Calcutta High Court (Appellete Side)
And Anr vs Dr. Gautam Pal on 12 April, 2017
Bench: Rakesh Tiwari, Mir Dara Sheko
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(Appellate Side)
PRESENT:
The Hon'ble Justice Rakesh Tiwari.
The Hon'ble Justice Mir Dara Sheko.
F.M.A. No. 2240 of 2016
With
CAN 4126 of 2016
With
CAN 9365 of 2016
The West Bengal College Service Commission
and Anr.
-Versus-
Dr. Gautam Pal
For the Appellant : Mr. Pulak Ranjan Mondal,
Ms. Bandana Das.
For the Respondent: Mr. Ranajit Chatterjee,
Mr. Prasenjit De.
Heard on :07.02.2017. Judgment on :12.04.2017
Mir Dara Sheko, J. : 1. The appeal is preferred by the West Bengal College Service Commission assailing the order dated February 25th, 2016 passed by the Single Bench in W.P. No.13400 (W) of 2015 (Dr. Gautam Pal Vs. West Bengal College Service Commission and Others).
2. Pursuant to an advertisement No.1/2012, dated December 27, 2012 issued by the West Bengal College Service Commission, hereinafter will be referred to as 'Commission', the respondent/ writ petitioner, Dr. Gautam Pal submitted an online application for participation in the selection process for being empanelled under Commission for being appointed as the Assistant Professor. Grievance of the writ petitioner was, that although he had the requisite qualification in mathematics and experience by virtue of work at R.C.C. Institute of Information Technology, the marks to which he would be entitled on experience was not provided, and therefore, his name was not wrongly empanelled.
3. The Writ Court upon hearing both sides and consulting the Rules and Regulations passed an interim order, which is set out hereunder:-
"............the authorities will award 1.5 mark in favour of the petitioner for every completed year of service with a maximum of five years, in terms of clause 3. After awarding such marks in favour of the petitioner, the candidature of the petitioner will be considered in accordance with law. In the event, after awarding of such marks the petitioner comes within the zone of consideration, he must be given appointment. Any appointment given to any person, who has obtained lesser marks of the petitioner, will have to be dealt with by the authorities accordingly".
4. Mr. Pulak Ranjan Mondal, Ld. Advocate for the appellant argued that the respondent/writ petitioner was working in a Private Engineering college affiliated to University of Technology in the year 2006, and since appointment of the writ petitioner to that college was never recommended by the Commission. Submitted that, after repeal of the West Bengal College Service Commission Act, 1978 by Act 62 of 1978 with its savings Clauses, the West Bengal College Service Commission Act, 2012 came into force. The act of the College Service Commission in not selecting the writ petitioner for being empanelled for the purpose of the appointment in degree course college was therefore not illegal.
5. Inviting our attention to Sections 6, 7, 8 and 10 of the Act and Rule framed thereunder and Regulation 11 under the heading General Power of the Commission, Mr. Mondal submitted that the group of experts when did not chose the writ petitioner to be selected, opinion of those experts cannot be challenged in Court. Mr. Mondal concluded his argument by submitting that the expert body, constituted under Section 8(5) being the selecting body of the Assistant Professors for being recommended for appointment cannot be challenged in Court since the Court has no jurisdiction to go against such decision of the experts. He relied upon the following decisions which will be dealt with appropriately:-
(a). (2009) 4 Supreme Court Cases 555 (Para-24 to 27).
(b). (2010) 8 Supreme Court Cases 372 (Para-21 to 23).
(c). (2011) 9 Supreme Court Cases 645 (Para-22)
(d). (2013) 10 Supreme Court Cases 519 (Para-31)
(e). (2014) 3 Supreme Court Cases 767 (Para-16)
6. Mr. Chatterjee on behalf of the respondent/writ petitioner replied that the R.C.C. Institute of Information Technology where the respondent used to work, was a Government aided college and was approved by All India Council for Technical Education. Submitted that since his joining in that private college the respondent/writ petitioner had been enjoying U.G.C. scale of pay in that engineering college, meant for higher education. Therefore he fulfilled all parameters for being empanelled, injustice was caused by not so doing by the Commission.
Further argued, that the respondent had requisite academic qualification in mathematics and in absence of any rule or regulation to deny him with the marks on account of teaching experience, as obtained by working in a such a reputed Private Government Aided Engineering College, where mathematics also is a must, the act of non- empanelment of name of the writ petitioner and denying him with the marks under the head of teaching experience, justice and equity to him was denied.
Submitting about non-applicability of the cases, cited by Mr. Mondal, Mr. Chatterjee concluded his argument to make the impugned interim order absolute, to dismiss the appeal and also to dispose of the application filed by his side before this Court by vacating the stay order as obtained by the West Bengal College Service Commission from this Appellate Court on presentation of the appeal.
7. The whole crux in the matter is mounted over the letter dated 29.04.2015 by which the respondent's demand "for inclusion of name in the provisional merit panel for general degree college in the subject of mathematics" was denied. The relevant Para of said letter is set aside.
"In reference to your application dt. 10.04.2015 (Recd in WBCSC office on 13.04.2015) on the above mentioned subject I am directed to say that Teaching Experience at RCC Institute of Information Technology is not relevant to the post of Assistant Professor for General Degree Colleges". (Vide page 98 of paper book)
8. Admittedly, the respondent had been working as a teacher in a private engineering college which is not only an affiliated college under the University of Technology, but also a Government aided college and is approved by All India Council for Technical Education. There can be no doubt that the said private engineering college was established for higher education having mathematics as a subject invariably in its syllabus.
We find that the Writ Court took note well of the guidelines for providing marks on experience. The relevant portion of the guidelines is set out.
"Experience - 1.5 marks per completed year of teaching as (i) 'in Service teachers', or as (ii) teachers working under the FPI/FDI scheme of UGC or as (iii) approved PTT/CWT as defined in the WBCSC Act, and also as (iv) teachers serving on a whole time basis in UGC scale of pay in recognized Institutions of Higher Education".
9. From the above guidelines, we also find that marks on experience are to be provided to the candidate who falls under its Clause (i), or (ii) or
(iii), but, in either of the cases, the Clause mentioned in ("iv") above would be the must. That is why, before beginning of the said Clause "IV" the words i.e. "and also as" have been preceded with, meaning thereby, the intending candidate ought to have served the institution as a whole timer by earning salary at par with U.G.C. scale of pay in any recognized institution of higher education. In view of above, the R.C.C. Institute of Technology no doubt was a qualified institution for higher education.
Even according to the circular of the Government of West Bengal Department of Higher Education, C.S. Branch dated 28th August, 2009 the pre-revised scale of an Assistant Professor was at Rs.8,000 - 275 - 13,500 (vide paper book page 112). The appointment letter dated 2nd January, 2006 issued by the Principal of the R.C.C. Institute of Information Technology in favour of the respondent shows that the respondent was appointed in the post of the lecturer in mathematics in the basic scale of Rs.8,000 - 275 - 13,500 plus usual allowances as admissible under the State Government (vide paper book page 50). Of course, such appointment was on probation.
Mr. Mondal countered this appointment letter submitting that there was no mention of nomenclature of the pay so granted in that letter, since there was no indication that the scale so to be paid was at par with or as per UGC scale of pay. The argument of Mr. Mondal on this score has no substance. Because the rule says that the enrolments are to be at par with the amount granted as per scale prescribed by the U.G.C. The rule nowhere indicates otherwise. In view of the enrolments mentioned in the letter of appointment there was no doubt that the scale of pay offered to the respondent was not less than the U.G.C. scale of pay, rather was identical. However as per the mandate proper interpretations of the guidelines for entitling marks on experience it would be righteous to accept that if the teacher, i. Would serve as a whole timer.
ii. If his/her scale of pay would
have been drawn at par with
U.G.C. scale of pay.
iii. If the institution where he/she
would be working was a recognized
institution.
iv. If said institution was made for
higher education.
then he/she would be eligible for the post of Assistant Professor.
10. It is needless to reiterate at the cost of repetition, that R.C.C. Institute of Information Technology, which was a Government aided private college approved by All India Council for Technical Education was qualified with both the two later clauses. It is an undenying fact that in view of above findings on the face of materials on record the respondent was qualified also with both the first two clauses.
11. Mr. Mondal could not show any provision either from Act, Rule, or, Regulation that any Professor/Teacher working in a private educational institution like RCC Institute of Technology was/is not entitled to apply for selection test to be conducted by the experts constituted under Section 5 of the West Bengal College Service Commission Act, 2012 for being empanelled in the panel of Assistant Professors.
Therefore had there been no embargo in submitting application by a candidate like the respondent, then his participation cannot be declined. Further, when the respondent was allowed to participate in the selection process then the marks wherever he would be entitled to have as per the norms, meant for all ought not to be denied. In that event the marks on experience what was due to him could not be denied to the respondent as per rule, specially when the impugned letter dated 29.04.2015 (supra) did not indicate that the experts found the respondent otherwise disqualified.
12. In the case of Mohd. Sohrab Khan Vs. Aligarh Muslim University and Others (supra) the Apex Court held, "It is the University authority which knows best as to what is their requirement. If it was necessary for the University to fill up the post from the stream of Industrial Chemistry, it would have so indicated in the advertisement itself, for in subsequent years specific advertisement was issued by the University for filling up the post of Lecturer in Industrial Chemistry by issuing an advertisement specifically in that regard. The University, according to its Statues 22, 21, 19 and 17(2)(i), undertakes multitier exercise for laying down essential qualification for a particular post and then it is advertised. It is also established from the records that Pure Chemistry and Industrial Chemistry are two different subjects. The post advertised was meant for a person belonging to Pure Chemistry department for if it was otherwise, then it would have been so mentioned in the advertisement itself that a person holding a Master's degree in Industrial Chemistry should only apply or that a person holding such a degree could also apply along with other persons. The University can always have a person as a Lecturer in a particular discipliner that it desires to have, but the same must be specifically stated in the advertisement itself. In the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process midstream. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post. The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid down in the advertisement."
In the case of Basavaiah (Dr.) Vs. Dr.H.L. Ramesh and Others (supra) the Apex Court dealt with that the Court should not sit as an Appellate Authority on the recommendations made by the experts in the field, and if it is so done the Court must show the difference in the matter of recommendations or non-recommendations by the Expert Committee. Mr. Mondal relying upon the aforesaid cases tried to ventilate that the Court's power to review the decision of the experts in the field is very limited, in effect, without jurisdiction.
Mr. Mondal also relied upon Paragraph 22 of the case of Chandigarh Administration Vs. Usha Kheterpal Waie and Others, which is set out hereunder:-
"It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. (See J. Ranga Swamy v. Govt. of A.P. and P.U. Joshi v. Accountant General.) In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of PhD is unreasonable."
He also relied upon Paragraph 31 rendered in the case of University Grants Commission and Another Vs. Neha Anil Bobde (Gadekar) (supra):-
"We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the regulations or the notification issued, the courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore v. C.D. Govinda Rao, Tariq Islam v. Aligarh Muslim University and Rajbir Singh Dalal V. Chaudhary Devi Lal University, has taken the view that the court shall not generally sit in appeal over the opinion expressed by the expert academic bodies and academic experts who are more familiar with the problem they face, than the courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the university. For attaining the said standards, it is open to UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is, for candidates declared eligible for Lectureship may be considered for appointment as Assistant Professors in universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India."
Likewise the above cases, from the case of Ganapath Singh Gangaram Singh Rajpur Vs. Gulbarga University and Ors. (supra) on which Mr. Mondal relied upon paragraph 1 which is also set out:-
"Ganpath Singh Gangaram Singh Rajpur as also Gulbarga University, aggrieved by the judgment and order dated 19.11.2009/24.11.2009 of the Karnataka High Court in Shivanand v. Gulbarga University quashing the appointment of the aforesaid Ganpath Singh Gangaram Singh Rajpur as Lecturer in MCA in the Postgraduate Department of the University, have preferred these special leave petitions. Leave granted."
13. Now although the facts and circumstances of all the cases cited above are different than the facts and circumstances of the case in hand, nonetheless, we have no hesitation but to observe that the principles set down by the Apex Court in those respective cases are clearly distinguishable and are not applicable in the present case. In the writ jurisdiction generally the writ courts up to appellate jurisdiction do not interfere with the decision making process if there is no violation in its completion, or, there remains no lapses causing miscarriage of justice to anyone who is deprived of enjoying of the legitimate right.
We have already discussed above that Mr. Mondal failed to produce any legal provision that a candidate working in private educational institution like the present one having all requisite qualifications is not entitled either to apply to face the selection process to be conducted by the experts who would be responsible for preparation of panel of Lecturer for being recommended to be appointed in the Degree Course Colleges, or, the experts would not allow the marks on experience to the respondent though he was qualified to obtain the marks on experience.
Mr. Mondal tried to impress that as the respondent- writ petitioner was not appointed in the said private college under recommendations of the College Service Commission he would not be entitled to be empanelled in the list. Such argument is without basis dehors the rule and regulation and thereby having no substance at all is not accepted Rather it the act of the experts was absolutely denial of justice and equity. It is an undenying fact that the respondent had the requisite qualification in mathematics. The RCC institute of technology where he was attached since 2006 as a teacher of mathematics was an institution for higher education said institution was an approved Government aided institution, where the subject mathematics was one of the compulsory classes which obviously were to be taken by him. He was enjoying the amount of salary at par with UGC scale of pay. But curiously enough, in the panel the requisite marks which ought to have been awarded by the experts on experience were denied. Here was the lapses by the experts in their decision making process, which is required interference on being approached. It is pertinent to mention that to award or reject marks on experience as per the guidelines is dependent on the straight jacket formula for which there should not be any complication save and except verification of the documents towards the working place where the candidate was attached, the quantum of salary which the candidate was enjoying whether the candidate was working as whole timer to that institution and whether the institution was for higher education under approval of the authority.
Empanelment of the name of the respondent was denied by the letter dated 29.4.2015 by not awarding teaching experience on the logic that his teaching experience at the institute of information technology would not be relevant to the post of Assistant Professor for general degree course college. We can remind ourselves that the respondent had applied for being empanelled for being recommended by the Commission as a Professor of mathematics. From record it is established that by the impugned process the experts enlisted the last candidate under Serial No. 95 awarding 62.5% marks, whereas, the marks as was supposed to be entitled by the respondent on experience had it been added with, he would have superseded said last candidate to find place in the panel. In view of above, while on examining the records and the rules placed before us we found that all the cases cited before us being on different facts and circumstances are being distinguishable are not applicable in the case and when the experts for the purpose are found to have derailed by not awarding the marks to the respondent only on teaching experience to which he was rightly entitled, the decision making process held by the experts being faulty and devoid of principles of natural justice and equity, the writ court obviously interfered in those cases. Such interference by the Writ Court was/is never beyond jurisdiction, rather the Writ Courts on being approached, even suo moto are duty bound to discharge its action like the watchdog to oversee the act and action of the authorities subordinate to it so that in case violation of constitutional right the loss or injury complained of can be repaired.
14. Before departure be it mentioned that the Writ Court in the penultimate portion of the order directed, "the authorities will award 1.5 mark in favour of the petitioner for every completed year of service with a maximum of five years, in terms of clause 3", it is only modified keeping other penultimate portion intact, since in any case, the marks on experience in all cannot be awarded more than "5", and the respondent was accordingly entitled to "5" marks on experience for its addition to the total marks to supersede the last candidate of the panel. The appellant shall act accordingly in terms of order of the Writ Court which is upheld in appeal by which virtually there remains nothing to decide in the writ.
15. Therefore, the appeal is dismissed. As a consequence thereof the CAN application no. 4126 of 2016 is also dismissed and the application being CAN No.9365 of 2016 filed by the respondent for vacating the order of interim stay is disposed of.
16. No order as to costs.
17. Department is directed to communicate a copy of this judgment to the learned Writ Court for information.
(MIR DARA SHEKO, J.) (RAKESH TIWARI, J.) Later:
After pronouncement of judgment, Mr. Mondal orally prayed for stay of operation of the judgment of the Appellate Court, so delivered in open court.
Mr. Chatterjee strongly opposed against such prayer and submitted that interim order of stay, as was enjoyed by the appellant so far, has been vacated by this Appellate Court by pronouncement of the judgment, therefore, there cannot be any order of further stay.
In view of the observations and findings made on merit by this Appellate Court on examining the rule, regulation and norms to answer on the lis, the prayer of staying operation of the judgment is declined.
Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(MIR DARA SHEKO, J.) (RAKESH TIWARI, J.)