Meghalaya High Court
Dr. Sudip Dey vs North Eastern Hill University And Ors on 25 April, 2014
THE HIGH COURT OF MEGHALAYA
W.P. (C) No.110/2013
Dr. Sudip Dey,
S/o (L) Sudhir Chandra Dey,
R/o Lumparing, Shillong,
East Khasi Hills District, Meghalaya. :::: Petitioner
- Vrs -
1 North Eastern Hill University (NEHU), a
University established under an Act of
Parliament represented by the Registrar,
NEHU Campus, Shillong-793022, Meghalaya.
2. The Registrar,
North Eastern Hill University,
NEHU Campus, Shillong-793022, Meghalaya.
3. Selection Committee for appointment to the post
of Professor (UR) in the Department of
Sophisticated and Analytical Instrumentation
Facility (SAIF), North Eastern Hill University (NEHU),
Shillong.
4. The Executive Council,
North Eastern Hills University (NEHU),
Shillong. :::: Respondents
BEFORE
THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH
For the petitioner : Mr. HS Thangkhiew, Sr. Adv,
Mr. N Mozika,
Mr. P Nongbri, Advs
For the respondents : Mr. K Khan, SC NEHU
Date of hearing : 15.04.2014
Date of Judgment : 25.04.2014
JUDGMENT AND ORDER
This is the second time the petitioner is assailing the selection
process of the Selection Committee for direct recruitment to the post of
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Professor (UR) in the Department of Sophisticated Analytical Instrumentation
Facility (for short „SAIF‟), North Eastern Hills University (NEHU), Shillong.
The earlier writ petition being WP(C)No.191(SH)2012 filed by the petitioner
was allowed with certain directions vide judgment and order dated
06.11.2012, against which none of the parties preferred an appeal.
Accordingly, the matter in issue in the present writ petition is not going to be
decided in a virgin field and is to be decided in an area where both the
parties had already ventured which result to the passing of the said judgment
and order of the learned Single Judge dated 06.11.2012. Therefore, while
deciding the matter in issue in the present writ petition, the judgment and
order of the learned Single Judge dated 06.11.2012 is required to be kept in
view.
2. Heard Mr. HS Thangkhiew, learned senior counsel assisted by
Mr. N Mozika, learned counsel for the petitioner and Mr. K Khan, learned
standing counsel for NEHU appearing for the respondents.
3. The succinct fact leading to the filing of the present writ petition
is recapitulated.
The petitioner holds a Bachelor‟s Degree in Science [B.Sc.
(Hon)] with First Division securing 1st position in the University and a Master‟s
Degree (M.Sc.) in Zoology with First Division. The petitioner also obtained
Ph.D. Degree from the Department of Zoology, NEHU in 1982 and had been
serving in SAIF, NEHU, Shillong as Senior Technical Assistant from the year
1984 till 1990 and thereafter, as Scientific Officer (Senior Grade) from the
year 1990 till date. An advertisement dated 07.12.2011 was issued by the
NEHU on its website and invited applications from the eligible candidates to
the post of Professor in SAIF, NEHU, Shillong. A copy of the said
advertisement dated 07.12.2011 is available at Annexure-2 to the writ
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petition. The relevant portions of the said advertisement dated 07.12.2011
are quoted hereunder:-
"NORTH EASTERN HILLS UNIVERSITY
NEHU Campus, Shillong-793022 (Meghalaya)
F.No.1-4/Estt.II(B)/2011-235 Dated, the 7th December, 2011.
EMPLOYMENT NOTICE
Applications on the prescribed format are invited from Indians
Nationals for filling up various Teaching posts in the North
Eastern Hills University, Shillong Campus.
The last date for receipt of application 20th January, 2012.
For details log into University website www.nehu.ac.in.
Sd/-
(L. Roy)
Registrar.
***** ***** *****
Sl. Department Post No. of Category Specializations Essential
No. Vacancies Qualification
Applicable
41. Sophisticated (a)Professor 1 UR OPEN E.Q.1.
Analytical
Instrumentation
Facility
***** ***** *****
(i) E.Q.-1
Professor
A.(i) An eminent scholar with Ph.D. degree in the
concerned/allied/relevant discipline and published work of high
quality, actively engaged in research with evidence of published
work with a minimum 10 publications as books and/or
research/policy papers.
(ii) A minimum of ten years teaching experience in
university/college, and/or experience in research at the
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University/National level institutions/industries, including
experience of guiding candidates for research at doctoral level.
(iii) Contribution to educational innovation, design of new
curricula and courses, and technology-mediated teaching
learning process.
(iv) A minimum score as stipulated in the Academic
Performance Indicator (API) based performance Based
Appraisal System (PBAS) (refer to RX 1.4)
OR
B. An outstanding professional, with established reputation in
the relevant field, who has made significant contributions to the
knowledge in the concerned/allied/relevant discipline, to be
substantiated by credentials.
***** ***** *****
RX-1.4
ACADEMIC PERFORMANCE INDICATORS (API) FOR
DIRECT RECRUITMENT/CAREER ADVANCEMENT
SCHEME (CAS) PROMOTION OF TEACHERS UNDER
PERFORMANCE BASED APPRAISAL SYSTEM (PBAS)
Summary of API Scores
API scoring will be progressively rolled out for categories I and
II, beginning with assessment of one year for selection
committees in 2011-2012, annual averages of two years in
2012-2013 and so on. Bur for category III, scores will be
computed for the entire assessment period.
TABLE 1A-CATEGORY I: Teaching, Learning and Evaluation
Related Activities.
Sl. Nature of Activity Maximum
No. Score
1. Lectures, seminars, tutorials, practicals, contact hours 50
undertaken as Percentage of lectures allocated*
2. Lectures or other teaching duties in excess of the UGC norms 10
3. Preparation and Imparting of knowledge/instruction as per 20
curriculum; syllabus enrichment by providing additional
resources to students
4. Use of participatory and innovative teaching-learning 20
methodologies; updating of subject content, course
improvement etc.
5. Examination duties (invigilation; question paper setting, 25
evaluation/assessment of answer scripts) as per allotment
Total Score 125
Minimum API Score required 25
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*Ordinarily no points shall be awarded for less than 80% of the
assigned contact hours undertaken. Any teacher who
completes the course and take at least 80% of the assigned
classes shall be awarded 50 points.
Note: Teachers in Centres that do not have regular teaching
programmes shall be exempted from minimum API score in
category I.
TABLE 1B-CATEGORY I: Teaching, Learning and evaluation
Related Activities for physical Education and Sports disciplines.
Sl. Indicators API Score
No.
1. Management of Science Education, Physical Education and Max Score:
Sports Programme for students (Planning, executing and 40 points
evaluating the policies in Science education, Physical
Education and Sports) (20 points) Lecture cum practice based
Science demonstration/athlete/sports classes, seminars
undertaken as percentage of allotted hours (20 points)
2. Extending services, science education/sports facilities and Max Score:
training on holidays to the institutions and organizations. 10 points
3. Organizing and conducting sports and games Max Score
competitions/Science exhibitions at the 40 points
International/National/State/Inter University/Inter Zone Levels
(25 points)
Organizing and conducting coaching camps/sports person
development/training programmes/Science training
programmes (15 points).
4. Up gradation of scientific and technological knowledge in Max Score
Science Education, Physical Education and Sports (5 points) 20 points
Identifying scientific/sports talents and Mentoring
scientific/sports excellence among students (10 points)
5. Development and maintenance of play fields and other sports Max Score
facilities/science education related models/museum etc. 15 points
Total score 125
Minimum API Score Required 75"
4. The University Grants Commission (for short „UGC‟) vide Memo
No.F.3-1/2009 dated 30.06.2010 had framed and published the UGC
Regulations on Minimum Qualifications for Appointment of Teachers and
Other Academic Staff in Universities and Colleges and Measures for the
Maintenance of Higher Education, 2010, which provides for the qualifications
for appointment to the Professor (Annexure-11 to the writ petition). Clause
6.2.0 of the said UGC Regulations for Minimum Qualifications for
Appointment of Teachers, 2010 and Table II (c) of Appendix III provide the
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norms for direct recruitment of teacher to different cadres; while Table II (a)
and Table II (b) provide for CAS promotions of teachers in Universities and
Colleges respectively, which accommodate these differences. Clause 6.3.2
further provides that the candidates who do not fulfill the minimum score
requirement under the API scoring system proposed in the Regulations as
per Tables II (a) and (b) of Appendix III or those who obtain less than 50% in
the expert assessment of the selection process will have to be re-assessed
only after a period of one year. The date of promotion shall be the date on
which he/she has successfully got re-assessed. It is clear from the UGC
Regulations for Minimum Qualifications for Appointment of Teachers, 2010,
that Table II (c) of Appendix III shall be followed for direct recruitment of
teachers to different cadres and Tables II (a) and (b) of Appendix III shall be
followed for promotions.
5. Under Clauses 6.3.2 and 6.3.11, the candidates, who do not
either fulfill the minimum API score in the criteria as per PBAS proforma or
obtain less than 50% in the expert assessment, wherever applicable, such
candidates will be re-assessed only after a minimum period of one year. On
conjoint reading of Clause 6.3.2 and 6.3.11, it appears that those clauses are
applicable only to the promotions and there is no clear clause for direct
recruitment that the candidates should obtain not less than 50% in the expert
assessment of the selection process. It is too late for the day to discuss the
basic rule of interpretation of the Statutes, more particularly, in the given
case. But one has to remember while interpreting one particular section
or/statute, that it is required to see with open eyes where that particular
section appears/ or what is the just foregoing section and also that section or/
statute cannot be read in isolation of the other parts of the chapter of the
Statutes or Act where that particular Statute or/Section appears. It will be
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more profitable to quote the clauses (i) 6.2.0; (ii) 6.3.2; (iii) 6.3.10 and; (iv)
6.3.11 and also the Appendix III Table II (c) hereunder:-
"6.2.0 The minimum norms of Selection Committees and
Selection Procedures as well as API score requirements for the
above cadres, either through direct recruitment or through
Career Advancement Schemes Regulations, shall be similar.
However, since teachers recruited directly can be from different
backgrounds and institutions. Table II (c) of Appendix III
provides norms for direct recruitment of teachers to different
cadres, while Tables II (a) and Table II (b) provide for CAS
promotions of teachers in universities and colleges
respectively, which accommodate these differences.
6.3.2 Candidates who do not fulfill the minimum score
requirement under the API Scoring System proposed in the
Regulations as per Tables II (a and b) of Appendix III or those
who obtain less than 50% in expert assessment of the selection
process will have to be reassessed only after a minimum period
of one year. The date of promotion shall be the date on which
he/she has successfully got re-assessed.
6.3.10 Candidates shall offer themselves for assessment for
promotion, if they fulfill the minimum API scores indicated the
appropriate API system tables by submitting an application and
the required PBAS proforma. They can do so three months
before the due date if they consider themselves eligible.
Candidates who do not consider themselves eligible can also
apply at a later date. In any event, the university concerned
shall send a general circular twice a year calling for applications
for CAS promotions from eligible candidates.
6.3.11 In the final assessment, if the candidates do not either
fulfill the minimum API scores in the criteria as per PBAS
proforma or obtain less than 50% in expert assessment,
wherever applicable, such candidates will be reassessed only
after a minimum period of one year.
APPENDIX-III TABLE-II (c)
Minimum Scores for APIs for direct recruitment of teachers in
university departments/colleges, Librarian/Physical Education
cadres in Universities/Colleges, and weightages in Selection
Committees to be considered along with other specified
eligibility qualifications stipulated in the Regulation.
Assistant Associate Professor/equivalent
Professor/ Professor/equivalent cadres (Stage 5)
equivalent cadres cadres (Stage 4)
(Stage 1)
Page 7 of 22
Minimum API Minimum Consolidated API Consolidated API
Scores Qualification as score requirement score requirement
stipulated in these of 300 points from of 400 points from
regulations category III of APIs category III of APIs
Selection a) Academic a) Academic e) Academic
Committee criteria/ Record and Background (20%) Background (20%)
weightages (Total Research
Weightages=100) Performance b) Research f) Research
(50%) performance based performance based
on API score and on API score and
b) Assessment of quality of quality of
Domain knowledge publications (40%) publications (40%)
and Teaching
Skills (30%) c) Assessment of g) Assessment of
Domain knowledge Domain Knowledge
c) Interview and Teaching Skills and Teaching Skills
performance (20%) (20%) (20%)
d) Interview Interview
performance (20%) performance (20%)
Note: For Universities/Colleges for which Sixth PRC Awards (vide Appendix 2) are
applicable, Stages 1, 4 and 5 correspond to scales with AGP of Rs.6000, 9000 and
10000 respectively."
6. The Parliament enacted in the Twenty Fourth Year of the
Republic of India an Act called "The North-Eastern Hill University Act, 1973"
(hereinafter called the said Act of 1973). The Statutes called "North-Eastern
Hill University Statutes" (hereinafter called the Statutes) had been made
under Section 25 of the said Act of 1973. Statute12 of the North Eastern Hills
Statues provides the composition of the Executive Council. The powers and
functions of the Executive Council are provided under Statute 13 of the
Statutes; and the Executive Council has the power to appoint the Professors
under Statute 13 (2)(ii) of the Statutes. Under Statute 20 (5) of the North
Eastern Hills University Statute, the procedures to be followed by a Selection
Committee in making recommendations shall be laid down in the
Ordinances. Para 3 of OE-3 provides that the Selection Committee shall
make recommendations as to the suitability of the candidates referred to it,
for consideration of the Executive Council and para 8 further provides that
every Selection Committee shall be competent to adopt its own procedures
regarding the mode of assessment of the candidates presented before it.
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7. In response to the said advertisement dated 07.12.2011 for
direct recruitment to the post of Professor in SAIF, NEHU, Shillong, the
petitioner applied for the said post of professor in SAIF. On the
recommendations of the screening committee, the respondents called four
candidates including the writ petitioner for interview to be conducted by the
Selection Committee on 20.04.2012. On the date of interview, only the
petitioner was present for the interview and the other three candidates did
not appear for the interview. The Selection Committee summarily come to
the conclusion that the petitioner had "no management experience" and "lack
of knowledge of analytical equipments other than SEM" and based on that,
the Selection Committee had come to the conclusion that the petitioner was
not found suitable for recommendation for direct recruitment to the post of
Professor SAIF.
8. The petitioner had assailed the selection process of the
Selection Committee by filing a writ petition i.e. WP(C)No.191(SH) of 2012 in
the Gauhati High Court against the present respondents. The Hon‟ble
Gauhati High Court vide judgment and order dated 06.11.2012, had finally
allowed the writ petition with the clear cut findings vide para 11 of the
judgment and order that (i) management experience and knowledge of
analytical equipments other than SEM are not the qualifications stipulated by
the advertisement (ii) the insistence of these qualifications by the Selection
Committee on the pain of rejection of the candidature of the petitioner, would
amount to introduction of additional criteria/qualifications for appointment to
the post in question without any authority of law and (iii) assuming without
admitting that such power is there, selection criteria have to be prescribed in
advance. Para 11 of the judgment and order dated 06.11.2012 (Annexure-4
to the writ petition) read as follows:-
Page 9 of 22
"11. Once it is found that management experience and
knowledge of analytical equipments other than SEM are not the
qualifications stipulated by the advertisement, the insistence of
these qualifications by the Selection Committee on the pain of
rejection of the candidature of the petitioner, would amount to
introduction of additional criteria/qualifications for appointment
to the post in question without any authority of law; this is an
ultra vires action. Even assuming without admitting that such
power is there, selection criteria have to be prescribed in
advance. The issue was reviewed by the Apex Court in K.
Manjusree case (supra) wherein the legal position was
reiterated in the following manner:
"33. The Resolution dated 30-11-2004 merely adopted
the procedure prescribed earlier. The previous
procedure was not to have any minimum marks for
interview. Therefore, extending the minimum marks
prescribed for written examination, to interviews, in the
selection process is impermissible. We may clarify that
prescription of minimum marks for any interview is not
illegal. We have no doubt that the authority making rules
may regulating the selection, can prescribe by rules, the
minimum marks for both written examination and
interviews, or prescribes minimum marks for written
examination, but not for interview, or prescribe minimum
marks for written examination but not for interview, or
may not prescribe any minimum marks for either written
examination or interview. Where the rules do not
prescribe any procedure, the Selection Committee may
also prescribe the minimum marks, as stated above. But
if the Selection Committee wants to prescribe minimum
marks for interview, it should do so before the
commencement of the selection process. If the Selection
Committee prescribed minimum marks only for the
written examination, before commencement of selection
process, it cannot either during the selection process or
after the selection process, add an additional
requirement that the candidates also should secure
minimum marks in the interview. What we have found to
be illegal, is changing the criteria after completion of the
selection process, when the entire selection proceeded
on the basis that there will be no minimum marks for the
interview."
In any view of the matter, I am of the considered view that the
impugned selection process suffers from the vice of
arbitrariness, illegality and/or non-application of mind calling for
the interference of this Court."
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9. The Gauhati High Court, after coming to the above findings
vide para 11 of the judgment and order dated 06.11.2012, had set aside the
selection proceedings of the Selection Committee and also subsequent
advertisement dated 28.06.2012 and directed the respondents to consider
afresh the case of the petitioner for appointment to the post of Professor in
SAIF, NEHU strictly in accordance with the criteria and the respective
weightage as prescribed by the extant rules and regulations. Again the
Selection Committee held on 14.02.2013 did not recommend the petitioner
for appointment to the post of Professor in SAIF by direct recruitment. The
said recommendation of the Selection Committee held on 14.02.2013 was
placed before the Executive Council of the University in the 145 th Meeting of
the Executive Council held on 28.03.2012. The Executive Council adopted
the Resolution, which reads as follows:-
"No:EC:154:2013:6:1(i): The Council noted that, the University
in compliance of the Order of the Hon‟ble High Court in letter
and spirit and in adherence to the extant rules and regulations
of Act/Statute/Ordinance of the University in terms of Sec. 18 of
the NEHU Act, 1973 and Statute 2(b)(1), (2) and (3) and
Statute 13(2)(ii), Statute 20(2) and Ordinance OE 3(3) and (10)
has considered afresh the Candidature of Dr. Sudip Dey for
appointment to the post of Professor. Dr. Sudip Dey was
interviewed by duly constituted Selection Committee on 14.3.
2013 within the stipulated date vide Hon‟ble High Court Order
dated 17.12.2012. The Executive Council RESOLVED to
approve the recommendation made by the Selection
Committee as place in the meeting which is reproduced
hereunder:
"The candidate scored 37 out of 80 in expert assessment and
therefore not recommended."
UGC Regulation 2010 Clause 6.2.0 prescribes similar norms
for CAS and direct recruitment. Further Clause 6.3.2 and 6.3.11
provide that a candidate obtaining score of less than 50% in
expert assessment cannot be recommended for
promotion/selection.
In view of the fact that the candidate scored less than the
minimum prescribed by UGC as well as the Selection
Committee, the Executive Council RESLOVED not to appoint
Dr. Sudip Dey as Professor."
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10. It is stated that the petitioner had submitted an application on
03.04.2013 under the RTI Act requesting the respondents for (a) Selection
Committee report for the said post of Professor; (b) Score sheet of the
petitioner (c) Minimum score, if any, needed for selection in direct
recruitment. In response to the said application dated 03.04.2012, the PIO,
NEHU vide letter dated 01.05.2013 informed the petitioner as follows:-
"(a) That with regard to the query of the petitioner as to the
minimum score, if any, needed for selection in direct
recruitment, the information furnished under the RTI Act stated
as follows:-
"As per UGC Regulation in the final assessment the candidate
should obtain minimum 50% in expert assessment."
(b) That the copy of the selection committee report (Minutes of
the Selection Committee meeting dated 14.2.2013) stated as
follows:-
"... At the outset the committee felt that the Professor in SAIF is
also expected to be the leader of SAIF. Thus according to the
criteria in the relevant score card, the committee has fixed a
minimum of 65/100 in order for the candidate to be considered
for the selection."
(c) That as per the copy of the score sheet furnished to the
petitioner, the selection committee awarded the petitioner the
following marks:
Academic Research Assessment Interview Total marks
Background performance Domain performance obtained out of
based on API Knowledge 100
score & quality and teaching
of Publications skills
(20 marks) (40 marks) (20 marks) (20 marks)
15 20 10 7 52
(d) That the Score card prepared by the Selection Committee
made the following remark:
"The candidate scored less than minimum recommended score
fixed by the Committee and also UGC."
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(e) That the Minutes of the Selection Committee meeting stated
as follows:-
"The candidate Dr. Sudip Dey scored 52/100. Hence the
candidate was not selected for the position...."
(f) That the Recommendation of the Selection Committee was
as follows:-
"The candidate scored 37 out of 80 in the expert assessment
and therefore not recommended."
11. Copies of the (i) work-sheet; (ii) score-sheet and; (iii)
proceedings of the Selection Committee are annexed in the present writ
petition. The work-sheet, score-sheet and the proceedings of the Selection
Committee speak three languages for the same selection process inasmuch
as, the work-sheet (recommendation of the Selection Committee) speaks
that the petitioner was not recommended as he secured 37 out of 80 in the
expert assessment, the score-sheet speaks another language that the
candidate secure less than the minimum recommended score fixed by the
Selection Committee and UGC i.e. the minimum of 65/100 and the
proceedings of the Selection Committee again stated that according to the
criteria in the relevant score card, the Committee had fixed a minimum of
65/100 in order for the candidate to be considered for the selection. After
perusal of these copies, this Court put pointed questions to Mr. K Khan,
learned counsel for the respondents to answer correctly the questions (i) at
what stage of the selection process or when did the Selection Committee fix
the minimum score for recommendation of the candidates for direct
recruitment to the post of Professor in SAIF, more particularly, in the given
case, the Hon‟ble Gauhati High Court in the judgment and order dated
06.11.2012, clearly made a direction to the respondents that the selection
criteria has to be prescribed well in advance and also another question (ii)
whether or not the fixation of the minimum score for recommendation of the
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candidates was before the selection process? Mr. K Khan, learned counsel
for the respondents in his usual frankness, had submitted that clear
instruction is required from the respondents for answering the questions,
more particularly, "whether or not the fixation of the minimum score for
recommendation of the candidates for direct recruitment was before the
selection process or in the midst of the selection process?" On the next day,
Mr. Khan, learned counsel for the respondents placed before this Court the
original proceedings of the Selection Committee dated 14.02.2013. On bare
perusal of the original proceedings of the Selection Committee, it is crystal
clear that there is no indication that in compliance with the directions of the
Hon‟ble Gauhati High Court in the judgment and order dated 06.11.2012
passed in WP(C)No.191(SH) of 2012, the minimum score of 65/100 had
been prescribed well in advance or in other words, before the selection
process started.
12. In case of plurality of candidates in a selection process for
direct recruitment, the Selection Committee can recommend the candidates
on the basis of comparative merits of the candidates. In the case of lone
candidate for lone post, the minimum score for recommendation i.e.
minimum qualifications for appointment of the candidate are to be provided
much in advance in strict compliance with the qualifications stipulated in the
advertisement and also the relevant rules and regulations. Fixing of minimum
qualifications for the lone candidate for lone post would amount to fixing or
prescribing qualifications for appointment to that particular post. In this
context, it appears that the respondents had misread the provisions of the
ordinances mentioned above, and also the powers and jurisdictions of the
Executive Council for prescribing the minimum score for the petitioner for
appointment by direct recruitment to the post of Professor in SAIF inasmuch
as, the minimum score prescribed by the Selection Committee would amount
Page 14 of 22
to prescribing the minimum qualifications for appointment to the post of
Professor in SAIF. The Selection Committee should not mix up with its power
under paras 3 & 8 of the OE-2 as to their power for adopting their own
procedures regarding the mode of assessment in plurality of candidates in a
selection process with the one where there is lone candidate in a selection
process for one post. In case of a lone candidate, there is no comparative
assessment of merits and the lone candidate is to be subjected as to whether
the lone candidate had the qualifications as provided in the advertisement
and the relevant rules and regulations and the fixation of minimum score by
the Selection Committee would amount to prescribing the minimum requisite
qualifications of the candidate for which the Executive Committee of NEHU is
the Competent Authority. The prescribing of requisite qualifications is not the
duty of the Selection Committee and it is the duty of the Executive Council
under the said Act of 1973. We may refer to the decision of the Apex Court in
Dr.Krushna Chandra Sahu & Ors vs. State of Orissa & Ors: (1995) 6
SCC 1 that fixation of suitability criteria is the primary duty of the law making
authority and the selection criteria cannot be laid down by the Selection
Board unless specifically authorized. Paras 33, 34, 35 and 36 of the SCC in
Dr. Krushna Chandra Sahu‟s case (Supra) read as follows:-
"33. The members of the Selection Board or for that matter, any
other 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 made under Article 309. It
is basically the function of the Rule making authority to provide
the basis for selection. This Court in State of A.P. v. V.
Sadanandam:1989 Supp(1) SCC 574: 1989 SCC (L&S) 511:
(1989) 11 ATC 391 observed as under: (SCC pp. 583-84, para
17)
"We are now only left with the reasoning of the Tribunal
that there is no justification for the continuance of the old
rule and for personnel belonging to other zones being
transferred on promotion to offices in other zones. In
drawing such conclusion, the Tribunal has travelled
beyond the limits of its jurisdiction. We need only point
out that the mode of recruitment and the category from
which the recruitment to a service should be made are
Page 15 of 22
all matters which are exclusively within the domain of the
executive. It is not for judicial bodies to sit in judgment
over the wisdom of the executive in choosing the mode
of recruitment or the categories from which the
recruitment should be made as they are matters of policy
decision falling exclusively within the purview of the
executive."
(Emphasis supplied)
34. 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. In P.K.
Ramachandra lyer v. Union of India: (1984) 2 SCC 141:
1984 SCC (L&S) 214: (1984) 2 SCR 200, it was observed:
(SCC pp.180-81, para 44)
"By necessary inference, there was no such power in the
ASRB to add to the 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."
35. Similarly, in Umesh Chandra Shukla v. Union of India:
(1985) 3 SCC 721: 1985 SCC (L&S) 919: 1985 Supp (2) SCR
367, 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:(1987) 4 SCC 646: 1988 SCC (L&S)36: (1987) 5 ATC
148:(1987) 2 UJ (SC) 657 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.
36. It may be pointed out that rule making function under Article
309 is legislative and not executive as was laid down by this
Court in B.S. Yadav v. State of Haryana: 1980 Supp SCC
524: 1981 SCC (L&S) 343: AIR 1981 SC 561. For this reason
also, the Selection Committee or the Selection Board cannot be
held to have jurisdiction to lay down any standard or basis for
selection as it would amount to legislating a rule of selection."
13. Not to speak of prudent person, even a layman know quite well
that the rule of game should be prescribed before the game starts and the
rule of game cannot be prescribed in the middle of the game. Taking cues of
the settled position of law, the Hon‟ble Gauhati High Court in the judgment
and order dated 06.11.2012, had already made a clear direction that the
Page 16 of 22
selection criteria had to be prescribed well in advance. Now it is well settled
in the service jurisprudence that the selection process begins with the issue
of advertisement. Regarding this settled position of law, we may refer to the
decision of the Apex Court in A.P. Public Service Commission, Hyderabad
& Anr vs. B. Sarat Chandra & Ors: (1990) 2 SCC 669.
14. Regarding the settled law that the selection criteria or the rule
of the game had to be prescribed well in advance and the rule of game
cannot be changed when the game is under process. We may refer to the
decisions of the Apex Court in (i) K Manjusree vs State of Andhra Pradesh
& Anr: (2008) 3 SCC 512; (ii) Ramesh Kumar vs. High Court of Delhi &
Anr: (2010) 3 SCC 104 and; (iii) State of Orissa & Anr v. Mamata
Mohanty: (2011) 3 SCC 436. The Apex Court in K Manjusree‟s case (Supra)
held that:
"33. The Resolution dated 30-11-2004 merely adopted the
procedure prescribed earlier. The previous procedure was not
to have any minimum marks for interview. Therefore, extending
the minimum marks prescribed for written examination, to
interviews, in the selection process is impermissible. We may
clarify that prescription of minimum marks for any interview is
not illegal. We have no doubt that the authority making rules
may regulating the selection, can prescribe by rules, the
minimum marks for both written examination and interviews, or
prescribes minimum marks for written examination, but not for
interview, or prescribe minimum marks for written examination
but not for interview, or may not prescribe any minimum marks
for either written examination or interview. Where the rules do
not prescribe any procedure, the Selection Committee may also
prescribe the minimum marks, as stated above. But if the
Selection Committee wants to prescribe minimum marks for
interview, it should do so before the commencement of the
selection process. If the Selection Committee prescribed
minimum marks only for the written examination, before
commencement of selection process, it cannot either during the
selection process or after the selection process, add an
additional requirement that the candidates also should secure
minimum marks in the interview. What we have found to be
illegal, is changing the criteria after completion of the selection
process, when the entire selection proceeded on the basis that
there will be no minimum marks for the interview."
Page 17 of 22
The Apex Court in Ramesh Kumar‟s case (Supra) held that:
"13. In Durgacharan Misra v. State of Orissa: (1987) 4 SCC
646: 1988 SCC (L&S) 36: (1987) 5 ATC 148: AIR 1987 SC
2267, this Court considered the Orissa Judicial Service Rules
which did not provide for prescribing the minimum cut-off marks
in interview for the purpose of selection. This Court held that in
absence of the enabling provision for fixation of minimum
marks in interview would amount to amending the rules itself.
While deciding the said case, the Court placed reliance upon its
earlier judgments in B.S. Yadav v. State of Haryana: 1980
Supp SCC 524: 1981 SCC (L&S) 343: AIR 1981 SC 561; P.K.
Ramachandra Iyer v Union of India: (1984) 2 SCC 141:
(1984) SCC (L&S) 214: AIR 1984 SC 541; and Umesh
Chandra Shukla v. Union of India: (1985) 3 SCC 721: (1985)
SCC (L&S) 919: AIR 1985 SC 1351, wherein it had been held
that there was no "inherent jurisdiction" of the Selection
Committee/Authority to lay down such norms for selection in
addition to the procedure prescribed by the Rules. Selection is
to be made giving strict adherence to the statutory provisions
and if such power i.e. "inherent jurisdiction" 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.
14. Similarly, in K Manjusree v. State of A.P.:(2008) 3 SCC
512: (2008) 1 SCC (L&S) 841: AIR 2008 SC 1470, this Court
held that selection criteria has to be adopted and declared at
the time of commencement of the recruitment process. The
rules of the game cannot be changed after the game is over.
The competent authority, if the statutory rules do not restrain, is
fully competent to prescribe the minimum qualifying marks for
written examination as well as for interview. But such
prescription must be done at the time of initiation of selection
process. Change of criteria of selection in the midst of selection
process is not permissible."
(emphasis supplied)
15. Mr. K Khan, learned standing counsel for NEHU at the very
outset put up a very impressive submission that the Court has no power for
judicial review of the academic matters and the Courts are not to sit in appeal
over the opinion of the expert, more particularly, academic matters. But
answer to the submission of Mr. K Khan is that this Court is not sitting in
Page 18 of 22
appeal over the opinion of the Selection Committee but in judicial review, the
Court is confined to the decision making process. It is too late for the day to
questions the settled principles of law that the power of judicial review over
the legislative action and administrative action vested in the High Courts
under Article 226 and in the Supreme Court under Article 32 of the
Constitution of India is an integral and essential feature of the Constitution,
constituting part of its basic structure. For this well settled principle of law, we
may refer to some celebrated cases i.e. (i) Kesavananda Bharati v. State
of Kerela: (1973) 4 SCC 225; and (ii) Minerva Mills Ltd. v. Union of India:
(1980) 3 SCC 625; (the ratio decidendi in those cases are explained and
taught by the Professors for laws to the law students in all the universities,
(iii) Indira Nehru Gandhi v. Raj Narain: 1975 Supp SCC 1; (iv) Kihoto
Hollohan v.Zachillhu: 1992 Supp (2) SCC 651 and; (v) L Chandra Kumar
v. Union of India & Ors: (1997) 3 SCC 261. Paras 73 and 74 of the SCC in
L Chandra Kumar‟s case (Supra) read as follows:-
"73. We may now analyze certain authorities for the proposition
that the jurisdiction conferred upon the High Courts and the
Supreme Court under Articles 226 and 32 of the Constitution
respectively, is part of the basic structure of the Constitution.
While expressing his views on the significance of draft Article
25, which corresponds to the present Article 32 of the
Constitution, Dr. B.R. Ambedkar, the Chairman of the Drafting
Committee of the Constituent Assembly stated as follows:
(CAD, Vol. VII, p.953)
"If I was asked to name any particular article in
this Constitution as the most important - an article
without which this Constitution would be a nullity -
I could not refer to any other article except this
one. It is the very soul of the Constitution and the
very heart of it and I am glad that the House has
realized its importance."
(emphasis added)
Page 19 of 22
74. This statement of Dr. Ambedkar has been specifically
reiterated in several judgments of this Court to emphasize the
unique significance attributed to Article 32 in our constitutional
scheme. [See for instance, Khanna, J in Kesavananda Bharati
case: (1973) 4 SCC 225 (p.818), Bhagwati, J in Minerva Mills:
(1980) 3 SCC 625 (p.678), Chandrachud, C.J. in Fertilizer
Kamgar: (1981) 1 SCC 568 (Para 11), R Misra, J in Sampath
Kumar: (1987) 1 SCC 124: (1987) 2 ATC 82 (p.137)]"
16. It is so well settled that the judicial review of the administrative
action is directed against the decision making process. The Apex Court
taking into consideration of what Lord Diplock observed in Council of Civil
Service Unions v. Minister for the Civil Service: (1984) 3 WLR 1174 (HL):
(1984) 3 All ER 935, 950 in Ranjit Thakur v. Union of India & Ors: (1987)
4 SCC 611 held that:
"25. Judicial review generally speaking, is not directed against
a decision, but is directed against the "decision making
process". The question of the choice and quantum of
punishment is within the jurisdiction and discretion of the Court-
Martial. But the sentence has to suit the offence and the
offender. It should not be vindictive or unduly harsh. It should
not be so disproportionate to the offence as to shock the
conscience and amount in itself to conclusive evidence of bias.
The doctrine of proportionality, as part of the concept of judicial
review, would ensure that even on an aspect which is,
otherwise, within the exclusive province of the Court- Martial, if
the decision of the Court even as to sentence is an outrageous
defiance of logic, then the sentence would not be immune from
correction. Irrationality and perversity are recognized grounds
of judicial review. In Council of Civil Service Unions v.
Minister for the Civil Service, (1984) 3 WLR 1174 (HL):
(1984) 3 All ER 935, 950 Lord Diplock said:
"Judicial Review has I think developed to a stage today
when without reiterating any analysis of the steps by
which the development has come about, one can
conveniently classify under three heads the grounds on
which administrative action is subject to control by
judicial review. The first ground l would call 'illegality', the
second „irrationality' and the third 'procedural
impropriety'. That is not to say that further development
on a case by case basis may not in course of time add
further grounds. I have in mind particularly the possible
adoption in the future of the principle of 'proportionality'
Page 20 of 22
which is recognized in the administrative law of several
of our fellow members of the European Economic
Community. ....."
17. The Apex Court reiterated in Sugarbai M. Siddiq & Anr vs.
Ramesh S. Hankare (DEAD) by LRS: (2001) 8 SCC 477 that the power of
judicial review of the High Courts is to the decision making process.
The Apex Court in State of West Bengal & Ors vs. Committee
for Protection of Democratic Rights, West Bengal & Ors: (2010) 3 SCC
571 held that:
"51. The Constitution of India expressly confers the power of
judicial review on this Court and the High Courts under Articles
32 and 226 respectively. Dr. B.R. Ambedkar described Article
32 as the very soul of the Constitution - the very heart of it -
the most important article. By now, it is well settled that the
power of judicial review, vested in the Supreme Court and the
High Courts under the said articles of the Constitution, is an
integral part and essential feature of the Constitution,
constituting part of its basic structure. Therefore, ordinarily, the
power of the High Court and this Court to test the constitutional
validity of legislations can never be ousted or even abridged.
Moreover, Article 13 of the Constitution not only declares the
pre-Constitution laws as void to the extent to which they are
inconsistent with the fundamental rights, it also prohibits the
State from making a law which either takes away totally or
abrogates in part a fundamental right. Therefore, judicial review
of laws is embedded in the Constitution by virtue of Article 13
read with Articles 32 and 226 of our Constitution."
18. For the foregoing discussions and reasons, this Court is of the
considered view that the selection process of the Selection Committee held
on 14.02.2013 suffers from inherent and apparent illegalities and called for
interference. Accordingly, the selection process of the Selection Committee
held on 14.02.2013 is hereby set aside and quashed. The Court has no
alternative except to direct the Selection Committee to consider afresh the
case of the petitioner for appointment to the post of Professor in SAIF,
Page 21 of 22
NEHU, Shillong by strictly in accordance to the clear cut findings of the
Hon‟ble Gauhati High Court in the judgment and order dated 06.11.2012
passed in WP(C)No.191(SH) of 2012 and also by correcting the infirmities
and illegalities pointed out by this Court in the above paras in conducting the
selection process within a period of two months from the date of receipt of a
certified copy of this judgment and order.
19. This Court hopes and trusts that the respondents shall read
and re-read the judgment and order of the Hon‟ble Gauhati High Court dated
06.11.2012 and also this judgment and order. No doubt, the Professors and
the authorities of the NEHU are the members of the intellectual society. One
who had not committed a mistake is yet to be born.
20. In the result, the writ petition is allowed to the extent indicated
above.
JUDGE
Lam
.
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