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2003 DIGILAW 156 (GAU)

Gautam Chowdhury v. State of Assam

2003-04-07

B.BISWAS

body2003
JUDGMENT D. Biswas, J. 1. Heard Mr. S.N. Sarma, learned senior counsel for the Petitioner and also Mr. B.J. Taludkar, learned State counsel. Also heard Mr. B.M. Sarma, learned Counsel for the Governing Body and Mr. K.N. Choudhury, learned senior counsel for the private Respondent. 2. This writ petition has been filed challenging the legality and validity of the order dated 31.5.2002 passed by the Respondent authority releasing the Petitioner from the post of Accountant of K.C. Das Commerce College, Guwahati pursuant to the Respondent No. 4 of the Governing Body adopted on 19.4.2002. 3. The Petitioner was appointed as Accountant of K.C. Das Commerce College on whole time basis by the order dated 21.2.97. The College was brought under the Deficit Grants in Aid Scheme with effect from March, 1998. After that the impugned resolution dated 19.4.2002 was adopted to release all the Grade III and IV employees of the College with effect from 1.6.2002 who were appointed without selection. Accordingly, the Petitioner was released by an order passed on 31.5.2002. Subsequent thereto, the authority issued the advertisement dated 27.7.2002 inviting applications for the post of Accountant. The Petitioner, without prejudice to his right of legal remedies, submitted application for the post of Accountant. Though promise was held in the resolution dated 19.4.2002 that the employees released would be given preference in the matter of appointment, this Petitioner was not even called for interview on the plea that the attestation of his testimonials were post dated. 4. While issuing Rule, this Court by the order dated 31.10.2002 stayed the impugned order dated 31.5.2002 releasing the Petitioner from service. The Court further directed the Respondent authorities to take back the Petitioner in service and to allow him to work since the provisions of Rule 18 of the Assam Aided College Management Rules, 1976 were not compiled with. 5. Rule 18 of the Assam Aided College Management Rules provides for prior approval of the Director of Public Instructions before release of an employee from service. It was on this ground, the Court granted stay of the impugned order. Mr. 5. Rule 18 of the Assam Aided College Management Rules provides for prior approval of the Director of Public Instructions before release of an employee from service. It was on this ground, the Court granted stay of the impugned order. Mr. S.N. Sarma, learned senior counsel for the Petitioner submitted that the Governing Body also in its meeting held on 19.11.98 vide Resolution No. 14, resolved to regularise the services of the Petitioner with effect from 21.2.97, and the Principal in response thereof, forwarded the name of the Petitioner to the Director for approval/regularisation vide letter dated 20.9.97. The impugned resolution dated 19.4.2002 was adopted by the Governing Body despite the proposal for regularisation of the writ Petitioner was pending with the Director. The Petitioner's appointment, according to Mr. Sarma, learned Counsel ought not to have been disturbed without notice and in violation of the principles of natural justice. It was a private college and, therefore, the Petitioner should not have been released on the plea that he was appointed without selection. 6. In the Misc. application filed by the Respondent No. 4 and 5 vacating the interim order, it has been stated that the writ Petitioner was appointed without following due procedure for recruitment and, hence, the impugned resolution was taken to release him with effect from 1.6.2002. It is further contended that the appointment of the Principal, Lecturers and non-teaching employees in Deficit Colleges are required to be made as per the provisions of Assam Education Department Selection Rules 1961 and various executive orders/instructions issued by the Government from time to time. In order to streamline the procedure for selection and appointment, the Govt. of Assam in the Education Department vide letter No. EPG 1021/91/5 dated 17.6.92 prescribed certain guidelines and, in pursuance thereof, a Selection Committee was constituted for appointment of non teaching employees. The Petitioner having applied for the post cannot challenge the advertisement and, particularly when, the application submitted by him was not in terms of the advertisement. The Respondents also relied upon the provisions of Rule 18 of the Assam Aided College Management Rules 1976 in order to bring home the above contention. 7. The provisions of the Assam Aided College Management Rules 1976 became applicable to the employees of the College after it was brought under the Deficit Grant. The Respondents also relied upon the provisions of Rule 18 of the Assam Aided College Management Rules 1976 in order to bring home the above contention. 7. The provisions of the Assam Aided College Management Rules 1976 became applicable to the employees of the College after it was brought under the Deficit Grant. Before that the college was a private institution and it was the prerogative of the Governing Body to have its own method of appointment. Presently, the College is governed by the provisions of the Assam Non-Government College Management Rules, 2001. Rule 18 of the Assam Non- Government Management Rules, 2001 provides that no final decision regarding appointment, promotion, suspension, termination etc. should be taken without prior approval of the Director of Higher Education. Rule 18 is quoted below: Governing Body to obtain prior approval of the Director in certain matters: The minutes of the proceeding of the Governing Body meeting shall be sent to the director and the concerned affiliating University. No final decision regarding appointment, promotion, suspension, termination, removal or dismissal of teaching or non-teaching staff including that of the Principal or any construction works involving Rs. 50,000/- (Fifty Thousand) or more shall be undertaken by the Governing Body without prior approval of the Director. Provided that so far as Non-Government College are concerned, the Governing Bodies are not required to send the proceedings of the meeting to the director but it will be open for the Director to call for any proceedings, if any complaint is received against the Governing Body and any direction given by the Director on it shall be final binding on the Governing Body of the College. 8. The provisions of the Rule above clearly indicate that neither appointment nor removal is permissible without prior approval of the Director. The Petitioner has been in service of the College before it was brought under the Deficit Grants in Aid Scheme and he continued as such even thereafter. Therefore, the provisions of Rule 18 will govern the case of the Petitioner which makes it mandatory to have prior approval of the Director before giving effect to any decision of termination. In Hironmoy Paul, Petitioner v. State of Assam and Ors. Therefore, the provisions of Rule 18 will govern the case of the Petitioner which makes it mandatory to have prior approval of the Director before giving effect to any decision of termination. In Hironmoy Paul, Petitioner v. State of Assam and Ors. Respondents 1995 (1) GLT 183 : (1995) 1 GLR 456 a learned Single Judge of this Court held as follows: The language of the aforesaid Rule 18 of the 1976 Rules makes it clear that no final decision regarding suspension of teaching or non-teaching staff including the Principal of the College shall be taken by the Governing Body without the prior approval of the DPI, Assam. The language of the aforesaid Rule 18 does not say that prior approval of the DPI, Assam is required only when suspension is made by way of punishment. The above decision shows that not to speak of removal, even suspension of an employee cannot be ordered without prior approval of the DPI. 9. It is pertinent to mention here that no opportunity of hearing was given to the Petitioner prior to the impugned order of termination was issued. This shows that the removal of the Petitioner was in violation of the principles of natural justice. It appears that the Governing Body was in a hurry to remove the Grade III and IV employees only and this resulted in unjust decision contrary to law. The plea that the Petitioner was appointed without selection is not sustainable since he was appointed by the Governing Body when the college was under private management. The provisions of the Rules came to be applied only after the College was given the deficit grant-in-aid. In this connection, the decision of this Court in para 4 of the judgment in Chandra Nath Phookan, Petitioner v. State of Assam and Ors. Respondents 1995 (2) GLT 401 : (1995) 3 GLR 104 may be referred to: 4. 'Aided College' has been defined in Rule 2(v) of Assam Education Department Selection Rules, 1981. I quote Rule 2(v) of the aforesaid rules: (v) 'Aided College' means a College which is in receipt of deficit grant in-aid from the State Government. Respondents 1995 (2) GLT 401 : (1995) 3 GLR 104 may be referred to: 4. 'Aided College' has been defined in Rule 2(v) of Assam Education Department Selection Rules, 1981. I quote Rule 2(v) of the aforesaid rules: (v) 'Aided College' means a College which is in receipt of deficit grant in-aid from the State Government. Therefore, in order to bring within the definition of aided college, a college must receive deficit grant-in-aid from the State Government and only those colleges which receive deficit grant-in-aid from the State Government shall be governed by the Assam Aided College Management Rules, 1976(for short, 1976 Rules). 10. For the reasons above, the irresistible conclusion is that the impugned resolution, the order of release dated 31.5.2002 and the advertisement dated 27.7.2002 cannot be sustained. It has been argued by the learned Counsel for the Respondents that the Petitioner had submitted his application in pursuance of the advertisement dated 27.7.2002 and, as such, he is estopped from challenging the advertisement. This submission has its force in cases where one of the participants having failed to get selection challenges the process of recruitment. But, there ought to be cases of exception. A serving employee thrown out of service without notice had no option before him but to submit application with the hope of retrieving his lost position. He was derobed of his subsistence in violation of all norms. It became a struggle for existence. It is not a case where an outsider applied in pursuance of advertisement, and having failed, approached the Court. In the given situation, application filed by the writ Petitioner cannot be a ground to debar him from challenging the order of removal made in violation of rules. The challenge to the advertisement is only consequential. Pertinent to mention here that the Governing Body took the decision while their own proposal for regularisation was pending with the Director of Higher Education. 11. In the result, the writ petition is allowed. The impugned resolution dated 19.4.2002, the order of release dated 31.5.2002 and the advertisement dated 27.7.2002 are hereby set aside. The Petitioner is directed to be taken back to service and allowed to continue till the Director records his decision on the proposal forwarded by the Principal for regularisation of service of the writ Petitioner. The interim direction given by this Court on 31.10.2002 is hereby made absolute. 12. No costs. Petition allowed