Sukumar Roy (Sri) vs State of West Bengal

Kalyan Jyoti Sengupta, J.—In this case the Petitioner has challenged the recruitment process for the post of Lecturer in Bio-Medical engineering adopted by Jadavpur University authorities. The basis of challenge of the Petitioner is that the Selection Committee has not been formed in accordance with the provision of the Jadavpur University Act and further selection of Dipankar Chakraborty being Respondent No. 7 is bad in law by reason of the fact that this candidate is not qualified in terms of the published norms for the post of Lecturer in Bio-Medical-engineering. Factually, the Petitioner challenged this action after having appeared in the interview. He could discover the aforesaid infirmity in constitution of the Selection Committee and further inclusion of ineligible candidates namely Respondent No. 7 only after appearance. He recorded his protest by his letter dated October 13, 2001. Incidentally it is to be mentioned that interview was held on October 3, 2001.

In answer to the aforesaid grievance of the Petitioner the university authority has explained in their affidavit-in-opposition that the constitution of the Selection Committee has been made in accordance with the law and it provides for formation of quorum in the Selection Committee. In the premises it is not necessary, all the members of the committee should be present. As fas as the entertainment of the candidature of the Respondent No. 7 is concerned, he is having requisite special qualification and training in the field of Bio-Medical-engineering and this selection has been been done having regard to the requirements of emerging fields of engineering and of developing inter-disciplinary programme. So, the requirement of engineering/technology degrees has been waived, as the Respondent No. 7 is having qualification of Masters Degree in the field of Polymer Technology.

The learned lawyer for the writ Petitioner in support of the aforesaid factual aspects submits that the Petitioner is challenging selection process, in as much as the appearance and participation of the Respondent No. 7 who is not qualified for the post has vitiated, the entire selection process. He submits the requirements for the aforesaid post as published in the advertisement demand that one has to has Master Degree in Bio-medical engineering/technology, 1st Class in Bachelors Degree and/or Masters Degree level; one year''s relevant professional experience outside academic/research institutions. The Respondent No. 7 does not possess masters Degree in Bio-Medical-engineering or Bio-medical-technology. His qualification is in Polymer science and it will not meet the requirement of Bio-medical-engineering. The aforesaid two fields are completely different, or at the highest, Polymer Science can be one of the subjects in the Bio-medical-engineering. He has drawn my attention to the number of texts, educational curriculum of various universities about Bio-medical-engineering courses. He contends that it will appear therefrom that subjects other than the polymer science are taught and/or Studied in this course.

He further submits that the course for study in the discipline of polymer Science and Technology are completely different.

His next contention in relation to the constitution of the selection committee is that the said Committee was not formed in accordance with Section 26 of the Jadavpur University Act, Under this provision University Professor or a University Reader or a University Lecturer shall be appointed by the Executive Council on the recommendation of the Selection Committee, which shall consists of (i) Vice-Chancellor, as Chairman, (ii) The Din of the Faculty Council concerned, (iii) A person, expert in the subject, not holding a post of profit under the University, nominated by the Vice-Chancellor, (iv) Two persons, expert in the subject, not holding any office of profit under the University, nominated by the Executive Council, (v) Two experts in the subject concerned, to be nominated by the Vice-Chancellor in consultation with Din of the Faculty Council and the Head of the Department concerned The, experts shall be chosen from a standing panel of experts prepared by the Board of Studies and approved by the Faculty Council for Post Graduate and Under-Graduate, (vi) The Head of the Department concerns.

His submission is that in the Selection Committee, Head of the Department concerned that is Bio-medical-engineering Department was not included. Only Professor S. Guha Dean of Jadavpur University Chemical Engineering, Professor G.P. Agarwala Bio-Technology and Chemical Engineering department IIT Delhi, Dr. S. Harsha Senior Scientist Porus Science Central Glass and Ceramic Research Institute and Professor S.N. Gupta Department of Applied Chemistry, Calcutta University Rajabazar, were the members of the Selection Committee. Thus an incompetent committee called for the interview of the candidates, apart from including an ineligible candidate. Thus the entire selection process is vitiated with illegal and irregular method not having followed the published norms and provision of the Statute. Therefore, selection of the Respondent No. 7 should be set aside and fresh interview has to be called forming appropriate committee and inviting eligible candidate.

Mrs. Chameli Mazumdar, learned Counsel appearing on behalf of the University has answered all the allegation of the Petitioner saying under the provision of Sections 26 and 27 of the Jadavpur University Act, 1981 (hereinafter referred to as the said Act) the Selection Committee was constituted consisting of 8 members and four of them were the expert on the subject.

She submits, though the Committee was constituted but at the time of interview or test only four members of the selection committee were present and Section 27 provides for formation of quorum. And the decision of this quorum was accepted. The University authority is bound to accept the decision of the Selection Committee. Petitioner appeared and having found unsuccessful has challenged the decision of the Selection committee, this is not permissible as it has been settled by the Apex Court in its judgment reported in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, .

Her next contention is that the Selection Committee has duly selected the Respondent No. 7 having regard to the requirements of the University in this emerging engineering field of Bio-Medical engineering. The requirements of the University authority should not be scrutinized by the law court and be left with the University itself. In support of this legal proposition she has relied on decisions of the Supreme Court reported in G. Sarana Vs. University of Lucknow and Others, and Post Graduate Institute and Others Vs. Dr J.S. Dilawari and Others, . Whether the Respondent No. 7 is qualified or not is to be determined by the University authority as well as the Selection Committee. In support of this proposition she has relied on decisions of the Supreme Court reported in V.K. Sood Vs. Secretary, Civil Aviation and others, and National Institute of Mental Health and Neuro Sciences Vs. Dr. K. Kalyana Raman and others, . Her further submission is that the decision of comparative merits of the candidate taken by the Selection Committee cannot be interfered with by the Court. In this connection she seeks reliance on the Supreme Court decision reported in Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, .

Her further contention is that the Selection Committee has gone by the requirement as published in the Employment Notice which mentions amongst other that considering emerging fields of engineering and developing inter-disciplinary programme, the requirement of engineering/technology degrees may be waived in cases of otherwise well qualified candidates. Admittedly, the Respondent No. 7 is having excellent academic qualification in the field of Polymer technology and/or sciences, which is part and parcel of Bio-medical-engineering. As such he was found to be suitable.

Respondent No. 7 through his learned Counsel Mr. A. Majumdar has more or less adopted argument of Mrs. Chameli Mazumdar and has emphasized that going by the employment notice it is not necessary that the Respondent No. 7 must have Master Degree in the Bio-Medical-engineering, as he has specialized qualification in polymer sciences which is an advanced technology in the field of Bio-Medical-engineering.

Having heard respective contention of the learned Counsels and having considered the materials I think in this matter two issues have been raised (1) whether decision of the Selection Committee is to be accepted in view of its not having been formed and/or constituted in accordance with the provisions of Sections 26 and 27 of the aforesaid Act. (2) Whether the Respondent No. 7 has requisite qualification as published in the Employment Notice, so as to entertain his candidature by the Selection Committee or not.

It is settled -proposition of the law that the unsuccessful candidate having taken a chance in the selection test cannot be allowed to complain against the member of the Committee of their or his incapacity and/or incompetency to become part of the Committee. Mrs. Chameli Mazumdar has very aptly placed the decisions of the Apex Court on this subject. I think discussion on these decisions is not required as nobody can question the principle laid down therein. But the question is whether the same is applicable in this case or not. I think those decisions are not applicable. Firstly, because the Petitioner has not complained having found himself unsuccessful, but he complained about legality and validity of formation of the Committee after having known the members on the date of selection, that is October 3, 2001. He complained in writing on October 13, 2001 by that time no result was published, a candidate is not expected to know who are the members of the Committee before interview takes place or for that matter whether they are eligible to take part in the decision making process, unless he appears in the selection test.

Those decisions of the Supreme Court will be applicable in a case where the members of the Committee are duly qualified and eligible and after the candidate having been found to be ineligible. Here is a case the Petitioner complains that it is true the members of the committee is purported to have been constituted in accordance with the provisions of Section 26 of the said Act but on the date of interview only four were present, and u/s 27 of the said Act formation of quorum and its decision are permissible. But Section 27 of the said Act provides that four members, two of whom shall be experts in the discipline shall be quorum for a meeting of Selection Committee. In this context provisions of Sections 26 and 27 of said Act need to be reproduced.

Selection Committee for teaching posts.- A University Professor or a University Reader or a University Lecturer shall be appointed by the Executive Council on the recommendation of a Selection Committee consisting of-

(i) the Vice-Chancellor as Chairman:

(ii) the Dean of the Faculty Council concerned:

(iii) a person, expert in the subject, not holding any office of profit under the University, nominated by the Chancellor:

(iv) two persons expert in the subject, not holding any office of profit under the university, nominated by the Executive Council;

(v) two experts in the subject concerned to be nominated by the Vice Chancellor in consultation with the Dean of the Faculty Council and the Head of the Department concerned. The experts shall be chosen from a standing panel of experts, prepared by the Board of Studies and approved by the Faculty Council for post-graduate and undergraduate studies and the Executive Council;

(vi) the Head of the Department concerned.

Procedure for holding meetings of Selection Committee. - (1) Four members, of whom two shall be experts, shall be a quorum for a meeting of a Selection Committee.

(2) If the Executive Council does not accept the recommendation of a Selection Committee it shall refer the recommendation back to the Selection Committee with reasons for reconsideration and if the executive Council does not accept the reconsidered views of the Selection Committee, the matter shall be referred to the Chancellor with reasons and the decision of the Chancellor shall be final.

Admittedly, the quorum was formed. In the affidavit in opposition affirmed by the Registrar of the University it is explained that four members were there but it is not explained whether the two experts on the subject were present or not and this has been kept vague and this issue, in my view, has a clinching factor. Pursuant to leave granted by this Court, Petitioner has filed a supplementary affidavit dated September 10, 2001. In this affidavit he has stated Professor Sujoy Guha who was chosen the only expert member in the subject of Bio-medical-engineering. However, he was absent. Even the Registrar who is the deponent of the affidavit in opposition was also absent. From this averment it appears that two experts on some other subjects Bio-technology and Chemical Engineering, Bio-Medical Instrumentations and Chemical Engineering and Ceramic Engineering were present not on the subject of Bio-Medical engineering.

In order to ascertain the eligibility of the aforesaid it has to be examined what is the requirement of the University as published in the Employment Notice. From the Employment Notice as regard qualification for the post of Bio-Medical Engineering it appears as follows:

(i) Masters degree in appropriate field in Engineering/Technology.

(ii) Good academic record with a Bachelor''s degree in Engineering/Technology, First Class at Bachelor''s degree and/or Master''s degree level;

(iii) One year''s relevant professional experience outside academic/research institutions.

Having regard to the requirements of emerging fields or Engineering and/or developing interdisciplinary programme, the requirements of Engineering/Technology degrees may be waived in the cases of otherwise well qualified candidates.

Therefore, it is clear from the aforesaid stipulation that the requirement is for Bio-medical Engineering and the candidate must have the qualification in the field of Bio-Medical Engineering only.

So, the Selection Committee in terms of Sections 26 and 27 of the said Act must comprise amongst others with the experts in the field of Bio-Medical Engineering and not in any other discipline as the requirements is not for other discipline. The Learned lawyer for the Petitioner has rightly argued that two experts in the field of Bio-Medical Engineering was not there in the Selection Committee as I find the lone expert in this field was also absent. Mere constitution of the Committee naming the expert will not do, the law needs at the time of selection of candidates at least two experts in this field must be present. I do find any of such expert.

Therefore, I find some substance in the argument of the learned Lawyer for the Petitioner. The Selection Committee even by formation of quorum was not constituted in accordance with the provisions of the law. It is true that need of the University in education field should not be examined and scrutinized by the Court and should be left with University alone when such decision is lawful one; but when court finds glaring infraction of the provision of law, it in exercise of the power of judicial review cannot allow such illegality should be perpetrated in the name of decision of the experts. when no expert indeed has rendered any decision to defend such decision in the guise of expert''s one is futile exercise. Therefore, their decision is vitiated.

The next question comes in as to whether the Respondent No. 7 has requisite qualification for the above post or not. Admittedly the Respondent No. 7 has no qualification in the Bio-Medical Engineering as per requirement of the university but has in the field of polymer sciences and/or technology, which have hardly anything to do with the Bio-Medical Engineering. From the courses of studies undertaking in the Bio-Medical Engineering it appears to me as follows: Bio means ''life'', medical means ''related to human system''. So, Bio-Medical Engineering courses is really meant for acquiring knowledge following the principle of other engineering relating to human system as well as design and development of implants materials, process interval devises for diagnosis, rectify abnormalities, replacement and/or restoring living tissues and their functions. So, it essentially deals with human body and his/her limbs.

The main object of Bio-Medical Engineering is to produce spears that are artificial heart valve, artificial hip joint, prosthesis space makers, dialysis machine and manufacturing and maintenance of medical instruments for diagnosis. It is quite clear that one has to have a good deal of knowledge in human anatomy, physiology and biochemistry in this field. Whereas in case of polymer science and technology it appears to me that this is a branch of organic chemistry that deals with polymer. Polymer science means study of proprieties, synthesis processing, characterization and testing of polymer materials. It appears to me that this technology relates to one of the sophisticated branches of chemical engineering and this polymer product may be one of the materials for manufacturing instruments in the Bio-Medical engineering. However, this polymer technology is not essentially needed in the field of Bio-Medical engineering.

Therefore, I hold that Respondent No. 7 has no requisite qualification as per the employment notice so his candidature should not have been entertained by University authority or for that matter by the Committee.

I find the requirement of the University authority is in Bio-Medical-engineering and it is established by the fact that the writ Petitioner worked in the Bio-Medical-engineering as part time professor. Under such circumstances I hold that the decision making process of the University authority in selection the candidate is seriously flawed. The Committee was not constituted in accordance with the provision of the aforesaid Act further has allowed ineligible candidates to participate in test for his selection. It is not understood how in the post of lecturer in Bio-medical-engineering a candidate can be tested by the experts and/or persons not having any knowledge in this field.

The question of reasonableness in the decision making process is the part of fair play and meeting the requirements of equity as enshrined and guaranteed under Article 14 of the Constitution of India. Therefore, the entire process and exercise of University authority is wholly ultra vires not only the provision of Sections 26 and 27 of the said Act, but also the published norms as mentioned in the employment notice.

Therefore, the writ petition succeeds and the application for vacating interim order stands disposed of without passing any order I set aside and quash the decision selecting the Respondent No. 7 as a fit candidate. I direct the University authority to undertake the fresh recruitment process by constituting a fresh committee consisting of Members amongst other by the experts in the field of Bio-medical-engineering. There will be no order as to costs.

The stay of operation of the judgment and order is prayed for. Having considered the points involved in this matter I grant stay for a period of one week after summer vacation.