WP(C) 4237/2006 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGEMENT & ORDER (ORAL) The petitioner herein has questioned the legality and validity of the selection and appointment of Respondent No. 4 as Reader in the Department of Folklore Rese arch, Gauhati University, invoking power under Article 226 of the Constitution o f India. 2. Background facts in a nutshell as projected in the pleadings of the riva l parties are as follows: On 06.07.05, an advertisement being Advertisement No.T/2005/2 was issued by the Registrar, Gauhati University inviting applications for the post of Read er of Folklore Research with specialization in Folk Literature of Socio Cultural Anthropology alongwith other posts. The writ petition relates to the post of Re ader relating to Folklore Research. So this court is concentrating to the facts leading to filing up of the post of Folklore Research. The following qualifications were prescribed for the post of Reader in the adver tisement: Reader: 1) Good academic record with a doctoral degree or equivalent published work. In addition to these, candidates who join from outside the University system, shall also possess at least 55% of the marks or an equivalent grade of B in the 7 poi nt scale with grades of O, A, B, C, D, E & F at the Masters degree level in the relevant subject. 2) Five years of experience of teaching and/or research excluding the period spe nt for obtaining the research degree and has made some marks in the areas of sch olarship as evidence by quality of publications, contributions to educational in novations, design of new courses and curriculum. 3. The writ petitioner alongwith respondent no. 4 and one Dr. Mrinal Medhi applied for the post pursuant to the advertisement. On completion of the process the above-mentioned three candidates were called for interview held on 19.07.06 . The University is a statutory organization constituted under Section 3 of the Gauhati University Act, 1947 (hereinafter to be referred to as Act) have a selec tion committee for making recommendation to the Executive Council for appointmen t of Professor, Reader, Lecturer, Registrar, Treasurer and other officers under Section 15(A) of the Act. The Selection Committee consists of the following memb ers: 15-A. Selection Committee; - (1) (a) There shall be a Selection Committee for making recommendations to the Executive Council for appointment of Professors, Readers, Lecturer, Regis trar, Treasurer, Librarian and other officers of the University as may be provid ed for by the Statutes consisting of the following members: (i) the Vice-Chancellor as Chairman of the Selection Committees; (ii) three persons not holding any office of profit under the University of w hom one nominated by the Chancellor, or to be nominated by the State Government and the other to be nominated by the Executive Council; (iii) the Register shall be the member-Secretary of the Selection Committee ex cept for the Selection for the Selection Committee for the appointment of Regist rar in which case the Vice-Chairman shall nominate one person as member-Secretar y in consultation with the Executive Council. (b) In making recommendations for the appointment of Professors of the Unive rsity, the Selection Committee shall co-opt the Head of the Department concerned , if he is a Professor, one Professor of the Department to be nominated by the E xecutive council out of the panel of not less than five names of person recommen ded by the Academic Council who have special knowledge of the subject for which the Professor is to be selected. (c) In making recommendations for the appointment of Readers or Lecturers an d other teachers of the University the Selection Committee shall co-opt the Head of the Department concerned, one Professor of the Department to be nominated by the Vice-Chancellor and two persons to be nominated by the Executive Council ou t of a penal of not less than five names of persons recommended by the Academic Council being persons not connected with the University, who have special knowle dge of or interest in the subject for which the Reader or Lecturer is to be sele cted . The respondent University sought for opinion from two different professors, one Dr. Biplab Chakravorty from University of Bardhaman and the other Dr. Jawaharlal Handoo from Central Institute of Indian Languages, Mysore. 4. The opinion of experts were obtained on 27.12.2005 and 24.12.2005 respec tively. Dr. Biplab Chakravorty as an expert opined that all three (3) candidates are more or less suitable for the post subject to their performance before the Member of the Selection Committee. The said Dr. Biplab Chakravorty gave a tentat ive opinion that a list may be prepared in order of preference in relation to th eir experience of teaching which are quoted hereunder: Sl. No. Name of the candidate Remarks 1 Dr. Mrs. Bijoya Baruah A good candidate with 18 years of teaching exp erience 2 Dr. Anil Boro A good candidate with 17 years of teaching experience 3 Dr. Mrinal Medhi A good candidate with 10 years of teaching exper ience Dr. Biplab Chakravorty did not give opinion about the details of the candidate b ut only considered their teaching experience. 5. On the other hand the opinion of Dr. Jawaharlal Handoo assessed the elig ibility of the three candidates based on their applications, research and public ations and made comments in order of preference, which is quoted hereunder: 1. Dr. Anil Boro- Dr. Anil Boro has a good academic record. He has two first Divisions and High Percentage of marks (61.1%) in M. Phil. Besides his Ph. D. dissertation an d most of the published work, in my opinion almost meets the criteria set by the University in terms of Specialization i.e. ’Folk Literature of Socio-cultural a nthropology’ (although the phrasing of this specialization is highly misleading. It makes it a kind of wrong label. One wonders what exactly this phrase means. However, I suppose that this specialization demands that the candidate must have done work in the area of folklore that matches similar work done in the area of socio-cultural anthropology. I again wonder if we are looking for a serious fol klorist or an anthropologist or both in the candidate). Anyway, I find the candi date has done most of his research on Bodo folk literature based on very sound f ieldwork and has published serious research papers both in English and Assamese in books and journals of repute and as such he seems to be my first choice for t his position. I must also note that Dr. Boro has participated in many seminars a nd workshops in many parts of India and is a member of scholarly societies. His exposure to academic concerns of folklore scholarship is clearly evident in his writings. I realize that his contributions have enriched the vast field of folkl ore studies and related areas. Dr. Boro has also teaching and research experience of about 16 years, wh ich includes postgraduate teaching. He is also supervising some scholars leading to Ph.D in folklore of the Gauhati University. A young scholar who has all thes e qualities in my opinion is certainly fit to become a Reader in Folklore of Gau hati University. This assessment is based on the application and the publication s of the candidate. Dr. (Mrs.) Bijoya Baruah: Dr. (Mrs.) Bijoya Baruah the second candidate for the post of Reader in folklore has almost all the qualifications on paper one needs for the post. She has all degrees (most of them II Class). She has also participated in many workshops, se minars and conferences. She has sufficient teaching experience, although not all Postgraduates. She has the experience of guiding research too. However, her aca demic activities have not made any serious impact on the folklore scholarship of Assam and India. Dr. Baruah has published some research papers but not a single has appeared in a journal or book of repute. The published paper in English lac ks depth of serious analysis. She might be an excellent teacher and researcher i n her current local setting, but she has failed to make her ideas known through her research papers or books to a wider scholarly audience. The research paper s he claims she has published are listed in her resume but these are not in the co re field of folkloristics and these have not appeared in the journals of repute. As a folklorist having a little experience of Assam and Northeast, I have not f elt that her work in the field of folklore has received any serious attention in academic meetings in Assam and neighboring areas. Despite all these academic we akness, I am convinced that she has a lot of experience in the area of Assamese literature, and in fact her Ph. D dissertation is also highly literature oriente d and does not seem to match the specialization demanded by the University. Dr. Baruah has not in my opinion done any serious fieldwork. However, I find her an experienced scholar and as such place her as No. two candidate for this position . This assessment is based on the application and the publications of the candid ate. Dr. Mrinal Medhi: The third choice for the position of Reader is Dr. Mrinal Medhi. This ca ndidate has all the qualifications needed for this position. I was highly impres sed by the topic of his Ph.D. dissertation. Following Proppian structural model for the analysis of the folk narratives of Assam has placed him in line with the core group of folklorists. This I guess will be considered as the first serious structural study of narrative repertoire of Assam. The candidate has also publi shed some interesting papers on structuralism and Propp in the Assamese Encyclop edia. He seems to have translated and published many more informative papers on international folklore in the Encyclopedia. The candidate has enough teaching ex perience as needed for this position but I guess he lacks the teaching experienc e of the postgraduate classes. Despite his contributions in the Assamese Encyclo pedia Project, the candidate has not in my opinion published any serious researc h paper in a journal of repute or a book. Even then I find the candidate highly promising and as such I place him at No. three for this position. This assessmen t is based on the application and the publications of the candidate. 6. The candidature of the three candidates alongwith academic qualification s as prescribed in the advertisement were placed before the Selection Committee constituted under Section 15A of the Act. The Selection committee considered the ir respective academic record with doctoral degree, teaching experience and/or r esearch experience alongwith the opinion conveyed by two professors one Dr. Bipl ab Chakravorty from the University of Bardhaman and the other Dr. Jawaharlal Han doo from the Central Institute of Indian Languages, Mysore. The Selection Commit tee recommended Dr. Anil Boro for the post to be filled up as a Reader in the Un iversity to the Executive Council as required under the provisions of the Act an d the Executive Council considered all these aspects and vide order dated 26.08. 2006 appointed Dr. Anil Boro as Reader in the Folklore Research Department under Gauhati University which is under challenge in this writ petition. 7. Advancing the argument on behalf of the petitioner Mr. YS Mannan, Advoca te would urge that in absence of any specific rule or guidelines for selection a nd appointment of Reader in the University, the usual practice of appointing per sons, on the basis of qualification, experience in teaching and marks in the are a of scholarship by quality publication, contribution to educational innovation, design of new courses and curricula is the criteria for selection and appointme nt to the post of Reader and the petitioner being a holder of Ph. D. Degree and submitted her D.Litt. thesis and having vast experience in the line of teaching together with other activities like publications, research guiding, attending se minars/conferences both national and international and refresher, orientation co urses etc., is qualified to be appointed in the post and therefore selection of respondent No. 4 is not free from bias. The same is arbitrary and malafide and m ade on extraneous consideration which requires interference by this Court in exe rcise of power under Article 226 of the Constitution of India. 8. Mr. Mannan would further urge that the Selection of Respondent no. 4 is vitiated being violative of statutory requirements as prescribed under Section 1 5(A)(1) of the Act which prescribes that 9 persons should constitute a Selection Committee whereas in the instant case, the Selection Committee was constituted with 7 persons and on this ground alone the selection and appointment of Respond ent No. 4 to the post of Reader in the Folklore Research Department of the unive rsity deserves to be set aside in the interest of the students as a whole, mores o, when the comparative statements of the petitioner and respondent no. 4 would show that the petitioner is more qualified and deserving candidate than the resp ondent no. 4. In support of his contentions, Mr. Mannan has referred the judgement and order passed by this Court in WP(C) No. 4189 of 2006 (Dr. Manidipa Baruah v. Ga uhati University & Ors.). 9. None appeared on behalf of respondent No.4, when the matter was taken up for hearing. However, an affidavit-in-opposition has been filed by respondent N o.4 contending, inter alia, that biodata of the candidates applied for the post of Reader in the Folklore Research Department of the University would show that he is senior to the petitioner in respect of experience and research work in the department of Folklore and has published research papers both in English and As samese, in books and journals of repute. Moreover he has done his research on Bo do Folk Literature based on very sound fieldwork. He has participated in many se minars and workshops in many parts of India and is a member of scholarly societi es. He has also published many books. He has exposed as academician relating to folklore, which enriched the vast field of folklore studies and related areas in comparison to the petitioner. The Selection Committee therefore have considered everything and found him suitable than the writ petitioner and thus appointed h im in the post of Reader in the Department of Folklore Research, Gauhati Univers ity which do not require to be interfered with in the matter of selection and ap pointment made by an expert body. 10. Refuting the allegations made by the learned counsel appearing for the p etitioner, Mr. LP Sarma, learned counsel appearing for respondent Nos. 1, 2 and 3 (The University) has contended that the allegations of bias, malafide and arbi trary on the part of the respondents in selecting and appointing the respondent no. 4 cannot be agitated in absence of better particulars relating to the afores aid allegations brought in the pleadings and the selection committee found the r espondent no. 4 as more suitable in all respect than the petitioner and has thus recommended for appointment and accordingly the Executive Council considered al l these aspects and appointed the respondent no. 4 which do not require to be in terfered with over the recommendation of an expert body in the field of educatio n in exercise of power under Article 226 of the Constitution of India. 11. In regard to statutory requirement of constituting the Selection Committ ee as prescribed under Section 15 A(1)(a) read with Section 15A(1)(c) of the Act , Mr. Sarma would urge that the Selection Committee was constituted with the fol lowing: 1) Dr. GN Talukdar, the Vice Chancellor, Chairman; 2) Dr. PK Choudhury, member; 3) Dr. Debdas Kakaty, member; 4) Dr. Harekrishna Gayan, Member; 5) Dr. KK Bhattacherjee, Head of the Department of Folklore Research Department of the Gauhati University. 6) Dr. RN Das, Registrar, Gauhati University, Member Secretary: 7) Dr. RK Kar, expert, nominated by the Executive council. Mr. Sarma has fairly contended that there is no professor in the Folklore Resear ch Department under the Gauhati University and therefore none could be nominated by the vice-Chancellor to the Selection Committee and as such there is no short fall in constituting the Selection Committee as contended by the counsel of the petitioner and hence prayed that the selection and appointment of respondent no. 4 by an expert body do not require to be interfered with. 12. Considered the submissions made by rival parties. Perused the relevant r ecords including the pleadings set forth by the parties. Admittedly the essentia l qualification for the post of Reader as advertised requires the following qual ification: Reader: 1) Good academic record with a doctoral degree or equivalent published work. In addition to these, candidates who join from outside the University system, shall also, possesses at least 55% of the marks or an equivalent grade of B in the 7 point scale with grades of O, A, B, C, D, E & F at the Masters degree level in t he relevant subject. 2) Five years of experience of teaching and/or research excluding the period spe nt for obtaining the research degree and has made some marks in the areas of sch olarship as evidence of quality of publications, contributions to educational in novations, design of new courses and curriculum. 13. In order to analyze the academic career of the parties in the writ petit ion and the facts averred it would be necessary to depict merit position of the parties, which are as follows: The marks obtained by the petitioner in her HSLC examination is 55%. 58% in Pre-University examination, 52% in BA examination and in MA examination in G roup A 55.6% in the year 1986 but in Group B and C she had no norms securing 53% and 47% respectively and she secured 56% in M. Phil examination and obtained Ph . D. degree in the year 1994, whereas the Respondent No. 4 had secured 67% marks in HSLC Examination, 73% in Pre-University Examination (5th Position under the University Examination) 47.71% in BA Examination, 55.2% in MA and in M. Phil exa mination he secured 60% and was awarded Ph. D degree in the year 1999. 14. It is also an admitted fact that the respondent authority has obtained o pinion from two experts viz., one Dr. Biplab Chakravorty and another from Dr. Ja waharlal Handoo, wherein Dr. Biplab Chakravorty opined that all the three candid ates are more or less suitable for the post subject to their performance before the Member of the Selection Committee. But he did not give any opinion about the details of the candidates save and except the teaching experience though the te aching experience of the petitioner would be 13 years instead of 18 years, where as Dr. Jawaharlal Handoo dealt with all aspects of the candidate and has made an alytical discussion of all the candidates and gave opinion in favour of the resp ondent no. 4 as 1st nominee and therefore in my considered opinion no interferen ce is required relating to the opinion of the experts in giving the opinion in f avour of the respondent no. 4 and accepted by the Selection Committee. 15. Now the next and last question raised in constituting the selection Comm ittee is required to be answered. A conjoint reading of Section 15A(1)(a) and 15 A(1)(c) of the Act would reveal that there shall be a selection committee consi sting of the Vice-chancellor as chairman of the Selection Committee along with t hree persons not holding any office of profit under the University, out of whom one nominated by the Chancellor or to be nominated by the State Government and t he other to be nominated by the Executive Council and the Registrar shall be the member Secretary of the Selection Committee. The members of the Selection Commi ttee constituted under Section 15A(1)(a) of the Act shall make recommendations t o the Executive Council for appointment of Professors, Readers, Lecturers, Regis trar, Treasurer, Librarian and other officers of the University. Section 15(1)(a ) (i), (ii) and (iii) provides of the members of the Selection Committee which c annot be find fault in constituting the Selection Committee. In addition to the members constituted under Section 15A(1)(a) of the Act, other members required t o be included in the Selection Committee as required under Section 15A (1)(c) ha s not been adhered to while constituting the Selection Committee. Therefore in a bsence of the requisite number of members constituted for the Selection Committe e, the recommendation made by the Selection Committee in favour of the responden t no. 4 and consequently appointed by the Executive Council cannot be accepted a s valid, it is because of the established principles of law that where a power i s given to do a certain thing in a certain way, the thing must be done in that w ay or not at all. (Nazir Ahmed Vs. Emperor AIR 1936 PC 253 and Ramchandran Kesha v Adke Vs. Gobind Joti Chavare & Others AIR 1975 SC 915). Therefore, selection a nd appointment of the respondent no. 4 made on 26.08.06 is liable to be interfer ed with which I hereby do. 16. The decision cited (supra) by the counsel for the petitioner is not appl icable and hence not discussed. 17. In the result the writ petition is allowed setting aside the selection a nd appointment order dated 26.08.06 issued by the Registrar of the Gauhati Unive rsity in favour of respondent no. 4 with a direction to the University to consti tute the Selection Committee afresh strictly in compliance with the provisions o f the statute, and, thereafter, to proceed with selection and appointment relati ng to the candidature of the petitioner and the respondent No.4 alongwith Dr. Mr inal Medhi. 18. The parties are left to bear their own costs.