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Dr. Kusum K. Bhatt Vs. Gujarat University - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR485
AppellantDr. Kusum K. Bhatt
RespondentGujarat University
Cases ReferredState of Karnataka v. M. Farida
Excerpt:
.....on behalf of the petitioner has very vehemently argued that unless reasons are stated by the selection committee in support of the recommendations which it makes including the order of merits which it specifies, it shall be well-nigh impossible for the academic council as well as the executive council to come to the conclusion whether the selection committee objectively and purely on merits arrived at its recommendations mr. the executive council shall make the final selection out of the persons so recommended, and where it makes the appointment otherwise than in accordance with the order of merit arranged by the committee, the executive council shall record its reasons for doing so. according to him, if a detailed report is made by the selection committee to the executive council..........in support of the recommendations which it makes to the academic council or the executive council.clause (2) of statute 12 provides what the selection committee is required to do. it reads as follows:the committee shall investigate the merits of the various candidates and report to the executive council the names of the persons, arranged in order of merit, whom it considers suitable for the vacant posts.4. the function of the selection committee is, in terms of clause (2) of statute 12, three-fold. its first duty is to investigate the merits of various candidates whom it interviews. secondly, it is required to report to the executive council names of persons whom it has selected. thirdly, it is required to arrange in order of merit the names of persons whom it recommends to the.....
Judgment:

S.H. Sheth, J.

1. Mr. Nanavaty who appears on behalf of the petitioner has raised those very contentions before us. The first contention which he has raised is that the selection committee was under an obligation to state reasons for the recommendations which it made and that in so far as the selection committee did not state reasons in support of the recommendations which it made, Clauses (2), (3) and (4) of Statute 12 in the Second Schedule to the Gujarat University Act, 1949, were violated. According to him, therefore, the recommendations made by the selection committee were void and of no consequence.

2. In order to appreciate the contention which Mr. Nanavaty has raised, it is necessary first to turn to Section 47 of the Gujarat University Act, 1949, which is hereinafter referred to as 'the Act' for the sake of brevity. It, inter alia, provides that 'there shall be Committee for selection of different classes of full-time teachers of the University including tutors and demonstrators'. It further provides that 'no person shall be appointed as full time teacher of the University except on the recommendation of the committee'. It next provides that 'the constitution of such Committees, the term of office of members and the procedure to be followed by the Committees shall be such as may be prescribed by the Statutes'. It was in pursuance of this statutory requirement that the University constituted the selection committee to which we have referred above. Under Section 29(1A) the Statutes framed by the Legislature have been incorporated in Schedule II. Statute 12 which is relevant for the purpose of the present case, firstly provides:

(1) The Committee for selection of full time teachers of the University shall consist of:

(i) the Vice-Chancellor, ex-officio-Chairman;

(ii) The Pro-Vice-Chancellor, if any: Provided that:

(a) where a person is to be selected for the post of a Professor or a Reader three persons having special knowledge of the subject for which the Professor or Reader is to be appointed, to be selected by the Executive Council shall also be the members of the Committee, out of whom at least two shall be present at the time of interview of the candidates.

3. We are not concerned with other sub-clause of Clause (1) of Statute 12 because they deal with the constitution of the selection committee in the context of making appointment to the posts of a Lecturer, Tutor or Demonstrator. It was in pursuance of Section 47 read with Statute 12(1)(a) that the selection committee, to which we have referred above was constituted. The contention which we are required to answer is two-fold. Does Statute 12, on its own terms, require the selection committee to state reasons in support of the recommendation which it makes to the Academic Council or to the Executive Council? If Statute 12 is silent on this aspect, do principles of natural justice require, in order to eliminate chances of arbitrariness and capriciousness, that the selection committee should state reasons in support of its recommendations? Mr. Nanavaty who appears on behalf of the petitioner has very vehemently argued that unless reasons are stated by the selection committee in support of the recommendations which it makes including the order of merits which it specifies, it shall be well-nigh impossible for the Academic Council as well as the Executive council to come to the conclusion whether the selection committee objectively and purely on merits arrived at its recommendations Mr. Nanavaty has not argued before us that the selection committee or the Academic Council or the Executive Council was actuated or motivated by mala fides either in specifying the order of merit or in not appointing the petitioner. We may state that even in academic matters, if mala fides are alleged or, if it is shown prima facie that some mal-practice was committed by a statutory body, it becomes the bounden duty of this Court to investigate the allegation and to interfere with the decision if interference is called for in the circumstances of the case. In the instant case, in absence of any allegation as to mala fides or mal-practice, shall we say that reasons are required to be stated by the selection committee in support of the recommendations which it makes to the Academic Council or the Executive Council.

Clause (2) of Statute 12 provides what the selection Committee is required to do. It reads as follows:

The Committee shall investigate the merits of the various candidates and report to the Executive Council the names of the persons, arranged in order of merit, whom it considers suitable for the vacant posts.

4. The function of the Selection Committee is, in terms of Clause (2) of Statute 12, three-fold. Its first duty is to investigate the merits of various candidates whom it interviews. Secondly, it is required to report to the Executive Council names of persons whom it has selected. Thirdly, it is required to arrange in order of merit the names of persons whom it recommends to the Executive Committee or the Executive Council. Proviso to Clause (2) of Statute 12 is not relevant for the purpose of the present case because it pertains to the selection for the post of a Professor. There is nothing in Clause (2) of Statute 12 which requires the selection committee to state the reasons in support of its recommendations to the Executive Council.

5. In order to unfold the amplitude of Clause (2) of Statute 12, it is necessary to refer to Clauses (3) and (4) of that Statute. Clause (3) reads as follows:

The Executive Council shall make the final selection out of the persons so recommended, and where it makes the appointment otherwise than in accordance with the order of merit arranged by the Committee, the Executive Council shall record its reasons for doing so.

This clause makes it abundantly clear that if the Executive Council changes or modifies the order of merit which the selection committee has specified, it is bound to give reasons for doing so. The statutory need to give reasons in this case militates against arbitrary interference by the Executive Council with the order of merit of selection committee consisting of experts. Secondly, Clause (3) in terms requires the Executive Council to give reasons. We find no such provision in Clause (2) of Statute 12.

Clause (4) of Statute 12 reads as follows:

If the Committee reports to the Executive Council the name of only one person and if the person so reported is not acceptable to the Executive Council, it shall refer the matter back to the Committee with reason for not accepting the name, and if the Committee reiterates its recommendation the case shall be submitted to the Chancellor for final orders.

Clause (4) of Statute 12 also expressly provides for giving reasons in a case where the Executive Council refers back to the Selection Committee the recommendation made by the latter. We find no such express provision in Clause (2) of Statute 12. The statutory requirement to give reasons, laid down by-clause (4) of Statute 12, militates against any arbitrary reference back by the Executive Committee to the Selection Committee. Secondly, it also shows that if the selection committee reiterates its recommendations on a reference back made to it by the Executive Council, the Executive Council has no authority to turndown that recommendation on its own. In case of difference of opinion between the Selection Committee and the Executive Council, the matter goes to the Chancellor for final orders. It means that the Chancellor acts as the arbiter in the matter. Omission on the part of the Legislature to provide for giving reasons in Clause (2) of Statute 12 appears to us to be deliberate and intentional particularly when we read it in juxtaposition with Clauses (3) and (4). Since the Legislature has expressly provided for giving reasons in cases falling under Clauses (3) and (4) of Statute 12 and since it has omitted to do so in Clause (2), we are of the opinion that there is no statutory requirement on the part of the Selection Committee to give reasons for the recommendations which it makes to the Executive Council.

6. Mr. Nanavaty has invited our attention to certain decisions in support of the second aspect of his first contention. The second aspect is that principles of natural justice require that the Selection Committee should give reasons in absence of which it would be difficult for the Executive Council to come to the conclusion whether the recommendations made by the Selection Committee are arbitrary or objective. This aspect which Mr. Nanavaty has canvassed is indeed de hors Statute 12. Before we proceed to examine it, it is necessary to remember, in the context of Statute 12 the duties of the selection committee, Selection Committee, in the first instance, owes a duty to candidates. In so far as it is required to objectively consider and assess his merits, next it owes duty to the Executive Committee to whom it is required to recommend the names of persons whom it selects. Thirdly, it owes a duty to the Court. In so far as its duty to the selection committee is concerned, it is enough if the selection committee has objectively assessed the comparative merits of candidates. The selection committee has no obligation to tell the candidates what weighed in their minds to select some and to reject others. It is also under no obligation to tell them why it specifies a particular order of merit in respect of candidates selected by it. To take the view that the selection committee owes such a duty to the candidates is to open flood-gates to mischief. One who appears before the selection committee of experts for being selected as a candidate cannot be given a right to cross-examine the members of Selection Committee. To say that a candidate has such a right or has a right to call in question the reasons which the selection committee had in mind is an absurdity. A case in which mala fides are alleged against the selection committee will stand on an altogether different footing. In the instant case, there is no such allegation. So far as duty of the selection committee to the Executive Council is concerned, it is necessary 10 remember that the Executive Council is not a super-selection body The duty of selecting competent candidates to fill in the posts of a full-time teacher has been left by the Legislature to the selection committee. The Executive Council considers the recommendations made by the selection committee and appoints them to the vacant posts. Indeed, if something is brought to the notice of the Executive Council which was not brought to the notice of the selection committee, it may refer back to the selection committee the recommendations made by it. It is necessary to remember, in the context of the scheme of Clause (4) of Statute 12, that the Executive Council is neither a super-selection body nor an appellate body above the selection committee. It appears to us from the scheme of Statute 12 that whereas the selection committee selects, the Executive-Council appoints. Therefore, to accede to the argument raised by Mr. Nanavaty that the Executive Council must have an opportunity to know what operated in the minds of the members of the selection committee in making particular recommendations is, contrary to the provisions of Clause (4) of Statute 12, to arrogate to the Executive Council the role of a super-selection committee or an appellate body It is also necessary to remember that in the instant case there is no difference of opinion between the Executive Council and the selection committee. The selection committee selected two candidates and the Executive Council appointed one and not both of them. The Executive Council did not make the second appointment because it thought fit, not on the comparative merits of two candidates, to re-advertise the second post for the benefit of members of the scheduled castes, Scheduled tribes and economically backward classes. Since there was no difference of opinion between the selection committee and the Executive Council in this case, the selection committee hardly owed any duty to the Court to explain why it came to specify the order of merits which it did. So far as the Executive Council is concerned, it has satisfactorily explained to the Court that it did not make the second appointment because in its opinion second post is required to be advertised again for the benefit of the members of Scheduled castes, Scheduled tribes and economically backward classes. If we bear in mind the respective roles of the selection committee and the Executive Council, we must be slow, indeed very slow in accepting the argument which Mr. Nanavaty has raised before us.

7. Mr. Patel who appears on behalf of the respondent No. 2 has tried to point out to us that omission on the part of the Legislature to provide for giving reasons in support of its recommendations has a rationale behind it. According to him, if a detailed report is made by the selection committee to the Executive Council directly or through the Academic Council, then, pulls and pressures are likely to be exercised in the matter of appointments on account of the elective character of the Academic Council as well as the Executive Council. That pulls and pressures are ordinarily exercised in an elective body is now a national phenomenon in this country. It is quite probable, therefore, that the submission made by Mr. Patel has some justification. However, we are not interested in reading Clause (2) of Statute 12 in between the lines because it is not necessary for us for the purpose of the present case to do so.

8. It has been argued by Mr. Nanavaty that the recommendations made by the election committee did not expressly state that they were in order of merits. Therefore, according to him, the Executive Council was in error in accepting them in order of merits. The report which the selection committee made to the Executive Council indeed did not expressly and in terms state that the names recommendations were arranged in order of merits. However, it did not state to the contrary as well. Now, Clause (2) of statute 12 which we have reproduced above casts upon the selection committee a statutory duty to arrange the names of the persons selected in order of merit. Therefore, in absence of any evidence to the contrary, presumption arises that the arrangement of names which the selection committee had made was in order of merit. In the instant case, there is extraneous evidence to show that the names were arranged in order of merit. The affidavit-in-reply filed by the Vice-Chancellor of Gujarat University states that the names of respondent No. 2 and the petitioner were arranged by the selection committee in order of merit. The Vice-Chancellor was the Ex-officio Chairman of the Selection Committee. We see no reason to reject or discard the averment on oath made by him. Thirdly, the report which the selection committee made to the Executive Council inter-alia, stated as follows:

After, therefore, considering relative merits of the candidates present, the Committee recommends the following two candidates for the two posts of Reader in Psychology in the Department of Psychology in the University School of Psychology, Philosophy and Education, and they be appointed accordingly:

(1) Dr. Smt. P.H. Raval.

(2) Dr. Miss K.K. Bhatt.

The use of two expressions by the selection committee in its report, 'relative merits' and 'appointed accordingly' goes to indicate that the names of respondent No. 2 and the petitioner were arranged by them in order of merit. There was therefore no violation on the part of the selection committee of Clause (2) of Statute 12.

9. We now turn to a few decisions to which our attention has been invited. The first decision is in Dr. J.P. Kulshrestha v. Chancellor, Allahabad University : (1980)IILLJ175SC . It was a case in which the question as to the legality of the selection of Readers by the Allahabad University arose. The observations which the Supreme Court has made and upon which reliance has been placed by Mr. Nanavaty are as follows:

Any administrative or Quasi-judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic, flexible and functionally by viable processes of transacting business subject, of course, to the basics of natural justice, fair play in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping within the leading strings of the law. We find no flaw in the methodology of 'interviews'. Certainly, cases arise where the art of interviewing candidates deteriorates from strategy to strategem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests. This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So it is that Courts insist, as the learned Single Judge has in this, very case suggested, on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. If the Court is skeptical, the record of the selection proceedings, including the notes regarding the interviews, may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is bad.

I further proceeds and says:.. The second obscurantism we must remove is the blind veneration of marks at examination as the main measure of merit. Social scientists and educational avant garde may find pitfalls in our system of education and condemn the unscientific aspects of marks as the measure of merit, things as they now stand. But, however imperfect and obtuse the current system and however urgent the modernisation of our courses culminating in examinations may be, the fact remains that the court has to go by what is extent and cannot explore on its own or ignore the measure of merit adopted by universities. Judges must not rush in where even educationalists fear to tread. So, we see no purpose in belittling the criterion of marks and class the Allahabad University has laid down, although to swear religiously by class and grade may be exaggerated reverence and false scales if scrutinised by progressive criteria.

These observations upon which Mr. Nanavaty has placed reliance were made by the Supreme Court in the context of two situations. Firstly, the record must show, if the Court requires it, how a selection was made. In the instant case, we do not require the record for determining how the selection committee made its recommendations to the Executive Council. Secondly, one of the qualifications which was prescribed for appointment of a Reader in that case was first or high second class Master's Degree in the subject concerned and good academic record. The question turned upon the interpretation of the expression 'high second class'. Second class ranged from 48 to 60% of the total marks. There were some who had obtained less than 54 per cent of marks. It was necessary, so far as the objective test was concerned, to show how the requirement of a 'high second class' by those who had secured less than 54% of the total marks was satisfied. It was the duty of the Court to interpret 'high second class' used in the relevant rule in that case. It was in that context that the Supreme Court said that the record must show what had weighed with the selection committee to arrive at the conclusion that the eligibility of 'high second class' was satisfied in case of those candidates who had secured less than 54% of total marks. Therefore, the requirement to give reasons which the Supreme Court has laid down in that case cannot be applied to the instant case as if it is an irrevocable rule. The principle laid down in that case cannot be invoked in aid of the proposition that in case of every selection made by an academic body through its selection committee, the selection committee must give reasons in support of its recommendations.

10. The next decision to which our attention has been invited by Mr. Nanavaty is in Union of India v. M.L. Capoor : (1973)IILLJ504SC . It was a case under Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955. In paragraph 28 of the report, in the context of the supersession of a senior candidate and promotion of a junior candidate to the higher post, the Supreme Court has observed that the Selection Committee ought to have stated reasons in a manner which would disclose how the record of each superseded officer stood in relation to records of others who were to be preferred, because, in light of the protection conferred by Articles 14 and 16 it was the only visible safeguard against possible injustice and arbitrariness in making selections. The Supreme Court has further observed that the reasons which, a Selection Committee gives must reveal a rational nexus between the facts considered and the conclusions reached. It is only in that way that opinions and decisions recorded can be shown to be manifestly just and reasonable. What applies to the case of a supersession cannot necessarily be applied to the case of a direct selection particularly when no mala fides are alleged against the Selection Committee or any other body.

11. The third decision to which our attention has been invited by Mr. Nanavaty is in State of Bihar v. A.K. Mukherjee : (1975)ILLJ198SC . It was a case under the Medical Council Act, 1956, and the Regulations made thereunder in the matter of appointment of a Registrar. The question which arose in that case was whether, 'teaching experience in a teaching institution' which a candidate was required to have would include experience as a Registrar in British Hospital. The Supreme Court felt that it was necessary for the Selection Committee to show why experience as a Registrar in a British Hospital could not be considered, to be a teaching experience in a teaching institution which was one of the criteria for the eligibility for appointment of the Registrar. In that case, the Supreme Court was required to interpret the expression 'teaching experience, in a teaching institution'. The principle laid down in that decision cannot be applied to the facts of the present case.

12. The next decision to which Mr. Nanavaty has invited our attention is in Mohinder Singh Gill v. Chief Election Commissioner : [1978]2SCR272 . It was a case under Representation of the People Act, 1951. The Polling Officer had cancelled the poll. He had not given any reasons. The Supreme Court held that it was necessary for him to do so. What holds good in case of an election does not necessary hold good in case of an initial appointment on the recommendation of a Selection Committee consisting of experts. Mr. Shelat who appears on behalf of the University has invited our attention to the decision of the Supreme Court in University of Mysore v. Govinda Rao : [1964]4SCR575 . It was a case in which appointment to the post of a Reader was questioned. The Board of experts was appointed by the University for the selection of candidates for the post of a Reader. The Board of experts made its recommendations on the merits of different candidates whom they interviewed. The question which arose before the Supreme Court in that case was to what extent the Court should interfere with the recommendations of such a Board. The Supreme Court has in that context observed, that when the recommendations made by a Board of Appointments are challenged before a Courts, normally the Court should be slow to interfere with the opinion expressed by the experts. If there is no allegation of mala fides against the experts who constituted the Board, it would normally be wise and safe for the Court to leave the decision of academic, matters to experts who are more familiar with the problems they face than the courts generally can be. The Board is not in the position of an executive executive authority, issuing an executive fiat. It does not act like a quasi-judicial body. It does not decide disputes referred to it for its decision. Before a writ of certiorari is issued, there must be a manifest error. All that the High Court is required to consider is whether the appointment made by the Chancellor on recommendation of the Board has contravened any statutory or binding rule or ordinance. While the High Court does so, it should show due regard to the opinion expressed by the Board and its recommendations on which the Councilor has acted.

The next decision to which our attention has been invited by Mr. Shelat is in Dr. G. Marulasiddaiah v. T.G. Siddapparadhya : (1971)IILLJ349SC . In that case also, the question which arose related to the appointment of the members of the staff of Mysore University. The principle which the Supreme Court has laid down, is that when the, rule, is substantially complied with, failure to expressly record reasons for disregarding greater length of service of a candidate does not vitiate the appointment of the other candidate per se.

Mr. Patel who appears on behalf of the respondent' No. 2 has invited our attention to the decision of the Supreme Court in State of Karnataka v. M. Farida : [1977]1SCR323 . The only relevant, principle which has been laid down in that decision is that where several aspects of a candidate's career are required to be assessed for deciding whether he should be selected for a. particular post, it is not necessary that separate marks must be assigned to each aspect of his career.

We are, therefore, of the opinion that neither the principles of natural justice nor Statute 12 requires the Selection Committee to give reasons in support of its recommendations. Since there, is no allegation as to mala fides against the Selection Committee in this case, the recommendation which it made to the Executive Council without giving reasons was not bad in law. The first contention raised by Mr. Nanavaty, therefore, fails and is rejected.


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