Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 160 (GAU)

Kamakhya Narayan Singh v. State of Assam

2009-03-03

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. Annulment of the resolution dated 15.11.2008 of the Governing Body, Golaghat Commerce College, Golaghat (hereafter referred to for short, as College) resolving to appoint the Respondent No. 4 to the post of Lecturer in Hindi, is the principal relief sought for in the instant petition. A consequential direction to consider the Petitioner's case for appointment to the said post has been solicited as well. 2. I have heard Mr. Y.S. Mannan, learned Counsel for the Petitioner, Mr. M.K. Mishra, learned Standing counsel. Education Department for the Respondent Nos. 1 and 2, Mr. U. Bhuyan, learned Counsel for the Respondent No. 3 and Mr. T.J. Mahanta, learned Counsel for the Respondent No. 4. 3. To better appreciate the arguments advanced, the pleadings of the parties in short, necessarily have to be recited. 4. The Petitioner claims to be a Post Graduate in Hindi and also possessed of Ph. D Degree which he had obtained in the year 2005. He insists to have published various research papers and attended several seminars and workshops contributing to his experience and excellence in the subject. While he had been serving as a Lecturer in Hindi at Rangapara College, he Responded to an advertisement dated 23.06.2008 published in the local daily "Assam Tribune" offering his candidature for the sanctioned post of Lecturer in Hindi at the college. As the Petitioner, in the meantime, had become overaged for the post of Lecturer, he had applied for condonation thereof to the concerned State authority. According to him, the Under Secretary to the Govt. of Assam. Education (Higher) Department by letters dated 5.6.2008 and 17.7.2008 intimated the decision of the government acceding to his request whereby his age was relaxed upto 45 years in terms of the Government Office Memorandum No. APB 73/89/17 dated 4.1.1992. The Petitioner was thus eligible as per the conditions of eligibility laid down in the advertisement and was accordingly called for the interview on 30.9.2008. The Petitioner duly participated in the interview and faired well, whereupon, as per his information, he topped the merit list of the successful candidates followed by Respondent No. 4. While the Petitioner was thus awaiting the recommendation of the college for his appointment to the aforementioned post, to his utter dismay, he could learn that the Respondent No. 4 has been recommended for recruitment thereto. While the Petitioner was thus awaiting the recommendation of the college for his appointment to the aforementioned post, to his utter dismay, he could learn that the Respondent No. 4 has been recommended for recruitment thereto. Contending that he is better qualified in all respects than the Respondent No. 4 and that the latter in view of her clout, was likely to be favoured with the approval of the Director of Higher Education, Assam for appointment, the Petitioner has approached this Court for necessary intervention. 5. The Respondent No. 2, Director of Higher Education, Assam, in his counter has replied that the college is a provincialised institution and the Governing Body thereof m its meeting held on 15.11.2008 on a consideration of the panel of selected candidates drawn up by the Selection Committee and followed by threadbare deliberations of all relevant aspects rejected the Petitioner, first nominee for being an overaged candidate. According to the answering Respondent, the Petitioner was also disqualified for having found to be directly canvassing to the members of the Governing Body, in support of his candidature for the post. While admitting the receipt of the resolution dated 15.11.2008 recommending the Respondent No. 4 for appointment, in the above backdrop, the answering Respondent admitted to have initiated the process for according necessary approval to the resolution. However, in view of the interim restraint imposed by this Court in the instant proceeding, the approval has been withheld. Referring to the order dated 3.12.2008 passed by this Court in Misc Case No. 3315/2008 arising out of the instant proceeding, the answering Respondent stated to have passed a speaking order on 15.12.08 provisionally approving the appointment of the Respondent No. 4. The office letter dated 5.6.2008 qua. the condonation of delay of the overage of the Petitioner (as annexed to the writ petition) was repudiated firstly, for being limited for the purpose of his candidature in the process relatable to Nagaon Girls College exclusively and secondly, for having been cancelled by letter No. AHE. 32/2008/40 dated 5.6.2008. The Respondent denied to have received any copy of the letter No. AHE 234/2007/110 dated 17.7.2008 granting condonation of the Petitioner's age in general terms relaxing it to 45 years. 32/2008/40 dated 5.6.2008. The Respondent denied to have received any copy of the letter No. AHE 234/2007/110 dated 17.7.2008 granting condonation of the Petitioner's age in general terms relaxing it to 45 years. He however, confirmed that the Directorate of Higher Education, Assam had received the letter No. AHE 234/2007/111 dated 17.7.2008 issued by the Under Secretary to the Govt., of Assam, Education (Higher) Department canceling the earlier letter of the same date (Annexure-F to the writ petition). It was asserted that as the Petitioner was admittedly overaged at all relevant times and the letters purportedly evidencing relaxation of his age stood cancelled, his claim for appointment as a Lecturer in the College was clearly untenable. 6. The Governing Body of the college in its affidavit while confirming the publication of the advertisement for the post involved in the issues dated 23.6.2008 and 24.6.2008 of the local dailies "Assam Tribune" and "Assomiya Khabor" also affirmed the conduct of the interview on 30.9.2008. It admitted that the Selection Committee constituted for the purpose, following the interview had prepared a panel of eight candidates in order of preference in which the names of the Petitioner and the Respondent No. 4 figured at Sl. Nos. 1 and 2 respectively. In its meeting held on 15.11.2008 while approving the proceeding of the Selection committee, it recommended the Respondent No. 4 for appointment. The candidature of the Petitioner was rejected for being overaged. The letter dated 5.6.2008 (Annexure-E to the writ petition) was construed to be irrelevant as it related only to the process for appointment to the post of Lecturer in Hindi at Nagaon Girls' College. It further noticed that there was no other document to condone his over age. The Governing Body further disqualified him for canvassing his candidature before its members. On the other hand, the past services rendered by the Respondent No. 4 on adhoc basis was taken note of while recommending her case for appointment. The Governing Body also stated to have forwarded the required particulars to the Director of Higher Education, Assam for prior approval of its resolution for appointment of the Respondent No. 4 to the post concerned. 7. In his reply affidavit, the Petitioner while generally reiterating his averments in the writ petition imputed extraneous considerations to the Governing Body to favour the Respondent No. 4, she having successfully prevailed upon its members to espouse her cause. 7. In his reply affidavit, the Petitioner while generally reiterating his averments in the writ petition imputed extraneous considerations to the Governing Body to favour the Respondent No. 4, she having successfully prevailed upon its members to espouse her cause. While denying the allegation of canvassing his candidature, the Petitioner asserted that in view of the letters dated 5.6.2008 and 17.7.2008 condoning his over age which were at the disposal and knowledge of the college authorities, rejection of his candidature had been grossly arbitrary and unfair. He also alleged unusual alacrity in processing the recommendation in favour of the Respondent No. 4 in securing the approval of the Director of Higher Education, Assam branding the process to be partisan and nontransparent. 8. Mr. Mannan has urged that the Petitioner having satisfied all the conditions of eligibility enumerated in the advertisement, he ought to have been recommended for appointment to the post, being adjudged to be the best candidate in order of merit and preference. Moreover, as the Petitioner is better qualified and more suitable than the Respondent No. 4 by any measure, the impugned resolution and the provisional approval thereof are liable to be adjudged illegal, null and void, he argued. According to the learned Counsel, a conscious decision having been taken by the appropriate authority of the government condoning the overage of the Petitioner thereby relaxing the age limit for him to 45 years, the rejection of his case on the ground of being overaged, is palpably illegal and if allowed to stand, would result in irreparable loss to him and cause injustice. He dismissed the letters dated 5.6.2008 and 17.7.2008 purportedly canceling the earlier letters also of the same date as ante dated and manufactured documents to suit the interest of the Respondent No. 4. No reason for the cancellation of the earlier letters granting relaxation of the Petitioner's overage having been recorded, these letters were otherwise non est as well, he contended. While reiterating the Petitioner's pleaded stand vis-a-vis the allegation of canvassing by him, the learned Counsel submitted that the recommendation in favour of the Respondent No. 4 is an yield of her successful efforts to prevail over the members of the Governing Body. 9. While reiterating the Petitioner's pleaded stand vis-a-vis the allegation of canvassing by him, the learned Counsel submitted that the recommendation in favour of the Respondent No. 4 is an yield of her successful efforts to prevail over the members of the Governing Body. 9. The learned Standing Counsel, Education Department referring to the orders dated 15.12.2008 passed by the Director of Higher Education, Assam granting provisional approval to the impugned recommendation of the Governing Body of the college submitted that the Directorate involved had at no point of time received the letter dated 17.7.2008 condoning the overage of the Petitioner. As the letters dated 5.6.2008 and 17.7.2008 had been cancelled on the very same date of issuance thereof, the Petitioner cannot in law extract any premium therefrom. He, however, maintained that in view of the interim order of this Court, the provisional approval granted has not yet been made effective. 10. Mr. Bhuyan, learned Counsel for the college while admitting that the letter dated 5.6.2008 (Annexure-E to the writ petition) was brought to the notice of the concerned authority, the Governing Body thereof did not act thereon as the same related to distinctly different process pertaining to some other institution. While reiterating that the letter dated 17.7.2008 (Annexure-F to the writ petition), had not been placed before the Governing Body at any point of time, he contended that the challenge to the impugned resolution otherwise adopted, on a consideration of all essential and relevant aspects of the matter, is untenable. 11. Mr. Mahanta, while endorsing the above has urged that as at all relevant time, the letters dated 5.6.2008 and 17.7.2008 relied upon by the Petitioner had been nonexistent, the rejection of the candidature on the ground of over age cannot be faulted with. Moreover, as the Petitioner was found to be promoting his case by canvassing his candidature, he had thus disqualified himself for the post. As the Petitioner had omitted to challenge the order dated 15.12.2008 passed by the Director of Higher Education. Assam, granting provisional approval to the recommendation for appointment of the Respondent No. 4, he is not entitled to any relief in the instant petition, he pleaded. Mr. Mahanta placed reliance on the decision of the Apex Court in Union of India vs. Rati Dass Batish AIR 2006 SC 789 . 12. In response, Mr. Assam, granting provisional approval to the recommendation for appointment of the Respondent No. 4, he is not entitled to any relief in the instant petition, he pleaded. Mr. Mahanta placed reliance on the decision of the Apex Court in Union of India vs. Rati Dass Batish AIR 2006 SC 789 . 12. In response, Mr. Mannan urged that viewing the nature of the challenge laid against the impugned resolution, it is inessential to separately impugn the order dated 15.12.2008 of the Director of Higher Education, Assam. He contended that if the Governing Body of the college was predetermined to accord weightage to the past service of the Respondent No. 4, while conducting a comparative assessment of the candidates, initiation of a public participatory process was wholly unwarranted. 13. I have extended my due consideration to the competing pleadings and the contentious submissions based thereon. That sans, the condonation of his overage as is sought to be justified by the letters dated 5.6.2008 and 17.7.2008, the Petitioner admittedly was otherwise ineligible to participate in the selection process in terms of the eligibility criteria professed by the advertisement is an admitted aspect of the lis. That these letters had been cancelled on the very dales of their issuance as have been submitted by the state Respondents appears to be matters of record. Judged by the time during which a willing candidate was required to submit his/her application with complete bio-data and testimonials in terms of the advertisement, it was not feasible for the Petitioner to furnish the letter dated 17.7.2008 (Annexure-F to the writ petition) thereafter. This assumes significance in view of the stand of the Governing Body of being unaware of this document. Even assuming that the Governing Body on scrutinizing the testimonials of the Petitioner had called him for the interview acting on the letter dated 5.6.2008 (Annexure-E to the writ petition), the same by no means would vest him with an inviolable right to claim appointment, if subsequently determined to be ineligible for being overaged. Even assuming that the Governing Body on scrutinizing the testimonials of the Petitioner had called him for the interview acting on the letter dated 5.6.2008 (Annexure-E to the writ petition), the same by no means would vest him with an inviolable right to claim appointment, if subsequently determined to be ineligible for being overaged. Indubitably, the selection of the candidates for the post advertised has to be subject to the stipulations contained in the advertisement laying down the criteria of eligibility, The preferential status assigned to the Petitioner by the Selection Committee per se would not confer any right on him to claim appointment, if the Governing Body on an ultimate analysis of all relevant aspects has correctly considered him to be ineligible. The purport of the letters dated 5.6.2008 and 17.7.2008 would therefore hold the sway in definitive terms in the adjudicative process in hand. The official records bearing No. AHE.32/2008 of the Education (Higher) Department, Govt., of Assam contains an application dated 10.5.2008 of the Petitioner addressed to the Principal Secretary, Higher Education, Government of Assam, Dispur seeking relaxation of his age for enabling him to secure a job at Nagaon Girls College, Nagaon for which he had applied. Acting on the said application, though initially the letter No. AHE.32/2008/40 dated 5.6.2008 was issued by the Under Secretary to the Govt., of Assam, Education (Higher) Department to condone the overage of the Petitioner by three years so as to enable him to appear in the interview for the post of Lecturer at Nagaon Girls College as prayed for, by Communication No. AHE. 32/2008/41 dated 5.6.2008 issued by the same authority the earlier letter was cancelled with effect from the date of issue thereof. The relevant note discloses that the cancellation resulted due to failure of the Petitioner to produce the age proof certificate for necessary verification as required of him. The note dated 17.7.2008 contained in the File No. AHE. 234/2007/Pt. reveals that no letter bearing No. AHE. 234/2007/110 dated 17.7.2008 (Annexure-F to the writ petition) had been either approved or issued which was therefore cancelled by letter No. AHE. 234/2007/111 dated 17.7.2008. As a matter of fact, the letter (Annexure-F to the writ petition) is not traceable in the file AHE. 234/2007. No corresponding note is also available in the said file. 14. 234/2007/110 dated 17.7.2008 (Annexure-F to the writ petition) had been either approved or issued which was therefore cancelled by letter No. AHE. 234/2007/111 dated 17.7.2008. As a matter of fact, the letter (Annexure-F to the writ petition) is not traceable in the file AHE. 234/2007. No corresponding note is also available in the said file. 14. On a scrutiny of the records referred to hereinabove, there is no doubt that the letters, Annexure-E and F to the writ petition had been cancelled by the concerned authorities on the very same date. The Petitioner's assertion of non receipt of the letter of cancellation in view of the contemporaneous notings in the official files ipso facto would not render those non existent or questionable. The letters of cancellation attested by records maintained in course of day to day official business cannot thus be denounced as frivolous or an afterthought. Even otherwise judged by the contents of the letter dated 5.6.2008 (Annexure-E to the writ petition) issued in response to, the Petitioner's request so as to enable him to apply for the post of Lecturer in Nagaon girls College, Nagaon, condonation of his overage was not in general terms. The stand of the official Respondents and the Governing Body of the college declining to extend any weightage thereon vis-a-vis the Petitioner's claim for relaxation of age cannot therefore be rejected as illogical or absurd. Resultantly, on the date of submission of the application of the Petitioner as well as of the interview he was overaged in terms of the advertisement. Though, presumably acting on the letter dated 5.6.2008 (Annexure-E to the writ petition) he had been called for the interview, in the above factual premise which demonstrates that this document had been cancelled on the very same date, the recommendation of the Selection Committee in his favour was stricto sensu non est, he being ineligible for the process. The decision of the Governing Body to reject his candidature for being overaged even on the interpretation and the letter dated 5.6.2008 (Annexure-E to the writ petition) though unmindful of the cancellation thereof cannot be impeached as flawed in law. The letter dated 17.7.2008 (Annexure-F to the writ petition) also having been cancelled on the very same date, it does not ensure to the benefit of the Petitioner. Judged from the above point of view, the impugned resolution dated 15.11.2008 cannot be faulted with. 15. The letter dated 17.7.2008 (Annexure-F to the writ petition) also having been cancelled on the very same date, it does not ensure to the benefit of the Petitioner. Judged from the above point of view, the impugned resolution dated 15.11.2008 cannot be faulted with. 15. In view of the above determination, the other aspects bearing on canvassing and the past service of the Respondent No. 4 who admittedly, is second in rank in order of merit do not warrant any discussion. The order dated 15.12.2008 passed by the Director of Higher Education, Assam granting the provisional approval to the impugned resolution for appointment for the Respondent No. 4 therefore, does not call for interference either. 16. The petition therefore lacks in substance and is dismissed. The interim order passed on 21.4.2008 stands vacated. No costs. Petition dismissed.