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1995 DIGILAW 198 (GAU)

Satya Sandhya Das v. Chintamani Sharma and Ors.

1995-08-26

A.K.PATNAIK, V.K.KHANNA

body1995
VK Khanna, C J.— This appeal has been filed against the judgment of the learned Single Judge dated 30.3.95 allowing Civil Rule No.2429 of 1993 filed by the petitioner-respondent Sri Chintamani Sharma. 2. At the admission stage, we have heard Mr. NM Lahjri, Senior Advocate, assisted by Sri AK Phukan and Sri VM Thomas, Advocates appearing for the appellant (respondent No.4 in the Civil Rule), Mr. SR Bhattacharjee, assisted by Mr. HA Sarkar, learned counsel appearing for the contesting respondent-writ petitioner and Mr. BC Das, learned Additional Senior Government Advocate, Assam appearing for the State-respondents. 3. The brief facts for the purpose of adjudicating the present appeal ate that few posts of lecturer in Pragjyotish College, Guwahati fell vacant for which an advertisement was made which has been quoted in extenso in the judgment under appeal. In pursuance of the aforesaid advertisement besides the petitioner-respondent, the appellant (respondent No.4 in the Civil Rule) and others applied and according to the Rules the Governing Body took interview for the purpose of preparing a select lust. It is not disputed that the name of the contesting respondent-petitioner was placed at serial No.1 as he has obtained first class in M.Sc. and first class in B. Sc. examinations. Admittedly, the name of the appellant (respondent No.4 in the Civil Rule) was placed at serial No.3 as she has obtained second class both in her Post Graduate and Graduation examinations. The marks awarded on the basis of the guidelines laid down by the Director of Higher Education to the petitioner-respondent were 30 and the marks awarded to the appellant (respondent No.4 in the Civil Rule) were 25. However, while making recommendation for appointment on the post of Lecturer, the petitioner-respondent who admittedly was placed at serial No.1 in the select list was bye-passed and the Governing Body made recommendation for appointment of the appellant who was admittedly placed at serial No.3. In the Civil Rule, an affidavit-in-opposition was filed by the Governing Body of the College in which the Governing Body has set out the justification for bye-passing the candidate at serial No.1, ie the writ petitioner-respondent and preferring the appellant (respondent No.4 in the Civil Rule). In the Civil Rule, an affidavit-in-opposition was filed by the Governing Body of the College in which the Governing Body has set out the justification for bye-passing the candidate at serial No.1, ie the writ petitioner-respondent and preferring the appellant (respondent No.4 in the Civil Rule). The reasons have been set out in extenso in the judgment under appeal by the learned Single Judge and from the reasons given, three grounds which emerged for bye-passing the candidate at serial No. 1 and preferring the candidate at serial No.3 by the Governing Body are : (i) That the college is an institution of co-education and there was only one lady teacher in the Department of Chemistry. So, another lady teacher should be appointed in the Chemistry Department; (ii) The respondent No.4 was a Scheduled Caste; (ii) Representation should be given to the persons from Santipur area as those people contributed a lot to the growth of the college. 4. Mr. NM Lahiri, learned senior counsel appearing for the appellant has pointed to us the time of argument that at the time of selection of die appellant, there was no lady teacher in the college and in fact after her appointment, she is the only lady teacher in the institution which is a co-educational institution. 5. Learned single Judge found that no preference could be given on the basis that the appellant was belonging to Scheduled Caste inasmuch as in the advertisement it was not mentioned that the seat was reserved for Scheduled Cast candidate. As far as the other grounds were concerned, the learned Single Judge was of the opinion that the grounds mentioned by the Governing Body were absolutely arbitrary, untenable, unsustainable for giving preference to the appellant. 6. After hearing the learned counsel for the parties, we are of the opinion that the view taken by the learned Single Judge is correct and requires no interference. The advertisement nowhere mentioned that the seat was reserved only for the Scheduled Caste candidate or women candidate. The advertisement was general and thus the conditions which were put in the advertisement could not be changed by the Governing Body. The advertisement nowhere mentioned that the seat was reserved only for the Scheduled Caste candidate or women candidate. The advertisement was general and thus the conditions which were put in the advertisement could not be changed by the Governing Body. Even otherwise, the grounds which had been set out by the Governing Body for preferring the appellant over die writ petitioner-respondent, in our opinion, are absolutely arbitrary and extraneous while exercising the power for making appointment in an educational institution on the post of a teacher. It may be observed that in this connection definite guidelines have been issued by the Director of Higher Education and it is only after following the guidelines that the Governing Body had prepared the select list and had placed the writ petitioner-respondent at serial No.1. Now, in our opinion, after following the guidelines and preparing the select list, if the Governing Body is allowed to have some other extraneous consideration to bye-pass that select list, the same would be absolutely arbitrary unless there are some cogent grounds which could justify bye-passing of the meritorious candidates. 7. In the end, Mr. NM Lahiri, learned counsel appearing for the appellant has urged before us that in this case statutorly there should have been approval of the Director of Higher Education and the learned Single Judge should not have ordered for appointment of the writ petitioner-respondent directly without the matter having been examined by the aforesaid authority. We have heard Mr. SR Bhattacharjee on this question also. 8. After hearing the learned counsel for the parties on this point, we are of the opinion that for making an appointment it is necessary to obtain approval of the Director Higher Education. We are, therefore, of the opinion that so far the appointment of the appellant (respondent No.4 in the Civil Rule) is concerned, the same has been rightly quashed by the learned Single Judge. The matter will, however, be examined by the Director of Higher Education for the purpose of giving approval for appointment to the candidate out of the select list prepared by the Governing Body. It is expected that the Director of Higher Education while exercising the power of giving approval will act according to the guidelines laid down by him. The matter will, however, be examined by the Director of Higher Education for the purpose of giving approval for appointment to the candidate out of the select list prepared by the Governing Body. It is expected that the Director of Higher Education while exercising the power of giving approval will act according to the guidelines laid down by him. The appointment on the post of Lecturer will be made only after the decision of the Director of Higher Education on the question of giving approval to the meritorious candidate in accordance with the observations made in the judgment of this Court, in accordance with the law applicable and any other guidelines laid down by the Department in this connection. A certified copy .of our judgment and the judgment of the learned Single Judge will be filed by the writ petitioner-respondent before the Director of Higher Education within a period of one week. The Director of Higher Education will take a decision for giving his approval for making appointment on the post of Lecturer in the college within a period of two weeks from the date of receipt of the documents mentioned above. The Director of Higher Education will forthwith communicate his decision to the Governing Body of the college which will issue appointment to the candidate in whose favour approval has been given by the Director of Higher Education forthwith. 9. The judgment of the learned Single Judge shall stand modified to the extent indicated above and the appeal is disposed of subject to the aforesaid observations. However, looking to the entire facts and circumstances of the case, we leave the parties to bear their own costs.