WP(C) 3340/2008 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM,NAGALAND,MEGHALAYA,MANIPUR,TRIPURA, MIZORAM AND ARUNACHAL PRADESH) (CIVIL EXTRA ORDINARY JURISDICTION). WP(C) NO.3340 OF 2008 DR. NILAMONI BORA Son of Late Bholanath Bora,, Resident of Vill & PO Jagi, District Morigaon, Assam, Presently residing at Gauhati University Campus Dist. Kamrup, Assam. &. PETITIONER. - VERSUS- 1. The Gauhati University, Represented by the Vice Chancellor, Gauhati University, Guwahati-14. 2. The Executive Council, Gauhati University, represented by The Vice Chancellor-cum-Chairman of the Said Council, Gauhati University, Guwahati-14. 3. The Registrar, Gauhati University, Guwahati-14 4. Sri Uttam Chjandra Das, Deputy Registrar (Admn) Indian Institute of Technology, Guwahati-39. 5. The Selection Committee, represented by the Vice-Chancellor-cum-Chairman of the said Committee, Gauhati University, Guwahati-14. RESPONDENTS P R E S E N T THE HON’BLE MR. JUSTICE RANJAN GOGOI For the Petitioner Sri PK Kalita, Sri GJ Saikia,, Sri N.Das &.Advocates. For the Respondents Sri RP Kakati, Advocate Date of Hearing : 11.12.2008. Date of Judgment- Thursday,the11th day of Dec..2008. JUDGMENT & ORDER Heard Sri PK Kalita, learned counsel for the petitioner and Sri RP Kaka ti, learned counsel appearing on behalf of the Respondent Nos. 1, 2, 3 and 5. No ne has appeared on behalf of the Respondent No.4 in spite of due service of noti ce. 2. As agreed to by the learned counsels for both the sides and as the matte r pertains to appointment of the Registrar of Gauhati University, the Court has considered it appropriate to dispose of the Writ Petition at the admission stage . 3. By an advertisement published on 20.03.2008, applications were invited for filling up the post of Registrar of the Gauhati University. Sixteen candidates, who had applied including the petitioner and the Respondent No.4, we re called for the interview by the Selection Committee constituted in accordance with Section 15A of the Gauhati University Act. Out of the candidates so called for, thirteen had appeared before the Interview Board on the date fixed, i.e., 12.07.2008. The Interview Board/Selection Committee, on completion of the select ion process, recommended the petitioner and the Respondent No.4 at Sl. Nos.1 and 2 for appointment. As under Section 8(c) of the Act, appointment of the Regist rar is to be made by the Executive Council, the said body had considered the mat ter in a meeting held on 31.07.2008. On the basis of the deliberations that took place in the said meeting, it was resolved that the Respondent No.4, who was pl aced at Sl. No.2 of the list of candidates recommended by the Selection Committe e, should be appointed in the post of Registrar. In the aforesaid meeting, the Executive Council took into account an earlier episode involving the petitioner while he was holding additional charge of the Office of the Controller of Examin ations and on that basis recorded its opinion that the high responsibility veste d in the Office of the Registrar should not be entrusted to the petitioner and, instead, it is the Respondent No.4 who should be appointed. At this stage, the p etitioner had approached this Court by means of the present writ petition wherei n an interim order dated 04.08.2008 was passed halting the process of appointmen t of the Respondent No.4. Coincidently, earlier to that, i.e., on 01.08.2008, th e Registrar by a letter had informed the Respondent No.4 of his selection for ap pointment and had required the said Respondent to join duties in the post of Reg istrar. However, in view of the interim order dated 04.08.2008, the said appoint ment has not been given effect to. It is the legality and validity of the said a ppointment which has been questioned in the present proceeding by the writ petit ioner. 4. Two contentions have been advanced in the main by Sri PK Kalita, learne d counsel for the petitioner. Sri Kalita has submitted that on an allegation of unsatisfactory conduct of duties as the In-charge Controller of Examinations res ulting in the postponement of several University Examinations, explanations from the petitioner were called for by a letter dated 01.03.2006 of the Registrar of the University. This was pursuant to a resolution of the Executive Council date d 06.02.2006. In the said letter of the Registrar dated 01.03.2006, it was, inte r alia, alleged that the petitioner, while holding the charge of the Office of t he Controller of Examinations, had failed to conduct some University Examination s as per schedule leading to postponement of such examinations. The reluctance o f the petitioner to hold additional charge of the office of the Controller of Ex aminations also find mention in the said letter dated 1.3.2006. The petitioner, on receipt of the letter dated 01.03.2006 submitted his reply dated 09.03.2006 e xplaining the situation and further stating that he had desired to relinquish ch arge of the Office of Controller of Examinations on the ground of ill health. Sr i PK Kalita, learned counsel for the petitioner has further submitted that appar ently the University was satisfied with the explanation offered by the petitione r, in as much as, the matter was not proceeded with any further. However, at the time of selection for the post of Registrar, the matter was resurrected once ag ain and the same has been construed in a manner adverse to the petitioner result ing in the preference being given to the second nominee of the Selection Board, i.e., the Respondent No.4. Such action of the University, according to Sri PK Ka lita, learned counsel for the petitioner, is wholly unjustified, arbitrary and h ence untenable in law. 5. Sri PK Kalita, learned counsel for the petitioner has further argued t hat under Section 15A (3) of the Act, in the event the Executive Council is not inclined to accept any of the recommendations of the Selection Committee, it is required to refer the matter to the Chancellor of the University and such decisi on as may be taken by the Chancellor would be final. Sri Kalita has submitted th at if the Executive Council was unable to accept the recommendations of the Sele ction Committee in favour of the petitioner as the first nominee, it was incumbe nt on the said Body to make a reference of the matter to the Chancellor, which h as not been done. The petitioner, therefore, according to Sri Kalita, has been b ypassed and the Respondent No.4 has been selected for appointment in breach of t he aforesaid provisions of the Act. 6. The arguments advanced on behalf of the petitioner has been sought to be controverted by Sri RP Kakati, learned counsel for the Respondent University. S ri Kakati has urged that there was an incident relating to performance of duties by the petitioner as the In-charge Controller of Examinations, which had occurr ed in the year 2006. The petitioner, according to Sri Kakati, was disinclined to continue as the In-charge Controller of Examinations and had desired to be reli eved of his charge with effect from 24.12.2005. Pointing to the materials on rec ord, Sri Kakati has argued that the Vice Chancellor of the University had tried his level best to persuade the petitioner to discharge the duties of the Office of the Controller of Examinations but all such efforts had failed compelling the University to entrust the said responsibility to another adhoc appointee result ing in serious dislocation of the examination schedule of the University. The learned counsel for the Respondent University has further argued that the matter was pursued by calling for the explanations of the petitioner. Such explanation s as were received were duly considered and the University decided not to procee d any further in the matter. Such decision of the University, however, could not have acted as an estoppel on the University from considering the said episode/i ncident while determining the suitability of the petitioner for the high post of Registrar. This is precisely what was done in the meeting of the Executive Coun cil held on 31.07.2008, the learned counsel has submitted. Reading the entire te xt of the resolution of the Executive Council dated 31.07.2008, Sri Kakati has c ontended that the previous episode involving the role of the petitioner in his r ole as the In-charge Controller of Examinations was considered by the Executive Council with a view to finding out the suitability of the petitioner for the pos t of Registrar and on due consideration of the matter, the Council had decided t o opt for the second nominee recommended by the Selection Committee, i.e., the R espondent No.4. The above course of action of the Executive Council, according t o Sri Kakati, is perfectly justified and warranted in the best interest of the I nstitution. 7. In so far as the second argument advanced by the learned counsel for the petitioner is concerned, Sri Kakati has argued that under Section 15A (1)(c), p articularly, the first proviso thereof, it is only in case of appointment of a P rofessor/Reader or Lecturer that the Executive Council is required to record its reasons for any decision to make the appointment otherwise than in the order of merit of the candidates as arranged by the Selection Committee and thereafter t o refer the matter to the Chancellor. Sri Kakati has argued that Section 15A(3) of the Act will apply only if the Executive Council does not accept any of the recommendations of the Selection Committee. In the present case, the appointmen t is in the post of Registrar and, therefore, will not be covered by the require ment spelt out by the first proviso to Section 15A(1)(C). The present is also no t a case where the Executive Council had taken any decision not to accept any of the recommendations of the Selection Committee. Rather, the Executive Council h ad accepted the recommendations of the Selection Committee in so far as the seco nd nominee, i.e., Respondent No.4 is concerned. Therefore, it is submitted, the provisions contained in Section 15A(3) will have no application to the present c ase. 8. The rival contentions advanced on behalf of the parties have received the due and anxious consideration of the Court. The Court has also looked into t he resolution of the Executive Council dated 06.02.2006, the communication of th e Registrar to the petitioner dated 01.03.2006; the reply of the petitioner date d 09.03.2006 as well as the resolution of the Executive Committee dated 31.07.20 08 details of which have already been noted. The petitioner was given additional charge of the Office of the Controller of Examinations sometime in November, 20 05. He had expressed a desire to be relieved of the additional charge with effe ct from 24.12.2005. There is an allegation against the petitioner that his condu ct in conveying the request for being relieved of the charge was not in an accep table manner as he is alleged to have thrown the keys of the said Office on the table of the Registrar. There was a further allegation against the petitioner th at owing to his unsatisfactory performance as the In-charge Controller, some exa minations had to be re-scheduled. Accordingly, the Executive Council by resoluti on dated 06.02.2006 desired to obtain the explanation of the petitioner in this regard for which the Registrar’s letter dated 01.03.2006 was issued. In reply, t he petitioner by letter dated 09.03.2006 stated before the concerned authority t hat when he took over charge of the Office of the Controller, there was a huge b acklog of work, which he tried his level best to complete. The petitioner also s tated that his substantive post of Secretary, University Classes involved heavy responsibilities and, therefore, on account of ill health he was unable to conti nue to hold additional charge of the Office of the Controller of Examinations. A ccordingly, he had desired to be relieved of the additional charge with effect f rom 24.12.2005. The University, evidently, did not pursue the matter after the e xplanation of the petitioner was received. However, when the question of approva l of the selection for the post of Registrar arose, the Executive Council had de cided to take into account the said facts. The question, therefore, that has to be answered is whether the aforesaid facts could have been legitimately taken in to account in the course of the decision making process involved in the present case. 9. The Writ Court would exercise a severely circumscribed jurisdiction whil e exercising the validity of appointments, particularly, those relating to the a cademic institutions. It is not for the Court but for the duly constituted Board /Committees and such other bodies to determine the suitability of a particular c andidate to fill up a particular post. The role of the Court comes in only when the decision taken is arbitrary or is vitiated by extraneous and irrelevant cons iderations. In the present case, the University, on receipt of the petitioner’s explanation dated 09.03.2006, may have decided that the matter is not fit for fu rther departmental action. However, the said fact by itself cannot be understood to have operated as a bar for the University to take into account the facts and circumstances surrounding the earlier episode involving the petitioner for dete rmining his suitability for the post of Registrar. Previous performance in anoth er capacity in the same organization can certainly be taken into account by the employer while adjudging the suitability of the concerned incumbent for higher r esponsibilities. Besides, facts which by itself may not be sufficient or justifi ed for further disciplinary action, can legitimately be taken into account while determining the suitability of the concerned person for a higher post in the sa me organization, i.e., the University in the present case. That apart, the facts considered by the Executive Council in its meeting dated 31.7.2008 also cannot be termed as extraneous or irrelevant for determining the suitability of the pet itioner for the post of Registrar. If that be so, the first argument advanced by the petitioner cannot merit acceptance of the Court. 10. Coming to the second contention of the petitioner, the Court, on a perus al of the relevant provisions contained in Section 15A of the Act, finds that th e scheme contemplated by the aforesaid provision of the Act is that in a situati on where the Executive Council proposes to disagree with the order of merit of c andidates prepared by the Selection Committee, it is required to record its reas ons and forward the matter to the Chancellor of the University. However, such a requirement has been spelt out only in cases of appointment in the posts of Lect urer/Professor/Reader and not in any other post including the post of Registrar . Section 15(3) of the Act on which much reliance has been placed by the petitio ner contemplates a situation where the Executive Council is unable to accept any of the recommendations of the Selection Committee. Such a situation had not ari sen in the present case. Therefore, the Court cannot allow Section 15A(3) to ope rate to the present case so as to require a reference to be made to the Chancell or. The second contention advanced on behalf of the petitioner, therefore, has t o equally fail. 11. Certain supplementary contentions had also been advanced, which are to t he effect that the petitioner is a Ph.D. Degree holder and further that he is ol der in age than the Respondent No.4. The requirement of a Ph.D. Degree is not a mandatory requirement under the advertisement in question. The petitioner being older or younger than the Respondent No.4 cannot determine the validity of the s election. The said supplementary contentions advanced on behalf of the petitione r, therefore, cannot also have the approval of the Court. 12. For the aforesaid reasons, I do not find any merit in the writ petition. The Writ Petition is accordingly dismissed. However, in the facts and circumsta nces of the case, I make no order as to cost.