Calcutta High Court (Appellete Side)
Dr. Mohammad Faique vs The Union Of India And Others on 18 May, 2023
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18.05.2023
ap
13 W.P.A. No. 23752 of 2022
DR. MOHAMMAD FAIQUE
-VERSUS-
THE UNION OF INDIA AND OTHERS
Mr. Chittapriya Ghosh,
Mr. Somesh Ghosh,
Ms. Priyanka Saha
.. For the petitioner.
Mr. Kumar Jyoti Tiwari,
Ms. Sarda Sha
... For the Visva-Bharati.
Mr. Anil Kr. Gupta
...For the U.G.C.
The writ petitioner in this writ petition has prayed
for a direction upon Visva-Bharati, Santiniketan to
promote him to the post of Professor in Arabic, Persian
Urdu and Islamic Studies following the Career
Advancement Scheme (CAS, in short) under the U.G.C.
Regulations on Minimum Qualifications for
Appointment of Teachers and Other Academic Staff in
Universities and Colleges and Measures for the
Maintenance of Standards in Higher Education, 2010
(in short "U.G.C. Regulations, 2010").
The petitioner became an Associate Professor on
December 04, 2018, and he became eligible for
promotion under CAS to the post of Professor (Stage - 5)
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from Associate Professor (Stage-4) after the completion
of three years of service.
In the month of November 15, 2014, he submitted
his application before the Chairman of Internal Quality
Assurance Cell (IQAC, in short) of the Visva-Bharati for
promotion under the said scheme.
The U.G.C. Regulations, 2010 have mandated
Performance Based Appraisal System (PBAS, in short)
for Career Advancement Scheme (CAS) promotion
through Academic Performance Indicators (API, in
short) under three board categories.
A. Contribution to Research:
Five Research Articles are
examined by three external
experts individually. Then these
three sets of marks are added up
and the final score is calculated
from that total out of 50 marks.
B. Domain Knowledge and Teaching
Practices:
The domain knowledge and the
teaching practices of the applicant
for Career Advancement Scheme
Promotion are scrutinized and out
of the points gained from the
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academic activities of different
descriptions the API score is
calculated by the IQAC, Visva-
Bharati, out of 30 marks as per
Academic Performance Indicators
Guidelines set out in University
Grant Commission Regulations
2010 and also in the Performance
Based Appraisal System Proforma
as evolved by Visva-Bharati. The
minimum requirement for
qualifying in this assessment
consists of 120 marks.
C. Interview Performance:
When the applicant qualifies in
the above two stages then he/she
is called to appear in an interview
before a selection committee
which is the third and last stage of
the assessment. The score allotted
to the Selection Committee is 20
marks for the interview.
The applicant should fulfill the "minimum
eligibility period" (for getting a promotion to "Professor",
it is 3 years as Associate Professor).
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The applicant should do "self-appraisal" to satisfy
themselves of eligibility and then only should submit
the application.
In the final assessment, the applicant should (a)
fulfill minimum API scores and obtain (b) 50% in expert
assessment. The subject experts for each of these
assessments are chosen in a confidential process and
they do their assessments confidentially and
independent of each other.
It is not in dispute that the following marks were
obtained by the petitioner in those three stages of
assessment.
1.
Contribution to Research: (50 marks)
Three external experts awarded
average marks of 41 out of 50.
2. Domain Knowledge and Teaching
Practices: (30 marks)
The petitioner scored 120 marks
whereas the minimum requirement was
120 marks. Therefore, the petitioner has
scored 30 out of 30 marks.
3. Interview Performance : (20 marks)
The petitioner was given 8 marks by
the selection committee.
As per the aforesaid particulars, the petitioner
would have scored 41+30+8 = 79 out of 100 marks
against the minimum requirements of 50 marks.
However, the selection committee, which
consisted of seven members, reduced the marks under
the heading "Contribution to Research" and
"Assessment of Domain Knowledge and Teaching
Practices" in final selection from 41 to 25 and 30 to 10
respectively and awarded 8 marks for "Interview
Performance." Thus, the total marks awarded to the
petitioner were 43 out of 100 as per the following
details:
1. Contribution to Research = 25 out of 50
2. Assessment of Domain
Knowledge and Teaching
Practices = 10 out of 30
3. Interview Performance = 8 out of 20
Total = 43 out of 100
For the sake of clarity the score sheet of the selection
committee dated March 16, 2019, is reproduced:
30%-
Assessment Marks
Nature of the 50%- 20%-
Sl. of domain obtained
candidate and Contribution Interview
No. Knowledge out of 100
Department to Research performance
and teaching (hundred)
practices
Mohammad
Faique,
Department
of Arbic,
Persian,
Urdu and
Islamic
Studies,
Visva-
Bharati
4. Sd/-(illegible) 2. Sd/-(illegible)
3. Sd/-(illegible) 4. Sd/-(illegible)
5. Sd/-(illegible) 6. Sd/-(illegible)
7. Sd/-(illegible)
The petitioner, therefore, fell 7 marks short of the
required 50 marks to be qualified as a Professor in the
final selection.
Having regard to the aforesaid, I need not advert
to the justification of the selection committee in scaling
down the marks under the heading "Domain Knowledge
and Teaching Practices" and awarding the marks under
the heading "Interview Performance." I assume that the
marks awarded under the said headings by the
selection committee are proper and justified. But if the
selection committee had awarded the same marks as
awarded by the expert committee under the heading
"Contribution to Research", he would have scored the
required marks [10 (Domain Knowledge and Teaching
Practices) + 41 (Contribution to Research) + 8 (Interview
Performance)" = total 59 marks] for the promotion.
Therefore, outcome of this writ petition depends on the
question as to whether the selection committee was
justified in reducing the marks of the petitioner from 41
to 25 under the heading "Contribution to Research."
Appearing for the petitioner, Mr. Chittapriya
Ghosh has argued that the notification of the University
inviting application for CAS promotion dated January 7,
2013, and July 23, 2013, specifically provided that
evaluation of the publication by the experts shall be
factored into the weightage score while finalising the
outcome of selection. Rule 6.0.7 of the U.G.C.
Regulations, 2010 also provides for the same. The
selection committee has not factored in the marks
allotted by the expert committee and thereby acted in
violation of the U.G.C. Regulations, 2010 with the
oblique motive to ensure that the petitioner was not
promoted under the CAS.
Mr. Chittopriya Ghosh, learned advocate
appearing for the petitioner submits that this case is
entirely covered by the judgment of this Court delivered
in [WPA 10132 of 2019 (Dr. Ms. Tanuka Das vs. The
Union of India and others)]. He further submits that
the similar benefits should be extended to the petitioner
since in this case also the petitioner's marks as awarded
by the External Experts have been reduced drastically
without providing any reason.
Mr. Kalyan Jyoti Tiwari, learned advocate
appearing on behalf of the University, on the other
hand, submits that the University had preferred an
appeal against the judgment passed in Dr. Ms. Tanuka
Das (supra) before a Division Bench of this Court but
the said appeal was withdrawn and subsequently the
University preferred a Special Leave Petition against the
said judgment. The Supreme Court has issued notice
in that case without any stay order but the matter has
not yet been decided by the Supreme Court.
He further relies upon a judgment reported at
(2018) 15 SCC 796 (Union Public Service
Commission vs. M. Sathiya Priya and Others) to
argue that this Court should not be sit in appeal over
the decision rendered by an expert committee in
academic field.
I am of the opinion that the impugned selection
process cannot be sustained and the petitioner should
have been promoted to the post of Professor from the
post of Associate Professor.
The score sheet of the selection committee has
been quoted above. The said score sheet makes it clear
that the members of the selection committee in the
interview did not award marks individually. All the
members awarded consolidated marks. The Supreme
Court in the judgment reported at (2015) 11 SCC 493
(Pradeep Kumar Rai v. Dinesh Kumar Pandey) after
noticing the judgment reported at (1981) 4 SCC 159
(Lila Dhar v. State of Rajasthan) held as follows:
"19. Now, so far as the
question of awarding consolidated
marks by all the panellists in the
interview is concerned, we are in
agreement with the finding of the
learned Single Judge. The purpose of
constituting multi-member interview
panel is to remove the arbitrariness
and ensure objectivity. It is required
by each member of the interview
panel to apply his/her own mind in
giving marks to the candidates. The
best evidence of independent
application of mind by each panellist
is that they awarded separate marks.
However, if only consolidated marks
are awarded at the interview, it
becomes questionable, though not
conclusive, whether each panellist
applied his/her own mind
independently. ..."
I am, however, not inclined to interfere with the
selection process on the sole ground of awarding
consolidated marks by the members of the selection
committee.
The particulars of marking by the expert
committee under the heading "Contribution to
Research" are as follows:
a) Professor of Department (9+9+10+9+8) = 45 out
of Persian faculty of Arts, of 50
University of Delhi,
_____________________________________________________
b) Professor, 40 out of 50
Department of Persian faculty of
Humanities, Jamia Millia Islamic
University,
_______________________________________________________
c) Professor, 7 out of 10
Department of English,
Calcutta University (Retd.)
Wajee Huddin, officiating head
Department of Arabic & Urdu faculty
of Arts, The Maharaja Sayajirao
University of Boroda.
______ ________________________________________________
Total = 92 of 110
i.e. average 41 out of 50
_______________________________________________________
It is also necessary to quote regulation 6.0.7. of
the U.G.C. Regulations, 2010, which provides as
follows:
"6.0.7. The process of selection of
Professor shall involve inviting the bio-
data with duly filled Performance Based
Appraisal System (PBAS) proforma
developed by the respective universities
based on the API criteria based PBAS set
out in this Regulation and reprints of
five major publications of the
candidates.
Provided that such publications
submitted by the candidate shall have
been published subsequent to the period
from which the teacher was placed in
the Assistant Professor stage-II.
Provided further that such publications
shall be provided to the subject experts
for assessment before the interview and
the evaluation of the publications by the
experts shall be factored into the
weightage scores while finalizing the
outcome of selection."
There cannot be any doubt that a selection
committee cannot violate the said U.G.C. Regulations,
2010, and is bound to factor the marks awarded by the
expert committee in the final selection.
The selection committee, in violation of regulation
6.0.7. of U.G.C. Regulations, 2010, could not altogether
ignore the evaluation of the expert committee with
regard to the publications made by the petitioner.
In my view, if the selection committee differs with
the expert committee on any ground, the reason for the
same must be provided. The reasoning of the experts in
support of their marking was before the selection
committee. Though forceful argument was advanced on
the authority of the selection committee to differ with
the expert committee, the justification for the same
could not at all be demonstrated. If the selection
committee chooses to differ, the burden lies heavily
upon it to demonstrate the justified reason for such
difference.
In the present case, the documents related to the
selection in question do not disclose any reason
whatsoever as to why the selection committee
drastically reduced the average of marks from 41 out of
50 to 25 out of 50. It is anybody's guess how the
selection committee awarded even lower than the lowest
marks amongst three members of the expert committee.
Nothing has been demonstrated to show the
assessment of the three-member expert committee was
at all factored in the final assessment in terms of
regulation 6.0.7. of U.G.C. Regulations, 2010.
In view of the discussion, as above, the impugned
selection proceeding is set aside. I am not inclined to
remand back the matter to the selection committee once
again. The petitioner retired from service on December
31, 2020. It is wholly unjustified to direct the petitioner
again to face the ordeal of the interview at this stage.
The writ petition is accordingly allowed. The
University will recalculate the salary, pension, and
other retiral dues of the petitioner treating her to be
promoted as Professor on the basis of the interview held
on March 16, 2019, and release the same accordingly
together with the arrears within two months from the
date of communication of this order.
Accordingly, W.P.A. No. 23752 of 2022 is allowed.
Urgent certified website copies of this judgment, if
applied for, be supplied to the parties subject to
compliance with all the requisite formalities.
(Kausik Chanda, J.)
