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2003 DIGILAW 113 (GAU)

Ratul Devi Sarma v. State of Assam

2003-03-14

P.P.NAOLEKAR, RANJAN GOGOI

body2003
JUDGMENT R. Gogoi, J. 1. This writ appeal is projected against the judgment and order dated 25.6.2002 passed by a learned Single Judge of this Court allowing the writ petition filed by the Respondent No. 5 in the present writ appeal. 2. As the facts have been exhaustively enumerated in the judgment under appeal, only the core facts may be noticed as hereunder: At the relevant point of time, in the State of Assam, a student before reaching the graduate level of study had an option of pursuing two different patterns of education. In the Higher Secondary Schools of the State, at the stage of the 8th Standard, a student had to opt for any one of the three streams of study, i.e., Arts, Science or Commerce. The examination in Classes VIII, IX and X were conducted by the school whereas after the XI Class, an examination was conducted by the Board. This was known as the Higher Secondary Examination, on passing of which, a student could join in the graduation course in one of the three disciplines. In the other government schools, a student was required to appear at the Matriculation/HSLC examination after completion of studies in Class X and the said examination was conducted by the Board. After passing the Matriculation Examination, the student had to undergo one year's further studies at the pre-University level and after passing the pre-University Examination, which was also conducted by the Board/University, such student could enroll himself in the graduation course in any of the three disciplines. Students under the second pattern, it may be noticed, were required to opt for the specific stream of study at the time of entry into the Pre-University Course after qualifying in the Matriculation Examination. The Respondent No. 5 herein (the writ Petitioner) was a student, who had gone through the Higher Secondary Course, whereas the present Appellant, (the Respondent No. 5 in the writ petition) had undergone the second pattern of study, i.e., Matriculation followed by Pre-University. 3. On 26.6.1998, an advertisement was published inviting applications for the post of Principal of the Hema Prabha Borborah Girls' College, Golaghat. Both the Appellant and the Respondent No. 5 participated in the selection process, which was held on 22.9.1998. The selection was held according to a set of guidelines published by an office memorandum dated 17.6.1992. 3. On 26.6.1998, an advertisement was published inviting applications for the post of Principal of the Hema Prabha Borborah Girls' College, Golaghat. Both the Appellant and the Respondent No. 5 participated in the selection process, which was held on 22.9.1998. The selection was held according to a set of guidelines published by an office memorandum dated 17.6.1992. The Appellant was placed at serial No. 1 of the list of successful candidates, which selection was approved by the Governing Body of the College in its meeting held on 20.8.2000. The resolution of the Governing Body of the College was forwarded to the Director of Higher Education, Government of Assam, who approved the same on 11.9.2000. Thereafter the Appellant was appointed as the regular Principal of the College. The aforesaid appointment was challenged by the Respondent/Petitioner, inter alia, on the ground that in terms of the guidelines circulated by office memorandum dated 17.6.1992 out of the 65 marks to be awarded on the basis of academic attainments, the guidelines contemplated giving of 2 sets of marks to a candidate who had passed the Matriculation Examination and thereafter the Pre-University Examination, whereas in the case of a candidate, who had straightway passed the Higher Secondary Examination only one set of marks was contemplated. The Respondent/Petitioner contended that the guidelines were therefore arbitrary and discriminatory and as the same were applied to the selection process under challenge in the writ proceeding, the selection of the writ Appellant would stand vitiated. The Respondent/writ Petitioner assailed the validity of the selection and the consequential appointment of the writ Appellant on the further ground that in the past, in some instances, notional marks were granted for the Matriculation Examination to candidates who had not appeared in the said examination but had directly passed the Higher Secondary Examination, which benefits was not conferred to the writ Petitioner. That apart, the writ Petitioner had contended that against the discriminatory treatment meted out to him, he had filed several representations before the appropriate authorities of the State, who inspite of being aware of the genuineness of the claims made by the writ Petitioner, did nothing to ameliorate the said grievances, the consequence of which is that the exercise of powers in the instant case has partaken the character of being a pretence or a sham. 4. 4. The arguments of the writ Petitioner found favour with the learned Single Judge, who thought it proper to consider both the Appellant and the Respondent in so far as the selection to the post of Principal is concerned, to be members of one class and as unequal treatment was meted out to persons similarly situated, the learned Single Judge thought it fit to interfere with the selection and the appointment of the writ Appellant. Directions for'a de novo selection by causing an appropriate modification in the guidelines conferring notional marks to the writ Petitioner for the Matriculation Examination though the writ Petitioner had not appeared in the said examination were consequently issued. Aggrieved, the Respondent No. 5 in the writ petition is before us by means of the present writ appeal. 5. We have heard Mr. A.C. Borbora, learned senior Counsel for the writ Appellant and Dr Y.K. Phukan, learned senior Counsel appearing on behalf of the Respondent No. 5. We have also heard Mrs. A. Hazarika, learned Government Advocate appearing on behalf of the State Respondents. 6. Learned Counsel for the respective parties have advanced elaborate arguments on the contentious issues raised in the present proceeding and have very painstakingly tried to fortify such arguments by referring to several pronouncements of the Apex Court and of this Court in the matter of the dimensions of the power of judicial review vis-a-vis a selection made for filling up of posts involving public duties. Such arguments have also centered around the power of the writ Court to confer retrospectivity to its directions and the possible adverse consequences arising from retrospective operation of such directions in unsettling what has become a settled position by efflux of time. 7. The arguments advanced by the learned Counsel for the respective parties have been duly noticed by us. However, in view of the conclusion reached by us, we do not consider it necessary to go into any of the said arguments, which arguments however, we must record, proceed on the basis that the learned Single Judge was right in his conclusion that the guidelines dated 17.6.1992 have the effect of discriminating amongst persons similarly situated. 8. However, in view of the conclusion reached by us, we do not consider it necessary to go into any of the said arguments, which arguments however, we must record, proceed on the basis that the learned Single Judge was right in his conclusion that the guidelines dated 17.6.1992 have the effect of discriminating amongst persons similarly situated. 8. In our considered opinion, the moot question that arises for being answered at the outset, is whether persons who have gone through two different patterns of education as prevailing at the relevant point of time are similarly situated persons so as to enable application of the concept of hostile discrimination to them. The facts as noted by us in the preceding paragraph of the judgment would go to show that a student pursuing the Higher Secondary Course had to opt for a particular stream of study on entry into Class VIII level and until the Board's examination after completion of the XI Class, all other examinations are conducted by the school in question. On other hand, a student passing his Matriculation and thereafter opting for a particular course of study in the Pre-University Course is required to appear in two Board/University Examinations - one after completion of the Class X standard, i.e., Matriculation/HSLC Examination and the other after completion of XIth Class, i.e., Pre-University Examination. There can be hardly any dispute that an examination conducted by the school cannot be equated to an examination conducted by a Board or a University. An examination conducted by the Board or the University would definitely be of higher standard than the examination conducted by the school. A student going through the Matriculation and Pre-University pattern of education is subjected to two Board/University Examinations, i.e., after completion of Class X and Class XI level. Such a candidate would not be at par with the students who had undergone the other pattern of education, i.e., who had appeared in the Higher Secondary Examination after completion of Class XI. A difference between the two sets of students founded on rational and relevant facts is clearly discernible. What Article 14 prohibits is discrimination amongst persons belonging to one class. Preferential or unequal treatment to persons belonging to two separate classes is not prohibited by Article 14; in fact Article 14 mandates that unequals should not be treated equally. A difference between the two sets of students founded on rational and relevant facts is clearly discernible. What Article 14 prohibits is discrimination amongst persons belonging to one class. Preferential or unequal treatment to persons belonging to two separate classes is not prohibited by Article 14; in fact Article 14 mandates that unequals should not be treated equally. We stand fortified in the view that we have taken by a decision of the Apex Court in the case of Govt. of T.N. and Anr. v. S. Arumugham and Ors. reported in (1998) 2 SCC 198 and the above proposition may be made succinctly extracting the following passage from the aforesaid judgment: In the case of Govind Dattatray Kelkar v. Chief Controller of Imports and Exports this Court held that the concept of equality in the matter of promotion can be predicated only when promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the difference between the two sources, the recruitment can be justified as legitimate classification. This reasoning directly applies in the present case. Therefore, the scheme does not violate Article 14 or 16, nor is it arbitrary. Furthermore, in the cases of M.P. Oil Extraction and Anr. v. State of M.P. and Ors. etc. reported in (1997) 7 SCC 592 , the Apex Court has clearly laid down that what Article14 prohibits is discrimination amongst equals and it must be appreciated that Article 14 has the inbuilt flexibility and it permits different treatment to unequals. As the contesting parties here to have come from two different sources after undergoing two different patterns of education, we are inclined to take the view that they belong to two different classes and being unequals, the guidelines dated 17.6.1992 giving preferential treatment to one class in preference to the other does not suffer from the vice of hostile discrimination. Consequently, the selection made by applying the aforesaid guidelines cannot be said to be arbitrary or discriminatory warranting interference of the learned Single Judge. 9. For the aforesaid reasons, we are inclined to interfere with the judgment and order dated 25.6.2002 passed by the learned Single Judge in W.P. (C) No. 4948/2000. Consequently, this writ appeal shall stand allowed and the writ petition shall stand dismissed. 10. 9. For the aforesaid reasons, we are inclined to interfere with the judgment and order dated 25.6.2002 passed by the learned Single Judge in W.P. (C) No. 4948/2000. Consequently, this writ appeal shall stand allowed and the writ petition shall stand dismissed. 10. It is submitted at the Bar that during the pendency of the present appeal, the State Government has issued a modified set of guidelines giving notional credit for the Matriculation Examination to candidates who had passed the Higher Secondary Examination. We do not consider it necessary to enter into the said question except to put on record that it is always open for the State Government to alter the guidelines in force in the light of its experiences subject to judicial approval, consideration of which, we deem it proper to reserve for an appropriate case. Appeal allowed