Gauhati High Court
Krishna Chandro Goudo vs The State Of Assam And 4 Ors on 30 September, 2022
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GAHC010157952022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5201/2022
KRISHNA CHANDRO GOUDO
SON OF LATE CHAKRAPANI GOUDO
R/O BIDYAPUR, MALIKUCHI CHOWK, BYELANE 4, HOUSE NO. 113, P.O.
AND DIST NALBARI, ASSAM, PIN-781335
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION
(HIGHER) DEPARTMENT, DISPUR, GUWAHATI- 781006
2:THE KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
RANI
GUWAHATI
REP. BY ITS REGISTRAR
SATGAON
RANI
GUWAHATI-781017
DIST. KAMRUP (METRO)
ASSAM
3:THE CHANCELLOR
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
REP. BY THE SECRETARY TO THE GOVERNOR
RAJ BHAVAN
GUWAHATI- 781001.
4:THE ADVISORY BOARD/SEARCH COMMITTEE
FOR SELECTION OF THE VICE- CHANCELLOR
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
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REP. BY ITS CHAIRMAN/NOMINEE OF THE CHANCELLOR.
5:PROF. (DR.) SUSHMA YADAV
CHAIRMAN OF ADVISORY BOARD
KKHSOU
MEMBER OF SELECTION COMMITTEE
KKHSOU AND MEMBER UNIVERSITY GRANTS COMMISSION
NEW DELHI
26
INDUSTRIAL ESTATE
REWARI
UTTAR PRADESH
PIN-123401
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, HIGHER EDU
BEFORE
HONOURABLE MR. JUSTICE NELSON SAILO
Date of hearing : 28.09.2022 & 29.09.2022
Date of judgment : 30.09.2022
J U D G M E N T & O R D E R (CAV)
Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. R.J. Das, learned
counsel for the petitioner and Mr. D. Saikia, learned Advocate General, Assam assisted by
Mr. B. Choudhury and Mr. K. Gogoi, learned counsels for all the respondents. Mr. K.N.
Choudhury, learned Senior Counsel submits that the petitioner is aggrieved by the
selection process initiated vide Advertisement dated 26.04.2022 (Annexure - 1) for the
post of Vice Chancellor, Krishna Kanta Handique State Open University (University).
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Referring to Clause - 1 of the terms and conditions of the Advertisement, the learned
Senior Counsel submits that the eligibility of the applicants is to be strictly ascertained on
the basis of UGC Regulations, 2018. The learned Senior Counsel further submits that in
terms of Clause 1.1 of Chapter-IV of the first statutes of the University notified on
30.03.2009, the Vice Chancellor is to be appointed by the Chancellor on the
recommendations of an Advisory Board constituted by the Chancellor for the purpose
consisting of three (3) members, of whom one (1) member shall be elected by the Board
of Management, one (1) member shall be nominated by the State Government and one
(1) member shall be nominated by the Chancellor. The Chancellor shall appoint one (1) of
them as Chairman of the Advisory Board. Further, as per Clause 1.2 of the same Statutes,
the Advisory Board shall recommend a panel of names of three (3) persons to the
Chancellor, who may appoint one (1) of the persons recommended to be the Vice
Chancellor. If the Chancellor does not approve any of the person recommended by the
Advisory Board, he may call for a fresh recommendation.
[2.] The learned Senior Counsel submits that in exercise of the powers vested
under Section 6 (i) (b) of Section 6 (ii) (b) of Chapter-II of the Statutes as amended, the
Chancellor of the University nominated the respondent No. 5 to be the Expert Member of
the Selection Committee for selection of Teachers of the University along with another
Expert Member for selection of Officers in the University. The said nomination was issued
by the Governor's Secretariat, Assam on 09.02.2021 (Annexure - 4) and by the Office of
the Registrar of the University on 17.02.2021. As per the 2 notifications, the term of office
of the members nominated is for 3 years in terms of the Statutes.
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[3.] The learned Senior Counsel submits that as per Clause 7.3 ii of the UGC
Regulations, 2018, notified on 18.07.2018 (Annexure - 5), the selection for the post of
Vice Chancellor should be through proper identification by a panel of 3 - 5 persons by a
Search-cum-Selection Committee through public notification or nomination or a talent
search process or a combination thereof. The members of such Search-cum-Selection
Committee shall be persons of eminence in the sphere of higher education and shall not
be connected in any manner with the University concerned or its colleges. However, in
clear violation of this provision, the respondent No. 3 vide Notification dated 03.03.2022
(Annexure - 2) in exercise of the powers conferred under Sub-Section 1.1 of Section 1 of
Chapter-IV of the Statutes, constituted a panel of 3 persons for the purpose of
appointment of Vice Chancellor of the University, which included the respondent No. 5 as
the nominee of the Chancellor and also as the Chairman of the Advisory Board. The
learned Senior Counsel submits that since the respondent No. 5 is already associated with
the University with her appointment as an Expert Member of the Selection Committee for
selection of Teachers of the University, she could not have been nominated as one of the
member and Chairman of the Advisory Board to appoint the Vice Chancellor. The same
being in clear violation of Clause 7.3 ii of the UGC Regulations, 2018, any selection made
by the constituted Advisory Board is unauthorized, illegal and cannot be acted upon in
any manner. He therefore submits that the impugned Notification dated 03.03.2022
should be set aside and the respondent authorities should be directed to reconstitute the
Advisory Board in terms of Clause 7.3 (2) of the UGC Regulations, 2018.
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[4.] The learned Senior Counsel further submits that as per the stand taken by
the respondent No. 3 in its affidavit filed on 25.08.2022, the appointment of the
respondent No. 5 as an Expert Member for appointment of Teachers of the University is
said to be only a honorary assistance and for which, as a member of the Selection
Committee, she is eligible to get a sitting fee and T.A/D.A for any assistance rendered and
no salary or fixed pay is provided. Her assistance in the meeting of the Selection
Committee is also voluntary and she may or may not attend the meeting. It is further
contended that the respondent No. 5 has neither responded to the nomination nor
attended any meeting of the Selection Committee pursuant to her nomination vide
Notifications dated 09.02.2021 and 17.02.2021. She has also not received any
remuneration including sitting fee, T.A/D.A etc., from the University. To these contentions,
the learned Senior Counsel submits that the issue is not as to whether the respondent No.
5 has accepted her nomination as Expert Member for selection of Teachers of the
University or whether she has received any remuneration on this count but the fact is that
she was appointed as an Expert Member of Selection Committee for selection of Teachers
of the University vide Notifications dated 09.02.2021 and 17.02.2021 and therefore,
during the subsistence of the said Notifications, the impugned Notification dated
03.03.2022 being in clear violation of Clause 7.3 ii of the UGC Regulations, 2018, any
selection process undertaken pursuant to the said Notification is only unauthorized and
illegal and therefore, cannot be sustained. He therefore submits that the impugned
Notification dated 03.03.2022 is so far as the nomination and appointment of the
respondent No. 5 is concerned should be set aside and quashed.
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[5.] Mr. D. Saikia, learned Advocate General, Assam on the other hand submits that
as per Sl. No. 1 of the terms and conditions of the Advertisement for the post in question,
it is clearly provided that the eligibility of the applicants will be strictly ascertained on the
basis of the UGC Regulations, 2018 but the same is not the case in respect of the
selection process. He submits that the eligibility and selection process are two (2)
different things and in fact, the State of Assam has not adopted the UGC Regulations of
2010 or 2018. Therefore, the UGC Regulations do not strictly apply to the present case.
He further submits that a Coordinate Bench of this Court in Prof. Archana Sharma -Vs-
State of Assam & Ors. 2019 (3) GLT 392 in the given facts of that case came to a finding
that the UGC Regulations having not been formally adopted by the State, the Resolution
of the Executive Council of the Gauhati University constituting an Advisory Board for
selection of Vice Chancellor of the University was not interfered with. In the appeal filed
before the Division Bench of this Court by the writ petitioner, namely W.A No. 109/2019,
the Division Bench upheld the decision of the learned Single Judge while observing that
the UGC Regulations are to be considered directory and not mandatory. He therefore
submits that the ratio laid down squarely covers the present case.
[6.] The learned Advocate General by further referring to the affidavit-in-opposition
filed by the respondent No. 5 on 21.09.2022 more particularly at paragraph Nos. 4 & 5 of
the said affidavit submits that the respondent No. 5 never received the Notifications dated
09.02.2021 and 17.02.2021 from the concerned authorities and therefore, she never
attended any Selection Committee meeting for Teachers at the University as the nominee
of the Chancellor. Therefore, the respondent No. 5 is not connected in any manner with
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any of the activities of the University concerned other than being a nominee member and
Chairman of the Chancellor in the Advisory Board-cum-Search Committee for
recommending the panel of three (3) persons for appointment as Vice Chancellor of the
University.
[7.] Similarly, by referring to the affidavit-in-opposition filed by the respondent No.
3, the learned Advocate General submits that the respondent No. 5 did not respond or
accept her nomination as an Expert Member for the Selection Committee for selection of
Teachers of the University. Although a copy of the Notification was sent by the respondent
No. 3, but the respondent No. 5 did not respond to the same nor did she participated in
the selection process for appointment of Teachers. Under the circumstance, the learned
Advocate General submits that the petitioner cannot have any legitimate grievance
against the respondents and the writ petition should be dismissed. In support of his
submissions, he relies upon the following authorities:-
(i) Kalyani Mathivan -Vs- K.V. Jeyaraj & Ors. (2015) 6 SCC 363
(ii) State of Uttarakhand -Vs- Sudhir Budakoti & Ors. 2022 SCC OnLine SC
(iii) Archana Sharma -Vs- University Grants Commission & Ors. 2019 (3) GLT
(iv) Judgment & Order dated 16.08.2019 in W.A No. 109/2019, Prof. Archana
Sharma -Vs- UGC & 4 Ors.
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[8.] I have heard the submissions made by the learned counsels for the rival
parties and I have also perused the materials available on record.
[9.] As may be noticed, the grievance projected by the petitioner is with regard to
the nomination and appointment of the respondent No. 5 as the Member and Chairman of
the Advisory Board for appointment of the Vice Chancellor of the University in view of the
fact that the respondent No. 5 was nominated as the Expert Member of Selection
Committee or selection of Teachers of the University. It may be seen that such
appointment has been made in exercise of the powers vested under Section 6 (i) (b) and
Section 6 (ii) (b) of Chapter - IV of the Statutes. The appointment of the respondent No.
5 as member of the Advisory Board and also the Chairman vide Notification dated
03.03.2022 is also under the Statutes. In the terms and conditions for appointment to the
post in question, it provides for the eligibility of the applicants to be ascertained on the
basis of the UGC Regulations, 2018 but does not otherwise provide that selection for the
post in question would be done in terms of the provisions of the UGC Regulations, 2018.
The constitution of the Advisory Board is found at Sub-Clause 1.1 of Clause 1 of the
Statutes. There are no materials on record to show that the UGC Regulations has been
formally adopted by the State.
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[10.] It is further noticed that the case referred to by the learned Advocate
General i.e., Prof. Archana Sharma (supra) both before the Single Bench and the Division
Bench speaks for itself on the non-adoption of the UGC Regulations in the State. The
Division Bench of this Court relying upon the case of Kalyani Mathivan (supra) held that
the UGC Regulations, 2010 has to be considered as directory for Gauhati University and
therefore, in the given facts of the case that was being considered, the Court held that
there was no necessity to take recourse to Clause 7.3.0 of the UGC Regulations for
selection of Vice Chancellor of the University and that the same can be undertaken in
terms of the relevant provision of the Gauhati University Act.
[11.] The Apex Court decision in Kalyani Mathivan (supra) was also subsequently
referred to in State of Uttarakhand -Vs- Sudhir Budakoti & Ors. (supra). Coming to the
present case, as already stated herein above, the UCG Regulations has not been adopted
by the State Government and the only reference made in respect to the selection to the
post of Vice Chancellor of the University is the screening of the applicants on their
eligibility on the basis of the UGC Regulations, 2018 and that by itself in my considered
view cannot be construed to mean that the UGC Regulations, 2018 will have to be strictly
applied in the selection process as well particularly, when the University has its own
Statutes for the purpose . In fact, the Statutes particularly at Chapter - IV provides for
the manner and term of appointment of Vice Chancellor of the University including the
powers and functions to be exercised or performed in detail. For this reason, the other
contentions raised by the petitioner need not be gone into.
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[12.] Thus, upon due consideration, I do not find merit in the writ petition and
the same is accordingly dismissed. No cost.
JUDGE
Comparing Assistant
