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2006 DIGILAW 226 (GAU)

Sushanta Protim Pathak v. State of Assam

2006-03-08

R.B.MISRA

body2006
JUDGMENT R.B. Misra, J. 1. Heard Mr. T.J. Mahanta and Ms. P. Bhattachaiyya, learned Counsel appearing for the Petitioner and Mr. V.M. Thomas, Mr. T.C. Chutia and Ms. M. Das, learned Counsels appearing for the Respondent No. 2, 3 and 4 respectively in W.P. (C) No. 9308 of 2004. Also heard Mr. H.R.A. Choudhury, learned senior Advocate and Mr. A. Matin appearing for the Petitioner and Mr. V.M. Thomas, Mr. T.C. Chutia, Ms. M. Das and Mr. T.J. Mahanta, learned Counsels appearing for the Respondent No. 1, 2, 3 and 4 respectively in W.P. (C) No. 9151 of 2004. 2. The Petitioner (of the writ petition (C) No. 9308/2004) has prayed for setting aside the selection of Respondent No. 4, namely Ms. Anurupa Choudhury to the post of Lecturer of Mathematics in Government B.T. College and for issuance of writ of mandamus directing the Respondent authorities to appoint him to the said post. The Petitioner (of the writ petition No. 9151/2004) has prayed for quashing the selection of Respondent Nos. 3 and 4, namely Ms. Anurupa Choudhury and Mr. Sushanta Protim Pathak and has sought direction to the State Government to appoint him against the second vacancy. 3. Since the prayer in both the writ petitions is common i.e. for the selection to the post of Lecturer, Mathematics, therefore, these are being adjudicated together. As revealed from the records, two post of Lecturer of Mathematics were advertised for appointment in Government B.T./B.Ed. College under Education department. The relevant contents of advertisement dated 17.12.2002 are as below: Educational qualification and Experience M.A/M/Sc. in Mathematics with 55% marks and M.Ed./M.A. (Education) with 50% marks and good academic records plus 5 years teaching experience in recognized Secondary/Senior Secondary School. Scale of Pay: Rs. 5725/-175-6600-250-7350- -250-8100-325-11025-400-11825/-P.M. plus other allowances as admissible under Rules. Age: Minimum 21 years and maximum 36 years of age as on 1.1.2002. The upper age limit is relaxable by 5 years in case of SC/ST candidates. Relaxation (i) A relaxation will be provided in respect of M.Ed./M.A. Education) degree with 50% marks to B.Ed. with 55% marks with 5 years teaching experience if there is dearth of candidate to having M.Ed./M.A. (Education) with 50% marks. However, teacher appointed with this qualification will have to acquire M.Ed. Relaxation (i) A relaxation will be provided in respect of M.Ed./M.A. Education) degree with 50% marks to B.Ed. with 55% marks with 5 years teaching experience if there is dearth of candidate to having M.Ed./M.A. (Education) with 50% marks. However, teacher appointed with this qualification will have to acquire M.Ed. qualification within 5 years (ii) A relaxation of 5% will be provided from 55% marks to 50% of marks at the Master Degree level for SC/ST category of candidates. The advertisement in question is enclosed as Annexure-3 to the writ petition No. 9308/2004. 4. It appeals, out of 22 candidates applied, six were brought in zone of consideration and were allowed to participate in the interview held on 8.3.2004. After conclusion of the interview the Chairman of Assam Public Service Commission (in short called 'Commission') communicated the select list to the Secretary Education Department vide his letter dated 2.6.2004 (Annexure-4 of the writ petition No. 9308/2004), recommending four candidates in order of merit to the post of Lecturer, given as below: ASSAM PUBLIC SERVICE COMMISSION No. 169/or-I/l2/1999-2000 Dt 2nd June, 2004. From: A.K. Borah, Chairman, Assam Public Service Commission, Jawahar Nagar, Khanapara, Guwahati, Assam. To, The Secretary, Department of Education Government of Assam, Sub: Selection of Lecturer for Govt. B.T./B. Ed. Colleges. SI. No. IV: 2 (two) posts of Lecturers in Mathematics. Five candidates were interviewed by the commission with the help of expert deputed by the government. The following candidates are recommended in order of merit for recruitment to the post of Lecturers in Mathematics in govt. B.T. Colleges under Education (E) Deptt. Position SI. Name Name Category 1. 2. Mrs. Anjuma Baishya 2. 5 Mrs. Anurupa Choudhury 3. 14 Mr. Sushanta Protim Pathak 4. 10 Mr. Monowar Hussain. 5. Mrs. Anjuma Baishya having secured 80% marks was treated to be the first in the select list and being non-controversial was appointed as a Lecturer against first post. The controversy arose for appointment against the second post of Lecturer, for which Ms. Anurupa Choudhury (who secured 77% marks shown as serial No. 2) was recommended for the second post of Lecturer) and the Petitioner herein Mr. Sushanta Protim Pathak (who had secured 77% marks) was placed at serial No. 3 in the recommended select list below to Ms. Anurupa Choudhury. Anurupa Choudhury (who secured 77% marks shown as serial No. 2) was recommended for the second post of Lecturer) and the Petitioner herein Mr. Sushanta Protim Pathak (who had secured 77% marks) was placed at serial No. 3 in the recommended select list below to Ms. Anurupa Choudhury. By virtue of securing 73 marks in the interview, the Petitioner of the writ petition No. 9151/2004 namely Manowar Hussain was shown at SI. No. 4 in the above said list however, according to him since he is in possession of M.Sc. (Mathematics) M.Ed, and has five years teaching experience from recognized Secondary School, therefore, he is fulfilling all the requirement and is entitled to be recommended for the second post of Lecturer as according to him Ms. Anurupa Choudhury, the recommended candidate for second post is B.Ed. only and not even M.Ed./M/A/(Education) and her case could not be considered as other eligible candidate holding M.Ed, degree are available. According to Manowar Hussain though Mr. Sushanta Protim Pathak was in possession of M.Sc. (Mathematics) and M.Ed. degree but he could not be entitled to the post as his experience of teaching was defective or was not valid, therefore, he (Manowar Hussain) is only candidate fulfilling all the requirements and as such entitled for the said second post. Whereas, according to learned Counsel for Ms. Anurupa Chowdhury and Mr. Sushanta Protim Pathak, the candidature of Mr. Monowar Hussain is not upto the mark as he has secured only 73 marks in the interview besides that there being brake and interruption in his teaching experience and only continuous five year teaching experience in the recognized Senior/Secondary School shall meet the requirement. 6. The comparative details including the marks, position, qualifications etc. of the candidates are given as below: Mrs. Anjuma Baishya HSLC1/85 HSSLC 11/87 B.Sc. 11/91-54.55% M.Sc. 1/95-66.9% B.Ed. 11/97-56.5% M.Ed. 11/2000-51% Mrs. Anurupa Choudhury HSLC 1/85 HSSLC Sc. 1/87 B.Sc. 11/90-59.44% M.Sc. 11/94-59% B.Ed. 11/95-59.66% Mr. Manowar Hussain HSLC 1/87 HSSLC Sc. 11/89 B.Sc. 11/92 M.Sc. 1/97-60% B.Ed. 11/2002-56.6% Mr. Sushanta Protim Pathak HSLC 1/87 HS 11/90 B.Sc. 11/93-54.25% M.Sc. 1/97-62.7% B.Ed. 11/98-54.66% M.Ed. 11/2002-53.8% 7. According to Mr. Sushanta Protim Pathak (the Petitioner of writ petition No. 9308/2004), he is M.Sc. Anurupa Choudhury HSLC 1/85 HSSLC Sc. 1/87 B.Sc. 11/90-59.44% M.Sc. 11/94-59% B.Ed. 11/95-59.66% Mr. Manowar Hussain HSLC 1/87 HSSLC Sc. 11/89 B.Sc. 11/92 M.Sc. 1/97-60% B.Ed. 11/2002-56.6% Mr. Sushanta Protim Pathak HSLC 1/87 HS 11/90 B.Sc. 11/93-54.25% M.Sc. 1/97-62.7% B.Ed. 11/98-54.66% M.Ed. 11/2002-53.8% 7. According to Mr. Sushanta Protim Pathak (the Petitioner of writ petition No. 9308/2004), he is M.Sc. (Mathematics) M.Ed, with five years teaching experience as such is in full possession of the criteria and requirements to the post as desired in the advertisement and by virtue of his good performance in the interview, he was to be recommended for second post of Lecturer instead of Respondent No. 4, Ms. Anurupa Chowdhury who was not having M.Ed./M/A/(Education) degree even. 8. From this point of view it has to be looked into whether the teaching experience of Mr. Sushanta Protim Pathak is fulfilling the required criteria of five years teaching experience in recognized Secondary or Senior Secondary School. It appears, he has been working in Jalukonibari Girls High School since 1997 as Assistant Teacher in Mathematics for which a certificate from the Headmistress was issued on 5.9.2002 (enclosed as Annexure-I in response to the affidavit-in-opposition of Respondent No. 1 and 2). The certificate dated 5.9.2002 is extracted below: OFFICE OF THE HEAD MISTRESS Jalukanibari Girls High School Estd.: 1987 SEBA/RECOG/PR/8/90/1877-85 P.O. Jalukanibari, Jorhat To whom it may concern Certificate that Sri Sushanta Protim Pathak, Son of Sjt. Govin Ch. Pathak, an inhabitant of Titabor has been serving as an Asstt. Teacher (Maths) in this school from January, 1997. He is sincere, energetic and well behaved teacher. I wish all his success in future life. Sd/- Headmistress Jalukanibari Girls High School 9. The said certificate of experience undoubtedly proves that he has five years teaching experience in Secondary School. It is relevant to note that the Petitioner has also worked in KBM College as part time teacher, where he has gained experience of more than five years. It appears that his later certificate was produced for declaring him not fulfilling the requirement of five years teaching experience in Secondary/Senior Secondary School. Learned Counsel for other candidates have tried to impress this Court that certificate of teaching experience obtained from Jalukanibari Girls High School was not produced at relevant time. It appears that his later certificate was produced for declaring him not fulfilling the requirement of five years teaching experience in Secondary/Senior Secondary School. Learned Counsel for other candidates have tried to impress this Court that certificate of teaching experience obtained from Jalukanibari Girls High School was not produced at relevant time. In my respectful consideration, this aspect is not in controversy as to whether the certificate of the Petitioner was proceed or not at particular time. It is enough that Mr. Sushanta Protim Pathak was in possession of five years teaching experience from recognized Secondary School to meet the requirement for consideration to the post of teacher as indicated in the advertisement in question. 10. In the present facts and circumstances, the Petitioner is said to fulfil all the required criteria by virtue of his possession of M.Sc. (Maths) M.Ed, degree with more than five years of experience from the recognized Secondary School of the State Government. 11. Mr. Hussain, the Petitioner of writ petition No. 9151/2004 too was in possession of degree of M.Sc. M.Ed, and was having more than five years of teaching experience as revealed from the letter dated 1.1.2003 at Annexure-4 of the writ petition No. 9151/2004 indicated as below: Office of the Secondary/Superintendent, South Boitamari (Govt. Aided) High English (Madrassa) School. Ref. No. S.B.H.E. (M) S. I/2003 dated 1.1.2003 Sub: Experience Certificate. From: M.H. Rahman, B.A. B.Ed. and J, Superintendent. Certified that Manowar Hussain, M.Sc. M.Ed. S/O Hazarat Ali Vil-Kayethpara (Part-I), P.O. Keyethpara in the district Bongaigaon (Assam) was a science graduate (Royal) teacher of South Boitamari (Govt. Aided) High School (Madrassa) School. He was appointed on 1.11.1992 vide resolution No. 1 (one) dated 30.10.1992 by Managing Committee of this school. He joined here on 1.11.1992 and served as a B.Sc. teacher first from 1.11.1992 to 27.2.1995. As a teacher he is punctual in his duties and his teaching capacity is satisfactory. He then completed his M.Sc. taking leave and secondly rejoined to his post on 10.8.1997 and served upto 25.11.1998. Again he completed his B.Ed. taking leave and thirdly rejoined his post on 21.6.1999 and served upto 31.1.2001. Finally he completed his M.Ed. taking leave and he had resigned the post on 10.7.2001, when he was reading M.Ed. Accordingly, his teaching experience in this (recognized, vernacular school under Secondary Education Board of Assam) is as follows: 1. Again he completed his B.Ed. taking leave and thirdly rejoined his post on 21.6.1999 and served upto 31.1.2001. Finally he completed his M.Ed. taking leave and he had resigned the post on 10.7.2001, when he was reading M.Ed. Accordingly, his teaching experience in this (recognized, vernacular school under Secondary Education Board of Assam) is as follows: 1. From 1.1.92 to 27.2.95 = 2 years 3 months 26 days 2. From 10.8.97 to 25.11.98 = 1 year 3 months 15 days. 3. From 21.6.99 to 31.1.2001 = 1 year 7 months 10 days. Total Experience = 5(five) years 2 (two) months 21 (twenty one) days. Now he is ready for a job utilize his (total) academic career and hopes to be an efficient teacher in a developed educational field. He bears a sound personality and a good moral character. I wish him every success in his life. Sd/- Superintendent, Bongaigaon District Circle Countersigned by Sd/- Inspector of Schools SBHE(M) School, Boitabari, Bopngaigaon, Assam. 12. Learned Counsel for the Petitioner, Mr. Manowar Hussain has argued that five years experience of the Petitioner is sufficient even if the same was obtained in intervals and in brake, as five years, continuity in teaching was not a requirement as teaching experience, therefore, the teaching experience of Manowar Hussain is meeting the requirement of the advertisement dated 17.12.2002. In my considered view though Mr. Manowar Hussain is M.Sc. (Maths), M.Ed, and has more than five years teaching experience from the recognized Secondary School but from the point of view of performance in the interview, his candidature is inferior to Mr. Sushanta Protim Pathak but superior to Ms. Anurupa Chowdhury as the later one was in possession of B.Ed. degree only, whose candidature could be subject to the consideration only when there was dearth of candidates having M.Ed./M.A. (Education) degree as clearly specified in the advertisement in question. It has been argued by Mrs. M. Das, on behalf of the Respondent No. 4/Ms. Anurupa Chowdhury that she was found eligible and suitable on her own merit and performance, therefore, she was awarded 77% marks and the Selection Committee has rightly recommended her name to the second post of Lecturer, therefore she has to be given appointment even if she is M.Sc. B.Ed. M. Das, on behalf of the Respondent No. 4/Ms. Anurupa Chowdhury that she was found eligible and suitable on her own merit and performance, therefore, she was awarded 77% marks and the Selection Committee has rightly recommended her name to the second post of Lecturer, therefore she has to be given appointment even if she is M.Sc. B.Ed. only and once she was brought in the zone of consideration to the post and was allowed to participate in the interview and found eligible, then deficiency if any i.e. lack of her not possessing M.Ed. degree may be treated to be redundant or inapplicable as the advertisement itself has kept open for the consideration of candidates having M.Sc./M.A. (Maths) having 55% marks with five years teaching experience with B.Ed. degree (having 55% marks and five year teaching experience). 13. In order to analyse the comparative case of the candidates, it has to be seen whether qualifications and experiences of the present three candidates are fulfilling the criteria and requirement as per advertisement for the post and who could be have been best suitable candidate as per performance in the interview. Undisputedly the Petitioner Mr. Sushanta Protim Pathak and Ms. Anurupa Chowdhury both have secured 77% marks i.e. equal marks in the interview and later is higher in age in comparison to the former one. However, Mr. Manowar Hussain by virtue of securing 73% marks is obviously less suitable from the point of view of performance in the interview. Regarding requirement for suitability of candidates to the post except Ms. Anurupa Chowdhury other two above candidates are in possession of M.Sc. (Mathematics) M.Ed. degree with five years teaching experience whereas, Ms. Anurupa Chowdhury is in possession of M.Sc. (Mathematics) and B.Ed. degree only. It is only when candidature of other two above aspirants are found unsuitable then only the case of Ms. Anurupa Chowdhury with M. Sc. (Mathematics) could have been considered. 14. The learned Counsel for the 'Commission' has presented photocopies of the documents of the selection. According to him, Mrs. Anjuma Baishya, shown as first in the recommended list has already been given appointment. However, the experience certificate of Mr. Sushanta Protim Pathak was earlier not adequate therefore, his claim was not found superior to Ms. Anurupa Chowdhury despite the fact that Mr. Sushanta Protim Pathak has secured equal marks. Since Ms. According to him, Mrs. Anjuma Baishya, shown as first in the recommended list has already been given appointment. However, the experience certificate of Mr. Sushanta Protim Pathak was earlier not adequate therefore, his claim was not found superior to Ms. Anurupa Chowdhury despite the fact that Mr. Sushanta Protim Pathak has secured equal marks. Since Ms. Anurupa Chowdhury was higher in age, therefore, out of two candidates securing equal marks in the selection/interview, she has been chosen a suitable candidate and therefore recommendation was rightly made in her favour. 15. I have heard the learned Counsel for the parties and have also perused the documents. It is clear that the observance of the norms of the advertisement was mandatory for the present selection in question. The Selection Committee and the 'Commission' after indicating some specific criteria and parameter in the advertisement cannot abruptly switch over or adopt another criteria without proper justification. The scope of relaxation regarding qualification and degree was only permissible when sufficient number of candidates having M.Ed./M.A./(Education) were not available. In other words 'Relaxation' in qualification of B.Ed. degree having 55% marks with 05(five) years teaching experience in place of M.Ed./M.A. (Education) degree (with 50% marks and five years of experience) was to be made only when sufficient number of candidates of M.Sc. with M.Ed. degree were not available or there was dearth of candidates having M.Ed./M.A. (Education) degree. 16. In my considered view giving relaxation and preferring Ms. Anurupa Chowdhury for the second post in question without any cogent reason when a candidate such as Mr. Sushanta Protim Pathak, with qualification of M.Sc. M.Ed. with five years teaching experience was available and when both Mr. Sushanta Protim Pathak and Ms. Anurupa Chowdhury have secured equal marks then recommending Ms. Anurupa Chowdhury for the second post in question adopting a new criteria or norm i.e. choosing and recommending a particular candidate higher in age (Ms Anurupa Chowdhury herein) to the post in question, out of two aspirants carrying equal marks in the interview was never professed or contemplated earlier and such unreasonable criteria ignoring the deficiency of qualification of Ms. Anurupa Chowdhury is in disregard to the vital aspect of criteria and parameter prescribed in the advertisement. She was only M.Sc. (Maths) B.Ed., whereas, there was no dearth of other candidates having M.Sc. (Maths) M.Ed./M.A. (Education) degree. Anurupa Chowdhury is in disregard to the vital aspect of criteria and parameter prescribed in the advertisement. She was only M.Sc. (Maths) B.Ed., whereas, there was no dearth of other candidates having M.Sc. (Maths) M.Ed./M.A. (Education) degree. In these circumstances ignoring the conditions specified in the advertisement dated 17.12.2002 to meet the requirement and criteria and qualification clearly, is enough to say that the decision taken by the Selection Committee and conveyed by letter dated 2.6.2004 at Annexure-4 is not legally sustainable and therefore it is liable to be set aside. 17. The Petitioner in the facts and circumstances was a suitable candidate to be recommended for the second post of Teacher of Mathematics in question and once the Petitioner has been declared suitable candidal the case of Mr. Manowar Hussain as well as Ms. Anurupa Chowdhury has no relevance vis-a-vis Mr. Sushanta Protim Pathak. 18. During the course of hearing of these Petitioners, the State Government was asked time again to apprise this Court as to whether these qualified candidates can be accommodated suitably to some more posts created for the purpose but no positive response was made available to this Court, however, irrespective of above observations if by chance some posts are available then these candidates may be given weightage for recommendation to the suitable posts. 19. Therefore, in view of the above observations recommendatory letter dated 2.6.2004 and select list is set aside and the prayer of Mr. Manowar Hussain to quash the selection and candidature of Mr. Sushanta Protim Pathak is rejected, whereas his prayer for quashing selection and candidature of Ms. Anurupa Chowdhury is allowed. The writ petition (C) No. 9151/2004 is partly allowed accordingly without any relief to be given to Mr. Manowar Hussain. In view of the above observations the writ petition (C) No. 9308/2004 is accordingly allowed. No order as to cost.