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2009 DIGILAW 826 (GAU)

Juthika Talukdar v. State of Assam

2009-11-24

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT Brojendra Prasad Katakey, J. 1. This writ petition has been filed challenging the resolution No. 5 of the Governing Body of Bajali College shown to be adopted in its meeting dated 22.12.2003 resolving to appoint the respondent No. 5, Sri Bipul Kakoti, as Lecturer in Assamese against a non-sanctioned post, pursuant to an advertisement dated 09-11-2003 issued by the College Authority, without publication of merit list and by showing adoption of such resolution as well as ignoring the merit list prepared by the Selection Committee constituted for that purpose. 2. An advertisement dated 9.11.2003 was issued by the Principal, Bajali College, Pathsala calling for applications for selection to different posts, including 1(one) post of Lecturer in Assamese, which is a non-sanctioned post, pursuant to which the petitioner, the respondent No. 5 and others offered their candidatures. The candidates including the petitioner were thereafter, called for interview and accordingly they appeared before the Selection Committee on 5.12.2003. The Selection Committee, pursuant to the selection made vide its proceeding dated 5.12.2003 prepared the select list and recommended the name of the petitioner for appointment, she having placed at Serial No. 1 in the merit list. Another person, namely Sri Pranab Bhagawati, was placed at Serial No. 2 and the respondent No. 5 at Serial No. 3 in such merit list. According to the petitioner, the College Authority did not publish such merit list hut surreptitiously appointed the respondent No. 5 against the said non-sanctioned post, pursuant to a resolution shown to have adopted by the Governing Body in its meeting dated 22.12.2003 to appoint the respondent No. 5, who was working as Lecturer on ad hoc basis in the said College, on the ground that he has been working since 4.9.1999 in the Assamese Department, though he was placed at Serial No. 3 in such merit list. 3. I have heard Mr. U.K. Nair, the learned Counsel for the petitioner, Mr. S.K. Das, the learned Standing Counsel, Education Department appearing for the respondent Nos. 1 and 2, Mr. C. Choudhury, the learned Counsel appearing for the respondent Nos. 3 and 4 and Mr. S. Sarma, the learned Counsel appearing for the respondent No. 5. 4. 3. I have heard Mr. U.K. Nair, the learned Counsel for the petitioner, Mr. S.K. Das, the learned Standing Counsel, Education Department appearing for the respondent Nos. 1 and 2, Mr. C. Choudhury, the learned Counsel appearing for the respondent Nos. 3 and 4 and Mr. S. Sarma, the learned Counsel appearing for the respondent No. 5. 4. It is contended by the petitioner that the Selection Committee once selected the petitioner for appointment, the Governing Body cannot without any good and sufficient reason ignore such selection and recommendation of the Selection Committee and appoint the respondent No. 5 as Lecturer, who was placed at Serial No. 3 in the merit list, ignoring the legitimate claim of the petitioner. It has further been contended that the Selection Committee having awarded mark for experience, the Governing Body cannot appoint the respondent No. 5 on the ground that he was working in the college on ad hoc basis since 1999, which cannot be the valid reason to ignore the recommendation of the Selection Committee. The petitioner's further contention is that the Governing Body never published the select list and she was kept in dark about the result of the selection though, she approached the College Authority from time-to-time, to know the result of the selection, which the Authority avoided on one pretext or other. According to the petitioner the authority also did not disclose adoption of the resolution of the Governing Body as well as appointment of the respondent No. 5 against such non-sanctioned post. The petitioner, hence, approached the Authority under the provisions of Right to Information Act, 2005 on 6.10.2007, m reply to which the petitioner was informed for the first time by the Principal of the College vide communication dated 20.11.2007 that the College Authority had adopted a resolution on 22.12.2003 for appointment of the respondent No. 5. The College Authority along with the said communication dated 20.11.2007 enclosed the copy of the resolution dated 22.12.2003 stated to have adopted by the Governing Body and also the proceeding and the recommendation of the Selection Committee including the marks allotted by the Members of the Selection Committee to various candidates. The College Authority along with the said communication dated 20.11.2007 enclosed the copy of the resolution dated 22.12.2003 stated to have adopted by the Governing Body and also the proceeding and the recommendation of the Selection Committee including the marks allotted by the Members of the Selection Committee to various candidates. The case of the petitioner is that such resolution and appointment were shown to have adopted by giving a back date though no such resolution was adopted in 2003 and no appointment order appointing the respondent No. 5 was issued on 5.1.2004 as shown. 5. The respondent Nos. 3 and 4, the Governing Body and the Principal of Bajali College, respectively, have contended that though the writ petitioner was placed at Serial No. 1 and the respondent No. 5 at Serial No. 3 in the merit list prepared by the Selection Committee, the Governing Body in its wisdom, keeping in view the fact that the respondent No. 5 has been working as Lecturer on ad hoc basis since 4.8.1999 satisfactorily, decided to appoint him as Lecturer against the non-sanctioned post. According to the College Authority, such resolution was adopted in its meeting dated 22.12.2003 and thereafter, the appointment order was issued to the respondent No. 5 on 5.1.2004, who joined in the said post on 7.1.2004. The said respondents denied that such resolution as well as the appointment were back dated. The respondents, however, have not contended that the select list prepared by the Selection Committee was published. It has further been contended that since the resolution was adopted in the month of December 2003 and appointment was made in the month of January 2004 on the basis of the selection conducted by the Selection Committee on 5.12.2003, the writ petition deserves to be dismissed on the ground of delay and laches as the petitioner never bothered to enquire about the result of such selection and also never objected to the appointment of the respondent No. 5 for more than 3(three) years. According to these respondents, the petitioner, who has been working in another College, with a view to get the benefit of the office memorandum dated 17.7.2004 of adjusting the Lecturers working in the non-sanctioned post, against the sanctioned post available in the College, has filed the writ petition at a belated stage, who did not bother to question the appointment of the respondent No. 5 for three years. The respondent No. has also taken the same stand as has been taken by the respondent Nos. 3 and 4. 6. The Director of Higher Education, the respondent No. 2, has contended that since the respondent No. 5 has been appointed against the non-sanctioned post pursuant to the advertisement 9.11.2003 and on the basis of the select list prepared by the College Authority on 5.12.2003, the writ petitioner is not entitled to any relief as claimed, since the validity of the said select list expired after 1(one) year and as he approached this Court after 3(three) years of such appointment of the respondent No. 5. If has further been contended that pursuant to the office memorandum dated 17.7.2004, the Governing Body of the College took a resolution on 31.7.2007 to till up the sanctioned post of Lecturer in Assamese available in the College by way of regularization of the respondent No. 5, who has been working against a non-sanctioned post since 7.1.2004. 7. I have considered the submissions of the learned Counsel for the parties and perused the pleadings as well as the materials available on record produced by the respondent Nos. 3 and 4. 8. During the course of hearing, since certain discrepancies were found in the records, this Court vide order dated 8.9.2009 had directed the College Authority to file affidavit relating to:- (i) The date of appointment of Shri Bipul Kakati as Lecturer in Assamese against the non-sanctioned post pursuant to the advertisement dated 9.11.2003 and the date of issuance of such order of appointment. (ii) The amount paid to the respondent No. 5 prior to the date, if any, of his appointment against the non-sanctioned post. (iii) The amount paid to him after his appointment, if any, against the non-sanctioned post. (iv) The reason as to why the order of appointment dated 5.1.2004 (Annexure-D to the affidavit-in-opposition filed by the College authority) bearing No. BC/3/2004/6306 does not reflect in the issue register. (iii) The amount paid to him after his appointment, if any, against the non-sanctioned post. (iv) The reason as to why the order of appointment dated 5.1.2004 (Annexure-D to the affidavit-in-opposition filed by the College authority) bearing No. BC/3/2004/6306 does not reflect in the issue register. (v) The reason as to why in the acquittance roll maintained by the College authority for the months of January to July 2009 his date of appointment has been shown as 5.8.2004 and why he has been paid the amount shown in the acquittance roll up to July 2004 if his date of appointment is 5.8.2004. (vi) The reason as to why the appointment of the respondent No. 5 is shown as 5.8.2005 in the acquittance roll maintained by the College authority from the month of August 2004 to December 2004. 9. Pursuant to such order, affidavit dated 22.10.2009 has been filed by the Principal of the College, who is the Ex-Officio Secretary of the Governing Body. In response to the query Nos. (i) and (ii) above, it has been stated that the respondent No. 5 was appointed against a non-sanctioned post on 5.1.2004 vide office order No. BC/3/2004/6306 and prior to his appointment against the said non-sanctioned post he was paid salary for the month of August 1999 to June 2000 @ Rs. 1,000 per month, from July 2000 to July 2002 @ Rs. 1,200 per month, from July 2002 to July 2003 @ Rs. 1,600 per month and from August 2003 to July 2004 @ Rs. 1,650 per month. In reply to the query No. (iii), it has been stated in the affidavit that after appointment of the respondent No. 5 against a non-sanctioned post he has been paid Rs. 1,700 per month from August 2004 to December 2004, @ Rs. 2,000 per month, from January 2005 to December 2005 and @ Rs. 3,000 per month from January 2006 to December 2006 etc. In reply to query No. (iv), it has been specifically stated in the said affidavit that the issue register does not reflect issuance of the appointment letter to the respondent No. 5 vide issue No. 6306 dated 5.1.2004, under which number the said appointment letter shown to have been issued. Against the query Nos. In reply to query No. (iv), it has been specifically stated in the said affidavit that the issue register does not reflect issuance of the appointment letter to the respondent No. 5 vide issue No. 6306 dated 5.1.2004, under which number the said appointment letter shown to have been issued. Against the query Nos. (v) and (vi), the Secretary of the Governing Body/Principal of the College have stated that due to ignorance of the concerned dealing assistant, the date of yearly increment of salary has been wrongly entered as the date of appointment of the incumbent and hence, the date mentioned as 5.8.2004, as the date of appointment in fact is the date on which the respondent No. 5 received the increment in the salary. 10. There is no dispute relating to the issuance of advertisement by the College Authority dated 9.11.2003 inviting applications for selection of candidates for appointment as Lecturer in Assamese against a non-sanctioned post as well as preparation of select list by the Selection Committee constituted by the College Authority in its proceeding dated 5.12.2003 after the interview of the various candidates was over. The Selection Committee had recommended the name of the petitioner for appointment placing her at Serial No. 1 and that of the respondent No. 5 at Serial No. 3. The records of Selection Committee produced by the College Authority reveal that the petitioner received 41.26 marks as against 38.29 marks received by the respondent No. 5, which includes the additional 5 mark given by the Selection Committee to the respondent No. 5 under the head experience, since admittedly the respondent No. 5 was working in the said College on ad hoc basis since 1999. Such additional mark under the head experience had not been given to any other candidates including the petitioner. The Governing Body of the College stated to have taken a resolution in its meeting dated 22.12.2003 resolving to appoint the respondent No. 5 though he was placed at the third position, on the ground that he was working since 4.9.1999 in the said Department on ad hoc basis. The Governing Body of the College stated to have taken a resolution in its meeting dated 22.12.2003 resolving to appoint the respondent No. 5 though he was placed at the third position, on the ground that he was working since 4.9.1999 in the said Department on ad hoc basis. The said resolution No. 7(b) as available in the proceeding book of the Governing Body, is quoted below: RESOLUTION No. 7(b) Discussed the report of the selection committee and after detailed discussion, the G.B., resolved to appoint Sri Bipul Kakati, the 3rd nominee against non-sanctioned post, in the department of Assamese, Bajali College, as he is working since 4.9.1999 in the said department. 11. It, therefore, appears from the decisions of the Governing Body that the recommendation of the Selection Committee has been ignored solely on the ground that the respondent No. 5 has experience as he has been working in the department. The recommendation of the Selection Committee can be ignored by the Governing Body for good and sufficient reason and not as per its whims. Normally once selection is conducted by the Selection Committee its recommendation is to be accorded unless such selection is not made in accordance with law and the guidelines, if any, issued by the Governing Body, which is not the case of the Governing Body. In the instant case, since the Selection Committee has already awarded additional mark for the experience and placed the respondent No. 5 at serial No. 3 in the merit position, hence, the Governing Body cannot take into consideration his experience again to appoint him. Such ground for ignoring the recommendation of the Selection Committee and in appointing the respondent No. 5, cannot be the valid ground, which is arbitrary and, hence, cannot stand the scrutiny of law. 12. Having held so, the next question which requires determination is whether this Court would interfere with the order of appointment of the respondent No. 5 as it has been contended that the petition deserves to be dismissed on the ground of delay and laches. As discussed above, the Selection Committee in its meeting dated 5.12.2003 made recommendation placing the petitioner at Serial No. 1 and the respondent No. 5 at Serial No. 3, for appointment against the said non-sanctioned post of Lecturer in Assamese. As discussed above, the Selection Committee in its meeting dated 5.12.2003 made recommendation placing the petitioner at Serial No. 1 and the respondent No. 5 at Serial No. 3, for appointment against the said non-sanctioned post of Lecturer in Assamese. According to the College Authority as well as the respondent No. 5, the Governing Body has adopted the resolution dated 22.12.2003 resolving to appoint the respondent No. 5, pursuant to which the order of appointment was issued on 5.1.2004 vide issue No. BC/3/2004/6306 dated 5.1.2004. To appreciate the contention of the learned Counsel for the parties in this regard, the relevant records as well as the statement made in the affidavit filed by the College Management dated 22.10.2009 along with the joint pleadings of the parties are perused. 13. The relevant resolution book maintained by the Governing Body of the College (Volume-IV) reveals holding of a meeting of the Governing Body on 22.10.2003, wherein altogether 13(thirteen) resolutions relating to the different matters were adopted. Resolution Nos. 4, 5, 6 and 7 were relating to the appointments of Lecturers in different subjects against the sanctioned as well as non-sanctioned posts. It appears from the proceeding of the said Governing Body that the resolution No. 7 has subsequently been converted to 7(a) by putting (a) after 7 and another resolution being 7(b) shown to have adopted for appointment of the respondent No. 5. The handwritings of the resolution 7(b) and the other resolutions are apparently different, so also the letter (a) put after the resolution No. 7. It creates doubt in the mind of the Court relating to the adoption of such resolution being resolution No. 7(b) by the Governing Body in its meeting dated 22.12.2003. Such doubt further fortifies from the fact that the order of appointment pursuant to such resolution though shown to have issued on 5.1.2004 vide issue No. BC/3/2004/6306, the relevant issue register maintained by the College Authority reveals that on 5.1.2004 no order of appointment was issued under the said issue number. On that date, 4(four) communications were issued by the College Authority, 2(two) to the Director of Higher Education; 1(one) to the PG Bank and another to the Assistant Director, Employment Exchange under issue Nos. 6297 to 6300. On that date, 4(four) communications were issued by the College Authority, 2(two) to the Director of Higher Education; 1(one) to the PG Bank and another to the Assistant Director, Employment Exchange under issue Nos. 6297 to 6300. Further vide issue No. 6306, under which the order of appointment stated to have issued to the respondent No. 5, a letter dated 10.1.2004 was issued to the Additional Manager, LIC, Guwahati Division and not the appointment order to the respondent No. 5 dated 5.1.2004. The said issue register does not reveal issuance of the order of appointment to the respondent No. 5 at all. The College Authority in the additional affidavit filed on 22.10.2009 has also admitted this fact. No other issue register has been placed before this Court to show issuances of such appointment letter at any point of time. These facts creates an impression in the mind of the court that after the writ petitioner consistently approached the College Authority to know the outcome of the selection, the College Authority has shown adoption of such resolution by the Governing Body and issuance of such order of appointment by giving a false issue number, only with a view to give the benefit to the respondent No. 5 though he has been placed at Serial No. 3 in the select list prepared by the Selection Committee. 14. It appears from the order of appointment stated to have issued on 5.1.2004 that he has been appointed against a non-sanctioned post at a consolidated pay of Rs. 1,500 but the acquaintance roll does not reveal his date of appointment as 5.1.2004 but it reveals his date of appointment as 5.8.2004. The explanation of the College Authority in the affidavit dated 22.10.2009 that in the acquaintance roll his date of accruing the increment has been inadvertently shown as the date of appointment cannot be accepted for the reasons that in the said affidavit in answer to query Nos. (ii) and (iii) made vide the order dated 8.9.2009, the College Authority has specifically stated that "prior to his date of appointment against a non-sanctioned post" he received salary of Rs. 1,650 up to July 2004 and "after appointment of the respondent No. 5 against the non-sanctioned post" he received salary of Rs. 1,700 with effect from August 2004. (ii) and (iii) made vide the order dated 8.9.2009, the College Authority has specifically stated that "prior to his date of appointment against a non-sanctioned post" he received salary of Rs. 1,650 up to July 2004 and "after appointment of the respondent No. 5 against the non-sanctioned post" he received salary of Rs. 1,700 with effect from August 2004. The College Authority, therefore, has admitted that the respondent No. 5 has not been appointed on 5.1.2004, though order of appointment shown to have issued on that date. The College Authority appears to have manipulated the record with a view to deprive the petitioner from his legitimate claim for appointment pursuant to the selection made by the Selection Committee and to give undue advantage to the respondent No. 5. The court cannot shut its eyes from such illegality and would certainly set aside such action, even if there is some delay in filing the writ petition. 15. The writ petitioner in the writ petition has stated on oath that he time and again approached the College Authority to know about the outcome of the selection but the College Authority on one ground or the other did not disclose the same and after coming into force the Right to Information Act, he eventually filed an application on 6.10.2007, pursuant to which the College Authority on 20.11.2007 supplied the resolution of the Governing Body stated to have adopted on 22.12.2003 as well as the proceeding of the Selection Committee's meeting dated 5.12.2003 and having come to know that he has not been appointed despite his placing at Serial No. 1 in the select list, he immediately filed the writ petition. Such contention, however, has been denied by the respondents in their affidavit. But at the same time, it is not the case of the College Authority that such select list was published and the result was made known to the petitioner. It appears that for the first time vide communication dated 20.11.2007 the petitioner was made known by the College Authority about the result of such selection and also the resolution stated to have adopted by the Governing Body on 22.12.2003. The College Authority even alongwith the said communication dated 20.11.2007 did not furnish a copy of the order of appointment stated to have issued to the respondent No. 5 on 5.1.2004. The College Authority even alongwith the said communication dated 20.11.2007 did not furnish a copy of the order of appointment stated to have issued to the respondent No. 5 on 5.1.2004. The College Authority cannot appoint any one without publication of select list. Hence, it cannot be said that the present writ petitioner suffers from the vice of delay and laches. 16. In view of the aforesaid discussions, the resolution No. 7(b) of the Governing Body stated to have adopted on 22.12.2003 and the order of appointment of the respondent No. 5 stated to have issued on 5.1.2004 are set aside. Since more than 6(six) years have elapsed from the date of issuance of the advertisement dated 9.11.2003, pursuant to which the selection process was conducted by the College Authority, I am not inclined to direct the College Authority to publish the select list and to make appointment on the basis of such select list, as in the meantime many more candidates, having better academic record, may be available and the College Authority shall have a greater option of selecting more meritorious candidate. The College Authority, therefore, if it decides to fill up the said non-sanctioned post of Lecturer in Assamese, may initiate a fresh process in that regard. 17. The writ petition is, therefore, allowed to the extent indicated above. No cost. Petition allowed.