Calcutta High Court
Dr. Md. Ketab Ali vs State Of West Bengal & Ors. on 15 January, 2001
Equivalent citations: (2001)2CALLT293(HC), 2001(2)CHN389
JUDGMENT M.H.S. Ansari, J.
1. The facts in brief and to the extent relevant for the purpose of disposal of this writ application are as under;
The West Bengal University of Animal and Fishery Sciences (Respondent No. 2), for short W.B.U.A.F.S. was established in the year 1995 having been bifurcated from B.C.K.V. by West Bengal Act VI of 1995. The W.B.U.A.F.S.--the University is comprised of three faculties viz., (I) Faculty of Veterinary and Animal Sciences. (II) Faculty of Diary Technology and (III) Faculty of Fishery Sciences, An advertisement was made in leading newspapers by the University inviting applications from eligible candidates for selection in the teaching courses amongst others. Various teaching posts exists in the said three departments which were required to be filled up including that of the posts of Officers of the University. Amongst the teaching posts advertised in the various departments, applications were invited for the posts of Professors. Readers and Lecturers. For the post of Veterinary Medicine and Public Health in the faculty of Veterinary and Animal Sciences, two posts of Lecturers were advertised. The advertisement, annexure "b" sets out the number of posts to be filed up as also the qualifications required therefor.
2. In so far as the post of Lecturers two in number is concerned, which is the subject matter of the instant writ application, in the impugned advertisement the qualifications have been specified and it has been further stated in Clauses 6(d) and 6(e) as under;
"6(d): Ph. D. degree will be given preference.
(e): Age not above 35 years."
3. It is stated in the affidavit-in-opposition filed on behalf of the University that 28 number of applications were received and a Screening Committee was constituted by the Vice-chancellor to screen those applications. The Screening Committee recommended 22 number of applications being qualified to appear before the Selection Committee. The Selection Committee interviewed the candidates and selected Dr. Chandan Lodh and Dr, Ujjal Biswas, private respondents No. 8 and 9 respectively for the said two posts of Lecturers in the department of Veterinary Medicine and Public Health. Dr. Chandan Lodh, respondent No. 8 was selected against general quota and Dr. Biswas was selected against SC Quota. The recommendation of the Selection Committee was placed before the Executive Council who at its 12th meeting approved the recommendation whereupon letters of appointment were issued in favour of the private respondents No. 8 and 9. The petitioner being one of the candidates in the general category has questioned the aforesaid selection and prayed for quashing and/or setting aside the selection for the post of Lecturers in the Department of Veterinary Medicine and Public Health.
4. Four specific grounds of challenge have been taken in the writ application which according to the petitioner vitiated the selection process. We shall deal with the said contentions in seriatim.
5. Mr. Pranab Kr. Chatterjee, learned senior advocate appearing along with Mr. R. Chatterjee on behalf of the petitioner submitted that the preparation of the panel with less than three candidates in each of the two posts of Lecturers is violative of the statutory rules. The averment in paragraph 12 of the writ application is to the effect that two panels were prepared for the said two posts of Lecturers. One panel comprised of selected candidates i.e. respondent No. 8 (General category) and respondent No. 9 (SC category). The other panel is comprised of private respondent No. 10 (General category) and private respondent No. 11 (SC category). In the affidavit-in-opposition affirmed on behalf of the respondents No. 2 to 7 by Dibakar Jana, respondent No. 4, it has been stated, "that it was found to be judicious to prepare a panel with only suitable candidates whose performance in the interview was satisfactory and in the field of leaching research extension found to be much meaningful than other candidates appeared in the interview including the petitioner."
6. From the papers placed by the University, it will be seen that the panel is prepared by the Selection Committee as under;
"(c) Candidate Selected (1) (2) Dr. Chandan Lodh Age relaxation is allowed to Dr. Lodh as he is in service Candidate Dr. Ujjal Biswas (SC)
(d) Panel if any Dr. Suman De.
Dr. Asit Kumar Das(SC)"
7. It is the contention of the petitioner that as per the first statute framed in exercise of the power conferred under section 34(1) of the West Bengal University of Animal and Fishery Sciences Act. 1935 and Clause 108(2), it was incumbent upon the Selection Committee to prepare a panel of at least three candidates. For ready reference, relevant clause 105(3) is extracted hereunder:
"(3): The Selection/Standing Committee shall prepare a panel of at least 3 candidates, names arranged in order of merit in respect of each post. At least, 3 candidates fulfilling the conditions of recruitment shall have to turn up and to be interviewed by the Committee for preparing a valid panel."
8. Mr. Jaydip Kar appearing for private respondent Nos. 8 and 9 Mr. Milan Bhattacherjee, learned Sr. advocate for the respondent University submitted that more than three candidate appeared before the Selection Committee and the panel has been prepared from amongst them of the most meritorious. Candidates not found suitable have not been empanelled. Mr. Milan Bhattacharjee also referred to the averments as made in paragraph 12 of the affidavit-in-opposition.
9. The Selection Committee in terms of the aforesaid clause 105(3) was required to prepare a panel of at least 3 candidates in the order of merit in respect of each post. There are two posts of Lecturers. Even if the said two posts are treated as one post for general category and the other as reserved for SC category, then two separate panels were required to be prepared. The Selection Committee has not in my considered view complied with the aforesaid requirement of Clause 105(3) of the first statute in preparing separate panels of at least three candidates in the order of merit.
10. It was next contended that even though the advertisement did not mention that one of the two posts of Lecturers would be reserved for SC category candidate, the University authorities illegally and arbitrarily reserved one post for SC candidate to accommodate the respondent No. 9 (Dr. Ujjal Biswas).
11. Mr. Pranab Kr. Chatterje, learned senior advocate referred to and relied upon the averments of paragraphs 8, 9, 10 and 11 of the writ application and submitted that the advertisement published by the University did not specify that one of the two posts would be reserved for SC/ ST candidate and, therefore, the University could not reserve one post for SC candidate. Reliance in this connection was placed upon the judgments in Dr. Suresh Chandra Verma & Ors. v. The Chancellor, Nagpur University & Ors., .
12. Mr. Jaydip Kar relying upon the averments in affidavit-in-opposition traversing the aforesaid writ averments submitted that the writ petitioner admits of 100 point roster, the first post is to be reserved for SC candidate and, therefore, there can be no controversy that out of the two posts one has to remain reserved for SC. Even otherwise, it was contended by Mr. Kar that the petitioner being a general candidate is not concerned with the reserved post.
13. Mr. Milan Bhattacharjee, learned senior advocate on behalf of the University referring to and relying upon the averments as made in paragraphs 10 and 11 of the affidavit-in-opposition submitted that the advertisement was categorical in that it specified that Government orders relating to reservation for SC/ST candidate will be followed. It was submitted that in the aforesaid advertisement, it was clearly stipulated that the Government Order will be deferred to for reservation of posts. It is submitted on behalf of the University that the roster was prepared by the University on 21.1.2000 whereby 27th vacancy in Veterinary Medicine and Public Health was made for general, 32nd vacancy in Veterinary Medicine & Public Health was reserved for Scheduled Caste as a result, out of two posts of Lecturers, one post was for general, another post for SC. The Roster it was submitted, was prepared in terms of Roter prepared by the State Government. The Screening Committee screened 28 candidates, 13 candidates were found eligible for interview and they were interview and two candidates namely: Dr. Chandan Lodh (General), Dr. Ujjal Biswas (SC) were selected, 2 other candidates were empanelled by the Selection Committee.
14. In the advertisement, as noticed supra, several posts have been advertised. It is not indicated as to whether any post has been reserved cither for SC/ST candidate. There is, however, a statement at the end of the advertisement to the following effect;
"......Normal reservation of posts for SC/ST candidates will be applicable in accordance with the order of Government of West Bengal."
15. There is no indication in the advertisement that any of the posts were reserved. The implication, it was contended by Mr. Pranab Kr. Chatterjee is that neither the candidates knew at that time as to which post was reserved nor the candidates in the reserved category (SC/ST) Knew or could know that a particular post was reserved for that category. The Selection Committee, in the circumstances, it was contended could not have known at that time as to which post was reserved. It was further contended that mere observation in the advertisement that reservation will be in accordance with the order of Government without specifying in the advertisement, the subject and the post reserved, the employment notice being vague is contrary to law and should be so declared.
16. On behalf of the respondents, it was sought to be contended that the objection at the instance of the petitioner, a candidate of general category is misconceived and untenable as the person aggrieved, if any, are candidates of the reserved category. In my view, the matter is concluded by the judgment of the Supreme Court in Suresh Chandra Verma & Ors. v. The Chancellor, Nagpur University & Ors., . The Supreme Court declared as under:
"As regards the first question, we have narrated earlier the method which was adopted by the University for reserving the posts. It announced the posts category-wise as Professors, Readers and Lecturer in different subjects and made a blanket declaration that 6 of the posts of Professors, 12 of the posts of Readers and 16 of the posts of Lecturers would be reserved for backward castes. Neither the University nor the candidates knew at that time as to for which of the subjects and in what number the said posts were reserved. The result was that the candidates belonging to the reserved category in particular, who wanted to apply for the reserved posts did not know for which of the posts they could apply and whether they could apply at all for the posts in the subjects in which they were qualified. That this could be the expected consequence of such an employment notice can legitimately be inferred and need not be and indeed cannot be, demonstrated by evidence of what actually happened, for there may be a number of candidates who on account of the said uncertainty might have refrained from applying for the posts as against those who applied to take a chance. What is further, the selection committees which appointed to interview the candidates for the respective posts did not also know whether they were interviewing the candidates for reserved posts or not, and to assess merits of the candidates from the reserved category as such candidates. The contention advanced on behalf of the appellants that the selection committees even without knowing whether the posts concerned were reserved or not, had given weightage to the candidates from the reserved category and, therefore, it cannot be said that any injustice had resulted to them is without merit. In the first instance, the contention proceeds on the footing that all those belonging to the reserved category who wanted to apply for all the said posts had done so even without knowing that the concerned posts were reserved. Secondly, it also presumes that all eligible candidates from unreserved category had applied for the posts without knowing whether the posts were reserved or not. The possibility that many eligible candidates belonging to both reserved and unreserved categories might not has taken the risk and chosen to gamble cannot be ruled out. This argument further ignores the fact that the suitability of a candidate from a reserved category to the particular post has to be adjudged by taking into consideration various factors and the desired result cannot be obtained by merely giving uniform weightage marks to the candidates concerned which was the only method followed by the Selection Committees while selecting the candidates. Further, there is nothing on record to show that this method of giving weightage to the candidate was not followed in respect of reserved category candidates even if they had not applied for the post in the reserved seats. What is more, there is also nothing on record to show whether any candidate belonging to the reserved category had applied for a particular post in a reserved seat, without the prior knowledge that the post was reserved. It is, therefore, difficult to understand as to how the Selection Committees proceeded to give weightage to the candidates without knowing whether they had applied for reserved or non-reserved seats. What is more objectionable in the procedure was that its Executive Council proceeded to classify the posts in different subjects between reserved and non-reserved posts after the lists of selected candidates were received from different Selection Committees. This method was open to an obvious objection since it gave a scope to eliminate unwanted selected candidates at that stage. Whether it occurred in the present case or not is immaterial for testing the validity and the propriety of the method followed by the University.........."
17. It was further held as under;
".....There mere announcement of the number of reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised. When, therefore, section 57(4)(a) requires that the advertisement or the employment notice would indicate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post i.e. the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes. A non- indication of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy....."
18. It was further declared as under;
"We are, therefore, in complete agreement with the view taken by the Full Bench that the employment notice date July 27, 1984 was bad in law since it had failed to notify the reservations of the posts subject-wise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subject-wise."
19. Mr. Jaydip Kar and Mr. Milan Bhattacharjee, however, contended that the petitioner having participated in the selection process cannot turn around and challenge the same. I cannot accede to the said submission. Where the selection process is vitiated by illegality, the principle of estoppel by conduct or acquiescence has no application (See: Raj Kr. &. Ors. v. Shakti Raj & Ors. .
20. In the affidavit-in-opposition filed on behalf of the University, there is no reference to the roster prepared or the posts reserved for SC/ST candidates. It is merely stated in paragraph 10 that "moreover, the roster has been formulated cadre-wise for the whole University irrespective of faculties and departments," It is with the written arguments that the papers were submitted showing the 100 point roster and therein it is mentioned that the Roster was prepared by the University on 21.1.2000. The impugned advertisement, it must be noted was published on 5th September, 1999 in the Ananda Bazar Patrika.
21. In the light of the above discussion, it must be held that the advertisement was bad in law since it failed to notify the reservation of the posts subject-wise and without indicating the particular posts so reserved.
22. Next, it was contended that selection of over age candidate respondent No. 8. Dr. Chandan Lodh was contrary to the Recruitment Rules and, therefore, void.
23. In the writ application at paragraph 14, it has been averred that the respondent No. 8 was born on 13.1.1963 and had crossed the prescribed maximum age of 35 years both on the date of the publication of the advertisement (21.8.1999) and the subsequent date of interview (15.3.2000) and was, therefore, ineligible for selection and/or appointment for the post of lecturer.
24. On behalf of the University, it has been contended that power of relaxation is vested with the Selection Committee and the same was approved by the Executive Council Dr. Lodh, respondent No. 8, it is submitted was serving in the Government and in view of his experience in Government service, relaxation in age was granted. The University in its affidavit-in-opposition has stated "that in the Executive Council meeting, it was resolved that exemption in each may be allowed to the in-service candidate to get experienced personal in this profession. Moreover, the Selection Committee is also empowered to do so to select the right candidate considering experience in the relevant field. As such being experienced and possessing exceptional qualifications viz., Ph. D., Dr. Lodh was selected and the petitioner can never be compared with a person selected against SC/ ST categories i.e. Dr. Ujjal Biswas. It is denied that respondent No. 8 is overaged."
25. In the affidavit-in-opposition filed by Dr. Lodh (respondent No. 8). It has been averred "that under the first Statutes of the West Bengal University of Animal and Fishery Sciences the Selection Committee/ Standing Committee had the power to relax age of any candidate considering to be an extremely qualified and experienced. Case of the deponent falls within the said category. It is learned that relaxation of age has been given in service extremely qualified experienced candidate is resolved in executive council, the highest decision making body of University."
26. Mr. Kar, learned Advocate for the private respondent No. 8 relied upon the following resolution of the Executive Council.
"Resolved that those who served in Government, I.C.A.R. or any other University and those who are in service candidate in the public section, relaxation of age is approved by the Executive Council for their candidature for posts in this University."
27. Mr. Pranab Kr. Chatterjee, however, submitted that the alleged resolution pertains to scientific staff and can have no application to the post in question. Even otherwise, it was contended that it is applicable to in service candidate that is to say those in the service of the University. In any event, it was submitted that the resolution is dated 9th July, 1999 and cannot be said to pertain to private respondent No. 8 when the Selection Committee on 15.3.2000 allowed age relaxation in favour of the respondent No. 8.
28. As regards relaxation of age is concerned, Clause 105(4) of the first statute reads as under;
"(4): The Selection/Standing Committee may recommend, showing valid reasons, a higher initial starting/higher salary in the scale of pay for any post for any of the candidates included in the panel for consideration of the appointing authority. The Selection/Standing Committee may also recommend relaxation of age in favour of candidates considered to the exceptionally qualified and experienced."
The Selection Committee is thus empowered to recommend relaxation of age in favour of candidates considered to be exceptionally qualified and experienced. Schedule (I) and (II) confer the power of relaxation in relation to the posts. In case of Reader/Professor, the power is in the following terms;
"(e): Age not below 40 years (relaxable for exceptionally qualified and experienced candidates)."
29. In so far as Lecturer is concerned, while fixing the age as not above 35 years, no power has been conferred for relaxation as in the case of Professor and Reader. Schedule (I) of the first statute expressly provides for age relaxation for the post of Professor and Reader for exceptionally qualified and experienced candidates. However, in so far as selection for the post of Lecturers is concerned, no such power of relaxation has been provided. Even in the advertisement published in newspaper inviting applications, there is no mention of the relaxation of age bar in the case of Lecturers.
30. The resolution dated 9.7.99 can at best be treated as the decision of the University to relax the age bar in the case of candidates who have served in Government or Public Sector or other Universities. The same cannot have a overriding effect so as to whittle down the statutory regulations. Unless, the rules are amended and power is conferred upon the University authorities, such a power cannot be exercised in the case of Lecturers. Even otherwise, Clause 105(4) which confers power on the Selection Committee, if construed harmoniously with Schedule (I) thereto, in my view, the same can be applied only to such cases where the power has been specifically conferred for relaxation of age bar in respect of such posts as Reader and Professor. Even that apart, the Selection Committee can only recommend relaxation of age in favour of candidates considered to be exceptionally qualified and experienced. The Selection Committee cannot of its own accord grant relaxation. No material has been placed before this Court to show that the recommendation, if any, made by the Selection Committee was approved by the Executive Council and respondent No. 8 was granted any relaxation in the matter of age bar on any of the two specified grounds. The papers placed by the University before this Court, xerox copies of which, I have directed to be kept with the record show the following endorsement made by the Selection Committee, "age bar relaxation is allowed to Dr. Lodh as he is in service candidate." There is no power conferred upon the Selection Committee to allow age relaxation. It can only make a recommendation on the grounds specified in Clause 105(4). The said grounds being that the candidate is exceptionally qualified and experienced.
31. This Court is not called upon and is, therefore, not considering the validity of the resolution dated 9.7.99 extracted supra, whether such relaxation in an omnibus form can be granted by the University. Though the learned counsel for the petitioner relying upon Dr. Ami Lal Bhat v. State of Rajasthan & Ors, , submitted that there is no rule which gives a general power to relax rules. In the said judgment, Supreme Court observed that there cannot be any wholesale relaxation as it would be unfair to large number of candidates who might be similarly situated but who may not apply thinking that they are age barred. Suffice it to note that in the instant case, no material has been placed before this Court to show that any relaxation in age bar was granted by the competent authority or the reasons therefor. As already noticed (supra), there is no power vested in the University to grant relaxation in respect of age of any candidate for the post of Lecturers.
32. Lastly, it was contended that the selection was based only upon interview without holding written test and is, therefore, contrary to the Recruitment Rules.
Clause 108(2) of the first statute reads as under;
"(2): All applicants having fulfilled the prescribed qualification, experience, age and other conditions shall be called for interview before the Selection Committee/Standing Committee as provided in Schedules I and II. However, the Selection Committee/Standing Committee shall be within its power to hold only written test or written test and interview, at its option, for selection, of suitable candidates for the purpose of recruitment. The Constitution of Selection Committee/Standing Committee shall be as per the method specified in Schedules I and II."
33. Under the aforesaid clause, the Selection Committee is to conduct either written test or written test and interview. In the instant case, admittedly, no written test was conducted and the selection is based only on interview.
34. According to Mr. Milan Bhattacharjee, learned senior counsel for the University, there is no question of written test for the posts of Lecturers, Readers and Professors in all Universities under I.C.A.R. or U.G.C., only interviews are held. The word "and" occurring in the clause 108(2) has to be read harmoniously meaning thereby only interview and not both written test and interview is to be contended, it was contended.
35. Learned counsel for the petitioner, however, contended that the first statute being a statutory regulation is unambiguous. The only option to the Selection Committee is either to hold a written test or written test and interview. The Selection Committee being a creature of the statutes is to act in terms of and within the forecorners of the status and regulations governing the same. Relying upon Dr. Narendra Mohan's case, (1994)2 SCC 360, it was contended that once statutory rules have been made, the appointment shall be only in accordance with the rules.
36. In the affidavit-in-opposition filed on behalf of the University, it is stated that "since the number of candidates were less and at the same time recruitment process of various teaching posts were in progress, the University opined that personal interview be conducted instead of viz. written test to save time, cost and impetus of face-to-face discussion of various resource, research projects which can be better understood through personal discussion rather than written test. The most convenient way to judge the qualities of research and extension work undertaken by the candidates in a proper way, the personal interview is conducted in all the Universities and the National Institutes of Agriculture and Veterinary Sciences and General universities like University of Calcutta, Jadavpur University, Rabindra Bharati University and former University of B.C.K.V. from where a new University were formed through bifurcation."
37. From the record placed before this Court, it will be seen from the recommendation of the Selection Committee that following endorsement has been made;
"N.B: Since there are less number of candidates, it is resolved that only personal interview be held to save time and cost as adhere to in alt the Agricultural Universities of India."
38. No record has been placed before this Court to show that any conscious decision was taken by the executive Council of the University that interview alone should be conducted instead of written test. Clause 108(2) prescribed the mode for selection. Once statutory rules have been made, the appointment shall be only in accordance With the rules as held in Dr. Narendra Mohan's case (supra).
39. In my view, the recruitment rules that is to say Clause 108(2) is unhappily worded. For posts such as Lecturers, Readers and Professors of a University interview test might be regarded as fair procedure subject to basic and essential academic and professional requirements being satisfied. In this connection, it must be stated that in Dr. Keshau Ram Pal v. U.P. Higher Education Services Commission, Allahabad, ) referring to the view taken by the Supreme Court in Periaskaruppan v. State of T.N. and Ajay Hasia v. Khalid Mujib Sehravardi that the importance to be attached to the interview test must be minimal, Supreme Court observed that in the case of services to which recruitment had necessarily to be made from persons of mature personality, interview test might, be the only way, subject to basic and essential academic and professional requirements being satisfied and that subjecting such persons to a written examination might yield unfruitful and negative results, apart from it being an act of cruelty to those persons.
40. I would have been inclined to accept the submission made on behalf of the University by their learned Senior counsel Mr. Bhattacharjee in the light of the above quoted judgments of the Supreme Court. However, I cannot do so for the reason that it is settled taw that members of the Selection Committee do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard. The first statute quoted supra, confers discretion upon the Selection Committee to hold only written lest or written test and interview. There is no other or third option as already noticed supra, the rule is worded unhappily. However, till the same holds the field the procedure prescribed therefor has to be followed. A learned single Judge construed the said first statute in an unreported judgment in W.P. No. 1124 of 2000 (Dr. Nisith Ranjan Pradhan v. State of West Bengal & Ors.) dated April 28, 2000 and held as follows;
"I do not agree to such submission of the learned counsel for the respondents. The word "Interview" has been used in sub-section (3) of section 105 and in the first sentence of sub-section (2) of section 108 to denote that the applicants must be called to interact with the Selection Committee and upon such interaction the panel would be prepared. How such interaction would be made, that was explained in the second sentence of sub-section (2) of section 108 and it was said that the same shall be at the option of the Selection Committee only written test or written test and viva voce test. Therefore, the word "Interview" used in the second sentence of sub-section (2) of section 108 denotes viva voce test. This was done consciously in order to prevent nepotism and arbitrariness in the matter of giving appointment in a Statutory Organisation like the University. Therefore, at the interaction between the applicant and the Selection Committee the written test was must and since the written test has not been held, I have no other option but to hold that the selection of the respondent No. 3 without written test being contrary to the said Statute, is illegal.
It was submitted that the petitioner having participated and availed the opportunity cannot now turn around and say that the process of selection was bad. It has not been shown that the process of selection would remain confined only to viva voce test was intimated to the petitioner before he was called to appear at the interview conducted by the Selection Committee."
41. In the light of the above, it must be held that the selection having been made based only upon the oral interview without written test, the same is contrary to the said statute and has to be dictated as illegal.
42. Let us now examine in some details the powers of the Selection Committee. As noticed supra, the Selection Committee resolved to conduct personal interview and with regard to relaxation of age bar in the case of private respondent No. 8, the Selection Committee directed "age bar relaxation is allowed to Dr. Lodh as he is in service candidate."
43. It is well settled that the members of the Selection Committee do not have the jurisdiction to lay down the criteria for selection, unless they are authorized specifically in that regard by the Rules. It is basically the function of the rule making authority to provide the basis for selection. First statutes, in the instant case, have been framed by the State in exercise of the power conferred under section 34(1) of the Act.
44. In P.K. Ramachandra Iyer v. Union of India, , it was observed that the Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. Supreme Court in that case observed as under;
"By necessary inference, there was no such power in the ASRB to add to required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."
45. Similarly, in Umesh Chandra Shukla v. Union of India, , it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Durgacharan Misra v. State of Orissa, and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce.
46. It is basically the function of the rule making authority to provide the basis for selection. Rule making is legislative and not executive function as was held by the Supreme Court in B.S. Yadav v. State of Haryana, 1980 Supp. SCC 524. For this reason, the Selection Committee cannot be held to lay down any other standards or basis for selection than what is prescribed by the rules as that would amount to legislating a rule of selection.
47. Specific mode of selection has been indicated in the statutes. Under Statute 105(4), Selection Committee is empowered to recommend relaxation of age in favour of candidates considered to be exceptionally qualified and experienced. It has not been conferred the power to allow the age relaxation of its own accord. Statute 108(2) prescribes the selection to be based on written test or written test and interview. The Selection Committee resolved that only personal interview shall be held to save time and cost. The Selection Committee thus adopted the method of selection and criteria of its own which did not conform to the first statutes. The Selection Committee did not have the jurisdiction to lay down the criteria other than what was prescribed by the first statute. The Selection Committee could not have passed order relaxing the age bar. The aforesaid actions and orders of the Selection Committee cannot be traced to any statutory provisions.
48. As regards the contention of Mr. Jaydip Kar and Milan Bhattacharjee, it is the that in Madan Lal v. State of J & K , it was held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn around and challenge the method of selection as being illegal, he is estopped to question the correctness of the selection. The judgment of the Supreme Court in Madan Lal's case (supra), was considered in the light of similar contentions in Raj Kumar's case (supra) and it was observed that in case where glaring illegalities have been committed in the matter of selection, the principle of estoppel by conduct or acquiescence would not apply. Applying the same to the instant case, the petitioner could not have known that one post was to be reserved for SC candidate. The petitioner also could not have known that the Selection Committee would allow relaxation of age bar in the case of private respondent No. 8. The petitioner could not have known that the process of selection would remain confined only to interview test. The principle of estoppel by conduct or acquiescence would not be attracted in the facts and circumstances of the instant case.
49. It was sought to be contended by Mr. Milan Bhattacharjee, learned senior advocate for the respondent University that the Selection Committee was comprised of renowned experts in the field and there is no warrant for interference by the writ Court with the selection made in accordance with the Law.
50. It is well settled that a writ Court should not substitute its judgment for that of academicians when the dispute related to educational affairs. While there is no ban, it is a rule of prudence that Courts hesitate to dislodge decisions of academic bodies. In Govinda Raw's case, , it was observed as under:
"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 opinions expressed by the Board and the recommendations on which the Chancellor had acted."
51. Justice V. R. Kriashna Iyer considered the above observations in Dr. J.P. Kulshreshtha & Ors. v. Chancellor, Allahabad University & Ors., and observed as under;
"The later decisions cited before us proudly conform to the rule of caution sounded in Govinda Rao. But to respect an authority is not to worship it unquestioningly since the bhakti cult is inept in the critical field of law. In short, while dealing with legal affairs which have an impact on academic bodies, the views of educational experts are entitled to great consideration but not to exclusive wisdom. Moreover, the present case is so simple that profound doctrines about academic autonomy have no place here."
52. This Court has not attempted to substitute its judgment for that of the Selection Committee. It has considered whether the Selection Committee acted in conformity with the Rules governing the selection process.
53. In the facts and circumstances of this case and for the reasons aforestated, the appointment of the private respondents No. 8 and 9 based upon the impugned selection must be quashed and set aside and it is accordingly so directed. However, liberty is granted to the University to conduct fresh selection by advertising the two posts of Lecturers in question afresh in the light of the observations made in the judgment and making the selection in accordance with the Law. To avoid any disturbance or inconvenience to the students, there shall be a direction to the respondents to continue the appointment of the respondents No. 8 and 9 for a period of three months from dale hereof and not beyond.
There shall, however, be no order as to costs.
Let urgent Xerox certified copy of this judgment and order be furnished to the appearing parties, if applied for, on priority basis.
54. Order accordingly