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2009 DIGILAW 853 (GAU)

Governing Body of Dibru College v. State of Assam

2009-12-02

BROJENDRA PRASAD KATAKEY, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. This appeal, by the Governing Body of Dibru College (Respondent No. 1 in the writ petition), is directed against the order dated 13.3.2007 by which WP (C) No. 6967 of 2005 filed by the Respondent No. 4 writ Petitioner was allowed with a direction to the Director of Higher Education, Govt. of Assam to approve the appointment of the Respondent-writ Petitioner as Principal of the Dibru College on the basis of the selection held on 28.6.2005 and approval thereof by the Governing Body of the College on the same date. 2. The facts are long but an attempt must be made to summarise and recite only what would be essential for the purpose of the present case. Appointment of Principals in the erstwhile deficit Colleges of Assam (subsequently known as non-Government Colleges most of whom have now been provincialised) was regulated by the provisions of the Assam Education Department Selection Rules, 1981 (as amended) as well as the provisions of the Assam Non-Government College Management Rules, 2001. A select list of persons eligible for appointment as Principal of such Colleges was required to be prepared by the State Selection Board constituted under the provisions of the 1981 Rules. The validity of the select list prepared under Rule 10 (3) of the 1981 Rules was for a period of one year. Individual Colleges were required to issue advertisements for filling up the post of Principal on such vacancies occurring. Candidates included in the select list prepared by the State Selection Board are eligible to apply. Thereafter each College is required to have its own selection process at the end of which the select list of successful candidates is to be prepared. If the same is approved by the Governing Body of the College the proposal for appointment of the approved name is required to be sent to the Director of Higher Education and only on obtaining the prior approval of the Director appointments could be made. 3. In the present case a select list dated 17.9.2003 was prepared by the State Selection Board which included the name of the Respondent No. 4 writ Petitioner. The Dibru College issued an advertisement dated 30.4.2005 for filling up the post of Principal pursuant to which several candidates including the Respondent No. 4/writ Petitioner applied. 3. In the present case a select list dated 17.9.2003 was prepared by the State Selection Board which included the name of the Respondent No. 4 writ Petitioner. The Dibru College issued an advertisement dated 30.4.2005 for filling up the post of Principal pursuant to which several candidates including the Respondent No. 4/writ Petitioner applied. Selection was held on 28.6.2005 and the Respondent-writ Petitioner was placed at serial No. 1 of the select list. The aforesaid recommendation of the Selection Committee was approved by the Governing Body of the College on the same date i.e. 28.6.2005. As the Governing Body of the Dibru College, in spite of approval of the recommendation of the Selection Committee, had not forwarded the requisite proposal to the Director of Higher Education for accord of prior approval of the Director the Respondent-writ Petitioner instituted the writ proceeding in question i.e. WP (C) No. 6967 of 2005 out of which this appeal has arisen. The prayer made in the writ petition, in essence, was for a direction to give effect to the recommendation of the Selection Committee as approved by the Governing Body by requiring the Director of Higher Education to act in accordance with the provisions of the 2001 Rules. 4. In the said writ petition an interim order dated 9.11.2005 was passed by the Court requiring the Principal-in-charge of the College to send the necessary proposal along with the relevant papers to the Director of Higher Education. The Principal so acted by sending the requisite papers on 20.11.2005 which, however, was found to be incomplete by the Director on examination. The Director, therefore, wrote again to the Principal on 25.11.2005 asking for further papers which were forwarded by the Principal by letter dated 22.12.2005. 5. The select list prepared by the State Selection Board expired on 21.6.2005. Thereafter, by letter dated 20.8.2005 the Higher Education Department of the Govt, of Assam informed the Member-Secretary of the State Selection Board that the Government had decided to make a fresh advertisement for the purpose of selection of persons eligible for appointment as Principals. However, by order dated 1.12.2005 the select list prepared by the State Selection Board was given further life upto 21.12.2005 with effect from 22.6.2005 and thereafter the select list was extended again upto 21.6.2006 by order dated 7.1.2006. By another order dated 1.7.2006 the select list came to be extended upto 18.10.2006. However, by order dated 1.12.2005 the select list prepared by the State Selection Board was given further life upto 21.12.2005 with effect from 22.6.2005 and thereafter the select list was extended again upto 21.6.2006 by order dated 7.1.2006. By another order dated 1.7.2006 the select list came to be extended upto 18.10.2006. The last of the said extensions was a sequel to the order dated 15.2.2007 passed by this Court in a proceeding registered and numbered as W.A. No. 261 of 2006. It may be noticed, at this stage, that in the said order passed in W.A. 261/2006 though there is a reference to the date 21.6.2004 in relation to the select list of the State Selection Board it appears that the said list is the same as has been referred to with the date 17.9.2009 in the present proceedings and the date 21.6.2004, perhaps, is the date of publication of the said list in the official gazette. 6. While the aforesaid developments were going on the Director of Higher Education, on receipt of the requisite papers sent by the Principal under her covering letter dated 22.12.2005 took a decision on 2.1.2006, that as the select list of eligible candidates for appointment as Principal had expired/was not in force further action on the basis of the selection of the Petitioner as the Principal of Dihru College cannot be implemented. A copy of the said order dated 2.1.2006 of the Director was communicated to the Dibru College whereupon the Governing Body of the College in a meeting held on 18.1.2006 resolved to cancel the entire process involving the selection of the Respondent-writ Petitioner and instead resolved to go ahead with a fresh process of advertisement and selection. It is in the aforesaid facts and circumstances that the learned Single Judge had thought it proper to issue the impugned directions giving rise to the present appeal. 7. The adjudication of the rights of the Respondent/writ Petitioner lies within a very narrow compass. If the select list dated 17.9.2003 or 21.6.2004, as. may be, was valid and subsisting upto 18.10.2006 in the circumstances noted above is the Respondent-writ Petitioner entitled to an order directing operation of the said select list and taking of consequential action by the concerned authorities? 8. If the select list dated 17.9.2003 or 21.6.2004, as. may be, was valid and subsisting upto 18.10.2006 in the circumstances noted above is the Respondent-writ Petitioner entitled to an order directing operation of the said select list and taking of consequential action by the concerned authorities? 8. As already noticed, the select list in question had been extended from time to time and finally on the basis of the Court's order upto 18.10.2006. Though each order of extension had been passed after the select list had expired, in terms of the Division Bench order of this Court in Writ Appeal No. 261 / 2006, which order has attained finality in law, there can be no manner of doubt that the select list must be deemed to be in continuous operation upto 18.10.2006. If that be so, the order of the Director dated 2.1.2006 and the consequential resolution of the Governing Body of the College dated 18.1.2006 will not have any legal effect. The order dated 2.1.2006 was passed at a point of time when the select list was yet to be extended after it had expired on 21.12.2005. However, extension upto 21.6.2006 was granted by order dated 7.1.2006 and finally under orders of the Court passed in Writ Appeal No. 261/ 2006 such extension was made effective upto 18.10.2006. The effect of the aforesaid orders including the order of the Court is that the select list had remained operative all along upto 18.10.2006. In that view of the matter the Director's decision contained in the letter dated 2.1.2006 that appointment of the Respondent-writ Petitioner cannot be considered due to expiry of the select list has to be regarded as nonest in law. Insofar as the resolution of the Governing Body of the College dated 18.1.2006 is concerned, there has been attempts to show that the said resolution was passed without knowledge of the order of extension of the select list dated 7.1.2006 and that the said order was received by the Governing Body after the resolution was adopted. Even assuming the aforesaid stand of the Appellant to be correct there can be no manner of doubt that the subsequent extensions of the select list with retrospective effect including the order of the Court passed in Writ Appeal No. 261/2006 renders the aforesaid resolution of the Governing Body dated 18.1.2006 equally nonest in law. Even assuming the aforesaid stand of the Appellant to be correct there can be no manner of doubt that the subsequent extensions of the select list with retrospective effect including the order of the Court passed in Writ Appeal No. 261/2006 renders the aforesaid resolution of the Governing Body dated 18.1.2006 equally nonest in law. The select list prepared by the State Selection Board recommending the name of the Petitioner as a qualified and eligible person for appointment to the post of Principal being in force during the relevant period of time and the selection of the Respondent-writ Petitioner for the post of Principal of the Dibru College, having been approved by the Governing Body of the College there can be no bar for further processing of the matter for appointment of the Respondent-writ Petitioner in accordance with the provisions of the Rules in force at the relevant point of time. 9. There are two other aspects of the matter which would require the attention of the Court. The first is the direction in the order dated 15.2.2007 passed in Writ Appeal No. 261 of 2006 to the effect that operation of the select list of Principals prepared by the State Selection Board beyond 18.10.2006 would be permissible only in respect of 17 Colleges in respect of which colleges the selection had taken place prior to 18.10.2006 and the proposal of the Governing Body for appointment had also been submitted to the Director before the said date but no action could be taken due to interim orders of this Court. It is not clear from the materials on record as to whether the Dibru College is one of the 17 Colleges included in the said list. Even if the Court is to understand that the Dibru College is not included in the aforesaid 17 Colleges, the consequence cannot be different. The 17 Colleges stipulated in the order of the Court dated 15.2.2007 passed in Writ Appeal No. 261 of 2006 can by no means be understood to be an exhaustive list and if the facts of the present case leaves no doubt in the mind of the Court that further action on the basis of the select list insofar as Dibru College is concerned would be called for in the interest of justice, an appropriate direction to the said effect must be issued. 10. 10. The other aspect of the matter which requires a mention is the ground urged by the Appellant that the resolution of the Governing Body of the College dated 18.1.2006 not having been specifically challenged by the Respondent-writ Petitioner no directions in respect of the said resolution can be passed by the Court. The argument, attractive though it may be, would pale into insignificance upon a close scrutiny of the prayer made in the writ petition which, as already noticed, is for a direction for a further consideration for appointment of the Respondent-writ Petitioner. If the resolution of the Governing Body dated 18.1.2006 comes in the way of such further consideration, naturally, on the findings already recorded, the said resolution cannot be construed to be a bar for further consideration of the case of the Respondent-writ Petitioner. 11. We have also noticed that the learned Single Judge by the impugned order dated 13.3.2007 had directed the Director of Higher Education to accord approval for the appointment of the Respondent-writ Petitioner as the Principal. 12. Under the 2001 Rules the duty to consider a proposal of the Governing Body for appointment and to pass orders as may be expedient on such proposal has been vested in the Director which, of course, has to be exercised in a proper and acceptable manner. It is for the Director and not for the Court to consider the facts and circumstances and take a final decision with regard to accord of approval or otherwise. Having regard to the provisions of the Rules of 2001, particularly Rule 18, we are of the view that the direction passed by the learned Single Judge is liable to be modified to the extent that the Director of Higher Education will now consider the proposal of the Governing Body dated 28.6.2005 for appointment of the Respondent-writ Petitioner as the Principal and thereafter pass final orders in the matter in accordance with law. This, we direct, shall be completed expeditiously and in any case within four weeks from the date of receipt of this order. 13. The writ appeal is accordingly disposed of in terms of the observations and directions recorded herein above.