Calcutta High Court (Appellete Side)
Jyotirmoy Roy vs The State Of West Bengal And Others on 3 August, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
The Hon'ble Justice Subrata Talukdar
And
The Hon'ble Justice Lapita Banerji
M.A.T No.1089 of 2018
With
IA No. CAN 1 of 2018 (Old No. CAN 7801 of 2018)
Jyotirmoy Roy
Vs.
The State of West Bengal and Others
With
C.O.T.No. 132 of 2018
Arising out of
W.P.No.7198 (W) of 2018
University of Calcutta
Vs.
Jyotirmoy Roy
For the appellant : Mr. Bijay Adhikari
For the respondent/ : Mr. Chayan Gupta
University of Calcutta Mr. Sandip Dasgupta,
in MAT 1089of 2018 Mr. Saaqib Siddiqui
Hearing concluded on : 22.06.2022
Judgment on :
03.08.2022
1. Lapita Banerji, J.:- The appeal and the application arises out of an
Order dated August 8, 2018, whereby, the Hon‟ble Single Bench
rejected the writ petitioner‟s/appellant‟s prayer of allowing him to join
the respondent No.2/The University of Calcutta (for short "the
University") as the Deputy Registrar (BCW). The writ petitioner
challenged the Order dated February 13, 2018, communicated vide
Memo No.LO/DR/178/6260/2018 dated May 10, 2018 (for short, "the
impugned Memo"), whereby, the service of the petitioner being a
„probationer‟ was terminated on the ground of „suitability‟. It was held
by the impugned Memo dated February 13, 2018 that since the writ
petitioner did not possess requisite experience, he was not a suitable
candidate.
2. The admitted facts of the case are that pursuant to an advertisement
published on the website vide advertisement No. EST/568/39A dated
December 1, 2016, the writ petitioner applied for the post of Deputy
Registrar at the University at Calcutta. The essential eligibility criteria
for the post of Deputy Registrar (BWC) were as follows:
(i) Uniformally good academic record with a Master‟s Degree
with minimum 55% marks or its equivalent grade in the
point scale wherever a grading system is followed.
(ii) At least 10 years of experience as Lecturer/Assistant
Professor in the AGP of Rs.6,000/- and above with
experience in educational administration in Academic
Institutions like University. Research Establishment and/or
in the institute of higher learning of which 5 (five) years must
be in a University or in an Institute of Post Graduate Study.
OR
Comparable experience in Research Establishments and
other institutions of higher learning;
OR
10 (ten) years‟ administrative experience, of which 5 years
shall be as Assistant Registrar or equivalent post.
However, the said criteria could be relaxed in cases of exceptionally
qualified candidates.
3. Prior to that, the writ petitioner worked as a Junior Assistant at
Rabindra Bharati University (for short "RBU") on and from November
1, 2001 and as a Senior Assistant at the same University from
November 15, 2010. In 2015, the writ petitioner was appointed as the
Assistant Registrar of Uttar Banga Krishi Viswavidyalaya (for short,
"UBKV"). He joined the post of Assistant Registrar at UBKV on
December 10, 2015. A lien was granted by the RBU to his post of
Senior Assistant for a period of 2 years on December 10, 2015, on
leave without pay basis.
4. The writ petitioner possessed Post-Graduate Degrees including M.A. in
English, M.B.A. and was a Research Fellow at RBU. He also had 15
years of work experience in administrative work at 2 different
Universities at the time of his application (Supra). After completion of
the stipulated selection process, the petitioner received his letter of
appointment dated September 1, 2017 from the Registrar/respondent
No.6 vide letter No.EST/1610/33(2)A. The writ petitioner was asked to
join the services within 30 days from the date of issuance of the
appointment letter. The clear pre-requisite to joining the post of
Deputy Registrar was submission of a release order from his erstwhile
employer. An application was made by writ petitioner for resignation
from his post of Assistant Registrar at UBKV on September 6, 2017.
The writ petitioner was released from his post at UBKV on September
6, 2017 with effect from September 11, 2017. The writ petitioner was
to be placed on probation for 1 year from his date of joining by the
appointment letter (Supra). On his part the writ petitioner tried to join
the University on September 12, 13, 15, 2017 but he was not allowed
to do so.
5. By a letter dated September 20, 2017, issued by the respondent No.6 to
the writ petitioner, the University proposed to withdraw the letter of
appointment and keep the appointment of the writ petitioner in
abeyance. A show-cause was called for within 7 working days from the
writ petitioner as to why his appointment should not be cancelled.
6. The writ petitioner duly submitted his explanations and refuted the
allegations by his reply dated September 25, 2017.
7. Admittedly, the writ petitioner worked at administrative posts of two
Universities for more than 15 years but did not work in the post of
Assistant Registrar for more than 2 years. The said fact can be
evinced from Column 16 & 17 of the application forms submitted in
triplicate by the petitioner to the Deputy Registrar, Deputy Controller
of Examinations and Secretary, FC for PG studies in Arts &
Commerce.
8. The posts that the writ petitioner held from time to time were all
enumerated in a chronological order in Column - 17 of the application
form. The relevant part of the table is reproduced hereinbelow:
Employer Post Held From To
RBU Jr. Assistant 01-11.2001 14-11-2010
-Do- Sr. Assistant 15-11-2010 09-12-2015
UBKV Assistant 10-12-2015 Till date
Registrar (online)
9. From the table it appears that even though the writ petitioner worked as
an Assistant Registrar from December, 2015 till December, 2016, prior
to the submission of his application form at the Calcutta University, he
had much more than 10 years of experience in administrative work
with the Universities.
10. Being aggrieved by the withdrawal letter dated September 20, 2017
disallowing the writ petitioner from joining the post of Deputy
Registrar, he challenged the same by filing a Writ Petition being W.P.
No.25969 (W) of 2017.
11. By an Order dated February 2, 2018 the Writ Petition being W.P. No.
25969 (W) of 2017 was disposed of with the observation that an
objective hearing would be given to the petitioner by the University and
a reasoned order would follow.
12. Pursuant to the Order dated February 2, 2018, a hearing was given to
the writ petitioner on February 13, 2018 by a committee constituted by
the University. During the hearing the University came to the finding
that since the writ petitioner did not have more than 2 years of
experience as an Assistant Registrar, he did not have requisite
experience for the post and was an unsuitable candidate. By the
impugned Memo dated February 13, 2018, the writ petitioner‟s
services as a probationer were "terminated on the touchstone of
suitability". It was held that the petitioner was not suitable for the
post as he did not possess the requisite experience. The impugned
Memo was communicated to the writ petitioner on May 10, 2018.
13. The writ petitioner assailed the impugned Memo dated February 13,
2018 in the present Writ Petition being W.P. No. 7198(W) of 2018.
14. The Hon‟ble Single Bench refused to grant any relief to the writ
petitioner/appellant. Hence, the present appeal being M.A.T. No. 1089
of 2018.
15. A cross appeal being C.O.T. No. 132 of 2018 was filed on behalf of the
University singularly on the ground that the Ld. Single Judge has
failed to consider the ratio of judgment passed by The Supreme Court
in District Collector and Chairman, Viziangram, Social Welfare
Residential School Society, Viziangram and another vs. M. Tripura
Sundari Devi, reported in (1990) 3 Supreme Court Cases 655.
16. The Hon‟ble Single Bench refused to grant relief to the writ petitioner
based on the following findings:-
(a) No relaxation could be made with regard to the essential eligibility
criteria in respect of „experience‟ and the only relaxation that
could be made was in respect of the „age‟.
(b) Even though keeping his employment secure at Rabindra Bharati
University, the petitioner described himself as unemployed but
that factor could be overlooked since he exercised his lien on
„leave without pay basis‟.
(c) The University inadvertently overlooked the petitioner‟s eligibility
criteria with regard to his experience.
(d) The writ petitioner contributed to the mistake made by the
University since the petitioner applied for the post knowing fully
well that he did not have the essential eligibility criteria of
experience.
(e) Since the writ petitioner wrote the number of years of work
experience only without briefly stating his nature of work that
was a contributory factor leading to the mistake made by the
University.
(f) Mistake on the part of the University was in not scrutinizing the
particulars.
(g) Since both the parties contributed to the mistake, the petitioner
was not entitled to any relief.
17. Mr. Adhikary, Ld. Counsel appearing for the appellant/writ petitioner
argued that relying on the assurance made by the University vide
appointment letter No.EST/1610/33(2)A dated September 1, 2017, the
writ petitioner changed his position materially, to his detriment by
giving up his job at UBKV, where he was gainfully employed as the
Assistant Registrar. With malafide intent the respondents refused the
writ petitioner from joining the University on several occasions, citing
frivolous grounds. He further submitted that the academic
qualification of the writ petitioner was much better compared to the
other candidates, who were interviewed. After being interviewed, by the
standing committee and upon perusal of all the relevant documents by
it, the standing committee selected him as the first candidate for the
post of Deputy Registrar. The standing committee upon finding the
writ petitioner eligible for appointment to the post of Deputy Registrar
(BCW) issued the letter of appointment in his favour. After
scrutinizing all the documents submitted by the writ petitioner along
with his application form, there could be no bonafide reason for the
University to resile from its position. The writ petitioner resigned from
UBKV relying on the assurance given by the University and also was
on „leave without pay‟ basis/lien at RBU. Therefore, the writ
petitioner‟s fundamental right to livelihood was violated by the
University due to its malafide act/conduct.
18. He submitted that the University has acted in grossly unfair and
discriminatory manner and should be estopped from
cancelling/withdrawing the letter of appointment (Supra).
Consequently, the impugned Memo dated February 13, 2018 should
be cancelled and/or revoked. Mr. Adhikary argues that even if there
was the eligibility criteria which required 5 years‟ experience as an
Assistant Registrar, the same was relaxed by the standing committee
when the interview was held and the documents/testimonials of the
petitioner were scrutinized in original. After scrutinizing the
documents of the writ petitioner, holding his interview and issuing the
letter of appointment, the University has sought to resile from its
position by issuing the purported show-cause dated September 20,
2017 and subsequent impugned Memo dated February 13, 2018, in
colorable exercise of power. Such arbitrary and illegal acts by a public
body are subject to judicial scrutiny.
19. Mr. Adhikary cites various Judgements which merit some discussion:
(a) In the Chancellor & Anr. Vs. Dr. Bijoyananda Kumar & Ors.
reported in (1994) 1 SCC 169, a day after the selection of the
petitioner was made, 2 Members of the Selection Committee
addressed a letter to the Vice-Chancellor alleging that the
petitioner/selected candidate did not possess requisite
qualifications. It was held by the Apex Court that normally it
could not be considered as a bonafide act on the part of some
Members of the Selection Committee to allege the same after
the selection was over. The sanctity of process of selection
was to be maintained. It can be a travesty of selection process
if an unsuccessful candidate was allowed to meet the
Members of the Selection Committee after the selection was
over, to instigate them to renege the selection made. Reliance
cannot be placed on this decision as the impugned decision of
the Selection Committee was not instigated by an
unsuccessful candidate by approaching some of its members
but due to the admitted fact that the writ petitioner did not
work as an Assistant Registrar for 5 years which was an
eligibility criteria in the advertisement.
(b) In Dr. Kumar Bar Das vs. Utkal University & Ors., reported in
(1991) 1 SCC 453, "about 10 years‟ experience in teaching
and/or research" was advertised as the criteria for the post of
Professor (SBI Chair). The appellant was the selected
candidate. The Selection Committee having regard to his
teaching experience of 7 years 7 months and 14 days and
research experience of 1 year 5 months and 14 days
aggregating 9 years and 1 month of experience of the selected
candidate treated the same as equivalent to "about 10 years‟
experience". The Vice-Chancellor (VC) upon representation
made by the second recommended candidate annulled the
appellant‟s appointment as being ineligible against the
recommendation of the Selection Committee. It was held that
the VC was wrong in holding that „about 10 years of
experience‟ must be a minimum of 10 years‟ experience. The
VC could not normally interfere with the subjective
assessment of the merit of a candidate made by an expert
body unless malafide or collateral reasons are shown. In the
present case, there was no dispute between the decision taken
by the Selection Committee and the VC. It was the Selection
Committee that later came to the opinion that the eligibility
criteria with regard to „experience‟ was not met. In the present
case, the question of interference of subjective assessment by
the VC or any other authority did not arise and, as such, this
decision does not come to the aid of the writ petitioner.
(c) In Dr. Dalpat Abasaheb Solunke & Ors. vs. Dr. B.S. Mahajan &
Ors., reported in (1990) 1 SCC 305, it was held by the Apex
Court that it was not the function of the Court to sit in appeal
over the decision of the Selection Committee and scrutinize
the relative merits of the candidates. Whether a candidate is
fit for a particular position is to be decided by a duly
constituted Selection Committee which has expertise on the
subject. The decision of the Selection Committee cannot be
interfered with unless there is an illegality or patent material
irregularity or malafide affecting the selection. On principle,
there is no dispute with the ratio of the case. It is, however,
not appreciated how the reliance on the said case aids the writ
petitioner‟s case.
(d) In State of Gujarat & Anr. vs. Gujarat Revenue Tribunal Bar
Association & Anr. reported in (2012) 10 SCC 353, the
question that fell for consideration was whether the post of
The President of the Gujarat Revenue Tribunal could be filled
by a Judicial Officer or an Administrative Officer. The
petitioner‟s appointment as the President was disputed on the
ground that he previously held an administrative office. It was
held that the President‟s post could only be filled up by a
Judicial Officer of the rank of a District Judge and not by an
Administrative Officer. The President of the Tribunal could
only be a Judge of the High Court or a District Judge or the
Chief Judge of the Small Causes Court. However, this case is
not applicable to the present facts in any manner.
(e) In Kumari Shrilekha Vidyarthi & Ors. vs. State of U.P. & Ors.
reported in AIR (1991) SC 537, it has been held that even if
the post is a provisional one and there is only a contractual
agreement with the State still there may be a public element
attached to it and the action of the Government cannot be
arbitrary. Any decision taken by the Government is subject to
judicial review. There is an obvious difference between a
contract between two private parties and a contract in which
The State is one of the parties. There is no dispute with
regard to the aforesaid proposition as the University has never
argued that it is not a „State‟ within the meaning of Article 12
of the Constitution of India and, therefore, not amenable to
writ jurisdiction.
(f) In Union of India & Ors. Vs. K.V. Jankiraman & Ors. reported in
AIR (1991) SC 2010, the question that fell for consideration
related to promotion of an employee when
disciplinary/criminal proceedings were pending against him.
There is no dispute with regard to the principle that the
State‟s action when arbitrary will be struck down. It is beyond
comprehension as to why this case has been cited as there is
no dispute with regard to the fact that the
University/respondent is amenable to writ jurisdiction and its
actions are subject to judicial scrutiny.
(g) In B.L. Sreedhar & Ors. Vs. K.M. Munireddy (Dead) & Ors.
reported in AIR (2003) SC 578, the question of estoppel was
explored by the Apex Court. In principle, there is no dispute
that estoppel may create substantive rights in favour of a
person. Estoppel may be the foundation of a right against the
person estopped. It was argued that in this case the
University is estopped from agitating that the eligibility criteria
of experience was „essential‟ after having the opportunity of
interviewing the candidate along with his original
documents/testimonials. The negligence, deliberate or
otherwise, on the part of the University defeated its rights and
created rights in favour of the petitioner. Since the petitioner
resigned from his job relying on the assurance of the
University, the University was estopped from agitating the
eligibility criteria at a belated stage, thereby cancelling the
petitioner‟s Letter of Appointment. The said case is genuine in
nature and the facts are not applicable to the present case.
(h) In Brijesh Kumar Tiwari Vs. Banaras Hindu University, High Court
of Judicature at Allahabad, (unreported Judgement passed on
April 12, 2016) the selection process for the post of Assistant
Professor in different departments at Banaras Hindu
University was challenged by unsuccessful candidates. The
Court held that even though there were certain human errors
in processing the credentials, the expert committee carefully
examined and scrutinized the qualification/experience of the
candidates. The Court should not sit in appeal over the
decisions of academicians and experts. The expert committee
stood by its decision and the entire selection process was not
vitiated. In the present case, the expert/selection committee
is seeking to resile from its own position by withdrawing its
Letter of appointment. Therefore, no factual reliance can be
placed by the writ petitioner on this case.
(i) In Basharat Shafi Vs. University of Kashmir & Ors, Jammu &
Kashmir High Court, Srinagar Bench, (unreported Judgement
passed on November 19, 2014) it was held that initially even
though the Selection Committee found the experience criteria
of the selected candidate not to be in conformity with the
advertisement, but later on, upon interviewing the candidate,
the Selection Committee on the basis of academic merit, past
performance of the petitioner found him eligible and
recommended him for appointment to the post of Deputy
Registrar. The Selection Committee had a threadbare
discussion with the selected candidate and found his service
to be 5 years of comparable service. Mr. Adhikary argued that
even in the present case after interviewing the candidate he
was found to hold 5 years of comparable experience to the
eligibility criteria of requiring "at least 5 years of service to the
post of Assistant Registrar". In the said case, the Selection
Committee determined the eligibility of the candidate and
stood by its decision after relaxing the criteria with regard to
„experience‟, but, in the present case, the Selection Committee
has resiled from its position by withdrawing Letter of
Appointment. The Selection Committee relaxed the criteria
with regard to the „experience‟ in that case.
20. Mr. Abhrotosh Majumder, Learned Counsel leading Mr. Chayan Gupta,
Learned Counsel appearing for the University rebuts the aforesaid
allegations by submitting that the „eligibility criteria‟ of 10 years of
administrative experience, out of which, 5 years were required as an
Assistant Registrar or equivalent post was a „mandatory criteria‟ and
could not be diluted. No relaxation could be made in respect of the
„criteria of experience‟. The only relaxation envisaged in the
advertisement was in respect to the age of exceptionally qualified
candidates and not in respect of the experience criteria.
21. He submits that a genuine mistake was made by the University where
the eligibility criteria with regard to experience was overlooked and
appointment letter (Supra) was issued. Since writ petitioner did not
meet the eligibility criteria, there was no illegality committed in
withdrawal of the said appointment. The writ petitioner/Appellant
himself contributed to the mistake of the University by only stating the
number of years of his experience in administrative work without
clarifying the term for which he worked as an Assistant Registrar. The
said omission on his part disentitled him to any relief. Furthermore,
the writ petitioner/appellant had a subsisting lien at RBU as a Senior
Assistant and could have gone back to the said employer.
22. Mr. Gupta, strongly relied on the case of District Collector and
Chairman, Viziangram, Social Welfare Residential School Society,
Viziangram and another vs. M. Tripura Sundari Devi reported in
(1990) 3 Supreme Court Cases 655. In the said case, the eligibility
criteria for the post of a teacher required Second Class Degree in M.A.,
whereas, the respondent held a Third Class Degree and an Order of
appointment was wrongly issued. The order of appointment clearly
stated that the same would be, inter alia, subject to production of
original certificates at the time of appointment. When the original
certificates were perused, it was noticed that the respondent was not
qualified for the post.
23. In such a circumstance, it was held that the selection committee wrongly
presumed that the candidate/respondent had necessary qualification.
The order of appointment was subject to production of original
certificates. Upon perusal of the certificates when it was found that
she was under-qualified, it could not be argued that the standing
committee appointed her with the knowledge of under-qualification.
Sometimes wrong notes may be made by selection committee but upon
perusal of original certificates, the said mistake comes to light. There
was nothing wrong in disallowing her from joining the services.
24. Having considered the rival submissions of the parties and the materials
on record, this Court is of the considered view:
(a) The appellant/writ petitioner did not deliberately try to suppress
his administrative/professional experience from the
respondent/University. Although in Column 16 of the
application form he wrote only 15 years and 1 month as his
tenure of administrative/professional experience without
explaining the brief nature of work, but, in Column 17 of the
said form he clearly wrote the tenure of each post that he
held from 2001 till 2016. Column 17 was self-explanatory.
From the perusal of the details given in Column 17 the date
of joining the post of Assistant Registrar at UBKV becomes
clearly evident.
(b) Even assuming, that there was an element of contributory mistake
on the date of the application, the same could not be alleged
on August 12, 2017, when the petitioner was interviewed.
The writ petitioner/appellant was asked to bring all the
certificates and testimonials in original. The Standing
Committee had the opportunity to scrutinize all the original
documents. Thus, it is held that the Standing Committee
either scrutinized or is deemed to have scrutinized the
documents prior to the issuance of the appointment letter on
September 1, 2017. Therefore, this Court disagrees with the
findings of the Hon‟ble Single Bench that no relief can be
granted to the writ petitioner on the ground of contributory
mistake. Mistake, inadvertent or otherwise, is solely due to
the negligence of the University on the date of the interview
and subsequent thereto.
(c) Furthermore, from the perusal of the letter dated August 3, 2017
issued by the University, it clearly appears that the writ
petitioner was required to bring all the
certificates/testimonials, in original, when he was called for
an interview on August 13, 2017 before the standing
committee. Undoubtedly, the standing committee had the
opportunity to scrutinize the original certificates of the
petitioner while interviewing the suitability of the candidate.
This court agrees with the writ petitioner‟s case that the
standing committee upon scrutinizing the writ petitioner‟s
certificates and upon interviewing him, found him suitable for
the post of Deputy Registrar (BCW) at the University. No case
has been made by the University regarding the reasons for
non-scrutinizing of certificates on the date of the interview.
The case of Basharat Shafi (Supra) comes to the aid of the
writ petitioner in the present case since the standing
Committee had an opportunity of interviewing the writ
petitioner and formulating its opinion after having an
opportunity of scrutinizing his documents during the
interview.
(d) The case of Tripura Sundari (Supra) does not come to the aid of the
respondent/University in the facts and circumstances of the
present case. Here, upon scrutiny/deemed scrutiny of the
certificates, the petitioner was offered an appointment,
whereas, in Tripura Sundari (Supra) the appointment was
conditional upon verification of original certificates at the
time of appointment. Admittedly, the said certificates were
scrutinized on the date of the joining. In the present case,
there was no such stipulation in the letter of appointment
since the original documents/testimonials were
scrutinized/deemed to have been scrutinized at the time of
interview held prior to the issuance of the letter of
appointment.
(e) The only conditions stipulated in the letter of appointment were
that:
(i) The petitioner was required to join within 30 days from
the date of the issuance of the letter; and
(ii) A release order was required to be submitted by the
present employer at the time of joining. Admittedly,
both these requirements were fulfilled by the
petitioner.
Despite fulfillment of the aforesaid conditions, the University
did not allow the petitioner to join, without any legally tenable
reason.
(f) The writ petitioner relying on the assurance of the University
materially changed the position to his detriment by resigning
from his job at UBKV in the post of Assistant Registrar.
Whether or not, the writ petitioner had a lien over the job at
RBU, cannot be a consideration in assessing the
fairness/legality of the University‟s action. Admittedly, the
lien was renewed after the petitioner‟s letter of resignation
was accepted by UBKV. Therefore, the University did not
seek to withdraw the writ petitioner‟s letter of appointment
keeping in mind the fact; that the petitioner‟s right to
livelihood would not be affected because of his lien over his
job at RBU. No explanation was given by the University as
to why the writ petitioner should be constrained to work at
an inferior post due to the negligence/mistake on the part of
the University. The University cannot now seek to take
advantage of the fact that ultimately the petitioner was
granted a lien by RBU and could have worked there at the
post of Senior Assistant. This Court is of the view that the
University having acted unfairly/negligently should be
estopped from reneging the letter of appointment dated
September 1, 2017.
(g) This Court does not agree with the Hon‟ble Single Judge‟s finding
that the relaxation was only in respect of the "eligibility
criteria" relating to "age" and not "experience". Had that been
so, then, in the hearing dated February 13, 2018 culminating
into the impugned Memo of the same date, the hearing
Committee would not have dealt with the question whether
the eligibility criteria regarding petitioner‟s experience could
be relaxed, keeping in mind whether the candidate/writ
petitioner had any exceptional qualification.
(h) Discussion in the impugned Memo reads as thus:-
" i. It is an admitted position that Jyotirmoy Roy did not
have the requisite qualifying criteria for the post of Deputy
Registrar (BCW) as indicated in the advertisement dated
1st December, 2016 which specifically required
"10 (ten) years' administrative experience of which 5 years
shall be as Assistant Registrar or equivalent post".
ii. Admittedly, Jyotirmoy Roy did not have any experience
as Assistant Registrar for any period more than 2 (two)
years.
iii. Though Jyotirmoy Roy did not make out a case or
possessing exceptionally high qualifying criteria for a
relaxation to apply in his case, however, the advertisement
contains a clause that for exceptionally qualified candidates
the qualifying criteria may be relaxed.
iv. In that view of the matter and in order to see whether
Jyotirmoy Roy could be given the appointment by relaxing
the qualifying criteria, the following aspects of the matter
was taken into consideration.
The educational background of Jyotirmoy Roy are as
follows:
Madhyamik in 1992 -70.33% marks
Higher Secondary in 1994 -53.6% marks
B.A. Hons, in 1998 -41.7% marks
M.A. in 2001 50% marks
MBA in 2007 -75.93% marks
v. It is seen that to Jyotirmoy Roy's educational background
cannot be said to be exceptional to warrant relaxation of
eligibility criterion.
vi. The academic career of qualifications and/or credentials
Jyotirmoy Roy has been considered in great detail and it
cannot be said that he has exceptional academic
qualification for the relaxation to apply in his case. Such
aspect was considered and negated."
Hence, the University after considering the question of
relaxation of „experience‟ criteria should not be allowed to
approbate and reprobate at the same time.
(i) The hearing Committee, on the face of the records, erred in
holding that the writ petitioner's candidature was considered
only prior to his interviews. It erred in holding that admittedly
upon scrutiny of documents it was found that the writ
petitioner did not possess requisite qualifying criteria. The facts
as culled out would reveal that after his interview and after
scrutiny/deemed scrutiny of the documents, the letter of
appointment of the writ petitioner was issued. The impugned
Memo dated February 13, 2018 suffers from patent illegality
and error on the face of the record and is hereby set
aside/cancelled.
(j) At the hearing dated February 13, 2018 it was held, that on
the ground of unsuitability, the services of an employee
appointed on probation may be terminated. It is a well settled
principal of law, that the period of probation starts after
recruitment to observe the workability, efficiency, sincerity and
competence of an employee and if found not suitable for the
post, the master may dispense with his service. A probationer
does not get any substantive right to the post till such time his
appointment is confirmed but the decision not to confirm
cannot be an irrational or arbitrary decision. This court finds
that before appointing the writ petitioner/appellant and
considering his suitability, his appointment could not be
cancelled by the University on the ground that he was a
probationer and had no substantive right to the post. The said
part of the impugned Memo suffers from error of law and/or is
patently illegal and is liable to be also set aside on that ground.
25. In the light of the discussions above, the Order dated August 8, 2018
passed by the Hon‟ble Single Bench is set aside. The
respondent/University is directed to act in terms of the letter of
appointment dated September 1, 2017 and grant the appointment to the
writ petitioner/appellant to the post of Deputy Registrar with immediate
effect upon completion of necessary formalities. Such an exercise
should be completed within 2 weeks from date and notional benefits
treating the petitioner to be in regular service should be granted to the
appellant/petitioner from September, 2017, when the petitioner sought
to join the University.
26. The appeal being M.A.T. No.1089 of 2018 along with the application
being IA No. CAN 1 of 2018 (Old No. CAN 7801 of 2018) are allowed.
The cross appeal being C.O.T. No. 132 of 2018 preferred by the
University is dismissed, without any order as to costs.
27. All parties to act on the downloaded server copy of this order from the
website.
28. Urgent certified photocopy of this judgment, if applied for, be supplied to
the parties upon compliance of all the requisite formalities.
I agree.
(Subrata Talukdar, J.) (Lapita Banerji, J.)
