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Gauhati High Court · body

2003 DIGILAW 603 (GAU)

Md. Hayatul Isam v. State of Assam

2003-12-22

BIPLAB KUMAR SHARMA

body2003
JUDGMENT B.K. Sharma, J. 1. Whether the Governing Body of a College could tinker with the selection made by the Selection Committee is the issue involved in this writ petition. The admitted position is that the petitioner was placed at serial No. 1 by the Selection Committee constituted by the Governing Body of the College, but as per the resolution adopted by the Governing Body the respondent No. 5 was sought to be appointed. It was at that stage, the writ petition was filed and this Court by an interim order provided not to accord the required approval towards such selection and appointment. 2. Pursuant to the advertisement dated 23.11.1999 issued by the Principal of the B.N. College, Dhubri for the post of Lecturer in Statistics, the petitioner and the respondent No. 5 along with many others offered their candidatures. In the advertisement the specialisation prescribed was special paper in any one of Econometrics/Operational Research/Reliability/Design of Experiments/Multi Vareate Analysis. The petitioner has special paper in Operational Research, while the respondent No. 5 has special paper in Econometrics. A comparative statement in respect of the academic distinction between the petitioner and the respondent No. 5 as reflected in the interim order passed by this Court on 24.8.2000 and as reflected in the materials on record are re-produced below :- Petitioner Respondent No. 5 HSLC 1st Div: (81.07%) - 2nd Divn. (52%) HHSLC 1st Divn. (74.6%) - 3rd Divn. (37%) B.Sc. 1st Class (73.67%) - Simple pass M.Sc. 1st Class (67.1%) - 1st Class (61 %)" 3. The Selection Committee constituted by the Governing Body of the College carried out the selection as per the Annexure-7 guideline dated 17-6-1992 as formulated by the Govt. of Assam, Education (Higher Education) Department. Pursuant to such selection, the Selection Committee formed a penal of three candidates recommending the petitioner at serial No. 1. The respondent No. 5 was placed at serial No. 2 in the penal. The Governing Body of the College, however, recommended the respondent No. 5 for appointment and sought for the approval of the Director of Higher Education as required under the rules. It was at that stage, the writ petition was filed and this Court by the aforesaid interim order restrained the Director of Higher Education, Assam from according to required approval. 4. I have heard Mr. H.R.A. Choudhury, learned counsel for the petitioner and Mr. It was at that stage, the writ petition was filed and this Court by the aforesaid interim order restrained the Director of Higher Education, Assam from according to required approval. 4. I have heard Mr. H.R.A. Choudhury, learned counsel for the petitioner and Mr. A.S. Choudhury, learned senior counsel appearing for the respondent No. 5. The respondent Nos. 3 and 4, i.e. the Governing Body and the Principal of the College are represented by Mr. S. Seal. Although no records of the minutes of the Selection Committee have been placed, the learned counsel for the respondent fairly conceded that the petitioner was placed at serial No. 1 in the penal while the respondent No. 5 was placed at serial No. 2. Mr. Choudhury, learned counsel appearing for the petitioner submitted that the petitioner having been placed at serial No. 1 in the penal of successful candidates, the Governing Body of the College could not have tinkered with the same so as to recommend the name of the respondent No. 5 whose position in the merit list was at serial No. 2. On the other hand Mr. A.S. Choudhury, learned senior counsel submitted that there was nothing wrong in altering the merit position by the Governing Body of the College and recommending the name of the respondent No. 5 for appointment as Lecturer. It is the submission of Mr. Chowdhury and Ms. Seal referring to their affidavits that the College is in requirement of the Lecturer in Statistics with special paper in Econometrics. Since the respondent No. 5 has the special paper in Econometrics, he has been preferred over the petitioner and that being a policy of the College authority, the Governing Body has the competence and jurisdiction to act according to their requirement and accordingly the recommendation was made in favour of the respondent No. 5. 5. Time and again this Court as well as the Apex Court has re-iterated that the recommendation made by the Selection Committee should not be interfered with by the accepting authority so as to alter the merit position. In the advertisement referred to above the Governing Body of the College specified the special paper among others, the special paper either in Econometrics or Operational Research. Nowhere it was indicated that any preference would be given to candidates having special prefer in Econometrics. In the advertisement referred to above the Governing Body of the College specified the special paper among others, the special paper either in Econometrics or Operational Research. Nowhere it was indicated that any preference would be given to candidates having special prefer in Econometrics. After inviting application on the basis of the said advertisement and accepting the candidature of the candidates including the one of the petitioner and the respondent No. 5 and after conducting the selection on that basis, the list/penal of selected candidates could not have been interfered with by the Governing Body of the College in the manner and method as has been done in the instant case. The Selection Committee conducted the selection on the basis of the materials available and as per the requirements of the advertisement. 6. After such recommendation of the Selection Committee the Governing Body of the College could not have recommended the name of the respondent No. 5 in suppression of the name of the petitioner on the ground that the College was in need of a candidate with special paper in Econometrics. Such a stand has been taken in the affidavit-in-opposition filed on behalf of the Governing Body of the College. However, in absence of the minutes of the College, this Court is not aware as to what was the real reason behind recommending the name of the respondent No. 5 in preference to the writ petitioner, who admittedly toped the list of the successful candidates. 7. Mr. H.R.A. Chowdhury, learned counsel has placed before me the following decisions of this Court and the Apex Court :- 1. 2002 (II) GLT 45 (Amit Sarma v. Jyotishmoy Bora and Ors.) 2. 2002 (1) GLT 17 (M. Devi v. State of Arunachal Pradesh and Ors.) 3. 2001 (3) GLT 491 (Jyotirupa Sarma v. State of Assam and Ors.) 4. 1995 (2) GLT 332 (Ms. Satya Sandha Das v. Chintamoni Sharma) 5. (Km. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors.)". 8. A Division Bench of this Court in the case of Satya Sandha (supra) under similar circumstances hold that the terms and conditions put in the advertisement could not be changed. In the same case the action of the Governing Body in preferring a candidate whose position was lower, in merit has been deprecated. Harinder Kaur Paintal and Ors.)". 8. A Division Bench of this Court in the case of Satya Sandha (supra) under similar circumstances hold that the terms and conditions put in the advertisement could not be changed. In the same case the action of the Governing Body in preferring a candidate whose position was lower, in merit has been deprecated. In this connection paragraph 6 of the judgment may be referred to which is quoted below : - "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 woman candidate. The advertisement was generally 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 the writ petitioner - respondent, in our opinion, are absolutely arbitrary and extraneous while exercising the power for making appointment in an education 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." Same view has been taken by the Division Bench of this Court in the case of Amit Sarma (supra). The other decisions referred to above are also in the same line. In the case of Km. Neelima Misra (supra), the Apex Court has emphasised the need for non-interference with the opinion expressed by the experts constituting the Selection Committee in absence of malafide alleged against the experts. 9. As pointed out above it is an admitted position that the Selection Committee constituted by the Governing Body of the College has recommended the petitioner at serial No. 1 of the merit list. 9. As pointed out above it is an admitted position that the Selection Committee constituted by the Governing Body of the College has recommended the petitioner at serial No. 1 of the merit list. While the respondent No. 5 has been recommended at Serial No. 2 of the said merit list. The petitioner fulfils all the requirements as envisaged in the advertisement. The Governing Body of the college could not have deviated from the recommendation made by the Selection Committee on the ground that the College was in requirement of Lecturer in Statistics with special paper in Econometrics inasmuch as there was no indication to that effect in the advertisement. In the advertisement the Governing Body of the College had sought for candidates with special paper either in Econometrics or in Operational Research and the selection was conducted on that basis. After the recommendation was made by the Selection Committee, the Governing Body of the College could not have deviated from the terms of the advertisement so as to prefer the respondent No. 5 whose merits position in the select list was admittedly below the petitioner. The stand taken by the Governing Body of the College cannot be appreciated. 10. In view of the above discussion, the writ petition stands allowed by setting aside and quashing the resolution No. 7 adopted by the Governing Body/Special Body of the College on 28-6-2000 by which the respondent No. 5 was recommended for appointment. The Governing Body/Special Body of the College will now forward the penal as was prepared by the Selection Committee to the Director of Higher Education, Assam for according necessary approval etc. Since the matter is pending from August, 2000 the Director of Higher Education, Assam is directed to consider the recommendation made by the Selection Committee towards approval of the name of the petitioner for appointment as Lecturer in Statistics in accordance with the rules without any delay. It is needless to say that such consideration will have to be given by the DHE, Assam as on the date when the writ petition was filed and moved i.e. 24.8.2000. The consideration towards according necessary approval by the DHE, Assam as ordered shall be made within one month from the date of furnishing a certified copy of this order. The Governing Body of the College shall forward the necessary papers to the DHE, Assam immediately. Writ petition stands allowed. The consideration towards according necessary approval by the DHE, Assam as ordered shall be made within one month from the date of furnishing a certified copy of this order. The Governing Body of the College shall forward the necessary papers to the DHE, Assam immediately. Writ petition stands allowed. No order as to cost. Petition allowed