Abhik Kusari vs The University Of Calcutta & Ors
2021 Latest Caselaw 648 Cal/2

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                     Original Side

Present :-   Hon'ble Justice Amrita Sinha

                                W.P.O. No. 48 of 2019

                                     Abhik Kusari

                                            Vs.

                           The University of Calcutta & Ors.


For the writ petitioner         :-    Mr. Durga Prasad Dutta, Adv.
                                      Mr. Souvik Sen, Adv.
                                      Mr. Somanta Ganguly, Adv.
                                      Ms. Aditi Dutta, Adv.

For the University of Calcutta :-     Mr.   Kishore Datta, Ld. Adv. Gen.
                                      Mr.   Chayan Gupta, Adv.
                                      Mr.   Sandip Dasgupta, Adv.
                                      Mr.   S. Siddiqui, Adv.

Hearing concluded on            :-    02-09-2021

Judgment on                     :-    07-09-2021



Amrita Sinha, J.

The petitioner is serving as the Accounts Officer in the University of Calcutta.

He joined service in the University on 10th September, 2008. On and from 9th

January, 2015 in addition to his regular duty as an Accounts Officer he is also

functioning as the Drawing and Disbursing Officer of the University.

By a notification dated 14th March, 2018 the University invited applications

from eligible university officers for Career Advancement / Promotion Scheme ('the

Scheme' for short). The petitioner applied in response to the said notification. An

opportunity of hearing was given to the petitioner for appearing before the Standing

Committee for the purpose of considering his candidature for grant of benefit in

terms of the Scheme. As there was no communication from the end of the University

as to whether his application was allowed or not, the petitioner filed the instant writ

petition with a prayer for grant of benefit of the Scheme to him.

The University of Calcutta has filed an affidavit in opposition to the writ

petition disclosing that the petitioner appeared before the Standing Committee of

the University but the Standing Committee did not find the candidature of the

petitioner to be acceptable. The performance of the petitioner was duly assessed by

the Standing Committee and the same was not found satisfactory. The petitioner did

not appear to be a suitable candidate and accordingly the petitioner's application

has been rejected.

It has further been mentioned that traditionally, only successful candidates

are communicated about the acceptance of their prayer and regarding grant of

benefit to them. As the petitioner's case stood rejected, accordingly the same was

not intimated to him.

Learned Advocate General appearing on behalf of the University of Calcutta

submits that the decision to extend the benefit of the Scheme is an administrative

decision. No reasons are required to be recorded if the prayer of an aspiring

candidate is either accepted or rejected. There is no statutory provision for recording

the reasons for rejection at the time of considering the prayer of an applicant for

grant of benefit in terms of the Scheme. The Rules of the University also does not

require reasons to be recorded or communicated to the candidate who has applied

for obtaining the benefit of the Scheme.

It has been submitted that the petitioner was directed to appear for a hearing.

The Standing Committee assessed the performance of the petitioner for the purpose

of extending the benefit to him, but according to the Standing Committee the

petitioner's performance was not satisfactory and he was not a suitable candidate,

as such, the benefit has not been extended to him.

In reply to the submission of the leaned Advocate General, the learned

advocate for the petitioner has tried to impress upon the Court that had the

performance of the petitioner not been satisfactory, the University would not have

imposed upon the petitioner additional duty of acting as the Drawing and

Disbursing Officer, which the petitioner is performing satisfactorily, without any

adverse remark, since 2015. It has further been mentioned that there is no adverse

remark in his ACR. The petitioner prays for grant of the benefit of the Scheme to

him.

In support of his case the learned advocate for the petitioner has relied upon

the following judgments:

1) Shanti Devi -vs- State of UP & Ors.; (1997) 8 SCC 22 paragraph 22

2) T. P. Senkumar, IPS -vs- Union of India & Ors.; (2017) 6 SCC 801

paragraphs 93 and 94

3) Bhikhubhai Vithlabhai Patel & Ors. -vs- State of Gujarat & Anr.;

(2008) 4 SCC 144 paragraphs 26 and 29

4) Bharat Petroleum Corp. Ltd. -vs- Maddula Ratnavalli & Ors.;

(2007) 6 SC 81 paragraphs 13-16

The respondents in their support have relied upon the following decisions:

1) National Institute of Mental Health and Neuro Sciences -vs- Dr. K.

Kalyana Raman & Ors.; 1992 Supp (2) SCC 481 paragraph 7


       2)    K. A. Nagamani -vs- Indian Airlines & Ors.; (2009) 5 SCC 515

paragraph 46


       3)    B.   C.   Mylarappa     @   Dr.    Chikkamylarappa       -vs-   Dr.    R.

Venkatasubbaiah & Ors.; (2008) 14 SCC 306 paragraphs 28 and 29

In Bharat Petroleum (supra) the Court was of the opinion that the appellant

Company is a 'State' within the meaning of Article 12 of the Constitution of India. It

was its duty to act fairly and reasonably. Just because it has been conferred with a

statutory power, the same by itself would not mean that exercise thereof in any

manner whatsoever will meet the requirement of law. The Statute used the words 'if

so desired by the Central Government'. Such a desire cannot be based upon a

subjective satisfaction. It must be based on objective criteria. The Court held that an

executive action must be informed by reason. An unfair or unreasonable executive

action would not be sustained. Objective satisfaction must be the basis for an

executive action.

According to the respondents the aforesaid decision will not be applicable in

the instant case as no executive action is under challenge here. The facts of the case

in Bharat Petroleum (supra) are completely different from the facts of the case at

hand. In the aforesaid case an executive action was under challenge. The executive

was supposed to act in accordance with a Statute. There was a statutory provision

according to which the executive ought to have acted. As the executive action was

contrary to the statutory provision, the Court passed the said order.

In the instant case, the action on the part of the University to allow the

petitioner to perform the work of Drawing and Disbursing Officer is an

administrative decision. The act of the Selection Committee in selecting candidates

suitable for grant of benefit under the Scheme is also an administrative act.

At the time of directing the petitioner to perform the additional work of

Drawing and Disbursing Officer the performance of the petitioner as the Accounts

Officer was not assessed. Merely because there was a vacancy in the post of

Drawing and Disbursing Officer, the petitioner, as an interim arrangement, was

directed to perform the work of the Drawing and Disbursing Officer. The same does

not mean that the petitioner was assessed on merits and thereafter was directed to

perform the work of the Drawing and Disbursing Officer.

In T. P. Senkumar (supra) the Hon'ble Supreme Court held that the subjective

satisfaction of the State Government must be based on some credible material,

which the Court might not analyse but can certainly be looked into. The make-

believe prima facie satisfaction by itself cannot take out judicial review of

administrative action in the garb of subjective satisfaction of the State Government.

According to the respondents the facts of the case in T. P. Senkumar is

completely different from the facts of the case at hand and accordingly the aforesaid

decision will not come to the aid and assistance of the petitioner in any manner. It

has been submitted that the Supreme Court was dealing with a statutory provision

where the State Government was mandated to act in a particular manner. In the

instant case, there is no statutory provision for recording the satisfaction of a

candidate at the time of consideration of his application for grant of benefit in

accordance with the Scheme.

In Bhikhubhai (supra) the Court was of the opinion that the decision taken by

the State Government without applying its mind to the aspect of necessity or

without forming an honest opinion on the subject is void.

According to the respondents, in the said case the Court was examining

certain statutory provisions which required the State Government to act in a

particular manner. As the State did not act in accordance with the said statutory

provision, the Supreme Court interfered in the same. In the present case, there is no

statutory provision in support of the petitioner's prayer.

In Santi Devi (supra) the Hon'ble Supreme Court held that the word 'satisfied'

means that there must be evidence of application of mind by the authority

concerned. There was no finding regarding 'satisfaction' of the Assistant Collector as

required by the rule. The respondents contend that the said decision will not come

to the aid of the petitioner as in the instant case there is no rule pursuant to which

satisfaction is required to be recorded.

The Supreme Court in Mylarappa (supra) held that in the absence of any rule

or regulation requiring the Board to record reasons and in the absence of mala fide

attributed against the members of the Board, the selection made by the Board

without recording reasons cannot be faulted with. At the time of deciding the

aforesaid case the Hon'ble Supreme Court took into consideration the case of

National Institute of Mental Health and Neuro Sciences (supra) and was of the

opinion that there was no dispute that the selection was made by the assessment of

relative merit of rival candidates determined in the course of the interview of the

candidates and after thoroughly verifying the experience and service of the

respective candidates selected the appellant to the post. The Court ought not to

interfere with the selection of the Expert Committee of the University particularly

when the selection is not challenged on the ground of mala fide.

In National Institute of Mental Health and Neuro Sciences (supra) the

Supreme Court was of the opinion that the function of the Selection Committee is

neither judicial nor adjudicatory. It is purely administrative. In the absence of any

legal requirement to record reasons the selection made without recording the

reasons cannot be found fault with. Administrative authority is under no legal

obligation to record reasons in support of its decision. Even the principles of natural

justice do not require an administrative authority or a Selection Committee or an

examiner to record reasons for the selection or non-selection of a person in the

absence of statutory requirement.

In Nagamani (supra) the Supreme Court was of the opinion that the Court

cannot sit in appeal over the assessment made by the Selection Board and

substitute its own opinion for that of the Board.

In the instant case, the candidature of the petitioner was duly considered by

the Selection Committee which was constituted for the said purpose. The Selection

Committee considered the relative merit of the prospective candidates and came to

an opinion that the petitioner is not suitable for being extended the said benefit. The

petitioner has not alleged mala fide on the part of the Selection Committee. The

petitioner has however alleged that there has been discriminatory action on the part

of the respondents without assigning any reasons. The petitioner has alleged that

though he possessed the required eligibility criteria to avail the benefit of the

Scheme, but the same has not been allowed in his case.

In the opinion of the Court, the Selection Committee considered the

candidature of all the candidates who possessed requisite criteria for being extended

the benefit in accordance with the Scheme. The fact that the Committee found a

candidate suitable and the other unsuitable does not imply that the action on the

part of the Selection Committee was discriminatory. For the purpose of grant of

benefit the Committee was required to assess the relative merit of the candidates,

which the Committee has done. According to the Committee, the petitioner was not

a suitable candidate to be extended the said benefit. When a Committee is

constituted to screen candidates, then the Committee naturally possesses the

authority to select the best candidate(s). If the Committee, in the absence of any

prescribed provision of law, is required to record the reasons for either selecting or

not selecting a candidate, then the same will be an additional burden on the

Committee. Moreover, the Committee cannot be mandated to perform any duty not

prescribed in law. An aspiring candidate has to repose full faith upon the Committee

or the body conducing the selection, or else the Committee cannot function.

Certainly, nobody likes to be rejected, but at the same time it has to be accepted

that a better candidate has been selected.

In any Office / Organisation /Institution, Committees are formed for selecting

suitable candidates for very many purposes. It may be for recruitment, promotion,

Career advancement benefit etc. It is not that each and every candidate who appears

before the selection committee gets selected. There are several candidates who are

rejected. If the Selection Committee is required to record reasons for every selection

or rejection and the same is brought before Court for judicial review, then the

selection process will get delayed and there may be no end to litigations. In the

absence of a rule or in the absence of allegation of mala fide, the selection process

has to be taken as sacrosanct. The petitioner has not been able to produce any rule

or provision of law which mandates the Selection Committee to record reasons for

not extending the benefit to him. Only if the action of the Committee is tainted with

mala fide or malice is alleged, can the action of the Committee be open for judicial

review.

The Selection Committee being an expert body constituted for the purpose of

assessment of candidates for grant of such benefit thought it fit not to extend the

benefit to the petitioner. In the absence of a specific rule requiring the Committee to

record reasons, the action of the Committee in not recording the reasons for not

granting the benefit to the petitioner cannot be faulted.

The petitioner has failed to come up with a case requiring interference by the

Court. The writ petition fails and is hereby dismissed.

W.P.O. No. 48 of 2019 is dismissed. No costs.

Urgent photostat certified copy of this judgment, if applied for, shall be given

to the parties as expeditiously as possible on compliance of all necessary

formalities.

(Amrita Sinha, J.)