Mrs. Majumdar has referred to several decisions of the Supreme Court in support of her submission that the Court should not lightly interfere with the view taken by high experts and the reason furnished by the Dean of Faculty of Arts. No doubt the expert's opinion should be respected and the Court should not ordinarily venture to foist its own opinion in preference to the opinion or views of the experts. However, that does not mean that the opinion or view of the Selection Committee of the experts is beyond scrutiny of the Court under all circumstances. The decision of a decision-making body consisting of highly qualified persons is also subject to judicial scrutiny and if an opinion of an expert committee or Selection Committee is hit by the 'Wednesbury principles of unreasonableness' such decision is also liable to be interfered with. In the present case the Selection Committee house nowhere described or recorded that the respondent No.4 is regarded as an outstanding scholar entitled to be placed in the extra-ordinary category. The reason furnished by the Dean of the Faculty of Arts does not show that the respondent No.4 could be regarded as outstanding achievement with remarkable contribution to the concerned academic field. Mere publication of articles in National or International Journals does not elevate a scholar to the level of outstanding. Even candidates with ten years' experience were also required to have published work of high quality. A person must be generally recognised in the concerned academic field as outstanding with sufficient contribution to the knowledge in the subject. There is nothing on record to show such recognition at the national or international level. The writ petitioner has also published several articles in several journals and published books. The Selection Committee might have accepted the respondent No.4 as a better and more suitable candidate than the writ petitioner but the materials on record do not even ex-facie suggest that the respondent no.4 could be regarded so outstanding as to deserve extraordinary special consideration.
9. Mrs. Majumdar has referred to the following decisions :-
1. Kumar Bar Das v. Utkal University & Ors.,
2. Dalpat Abasaheb Solanke v. Dr. B.S, Mahajan,
3. Kuldip Chand v. State of H.P. & Ors.,
10. In Kumar Bar Das (supra) the Supreme Court did not go beyond the qualification as prescribed in the advertisement but relied upon the advertisement to hold that Kumar Bar Das was entitled to add his experience in research to his teaching experience and thus was eligible to be considered. In the present case admittedly the respondent No.4 did not have any other experience which could be added to his teaching experience.
11. In Dalpat Abasaheb Solanke v. Dr. B. S. Mahajan (supra) and Kuldip Chand v. State of H.P. & Ors. (supra) the Supreme Court was considering whether decisions of a competent Selection Committee on comparative merit can be interfered with by holding a different opinion on the fitness of a candidate for a post. The question involved in the present case is not identical with those in the aforesaid Supreme Court cases.
12. Mrs. Majumdar has submitted that the Selection Committee is not required to record to furnish reason in support of its decision and has referred to the decisions of the Supreme Court in National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyan Raman and Ors., and in Major General IPS Dewan v. K.S. Paripoornan, .
13. In Dr. K. Kalyan Raman (supra) the Supreme Court was considering whether reasons were to be recorded by Selection Committee while making comparative assessment of candidates. As already pointed out that this Court is not embarking upon any scrutiny of the comparative assessment, if any, made by the Selection Committee but it is considering whether the Selection Committee was justified in considering a normally ineligible person without recording any reason for placing him in the extra-ordinary or exceptional category to deserve special consideration. Supreme Court has not laid down any general proposition of law that in no case the Selection Committee is required to record reasons. Reason is an ingredient of reasonableness. If principle of "Wednesbury unreasonableness" are applicable to administrative decisions, those should be supported by reasons, may be very brief, and unless Selection Committee records and indicates briefly the basis of its decision there cannot be any safeguard against subjective consideration, favouritism and procedural unfairness. It is very easy to maintain a show of fairness to camouflage a subjective decision upon extraneous consideration, if recording of reasons is not regarded necessary in appropriate circumstances.
14. There cannot be any abstract proposition of law of universal application that an authority subject to the Constitutional principle of judicial review is not required to record reason under any circumstances. Normally when simply comparative merit is assessed a Selection Committee may not be required to record reasons but that does not mean that even when Selection Committee places a candidate in exceptional or extraordinary category it is under no obligation to record reasons why such exceptional-category-treatment is accorded to a candidate particularly when the candidate is otherwise ineligible to be considered.
15. The observations of the Supreme Court in the last paragraph of its judgment in Major General IPS Dewan (supra) and in Dr. K. Kalyan Raman (supra) were made in the context of the submission that absence of reason itself vitiated the process of selection for promotion. The Supreme Court did not accept the said submission and observed "unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons why they are not selecting a particular person and/or why they are selecting a particular person, as the case may be".
16. There is difference between obligatory legal requirement and desirability. Recorded reason not only makes an order/decision transparent but also ensures objectivity and eliminates subjectivity or extraneity as far as possible. It also helps the decision making authority to withstand the scrutiny of judicial review. Absence of reason may not by itself vitiate an otherwise valid and lawful decision but it makes the order/decision more vulnerable to allegations of extraneous consideration, non-application of mind and arbitrariness. Reason is concomitant of rationality and enlightenment. Rationality demands reasons and those who have reason should record reasons, however, brief it may be, inasmuch as, it puts an end to speculation. Transparency in the process and the right to information are being recognised as associated with the right to life guaranteed under Article 21 of the Constitution of India. A candidate has the right to know recorded reason why an otherwise ineligible candidate has been accorded extraordinary classification.
17. Undisputedly the respondent no.4 did not have ten years' teaching experience at the material point of time and he was ineligible unless he was 'accepted as outstanding scholar with established reputation and significant contribution to knowledge'. Selection Committee's proceedings have been disclosed. The Selection Committee has not recorded anything which would show that the respondent No. 4 was considered and accepted as an outstanding scholar with established reputation and contribution to the relevant academic field. The candidate who did not have the prescribed minimum teaching experience for appointment to the post of Professor, was not ordinarily eligible to be considered for appointment to the disputed post.
18. Acceptance of a candidate without the required experience as 'outstanding' and treating him as an exception to the general rule, must be founded upon intelligible and acceptable basis. Any decision by way of exception to general rule or ordinary course of events should be informed with reasons justifying adoption of exceptional course. Reason is the most effective safeguard against arbitrariness and unfairness in action. As already pointed out the Selection Committee has not even recorded or described the respondent No. 4 as 'outstanding', not to speak of recording reasons for regarding the respondent No. 4 as 'outstanding scholar with established reputation and contribution to the particular field of knowledge',
19. In their affidavit-in-opposition Jadavpur University has disclosed a copy of the Resolution No. 66 dated April 16, 2003 of the Executive Council of the University whereby the representation of the writ petitioner forwarded to it by the Chancellor of the University was considered and recommendation of the Selection Committee was accepted. It has been recorded in the said Resolution that in response to a query of the Vice-Chancellor, Dean, Faculty of Arts, reported :
"Even though selected candidate No.l, Dr. Anjan Chakraborty had only 7 years of teaching experience the Selection Committee unanimously considered him to be outstanding scholar with established reputation who has made significant contribution to knowledge as evidenced by his outstanding contribution to reputed National Journals (2) and International Journals (5) and in book{s) published through International Publishers, in different areas of Applied Economics including Financial Economics."
20. As already pointed out the Selection Committee has not mentioned anything that Dr. Anjan Chakravorty was being a regarded as an outstanding scholar with established reputation and significant contribution. The Vice-Chancellor himself was the Chairman of the Selection Committee. He presided over the said meeting of the Selection Committee. If the Selection Committee really discussed and decided that Dr. Chakravorty was an outstanding scholar, and deserved exceptional treatment the Vice-Chancellor would have also known it and there was no necessity of making any query from the Dean of the Faculty of Arts. The said observation of the Dean of the Faculty of Arts was made after the writ petitioner had sent a written complaint to the Chancellor and the said representation was forwarded by the Secretary to the Chancellor to the Vice-Chancellor. The observation of the Dean was a post-complaint observation and repetition of the language used in the Employment Notification. The query of the Vice-Chancellor indicates that he had no knowledge why the respondent No. 4 was recommended and that there was no discussion in the Selection Committee. It appears to this Court that the said observation or explanation by the Dean of the Faculty of the Arts was furnished as an after-thought in order to justify the impugned selection. It is well-known principle that a new reason not mentioned or suggested in an order or proceeding cannot be introduced by affidavit or otherwise to improve upon the impugned decision. Validity of a decision is to be judged on the basis of the reason as recorded in the decision or reflected from the records. In this connection reference may be made to the oft-quoted observation of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, :-
". . . when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
21. In its affidavit Jadavpur University has disclosed the full Bio-Data (Curriculum Vitae) of the represent No.4, Dr. Anjan Chakravorty. It appears from the said Bio-Data that at the material point of time only one book viz., 'Margin of the Margin : A Profile of an unrepentant Post-Colonial Collaborator' was published from Calcutta. The said book was written in association with two other scholars. Articles numbering about 8 were published. Articles on Financial Economics by Dr. Chakravorty were still to be published. Dr. Chakravorty obtained his Ph.D. degree in Economics from University of California, U.S.A. and received an award from the said University for outstanding academic achievements in the year 1995-96.On the material date not a single research-scholar was enrolled with him for Ph.D. degree under his guidance. His Bio-Data discloses that only one scholar was planning to enroll herself for doctoral research under his guidance by April, 2003. As already pointed out, publication of high quality work in the field was also a requirement for those with ten years' teaching experience.
22. Although it is for the Expert Committee to judge whether a particular person can be said to be an outstanding scholar, the career particulars as presented before the Selection Committee do not reflect any such exceptional or outstanding academic achievement so that Dr. Chakravorty with only 7 years' teaching experience could be said to be such an outstanding scholar with significant contribution as made him eligible to become Professor without having required minimum years of experience. May be, Dr. Chakravorty was/is a bright scholar with potentiality and expertise in the field of Financial Economics but on the basis of the particulars available on the material date no reasonable person could consider him so outstanding and his academic contribution to the field of Financial Economics so remarkable that he was to be selected for the post of a Professor departing from and/or ignoring normal eligibility criterion prescribed for appointment to the post of Professor.
23. The disputed post of Professor has been sanctioned by the University Grants Commission during IXth Plan with required financial support. University Grants Commission (hereinafter referred to as the 'UGC' ) has prescribed the eligibility criteria for post of Professor. The eligibility qualifications as notified in the advertisement were the same as those prescribed by the UGC University Grants Commission (the minimum standards of instructions for the grant of first degree through formal education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences) Regulations, 1985 has expressly provided :-
"No teacher shall be appointed who does not fulfill the minimum qualification prescribed for recruitments as per University Grants Commission (Qualifications required of a person to be appointed to the teaching staff of a University or other Institutions affiliated to it Regulations, 1982) notified under section 26(i)(e) of the University Grants Commission Act, 1956."
24. As the disputed post has been sanctioned and the eligibility criteria have been prescribed by the UGC this Court wanted to ascertain the views of the UGC on the question who may be regarded as an outstanding scholar with established reputation and significant contribution to the knowledge and directed the UGC to place its views by an affidavit.
25. In response to the direction of this Court the University Grants Commission has affirmed an affidavit to give its views on the question who may be regarded as an outstanding scholar. According to University Grants Commission 'an outstanding scholar is one who has established himself or herself (and is recognised and acclaimed by reputation) as a scholar of repute both at National and International levels by virtue of his/her exceptional contribution both in teaching and research published in peer-referred Journals of National and International repute'. It further appears that upon a representation submitted by the writ petitioner against impugned selection the University Grants Commission prima facie found substance in the complaint and requested Jadavpur University to furnish reason for selecting a candidate without following the UGC's regulations.
26. The writ petitioner had more than 21 years' experience of teaching Financial Economics, International Economics and Advanced Monetary Economics at the Post Graduate level in Jadavpur University itself. Number of her publications was not less than that of the respondent No.4. It is not possible for this Court to say anything about the standard and qualities of the publications either of the writ petitioner or of the respondent No.4 but this much is clear that on the date of selection there was no material on record for which Dr. Chakravorty could be reasonably branded as outstanding scholar with established reputation of making significant contribution to knowledge at the national or international level to earn eligibility for appointment to the post of Professor without having requisite teaching experience.
27. The disputed post of Professor has been created under a grant given by the University Grants Commission (In short UGC). A uniform eligibility criteria for consideration for a post of Professor have been prescribed by the UGC for all the Universities. Outstanding achievement in the academic field has certain objective elements. In its affidavit UGC has explained what is actually means by "outstanding achievement and contribution to the field of knowledge". Assuming that such views of the UGC are not binding on the University, those indicate the standard or level of achievement a person is to reach before he can be recognised as 'outstanding' for the purpose. On the basis of the materials before the Selection Committee no authority could have reasonably placed the respondent No. 4 in the exceptional category of 'outstanding with remarkable contribution to the field of knowledge'. Selection of the respondent No. 4 is hit by the "Wednesbury Principles of Unreasonableness" and is liable to be set aside.
28. The writ petitioner has prayed for a writ quashing the selection of the respondent no.4 and directing the University to appoint her in the disputed post.
29. Mrs. Majumdar submits that this Court should not issue any direction to appoint the writ petitioner and if the selection and appointment of the respondent No.4 is set aside, it is for the Selection Committee to reconsider and make fresh selection.
30. Ordinarily this Court should not select and issue direction to give any appointment. But in the present case the Selection Committee has also found the writ petitioner fit and competent for the disputed post of Professor and has selected her as the second candidate below the respondent No. 4. Thus the Selection Committee has already selected the writ petitioner as the No. 2 candidate and there is no necessity of any further consideration by the Selection Committee. The Executive Council of the University has also accepted the recommendation of the Selection Committee selecting the writ petitioner as No. 2 candidate in order of preference.
31. In such circumstances, when the writ petitioner has been selected and accepted as the no.'2 candidate in order of preference and the selection of first candidate is set aside on the ground of ineligibility there is no necessity for any further reconsideration by the Selection Committee. The Executive Council is now required to take the formal decision regarding appointment of the writ petitioner.
32. Under the circumstances, the selection of the- respondent No. 4 Dr. Anjan Chakravorty, for the disputed post of Professor of Economics (Financial Economics) is set aside and the Executive Council of the Jadavpur University and other authorities are directed to consider the question of appointing the writ petitioner to the disputed post of Professor and take the necessary decision within one month of this date of order.
The writ petition is thus allowed.
Urgent xerox certified copy of this order, if applied for by the parties, be given.