Calcutta High Court (Appellete Side)
Sri Ambikaprasanna Saha vs The University Of Burdwan & Ors on 24 January, 2020
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
W. P. No.13170 (W) of 2017
Sri Ambikaprasanna Saha
v.
The University of Burdwan & Ors.
24.01.2020 Mr. Amal Baran Chatterjee, Sr. Adv.
Sl-10 Mr. Biswanath Samanta ... for the petitioner.
Ct.15
(S.R.) Mr. N.C. Bihani
Mrs. Papiya Banerjee Bihani ... for the University.
Mr. Manish Sen
Ms. Antara Pathak ... for the respondent no.3.
The present writ petition has been preferred primarily praying for the following reliefs: -
"(a) A Writ in the nature of Mandamus commanding the Respondents and/or their, men, agents, assigns and servants to hold interview for the post of Assistant Professor among the candidates of the earlier advertisement no.02/2015-2016 dated July 24, 2015;
(b) A Writ in the nature of Mandamus commanding the Respondents and/or their, men, agents, assigns and servants to cancel and/or quash and/or set aside the subsequent advertisement no.08/2016-2017 dated April 3, 2017 for the same post of Assistant Professor;
Mr. Chatterjee, learned senior advocate appearing for the petitioner submits that an advertisement dated 24th July, 2015 (in short, the first advertisement) was published in the official website of the University of Burdwan (in short, the university). Responding to the same, the petitioner applied for participation in the 2 selection process for appointment to the post of Assistant Professor in Biotechnology reserved for scheduled caste candidates. The petitioner was, however, not called for any interview and the selection process was kept in abeyance without any reason whatsoever. Surprisingly, by a fresh advertisement dated 3rd April, 2017 (in short, the second advertisement), applications were again invited for filling up the post of Assistant Professor in various subjects including the post of Assistant Professor in Biotechnology.
Mr. Chatterjee argues that the earlier selection process ought to have been completed in terms of the regulations issued by the University Grants Commission (in short, UGC) which were subsisting on the date of publication of the first advertisement. Though other posts of Assistant Professor in various subjects were filled up, the university authorities did not take any step towards completion of the selection process pertaining to the post of Assistant Professor in Biotechnology. By the second advertisement, the said post of Assistant Professor in Biotechnology was sought to be filled up applying the provisions of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and 3 other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) (4th Amendment), Regulations, 2016 (in short, the regulations of 2016) which were brought into force by a notification dated 11th July 2016. A post earmarked to be filled up on the basis of a particular regulation was subsequently sought to be filled up by applying the provisions of an amended regulation. The rules of the selection process were altered after commencement of the said selection process. Such action smacks of mala fide and arbitrariness warranting interference of this Court.
He submits that following the UGC regulations, the State Government publishes a notification in connection with recruitment of teachers and thereafter the vacancies are advertised. Such procedure was followed prior to publication of the first advertisement but surprisingly the second advertisement was published prior to publication of any memorandum by the State Government.
Mr. Bihani, learned advocate appearing for the university denies and disputes the contention of the petitioner and submits that responding to the first advertisement, ten candidates including the petitioner herein applied but the authorities could not complete the 4 said selection process. In the midst thereof, the new regulations of 2016 came into force and as such the second advertisement was published on 3rd April, 2017. To safeguard the interest of the applicants who applied to participate in the earlier selection process, the university authorities categorically stated in the subsequent advertisement that "Those who applied earlier for the post above against advertisement No.02/2015-2016 dated July 24, 2015 are requested to apply afresh and they shall be eligible for exemption from application fee subject to submission of documentary evidence in support of application fee deposited earlier". However, the petitioner chose not to apply. The selection process was conducted and the private respondent emerged to be successful in the same and he was given appointment.
He argues that the allegation of mala fide as levelled against the university authorities is not tenable since they have acted strictly in consonance with the UGC regulations. The requirement to avail approval from the State Government pertains to pay fixation of the selected candidates and as such the allegation that such State Government approval ought to have been obtained prior to publication of the advertisement is not sustainable. 5
According to him no legal right crystallized in favour of the petitioner inasmuch as the first selection process could not be completed and no panel was even prepared. To ensure that no prejudice is caused the candidates, who applied earlier for the post against the first advertisement, were requested to apply afresh but the petitioner did not respond. In support of his arguments, Mr. Bihani has placed reliance upon the judgments delivered in the cases of Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 47, Aryavrat Gramin Bank v. Vijay Shankar Shukla, reported in (2007) 12 SCC 413 and Vijoy Kumar Pandey v. Arvind Kumar Rai & Ors., reported in (2013) 11 SCC 611.
Mr. Sen, learned advocate appearing for the private respondent submits that the said respondent also applied for the post of Assistant Professor in Biotechnology responding to the first advertisement. In the second advertisement, it was stated that the candidates who applied pursuant to the first advertisement can also apply for the concerned post. Accordingly, he applied and participated in the said selection process. He emerged to be successful and was issued an appointment letter on 6 31st December, 2018.
In reply, Mr. Chatterjee submits that no reason is forthcoming as to why the university authorities kept the selection process initiated by the first advertisement in abeyance till the date, the regulations of 2016 came into force. The post of Assistant Professor in Biotechnology could not have been brought under the purview of the new regulations of 2016 since the said regulations have not been given any retrospective effect.
Records reveal that the petitioner is presently working in the post of an Assistant Professor in the Dum Dum Motijheel College, Kolkata. The writ petition was initially heard by this Court on 8th May, 2017. Thereafter, in the order passed on 17th May, 2017 it was observed that the petitioner had been unable to make out a case for interim relief. The said order was not appealed against by the petitioner and the private respondent no.3 was given appointment to the post of Assistant Professor in Biotechnology under scheduled caste category by a letter dated 30th December, 2018.
Indisputably, the candidates who applied for the post of Assistant Professor in Biotechnology pursuant to the first advertisement, which could not be completed 7 prior to the date of effect of the regulations of 2016, were granted leave to apply afresh pursuant to the second advertisement. The petitioner did not apply to participate in the said selection process initiated by the second advertisement.
In the instant case, the petitioner has failed to establish the allegation of mala fide. The selection process pertaining to the second advertisement was conducted in terms of the regulations of 2016 which were mandated to be followed by all the colleges.
It is well settled that mere participation and empanelment do not create any indefeasible right in favour of any candidate to be appointed. In the earlier selection process no interview was held and no panel was prepared.
In the said conspectus, I am of the opinion that no legal right of the petitioner has been infringed warranting interference of this Court and as such, this Court is unable to grant relief, as prayed for and the writ petition is, accordingly, dismissed.
There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be handed over to the parties on compliance 8 of necessary formalities.
(Tapabrata Chakraborty, J.)