BEDABATI MOHANTY Vs. CHANCELLOR UTKAL UNIVERSITY

JUDGEMENT

(1.) This writ application and OJC No. 1910 of 1992 Were heard together before a Bench of this Court and both the learned Judges came to the conclusion that OJC No. 1910 of 1990 was to be dismissed. But so far as the present writ application is concerned, while Hon'ble Justice Pasayat held that this writ application was to be dismissed. Hon'ble Justice D. M. Patnaik came to the conclusion that the writ application was to be allowed and because of this divergence of views, this matter has been placed before me.

(2.) AN advertisement had been issued by the Utkal University on 18th of May, 1987, seeking applications for the post of Professor in Rural Economics. Dr. Kumar Bar Das (petitioner in OJ0 No. 1910/90). as also Dr. (Mrs.) Bedabati Mohanty (petitioner in OJC No. 2144/90) along with others were the applicants. The Selection Committee constituted by the University to evaluate the respective merits of the candidates called both the petitioners as well as others to interview. Finally, the Selection Committee placed Dr. Kumar Bar Das at Serial No. 1 and Dr. (Mrs.) Bedabati Mohanty at Serial No. 2. On the basis of the recommendations made by the Selection Committee, the Syndicate decided to appoint Dr. Kumar Bar Das as Professor in Rural Economics. Dr. (Mrs.) Bedabati Mohanty filed an application before the Chancellor of the University challenging the selection of Dr. Kumar Bar Das on the ground that he did not possess the requisite qualification even to be called to the interview. The Chancellor on receipt of the said application issued notice to the Syndicate as well as to Dr. Kumar Bar Das and came to the conclusion that Dr. Kumar Bar Das who has been placed at the first position of the Select List was not eligible to be considered for the post of Professor by the last date of the application as per the minimum qualification mentioned in the advertisement for the post and the minimum qualification prescribed in the U. G. C. qualification required of a person to be appointed to the teaching staff of a University or other institutions affiliated to it as well as on the ground that in contravention of the provisions mentioned in Schedule -A prescribed under Statute -5 of the Orissa Universities Employees (Conditions of Service) Statutes, 1988, has been awarded 4 marks under the heading 'Teaching Experience'. The Chancellor further held that there had been a lapse of the University authorities in awarding marks to the candidates including the candidate in the second position of the Select List under the heading 'Teaching Experience' without reference to 'only Honours and P. G. Teaching', as provided in Schedule -A of the Statutes in force. The Chancellor ultimately came to the conclusion that the recommendation of the Selection Committee vide its proceeding dated 29 -2 -1939 for appointment to the post of Professor of Economics could not be held as valid recommendation and, therefore, the appointment given on the basis' of such recommendation by the Syndicate was ab initio void. He therefore, ordered annulment of the appointment in favour of Kumar Bar Das and directed for re -advertisement of post. This decision of the Chancellor was challenged both by petitioner Dr. Kumar Bar Das and as well as petitioner Dr. (Mrs ) Bedabati Mohanty in two different writ applications, as already stated, and so far as Dr. Kumar Bar Das's writ petition is concerned, the same having been dismissed by both the learned Judges, the matter is pending before the Supreme Court. So far as petitioner Dr. (Mrs) Bedabati Mohanty is concerned, brother Justice Pasayat came to the conclusion that award of marks to Bedabati Mohanty by the Selection Committee was not in order, inasmuch as while under Schedule -A it was only the 'teaching experience in the honours and post -graduate classes' to be reckoned, but in the application form submitted by her it had not been indicated as to whether the teaching experience of said Bedabati Mohanty was in Honours and Post -Graduate teaching and on this basis Hon'ble Justice Pasayat came to the conclusion that the Selection Committee was not possessed with required information in terms of Schedule -A of Statute -5. Brother Justice D. M. Patnaik, on the other hand, came to the conclusion that by the date of the application, namely 17 -6 -1987, Bedabati Mohanty had Honours Teaching experience for 20 years and, therefore, the Selection Committee committed no mistake in awarding her 10 marks towards her teaching experience. Brother Justice Patnaik further came to the conclusion that the 1988 Statutes which is referred to by the Chancellor was not in force on 17 -6 -1987, the date of the application and, therefore, it was not a statutory requirement that teaching experience only in honours and post -graduate classes is to be counted as per 1982 Regulation which was then in force. According to Brother Justice Patnaik, the Selection Committee having not committed any error in awarding marks towards teaching experience of Dr. Bedabati Mohanty, the ground on which her selection was cancelled by the Chancellor was erroneous and, therefore, her application was to be allowed.

(3.) SO far as the first question is concerned, while the advertisement for the post of Professor had been issued on 18th of May, 1987. the Statutes of 1988 had not come into force. The essential qualifications for the post of Professor under the advertisement ware that th3 candidate should be : '...An eminent scholar with published work of high quality, actively engaged in research. About ten years' experience of teaching and/or research and experience of guiding research at doctoral level. Or An outstanding scholar with established reputation who has made significant contribution to knowledge.' Thus, under the advertisement, though 10 years of teaching experience was an essential qualification, but it had not been prescribed, that the said experience would be only in honours and Post -Graduate classes. The Statutes which came into force with effect from 19 -11 -1988, however provided that the competent authority may lay down an objective system of evaluation of career, experience et cetera and Schedule -A to the Statues provided a system of evaluation of candidates merit for various teaching posts which may be adopted for other posts. It may be noticed, therefore, that while under the advertisement only 10 years of teaching experience was the criterion, under the Statutes referred to, which came into force before the selection and subsequent to the advertisement, power was conferred upon the competent authority to lay down on objective system of evaluation of the career and experience and Schedule -A thereto provided that teaching experience for the post of Processor and Reader would mean 'only Honours and P.G. teaching ' and 'one mark for each completed year, subject to a maximum of 10 marks over and above the minimum prescribed years' could be awarded. If, therefore, teaching experience in Honours and P.G. teaching was not a requirement under the advertisement, a person cannot be made ineligible by the subsequent Statutes and the selection has to be made on the basis of the qualification as prescribed in the advertisement itself It is indeed for that reason petitioner Dr. (Mrs.) Bedabati Mohanty was not required to give in the application form her teaching experience in honours classes, though in the writ petition filed by her she has indicated that she had about 20 years of teaching experience in honours classes. I am, therefore, of the considered opinion that the Statutes as well as the conditions prescribed under the Statutes will have no application for selection to the post of Professor for which advertisement had been issued as early as on 13th of May, 1987. Even if it is held that the Statutes having come in to force before the selection to the post of Professor and would apply to the selection thus made, the further question that arises for consideration is whether the objective system of evaluation of the career, experience, of the candidate and Schedule -A to the Statutes had at all been laid down by the competent authority ? Statute -5 of the Statutes is extracted herein below in extenso ; '5. Subject to the provisions of the statutes and the qualifications and experience, if any, prescribed by the University Grants Commission, the appointing authority of the respective posts shall be competent to make recruitment to the various posts and to lay down an objective system of evaluation of the career, experience, etc. of the candidates for the posts ; Provided that the past performance of the candidates in any of the organisations or institutions as reflected in their Confidential Character Rolls or other similar document by whatever name it may be called, snail be given a weightage of not more than fifteen per cent of the aggregate marks or points in the system of evaluation. Note : -A system of evaluation of candidates for various teaching posts which may be adapted mutatis mutandis for other pasts also is given in Schedule -A.' The aforesaid provision is an enabling provision and empowers the competent authority to lay down an objective system of evaluation of the career, experience of the candidates for the post. The appointing authority for the post of Professor is undoubtedly the Syndicate. Until and unless the Syndicate lays down the objective system of evaluation of the career, experience, et cetera and adopts Schedule -A, the question of teaching experience qua honours and P.G. teaching being held to be a prescribed qualification does not arise. When the case was argued before me, 1 had posed this question to the counsel appearing for the University and the learned counsel was not in a position to answer the same. ! had accordingly granted time till 4th of April, 1994, to produce the relevant decision of the Syndicate adopting Schedule -A as the objective system of evaluation of career, experience et cetera. But no decision of the Syndicate could be produced before me. In the absence of any positive decision by the Syndicate which is the competent authority under Statute -5 of the Statutes to lay down an objective system of evaluation of the career, experience etc, ipso facto Schedule -A to the Statutes does not hold good and the Chancellor, therefore, committed an error in assuming that Schedule -A applies to the selection in hand, An enabling power as provided in Statute -5 has not been exercised by the competent authority to lay down an objective system of evaluation of the career, experience etc. and, therefore, the teaching experience in accordance with Schedule -A has not been effective and consequently, it is not necessary to have the teaching experience only at Honours or P. G. level. 6. Even otherwise also, though the application form of Dr. (Mrs.) Bedabati Mohanty did not indicate that she has the teaching experience for more than 20 years, in Honours of P. G. level, but the counter affidavit filed on behalf of opp. party No. 3 (Dr. Kumar Bar Das) and the document (Annexure -C/3) appended to the said counter affidavit clearly indicate that Dr. (Mrs.) Bedabati Mohanty had honours teaching experience for 17 years 10 months and 14 days. There is some dispute between the parties in this aspect, namely, according to Dr. (Mrs.) Mohanty, she had teaching experience in honours for more than 20 years, whereas according to opp. party No. 3 she had teaching experience of 17 years 10 months and 14 days in honours and. therefore, obviously for more than 13 years and in accordance with Schedule -A even if it is held applicable, 8 marks could have been awarded to Dr. (Mrs.) Mohanty, whereas Dr. Kumar Bar Das (opp. party No. 3) was ineligible for being considered since he did not have 10 years of teaching experience. In this view of the matter, the impugned order of the Chancellor is vitiated being based on reasons not sustainable in law and the selection of Dr.(Mrs) Bedabati Mohanty could not have been annulled. Since Dr. Kumar Bar Das who had been given the first position by the Selection Committee has been found to be ineligible by the Chancellor to be considered for the post of Professor on account of lack of teaching experience on his part. Dr. (Mrs.) Mohanty who stood second in order of merit was entitled to be appointed to the post of Professor. 7. So far as the 4th question is concerned. I am of the considered opinion that the process of selection has not been vitiated in any manner and, on the other hand, the Chancellor committed a mistake in recording a finding that there had been lapse on the part of the University authorities in awarding marks to the candidates including the candidate in the second position of the Salect List under the heading 'teaching experience' without reference to the Honours and P. G. experience as provided in Schedule -A. 8. In view of my conclusion that Schedule -A has not been adopted and no decision has bean taken by the Syndicate laying down the objective system of evaluation of the career and experience and, therefore, the said Schedule A has no application to the selection in hand, as well as in view of my conclusion that even if the Schedule -A is held to be effective. Dr. (Mrs.) Mohanty possesses the minimum requirement of 10 years of teaching experience in honours classes and, in fact, possesses' experience of more than 10 years, namely either 20 years as contended by Dr. (Mrs.) Mohanty or 17 year 10 months 14 days, as pleaded by opp. party No 3, the selection of Dr. (Mrs.) Bedabati Mohanty cannot be said to be vitiated in any manner. In view of the conclusion of this Court in O.J.C. No. 1910 of 1990 agreeing with the Chancellor's view that Dr. Kumar Bar Das was ineligible to be considered, the writ application of Dr. (Mrs.) Bedabati Mohanty has to be allowed. Agreeing with Brother Justice D. M. Patnaik and in respectful disagreement with the views expressed by brother Justice Pasayat, I hold that this writ application has to be allowed for the reasons already indicated. The writ application is accordingly allowed. There will, however, be no order as to costs.