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2010 DIGILAW 200 (GAU)

Tilottama Bharali v. State of Assam

2010-03-17

AMITAVA ROY

body2010
JUDGMENT Amitava Roy, J. 1. As the challenges in the two proceedings converge on the selection and appointment of the Respondent No. 5 as the Principal of the Lakhimpur Commerce College, Lakhimpur ('College'), in view of the homogeneity of the pleadings and the issues seeking adjudication, these have been heard analogously and this determination would answer the debate before this forum. 2. I have heard Mr. P.J. Phukan, learned Counsel for the Petitioner, Mr. M.K. Khataniar, learned Standing counsel, Education Department, Government of Assam for the State Respondents, Mr. C. Baruah, learned Counsel appearing for the College and Mr. T.J. Mahanta, learned Counsel for the Respondent No. 5. 3. A synopsis of the pleaded account of the facts would be essential. The Petitioner joined in the Department of Assamese in the college on 1.8.1978 and thereafter obtained the M. Phil Degree from the Gauhati University. She was also selected to be empanelled in the list of the candidates prepared by the State Selection Board recommended for appointment to the post of Principal of deficit grants in aid colleges of the State. In response to the advertisement dated 6.1.2005, in the English daily "the Assam Tribune" inviting applications from the eligible candidates for the post of Principal of the college, the Petitioner, Respondent No. 5 and others responded thereto by offering their candidature. An interview of the eligible candidates was conducted on 4.6.2005. The Petitioner has alleged in particular, that the assessment of the candidates for the posts of Principal of deficit grants in aid colleges of Assam is to be essentially administered in terms of the guidelines embodied in the letter dated 20.2.2002 [Annexure-C to WP(C) No. 5210/051 formulated by the Education (Higher) Department, Government of Assam. In terms thereof, inter alia the marking system on the scale of 100 marks was prescribed as hereinbelow: Academic Qualification Teaching Experience (above 10 yrs.) Administrative Experience Extra Cumcular Activities Inter Remarks view Total Max. 65 Max. 10 (1 pt in each yr.) Max. 5(1 pt in each yr.) Max. 5 Max. 15 100 The marking pattern for the academic qualification is as enumerated below: Division/ Class HSLC, HS Degree Post Graduate M.Phil Ph.D Research Papers & Articles 1st Div. or Class 10 10 10, 10+5 (For Gold Medal) 5 10 Max. 5 (I pt for each paper/ article) 2nd Div. 5(1 pt in each yr.) Max. 5 Max. 15 100 The marking pattern for the academic qualification is as enumerated below: Division/ Class HSLC, HS Degree Post Graduate M.Phil Ph.D Research Papers & Articles 1st Div. or Class 10 10 10, 10+5 (For Gold Medal) 5 10 Max. 5 (I pt for each paper/ article) 2nd Div. or, Class 5 5 5.7(55-60%) &nbps &nbps &nbps Distinction 6 &nbps 5(50-55%) &nbps &nbps &nbps 3rd Divn. 3 3 3 &nbps &nbps &nbps The guidelines also provided - However, the credit marks should be provided for HSLC Examination to those candidates who passed 4 (four) year Higher Secondary Examination by calculating average marks of the 3 (three) examination, i.e., H.S., Graduate and Master Degree Examination. The Petitioner has alleged that in spite of the above enjoinments, the Respondent No. 5 was placed at SI. No. 1 in the list of the recommended candidates with her at SI. 2 by wrongly awarding the credit marks to him for HSLC Examination and misconstruing the stipulation relating to allotment of marks for "Research papers and articles". According to the Petitioner, though the Respondent No. 5, in view of the guidelines for credit marks, was entitled to 5, he was awarded 6 which clearly is impermissible in the model of assessment as comprehended. The Petitioner has asserted that in view of the results of the Respondent No. 5 in the relevant examinations, he was entitled to be allotted only 5 marks for HSLC. Higher secondary Degree Master Degree 52% 45% 68.62% The average of the marks secured in the above three examinations is 54% and, hence, 5 credit marks as per the marking scheme was awardable to the Petitioner. 4. The Petitioner has further asserted that though in terms of the marking pattern, the candidates were entitled to receive one point in each Research paper/Article, she in spite of her six (6) standard Research papers/Articles was credited only four marks and the Respondent No. 5 was accorded 3.12 marks which per se is inconceivable as no fraction is envisaged under the norms/guidelines. The Petitioner has also complained that under the Head-Administrative experience and extra curricular activities as well, she has been underassessed. Violation of the provisions of the Assam Non-Government College Management Rules, 2001 ('Rules') has also been alleged contending that though seven (7) days prior notice is essential for a meeting of the. The Petitioner has also complained that under the Head-Administrative experience and extra curricular activities as well, she has been underassessed. Violation of the provisions of the Assam Non-Government College Management Rules, 2001 ('Rules') has also been alleged contending that though seven (7) days prior notice is essential for a meeting of the. Governing Body of the college, it in a hot haste process to complete the selection process to accommodate the Respondent No. 5 following which he was appointed on 13.6.2005 after obtaining the prior approval of the Director of Higher Education, Assam on 8.6.2005. The approval of the Director of Higher Education, Assam accorded on 8.6.2005 though has been impugned in WP(C) No. 273/2007, the factual preface, therefore, is understandably identical. Incidentally, the said state authority on 14.6.2005 had accorded regular approval to the resolution of the Governing Body of the college to appoint the Respondent No. 5 as the Principal of the institution. 5. The Director of Higher Education, Assam, in his affidavit filed in WP(C) No. 5210/2005 while admitting the applicability of the guidelines to the process in hand has stated that following the selection, the Interview Board recommended two candidates namely, the Respondent No. 5 and the Petitioner in order of merit in that order for the post of Principal of the college. The Governing Body in its meeting held on 5.6.2005 unanimously approved the name of the Respondent No. 5 for appointment to the said post and accordingly submitted its proposal for proposal vide letter dated 6.6.2005 of the Principal of the institution. According to the answering Respondent, in view of the letter dated 7.4.2005 of the Director of Higher Education, Assam addressed to the colleges functioning without a regular principal, the process had been speeded up to meet the deadline mentioned therein. The deponent stated that the recommendation of the Governing Body of the college for appointing the Respondent No. 5 as the principal of the college on a due consideration was approved, however, subject to the result of WP(C) No. 5514/2004 then pending before this Court. The answering Respondent clarified that as the recruitment to the post involved was based on selection, the inter se seniority of the candidates was not a decisive factor. 6. The Governing Body of the college through the Respondent Nos. The answering Respondent clarified that as the recruitment to the post involved was based on selection, the inter se seniority of the candidates was not a decisive factor. 6. The Governing Body of the college through the Respondent Nos. 3 and 4 in its counter while inter alia pointing out that the bio-data of the Petitioner initially furnished incorrect informations which were rectified later on, has also admitted the applicability of the marking system contained in the departmental letter dated 20.2.2002. According to it, the Interview Board after thoroughly examining the guidelines and more particularly the marking procedure in the various segments of the assessment as envisioned, decided to award average marks of the Higher Secondary examination, Graduation and Post Graduation computable as hereinbelow: Division Higher Secondary Graduate Post graduate I 10 10 10, 10+5 (gold medal) II 5 5 5/7 (55-60%) III 3 3 3 This norm was uniformly applied to all the candidates and the Respondent No. 5 on the basis thereof secured as hereinbelow: Higher secondary 2nd Division 5 Degree 2nd class 5 Post graduate 1st class 10 Total 20, average 6.6 The deponent, therefore, ratified the award of 6.6 marks to the Respondent No. 5 in HSLC and also endorsed the allotment of 3.12 marks to him under the head 'Research Papers & Article. He has clarified as well that the selection process undertaken had to be expedited in view of the letter dated 7.4.2005 of the Director of Higher Education, Assam requiring the concerned institution including the college to complete the same by 30.4.2005 failing which no fund would be released to it after May 2005. According the Governing Body, on an overall consideration of all relevant aspects bearing on the selection, the Respondent No. 5 was assessed to be the most suitable candidate and following the approval of the Director of Higher Education, Assam, he was duly appointed to the post of principal. 7. The Respondent No. 5 while generally reiterating the stand of the college has contended that the allotment of 3.12 marks for Research paper/Articles had been due to the average of the marks awarded by the eight members of the Interview Board in terms of the marking system on Research paper/Article. He also repudiated the Petitioner's claim on account of administrative experience and extra-curricular activities and has insisted to be superior to her in those areas. He also repudiated the Petitioner's claim on account of administrative experience and extra-curricular activities and has insisted to be superior to her in those areas. In his additional affidavit filed in WP(C) No. 273/2007 he has further contended that the Petitioner in terms of the prevalent UGC norms requiring 55% of marks in the Post Graduate was ineligible for the post and on that criteria as well, her challenge is misconceived. 8. Mr. Phukan has strenuously urged that the procedure adopted by the Interview Board in the face of the otherwise unambiguous marking system to award credit marks for HSLC examination being per se erroneous and in contravention thereof, the Respondent No. 5 had been sanctioned 1.6 marks in excess, (6.6-5) and that, therefore, the recommendation of the Governing Body for his appointment to the post of Principal and the approval thereof by the Director of Higher Education, Assam are visibly flawed and untenable in law. According to the learned Counsel, the interpretation of the Interview Board to award credit marks in the HSLC examination by working out the average of the marks awardable in terms of the marking pattern and not on the basis of the percentage of marks secured by the candidates in the Higher Secondary, Degree and Post Graduation is obviously wrong as in a given case, if he/she passes the first two examinations in 1st Division and secures 1st class with Gold Medal in Post Graduation and is also awarded maximum marks on every head, his/her total tally of marks would exceed 100 which is inconceivable. While reiterating the Petitioner's grievance for having been under assessed, in spite of she having submitted five Research papers/Articles, the allotment of 3.12 to the Respondent No. 5 has also been repudiated as incomprehensible as per the marking system. Mr. Phukan has also impeached the process as transgressive of Rule 13(2) of the Rules for absence of proper notice. In support of his submission, Mr. Phukan has placed reliance on the decisions of this Court in: Sri Bhaven Chandra Pegu v. The State of Assam and Ors. 1988 (1) GLR 389, Shri Bhupender Singh v. Director of Public Instruction (Higher Education) Government of Assam, Guwahati and Ors 1993 (2) GLJ 242. 9. Mr. In support of his submission, Mr. Phukan has placed reliance on the decisions of this Court in: Sri Bhaven Chandra Pegu v. The State of Assam and Ors. 1988 (1) GLR 389, Shri Bhupender Singh v. Director of Public Instruction (Higher Education) Government of Assam, Guwahati and Ors 1993 (2) GLJ 242. 9. Mr. Khataniar, as against this, while standing by the process and the approval granted by the concerned state authority has questioned the eligibility of the Petitioner for lacking in the required percentage of 55% marks in her Post Graduate examination. 10. Mr. C. Baruah, learned Counsel appearing for the College has pleaded that as the Interview Board on a threadbare scrutiny of the guidelines had applied the marking system uniformly to all the candidates, no challenge to the selection process in the exercise of powers of judicial review should be entertained. He has affirmed that pursuant to the approval of the Director of Higher Education, the Respondent No. 5 has joined the post of Principal of the college in June, 2005 and has been serving as such without any break since then till date. To reinforce his arguments, Mr. Baruah has placed at the disposal of the court the original records pertaining to the impugned selection. 11. Besides, abiding by the pleaded stand of his Respondent, Mr. Mahanta has urged that the Petitioner not having controverted the assertion of her ineligibility qua, the UGC norms of 55% in Post Graduation, the petitions ought to be dismissed in limine. While contending that the selection had been conducted in conformity with the guidelines in force and that as the Respondent No. 5 is serving as the Principal of the college for last four years, the learned Counsel urged that no interference ought to be made with his appointment. 12. The contentious pleadings and the competing arguments have received the consideration of this Court. That the guidelines contained in the letter dated 20.2.2002 had governed the selection process before the Interview Board constituted in terms thereof is an admitted fact. The materials on record demonstrate that before the initiation of the exercise vide the advertisement dated 6.1.2005, WP(C) No. 5514/2004 had been instituted by one Sri. That the guidelines contained in the letter dated 20.2.2002 had governed the selection process before the Interview Board constituted in terms thereof is an admitted fact. The materials on record demonstrate that before the initiation of the exercise vide the advertisement dated 6.1.2005, WP(C) No. 5514/2004 had been instituted by one Sri. B.C. Dutta, the then Principal In-charge of the same college contending principally that the guidelines laid down by the State government stipulating the conditions of eligibility of candidates for selection and recruitment to the post of Principal of a deficit grants in aid colleges of the state were not in conformity with the UGC norms in vogue then. As this writ petition was pending at the point of time when the advertisement was issued, the appointment proposed was made subject to the final decision in WP(C) No. 5514/2004. As a matter of fact, this Court while issuing rule, on 6.8.2004 in this writ petition had observed that any appointment pursuant to the impugned selection as involved therein, would be subject to the result of the said writ petition. Be that as it may this writ petition stood dismissed on withdrawal on 9.5.2008. 13. Though, a plea had been taken by the Respondent No. 5 [who incidentally has been impleaded as Respondent No. 6 in WP(C) No. 273/2007, insisting on the ineligibility of the Petitioner as a candidate for the post of Principal of the college being academically deficient vis-a-vis the prevalent UGC norms requiring 55% marks in the Post Graduate examination, her claim of having been empanelled in the select list of the Assam State Selection Board for the post of Principal in deficit grants in aid colleges of the State has not been controverted. The Interview Board as well, did not construe her to be ineligible on this ground as would be evident from the records relating to the impugned selection. The materials on record are inadequate as well to permit a fair adjudication of the issue more particularly, in absence of any pleaded assertion of the State Respondents in this regard. This aspect of the debate, therefore, is left at that. 14. The advertisement reveals that the candidates eligible and selected by the State Selection Board were construed to be qualified to apply for the post. This aspect of the debate, therefore, is left at that. 14. The advertisement reveals that the candidates eligible and selected by the State Selection Board were construed to be qualified to apply for the post. The Interview Board treated both the Petitioner and the Respondent No. 5 to be eligible and summoned them for the interview to complete their evaluation for eventual recommendations. The guidelines prescribe not only the composition of the Interview Board, but also the norms of eligibility as well as the scheme for awarding marks to the candidates for the various units of assessment for academic and other heads of achievements. The make up of the Interview Board is in conformity with the guidelines and is a well represented body of highly qualified, knowledgeable and experienced persons in the academic field promising a dispassionate and objective evaluation of the candidates. A close scrutiny of the marking pattern for the academic qualification per se does not render the view taken by the Interview Board in awarding the credit marks in the HSLC examination to be illogical or outrageously irrational or insensible to merit repudiation thereof. The marking pattern for the academic qualification, having conceived marks vis-a-vis the overall pursuit of candidates in the examinations as enumerated therein, in the estimate of this Court, the same does not warrant reference to the percentage of marks secured by him/her for working out the average of marks in these examinations to compute the credit mark for HSLC examination. True it is, that as demonstrated by the learned Counsel for the Petitioner, if a candidate is awarded maximum marks in terms of the marking system for different segments of the evaluation, there is a possibility, if the scheme followed by the Interview Board is adopted that the total tally would exceed 100 (if the candidate is a Gold Medalist in Post graduation) the same per se would not render its (Interview Board) view unsustainable. The marking system for academic qualification having prescribed, the maximum marks to be awarded for the achievements on various counts, the same would act as the ceiling therefore and, thus, any mark in excess thereof cannot be allotted. If the average of marks secured in the three examinations is above 10, the maximum, awardable would still be 10. In such a case, the eventuality of the total secured by a candidate can never exceed 100. If the average of marks secured in the three examinations is above 10, the maximum, awardable would still be 10. In such a case, the eventuality of the total secured by a candidate can never exceed 100. The hypothesis on which the Petitioner relies, therefore, does not clinch the issue in her favour. 15. As has been clarified by the Governing Body in its affidavit that while awarding the marks for "Research papers and articles" the standard and quality of the work is evaluated and the same is not contingent only on the number of such presentations by the candidate concerned. In other words, it has been sought to be conveyed that one mark/unit for each Research paper/Article constitutes the maximum appreciation therefore and depending on appraisal of the worth and quality thereof the candidate may secure even less than one mark per literary work. Having regard to the office to which the recruitment is contemplated and the ultimate objective of the appreciation of such academic contribution, this (sic) of the Interview (sic) not in defiance of logic and instead is informed with rationality and objectivity. This coupled with the fact that the allotted marks on each head would be an average of those awarded by the individual members of the Interview Board who in the case in hand are eight in number, the marks accorded to the Petitioner and the Respondent No. 4 under this head cannot ipso facto be said to be incredulous or impossible. 16. Having regard to the competing claims of the parties, vis-a-vis their assessment on account of administrative expertise and extra-curricular activities and in absence of any gross anomaly committed by the Interview Board in that regard, the Petitioner's plea with regard thereto also cannot be sustained. The original records of selection disclose a conscious application of mind by the members of the Interview Board to the guidelines and the norms to be uniformly applied to all the candidates yielding the ultimate result on the basis of which it recommended the Respondent No. 5 and the Petitioner in that order of merit for appointment to the post involved. The records convincingly bear out the progressive steps of the selection process undertaken by the Interview Board including the marks awarded by its members and the eventual score of the candidates by obtaining an average thereof. The records convincingly bear out the progressive steps of the selection process undertaken by the Interview Board including the marks awarded by its members and the eventual score of the candidates by obtaining an average thereof. No anomaly as such is discernible to conclude unwarranted, arbitrary or illogical deviation from the guidelines palpably vitiating the selection process. 17. The Memorandum No. NG(B)AC.34/2003/64-A dated 7.4.2005 of the Director of Higher Education, Assam in clear terms spells out the deadline of 30th April, 2005 to complete the selection process of appointment of regular principals amongst others of the Lakhimpur Commerce College, Lakhimpur indicating in clear terms that otherwise G.I.A. Bill/sanctions therefore would not be released, after May, 2005 and that the college authority would be responsible for any financial or administrative lapse. The definitive bearing of the mandate of this letter, as alluded hereinabove, has been highlighted by the Respondents to justify the alacrity with which the instant selection process was administered. There is no material on record to countervail the same. 18. Rule 18 of the Rules construed as a whole does not impose an insurmountable ban for the Governing Body to hold its meeting without a seven days' notice therefor. The eventualities permitting such a course are clearly contemplated therein. In the background of the imperatives conveyed by letter dated 7.4.2005 to the college by the concerned state authority as well as the adverse consequences mentioned to visit the institution for not compliance thereof, the Petitioner's plea based on this provision of the Rules in absence of any overwhelming evidence to the contrary, thus, cannot be entertained to record vitiation of the otherwise duly conducted selection process. Noticeably, WP(C) No. 5414/2004 as observed hereinabove has since been withdrawn and the Respondent No. 5, who at the relevant time was the Head of the Department of Mathematics of the same college after being drafted into the post of Principal thereof has been rendering his services in that capacity since then till date. 19. The decisions of this Court in Sri Bhaven Chandra Pegu (supra) and Shri Bhupender Singh (supra) in the facts and circumstances of the case are of no avail to the Petitioner. 19. The decisions of this Court in Sri Bhaven Chandra Pegu (supra) and Shri Bhupender Singh (supra) in the facts and circumstances of the case are of no avail to the Petitioner. Not only these deal with the Assam Aided College Management Rules, 1976 which since stands repealed by the Assam Non-Government College Management Rules, 2001, the contents of Rule 15 and Rule 13 of the respective legislations also portray distinguishable features. Requirement of 7 days' notice under 1976 Rules though has been held to be obligatory in the above decisions, the same analogy in absolute terms is not an imperative qua, Rule 13 of the 2001 Rules. 20. In the light of the determination made hereinabove, the petitions are adjudged to be lacking in substance and are accordingly dismissed. No costs.