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CASE NO.:

Appeal (civil) 821 of 2002

PETITIONER:

G.N. NAYAK

Vs.

RESPONDENT:

GOA UNIVERSITYAND ORS.

DATE OF JUDGMENT: 29/01/2002

BENCH:

S. Rajendra Babu & Ruma Pal

JUDGMENT:

RUMA PAL, J.

Leave granted.

The object of scrutiny, in this judgment, is the

selection of the appellant as Professor of Marine Science in

the University of Goa. The appellant's selection was

challenged under Article 226 of the Constitution of India by

the respondent No.5 who was himself a candidate for

selection to the post. The challenge was upheld by the High

Court.

The events which formed the basis of the High Court's

decision can be said to have commenced in 1991 when the

post of Professor, Marine Science fell vacant.

Advertisements were issued from time to time but no

candidate could be found who fulfilled the essential

qualifications for the post. On 10th August 1994, an

advertisement was again issued for the post of Professor,

Marine Science. The hand-out distributed to the applicants

prescribed the minimum qualifications as:

"An eminent scholar with public work

of high quality actively engaged in

research with 10 years of experience

in post graduate teaching and/or

research at the University/National

level Institution including experience

of guiding research at doctoral level.

OR

An outstanding scholar with

established reputation which

significant contribution to knowledge."

Additional qualifications prescribed by the University

Grants Commission were also stated as:

"Specialisation: M.Sc., Ph.D. in Marine

Science or any related subject with

outstanding accomplishments of teaching

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and research in branches of Marine Science,

Marine Biology, Marine Biotechnology

Marine Geology, Chemical Oceanography

or Physical Oceanography with a proven

record of publications in international

journals".

Both the appellant and the respondent No. 5 applied

for the post. Both of them were Readers in the Department

of Marine Science, the respondent No. 5 being senior most.

Both were called for interviews on 13th September 1995.

Sometime before the date of the interview a note was

written by the respondent No. 2 as Head of the Department

to the Vice Chancellor requesting for the holding of an

urgent interview for the appointment of Professor; Marine

Science. The note placed on record an appointment letter

received by the appellant for appointment as Professor in

Geology in the University of Gulbarga. The note extolled

the qualities of the appellant and concluded with the

following paragraphs:

"8. HOD (Head of Department)

submits that if Dr. Nayak (the

appellant) is relieved from this

Dept., the Dept. and the

University will lose a dedicated

and intelligent faculty whose

services are very essential for

this newly emerged dept. and the

young Goa University in general

at this juncture.

9. It may be noted that Goa

University had already

advertised a post of Professor in

Marine Sciences in January,

1995 for which Dr.Nayak is also

an applicant. In the light of

above, it is earnestly requested

that Vice Chancellor may kindly

hold the interviews as early as

possible without re-advertising

the same, so that Dr. Nayak is

given a chance to answer the

interview and if selected may be

retained by the University.

This note was endorsed by the Dean of the Faculty on

6th August 1995 who forwarded the note with the

endorsement that he fully agreed with the views expressed

by the respondent No. 2 and suggested that interviews

should be held.

The respondent No. 5 obtained a copy of this note and

on 23rd August 1995 wrote a letter to the Chancellor as well

as to the Vice Chancellor objecting to the participation of

the respondent No. 2 and the Dean of the Faculty in the

selection on the ground that he apprehended that they

would be biased against him and that they had in writing

disclosed their bias in favour of the appellant. There is no

dispute that the Vice Chancellor received the letter but he

did not reply.

The respondent No. 5 then filed a writ application

(W.P. No. 264/95) in the High Court seeking to stop the

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participation of the respondent No. 2 as well the nominee of

the Vice Chancellor in the selection process. The writ

petition was withdrawn on 12th September 1995. According

to the respondent No. 5, the previous writ application had

been withdrawn because the Court had observed that the

petition was premature and also because the respondent-

University had given an oral assurance to the Court that the

respondent No. 2 would not be participating in the selection

process. This has been denied by the appellant and the

University.

On 13th September 1995, interviews were held as

scheduled. However, the respondent No. 2 did not take part

in the selection process. The Selection Committee found

that neither the appellant nor the respondent No. 5 were

suitable for the post.

In October 1995, a fresh advertisement was issued for

the post. This time, although the essential qualifications as

advertised in 1994 remained the same, the additional

qualifications were amended so that the specialisation read:

"Professor of Marine Science:

Specialisation: Any branch of Marine

Sciences, namely physical

Oceanography, Marine Chemistry,

Marine Geology or Marine Geology

or Marine Biology."

The requirement of 'M.Sc.-Ph.D. in Marine Science

or any related subject with outstanding accomplishment of

Teaching and Research and also with proven record of

publications in international journals' was done away with.

A fresh Selection Committee was constituted pursuant to

the 1995 advertisement. It met on 20th May 1996. This time

the respondent No. 2 participated. The Committee

recommended the appointment of the appellant. The

appellant's appointment was accepted by the Executive

Council and a formal order appointing the appellant as

Professor of Marine Science was issued to him on 8th June

1996.

The respondent No. 5 filed a second writ petition

challenging the selection of the appellant. The challenge

was upheld by the High Court broadly on the following

grounds:

1) The eligibility criteria as advertised for the

purpose of selection had been illegally

amended in disregard of the provisions of

the Statutes of the University;

2) The Selection Committee was not legally

constituted;

3) No records had been maintained by the

Selection Committee as to how the inter-se

grading was done between the candidates;

4) The selection process was vitiated by bias;

5) The appellant was not qualified and did not

possess the essential qualifications as

advertised for the post.

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After the decision of the High Court, since the

selection of the appellant as Professor, Marine Science was

set aside, a special post was created for the appellant by the

University where he is now serving.

The first submission raised on behalf of the appellant

is in the nature of a preliminary objection. According to

him, the respondent No. 5 having withdrawn the earlier writ

petition without liberty to file a fresh application on the

same cause of action could not be permitted to re-agitate the

identical issues again.

The submission is misconceived. The first writ

application had been filed on the ground of apprehended

bias on the part of the respondent No. 2. In the present

case, the allegation is of actual bias. Furthermore, the

subject matter of the earlier writ application was the

selection which was due to be held on 13th September 1995

pursuant to the advertisement issued on 10th August 1994.

The subject matter of the subsequent writ application is in

connection with the advertisement issued in October 1995

and the selection which was held on 20th May 1996. The

subject matter of both proceedings being different, the

second writ application is competent.

To appreciate the arguments of opposing counsel on

the merits, the framework of the law within which the events

took place are noted. The University of Goa was established

in 1984 by the Goa University Act, 1984 (hereinafter

referred to as 'the Act'). The Act provides for the

management and running of the University by Statutes

framed under Sections 22 and 23, Ordinances under Section

24 and Regulations under Section 25. Under the Act, the

Lt. Governor of the Union Territory has been constituted ex-

officio Visitor of the University. By virtue of an

amendment to the Act in 2000, the Visitor is now known as

the Chancellor of the University. The Chancellor is the

Head of the University. Among the authorities of the

University, we are concerned with the Executive Council

and the Academic Council. The Executive Council is the

principal executive body of the University (Section 18) and

is empowered by Section 23 (2) to make Statutes subject to

the approval of the Chancellor dealing with a range of

subjects including the appointment of teachers and other

academic staff of the University. The Academic Council is,

on the other hand, the principal academic body of the

University and is mandated to 'subject to the provisions of

the Act, the Statutes and Ordinances, co-ordinate and

exercise general supervision over the academic policies of

the University'.

The first Statutes of the University are set out in the

Schedule to the Act. They have been amended from time to

time and further Statutes have also been incorporated in the

Schedule. We are concerned primarily with Statutes 8 and

15.

Statute 8(1) empowers the Executive Council:

"(i ) to create teaching and

academic posts, to determine the

number and emoluments of such posts

and to define the duties and conditions

of service of Professors, Readers,

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Lecturers and other academic staff and

Principal of colleges and institutions

maintained by the University;

Provided that no action shall be

taken by the Executive Council in

respect of the number, qualifications

and the emoluments of teachers of the

University and academic staff

otherwise than after consideration of

the recommendations of the Academic

Council."

Statute 15 provides for constitution of the Selection

Committee for making recommendations to the Executive

Council for appointments of the various posts. The

constitution of the Selection Committee varies according to

the nature of the post. For the post of Professor, the

Selection Committee is required to consist of the Vice

Chancellor, a nominee of the Chancellor (Visitor), the Head

of the Department and in case of his non-availability, a

person nominated by the Planning Board from its members,

the Dean of the Faculty concerned, one Professor to be

nominated by the Vice Chancellor and three persons not in

the service of the University nominated by the Executive

Council out of a panel of names recommended by the

Academic Council for their special knowledge of or interest

in the subject with which the Professor as the case may be,

will be concerned.

According to the respondent No. 5, the amendment of

the qualifications for the post of Professor of Marine

Science was illegal. It was contended that under Statute 8,

it is the Executive Council which has to prescribe the

qualifications after considering the recommendations of the

Academic Council. According to the respondent No. 5, the

qualifications which were prescribed in the 1995

advertisement and hand-out issued to the applicants in

connection therewith had not been prescribed by the

Executive Council nor recommended by the Academic

Council. Whether this is so or not, this is not a grievance

which could have been raised by the respondent No. 5. He

knew that there was a change in the eligibility criteria for

the post yet he applied for the post and appeared at the

interview without protest. He cannot be allowed to now

contend that the eligibility criteria were wrongly framed.

We then come to the question of the qualifications of

the appellant and whether he was qualified to have at all

been considered for appointment to the post of Professor.

If we analyse the 1995 advertisement and hand-out it

will be seen that the minimum qualifications prescribed for

a candidate were that he/she had to be:

(a) an eminent scholar;

(b) with work of high quality;

(c) actively engaged in research;

(d) with 10 years' experience in

post-graduate teaching and/or research

at the University/ national level

institution including experience of

guiding research at doctoral level

OR

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(a) an outstanding scholar

(b) with established reputation;

(c) with significant contribution to

knowledge.

For a candidate to be qualified under the second

limb, apart from a brilliant academic record and having an

established standing, the candidate must have been

responsible for original research which had added to the

field of the particular science, not in small measure but

significantly. The appellant has not sought to justify his

appointment under this limb but has claimed that he was

qualified under the first. For the purposes of this

judgment, we will assume that the appellant fulfilled the

first three qualifications under the first limb. The difficulty

arises in connection with the fourth requirement, namely,

10 years experience of teaching or research.

The appellant claims in his bio-data that he

completed his post-graduation in 1982 and acquired his

Doctorate in the year 1986. On 17th December 1986, he

was appointed as a Lecturer in the University after which he

became a Reader on 19th June 1991. The advertisement was

issued in October 1995 and the Selection Committee met on

20th May 1996. The appellant claims that if the research

which was conducted by him for three years in connection

with obtaining his Doctoral degree is counted in addition to

his teaching experience, he is qualified.

That a candidate can club together his qualifications

of teaching and research to cover the 10 years' period has

been held in Dr. Kumar Bar Das v. Utkal University. The

question still remains would any kind of research at a

University do? Strictly speaking and as a matter of legal

interpretation, the phrase 'research at the

University/national level institution' should be read

ejusdem generis and in the context of the alternate

qualifications specified viz. 'teaching experience' and the

last phrase 'including experience of guiding research at

doctoral level'. In other words, the research must be

independent such that the researcher could guide others

aspiring for doctorate degrees and not the research where

the researcher is striving for a doctorate degree himself.

The appellant's research prior to 17th September 1986 was

pre-doctoral. Consequently and according to the letter of

the law perhaps the appellant was not qualified to be

considered as a candidate for a Professorship in 1996 since

he had failed to meet the criteria by about four months.

However, the Court would not be justified in adopting a

legalistic approach and proceed on a technical view of the

matter without considering the intention of the University in

laying down the condition of eligibility , since it is for the

University to decide what kind of research would be

adequate to qualify for professorship. The University had

intended, understood and consistently proceeded on

the basis that the pre-doctoral research could be counted

towards the 10 years experience clause. So did the

respondent No. 5. When the respondent No. 5 applied for

the post when it was advertised in 1994 he did not have 10

years cumulative experience of teaching and post doctoral

research. Since he had obtained a doctorate degree in

November 1985, the University also considered his

application and called him for an interview in September

1985 though according to a strict interpretation of the

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eligibility criteria the respondent No. 5 was not qualified.

Finally in Dr. Kumar Bar Das V. Utkal University 1999

(1) SCC 453, this Court in construing similar eligibility

criteria has held (at p. 458) that the research required could

include pre-doctoral research experience.

Then it was said that the Selection Committee was

faultily constituted. Statute 15 has already been quoted

earlier. According to the Registrar's affidavit, the

Academic Council had prepared a panel of subject experts

and forwarded it to the Executive Council. The panel as

approved by the Executive Council was (1) Prof. Subba Rao

or Prof. V.V. Modi ; (2) Dr. J. Samant or Dr. D.

Chandramohan; (3) Prof. K.T. Damodaran or Prof. R.K.

Banerjee, Prof. Subba Rao and Prof. V.V. Modi had both

regretted their inability to be part of the Selection

Committee. Dr. D. Chandramohan who had been mentioned

as an alternative choice by the Executive Council was

inducted into the panel. According to the respondent No.

5, the panel of experts had been prepared by the Executive

Council subject wise, the idea being to have experts from

the specialised fields mentioned in the advertisement of

October 1995. Our attention was drawn to the fact that

Prof. Subba Rao was Professor, Immunology and

Biochemistry and Professor Modi was from the Department

of Biology and Biotechnology.

There is nothing on the record which shows that the

Executive Council had 'paired' the experts according to

their special field of knowledge. On the contrary, it has not

been pointed out how the subjects of Immunology and

Biochemistry on the one hand can be paired with Biology

and Biochemistry and not with Marine Biology in which

Dr. Chandramohan is stated to be an expert. In fact each of

the experts had been approved by the Academic Council as

being fit to be to in the Selection Committee. The

Executive Council merely prepared the panel in order of

preference. If the preferred members were unavailable, the

other members approved by the Academic Council and

recommended by the Executive Council could be

empanelled. There has thus been no violation of Statute 15.

The High Court, however, held that there was a

further defect in the proceedings. The Selection

Committee was constituted by the following persons:

1.Prof.N.C. NigamVice Chancellor Chairman

2 Prof.S.Mavinkurve-Dean of the Faculty Member

3.Prof.U.M.X.Sangodkar-Head of Department Member

(the respondent No. 2)

4. Prof. D.J. Bhat-Nominee of the V.C. Member

5. Ex. Admiral Dr.Menon,Nominee of the VC Member

6. Prof. K.T. Damodaran-Subject Expert Member

7.Prof. J. Samant-Subject Expert Member

8.Dr. Chandramohan-Subject Expert, Member

but the Report of the Selection Committee records,

"Shri/Dr.D.Chandramohan regretted his/her ability to be

present at the meeting". With the absence of Dr.

Chandramohan the quorum would have been incomplete.

According to the Registrar's affidavit, this was a

typographical error as Dr. Chandramohan had in fact

participated and signed the Report. The statement of the

Registrar on oath should have been accepted

by the High Court, particularly when

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there was no allegation even on the part of the respondent

No. 5 that Dr. Chandramohan did not in fact sit on the

Selection Committee.

This brings us to the issue of bias.

Bias may be generally defined as partiality or

preference. It is true that any person or authority required

to act in a judicial or quasi-judicial matter must act

impartially. "If however, 'bias' and 'partiality' be

defined to mean the total absence of preconceptions in the

mind of the judge, then no one has ever had a fair trial and

no one ever will. The human mind, even at infancy, is no

blank piece of paper. We are born with predispositions

and the processes of education, formal and informal,

create attitudes which precede reasoning in particular

instances and which, therefore, by definition, are

prejudices".

It is not every kind of bias which in law is taken to

vitiate an act. It must be a prejudice which is not founded

on reason, and actuated by self interest whether pecuniary

or personal. Because of this element of personal interest,

bias is also seen as an extension of the principle of natural

justice that no man should be a judge in his own cause.

Being a state of mind, a bias is sometimes impossible to

determine. Therefore, the Courts have evolved the principle

that it is sufficient for a litigant to successfully impugn an

action by establishing a reasonable possibility of bias or

proving circumstances from which the operation of

influences affecting a fair assessment of the merits of the

case can be inferred.

In A.K. Kraipak and Others V. Union of India and

Others 1969 (2) SCC 262, the Selection Committee had

been constituted under Regulation 3 of the Indian Forest

Service (Initial Recruitment) Regulations, 1966 for the

purpose of making selections to any State cadre of the All

India Forest Service. The Chief Conservator of Forests was

selected. Setting aside the selection, this Court held that the

Chief Conservator of Forests being himself one of the

candidates seeking to be selected to the All India Forest

Service should not have been included as a member of the

Selection Board because of the possibility of bias.

As we have noted, every preference does not vitiate

an action. If it is rational and unaccompanied by

considerations of personal interest, pecuniary or otherwise, it

would not vitiate a decision. For example, if a senior officer

expresses appreciation of the work of a junior in the

Confidential Report, it would not amount to bias nor would it

preclude that senior officer from being part of the

Departmental Promotion Committee to consider such junior

officer along with others for promotion.

In this case, the respondent No. 5 has relied on the

note quoted earlier to allege bias against the respondent No.

2. No doubt the respondent No. 2 has, in the note, lavished

praise on the performance of the appellant. As the Head of

the Department it would be but natural that he formed an

opinion as to the abilities of the Readers working under

him. It is noteworthy that it was not the respondent No. 5's

case that the respondent No.2's praise of the appellant was

unmerited or that the respondent No. 2 had any extraneous

reasons or reasons other than the competence of the

appellant for selecting the appellant's as Professor. We are

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also not persuaded as the High Court was, to infer bias

merely because at the previous selection in September 1995

the appellant was found unsuitable. If the outcome of the

previous selection was conclusive as to the non-suitability

of the appellant for all times to come, it was conclusive as

far as the respondent No. 5 as well. Yet the respondent No.

5 applied again because he knew that a reappraisal by a new

Selection Committee at a later point of time might yield a

different result.

As for the failure to keep any record as to the grading

of the candidates under Statute 15, the procedure to be

followed by the Selection Committee in making

recommendations are required to be such as may be laid

down in the Ordinances. No Ordinance was drawn to our

notice which prescribes a particular mode of rating the

respective merits of the candidates. When appointments are

being made to posts as high as that of a Professor, it may

not be necessary to give marks as the means of assessment.

But whatever the method of measurement of suitability used

by the Selection Committee, it was an unanimous decision

and the Courts will, in the circumstances obtaining in this

case, have to respect that.

Accordingly, we set aside the decision of the

High Court and allow the appeal but without any order as

to costs.

.J .J.

(S. Rajendra Babu)

.J.

(Ruma Pal)

January 29, 2002