Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 314 (GAU)

Barnaul Mahanta v. State of Assam and Ors.

2010-05-04

B.D.AGARWAL

body2010
1. This writ petition under article 226 of the Constitution of India has been filed seeking a writ in the nature of certiorari so as to quash and set aside the order dated 22.3.2007 passed by the Director of Secondary Education, Assam approving the resolution No.2 dated 24.7.2006 taken by the Governing Body of Behali College (Junior) selecting the respondent No.5, Smt. Jyotsna Devi for her appointment as a lecturer in History in the said College and also letter dated 13.10.2006 issued by the Education (Secondary) Department, Government of Assam condoning the overage of the respondent No.5 by two years seven months. At the same time, the petitioner is also seeking a writ in the nature of mandamus so as to direct the College Authority (respondent Nos.3 and 4) to appoint her as a lecturer in History in their College. 2. I have heard Shri P. J. Phukan, learned counsel for the writ petitioner as well as Sri M.R. Pathak, learned standing counsel for the respondent Nos.1 and 2. Also heard Sri B. Goswami, learned counsel for the respondent Nos.3 and 4. The private respondent No.5 was represented by Sri S.S. Dey, assisted by Sri N. Bora, learned counsel. I have also perused the pleadings and counter pleadings of both sides. 3. The relevant facts that are necessary to decide this writ petition are as follows : The Behali Junior College is a Government aided Junior College and imparting education up to 12th standard. Earlier the college was known as the Behali College imparting education up to Degree Course. However, after introduction of the concept of Higher Secondary Course (10+2) the degree section of Behali College was separated and the Higher Secondary Section was brought under Behali Junior College with separate Governing Body. In the year 2006 the college intended to recruit one lecturer in History Department and for this purpose an advertisement was published in a local English daily, i.e., "The Assam Tribune" on 28.2.2006. Pursuant to the said advertisement 11 candidates appeared for interview. Thereafter the Governing Body of the College took a resolution on 24.7.2006 selecting the respondent No.5 for her appointment as a lecturer in History and forwarded the same to the Government for approval. Pursuant to the said advertisement 11 candidates appeared for interview. Thereafter the Governing Body of the College took a resolution on 24.7.2006 selecting the respondent No.5 for her appointment as a lecturer in History and forwarded the same to the Government for approval. In the meanwhile, having come to know of her selection, the respondent No.5 also approached the Government for condonation of her age to facilitate her appointment and the prayer was accepted by the Government and the age was condoned vide impugned letter dated 13.10.2006. It was followed by appointment of the respondent No.5 in the aforesaid post and the appointment was approved by the Government vide impugned order dated 22.3.2007. 4. The selection and appointment of respondent No.5 in Behali College (Junior) as a lecturer in History has been challenged only on the ground that at the time of her selection, she had already crossed the upper age limit of 36 years and as such the Government had no authority, rather it was incompetent, to give post selection relaxation in the age. In fact, the stand of the learned counsel for the writ petitioner is that the writ petition has been filed only to examine the legality of the relaxation of age after selection of the candidate and not on any other ground and this fact was duly recorded in the order dated 30.3.2010 in the writ petition. In other words, neither the writ petitioner has challenged any irregularity in the selection process nor the fact that as per the select list the writ petitioner was placed in the first position, followed by the writ petitioner. Hence, I am now proceeding to examine as to whether the Governing Body of the College committed any illegality in selecting the respondent No.5 for the aforesaid post and as to whether respondents Nos.1 and 2 also committed any illegality in relaxing age of respondent No.5 to facilitate her appointment in the said college as a lecturer in History. 5. Hence, I am now proceeding to examine as to whether the Governing Body of the College committed any illegality in selecting the respondent No.5 for the aforesaid post and as to whether respondents Nos.1 and 2 also committed any illegality in relaxing age of respondent No.5 to facilitate her appointment in the said college as a lecturer in History. 5. Referring to various provisions of the Assam Government Aided Junior College Management Rules, 2001 ('the 2001 Rules'), Shri Phukan, learned counsel for the petitioner submitted that all such Government Aided Junior Colleges are established and run under the supervision of the Government inasmuch as the Governing Body is also constituted on the basis of a Notification issued by the Director of Secondary Education under rule 4 and resolutions and decisions of the Governing Body are required to be approved by the said authority of the Government under rule 18 of the Rules. Shri Phukan also submitted that in view of the aforesaid legal position the Behali College (Junior) was also incumbent to adhere to the age limit fixed for giving public employment, prescribed by the Government. It was also contended that it is the settled position of law that no defect in the selection can be cured by any order of the Government after the selection process is over. Precisely, it was the submission of the learned counsel that the Government was incompetent to relax the age of the respondent No.5 after the selection process was over inasmuch as the said respondent was already ineligible for appearing in the interview nor the Governing Body of the College could have selected her since she had crossed the upper age limit. In support of the submissions, learned counsel for the writ petitioner cited the judgment of the Hon'ble Supreme Court rendered in the case of T. Jayakumar v. A. Gopu, AIR 2008 SCW 6620 and the judgment of this court rendered in the case of Mahesh Gogoi v. State of Assam, 2009 (3) GLT 212. 6. On the other hand, learned counsel for the respondents submitted that under 2001 Rules, there is no age bar for selecting a suitable candidate either in the teaching or non-teaching staff and as such the respondent No.5 obtained relaxation order as an abundant caution. 7. 6. On the other hand, learned counsel for the respondents submitted that under 2001 Rules, there is no age bar for selecting a suitable candidate either in the teaching or non-teaching staff and as such the respondent No.5 obtained relaxation order as an abundant caution. 7. To understand and appreciate the aforesaid issue, it is necessary to look at the terms and conditions set out by the Governing Body for appointment of the lecturer, which can be found in the advertisement and the contents of the advertisement are reproduced below in extenso : "THE ASSAM TRIBUNE, GUWAHATI TUESDAY, 28th FEBRUARY, 2006 Application from intending candidates possessing M.A. Degree in History with minimum 50% marks in aggregate are invited for a vacant post in History in Behali College (Jr.) The post is subject to the approval of the Higher authorities concerned. Apply to the Principal of Secretary, Behali College (Jr.) P.O. Borgang. Pin-784167 Dist-Sonitpur (Assam) within 10 days from the date of publication." 8. Apparently the advertisement specified only the educational qualification and the minimum marks that must have been obtained by the candidates in the Post Graduate Degree. In other words, the advertisement was totally silent to indicate the age of the candidates nor it put any restriction beyond any certain age. 9. During the course of argument it appeared to me that more than one Acts and Rules are governing the field of management of Junior Colleges. The Acts are the Assam Secondary Education (Provincialisation) Act, 1977 ('Provincialisation Act, 1977') and the Assam Higher Secondary Education Act, 1984 ('1984 Act'). The Rules are the Assam Government Aided Junior College Management Rules, 2001 (ibid as 2001 Rules') and the Assam Secondary Education (Provincialised) Service Rules, 2003 ('2003 Rules'). 10. The Assam Secondary Education (Provincialisation) Act, 1977 has been basically enacted for the purpose of Provincialisation of Secondary Education and as per section 2(x), "Secondary Education" means education imparted up to class XII. Apparently this Act does not deal with the procedure for appointment of teaching and non-teaching staff in the Colleges, imparting secondary education. 11. Under the Assam Higher Secondary Education Act, 1984, the "Higher Secondary School" has been defined under section 3(g) and "Junior College" has been defined under section 3(h). Apparently this Act does not deal with the procedure for appointment of teaching and non-teaching staff in the Colleges, imparting secondary education. 11. Under the Assam Higher Secondary Education Act, 1984, the "Higher Secondary School" has been defined under section 3(g) and "Junior College" has been defined under section 3(h). The respective definitions as per the Act are reproduced below : "(g) "Higher Secondary School" means a School or Department of a School giving instruction in Higher Secondary Education (plus two stage) and preparing students for Higher Secondary School Leaving Certificate Examination; (h) "Junior College" means a College or Department of a College giving instructions in plus two stage and preparing students for Higher Secondary School Leaving Certificate Examination;" 12. Although section 28 of the 1984 Act empowered the Government to frame Rules but the learned counsel for both sides could not place any Rules framed under section 28 of the aforesaid Act. Similarly, the Provincialisation Act, 1977 also empowers the Government to frame Rules. However, instead of framing any rule under section 8 Of the Provincialisation Act, 1977 the Government has framed 2003 Rules in exercise of powers conferred upon the Governor of Assam under proviso to article 309 of the Constitution of India. Be that as it may, definition rule 2 has clarified that 2003 Rules are meant to implement the provisions of 1977 Act. In these Rules also the "the Higher Secondary School" has been defined under rule 2(r) notifying that schools imparting education up to Class-XII or teaching classes from Higher Secondary 1st year and 2nd year will fall under the purview of Assam Secondary Education (Provincialisation) Act, 1977. In the 2003 Rules, there is no reference of 1984 Act. However, under rule 9 it has been prescribed that a candidate for direct recruitment to the service should be within the age limit of 21-36 years as on first day of January of the year of advertisement. It is pertinent to reiterate here that the 1984 Act, that has been enacted to regulate the Higher Secondary Education, is totally silent about the teaching and non-teaching staff and also about the age limit for the purpose of appointment and retirement, etc. 13. As could be gathered from the affidavits filed by the respondents, the respondent No. 5 was appointed under the provisions of the Assam Government Aided Junior College Management Rules, 2001. 13. As could be gathered from the affidavits filed by the respondents, the respondent No. 5 was appointed under the provisions of the Assam Government Aided Junior College Management Rules, 2001. Apparently, it is not clear whether 2001 Rules have been framed either under the 1984 Act or under 1977 Act. Be that as it may, 2001 Rules have been framed especially for governing the management and control of colleges, imparting education in plus two stage. Hence, it has to be inferred that selection of respondent No.5 is governed by these Rules. 14. It is true that Repeal and Savings provision under rule 32 in 2003 Rules it has been clarified that all Rules, corresponding to these Rules in force immediately before commencement of these Rules shall stand repealed. However, the Rules are applicable only for Provincialisation Act, 1977 and not for 1984 Act. In my considered opinion, both 1977 Act and 1984 Act operate in different fields. The basic object to enact the 1977 Act is for provincialisation of secondary education, whereas, 1984 Act has been enacted to regulate, supervise and develop the higher secondary education in the State of Assam. Hence, I am of the considered opinion that conditions incorporated in 2003 Rules, with regard to appointment and service conditions of persons appointed in Higher Secondary Schools cannot be made applicable to the staff appointed by the Governing Bodies of Junior Colleges. Even otherwise, the admitted position is that the respondent No.5 has been appointed adhering to the provisions of Government Aided Junior College Rules, 2001 and not 2003 Rules. 15. Under 2003 Rules 'Junior College' has not been defined, whereas, 2001 Rules have defined 'Junior College' under rule 2(vii). No doubt, the definition of 'Higher Secondary School' employed in 2003 Rules is very akin to the definition of 'Junior College' defined under 2001 Rules. Even then, the appointment of respondent No.5 cannot be considered under the provisions of 2003 Rules, more particularly, regarding age criteria, inasmuch as there is no corresponding stipulation in 2001 Rules. Coupled with these facts the advertisement of the college authority also did not specify the age of the candidate. Situated thus, I hold that the selection of respondent No.5 was not de hors to the rules nor the Government committed any illegality in approving her appointment. Coupled with these facts the advertisement of the college authority also did not specify the age of the candidate. Situated thus, I hold that the selection of respondent No.5 was not de hors to the rules nor the Government committed any illegality in approving her appointment. I am also of the view that the respondent No.5 obtained condonation of her age only by way of abundant caution. 16. With regard to the authorities citied on behalf of the writ petitioner it can only be said that the law regarding post-selection relaxation of age and other conditions of service have been laid down under different circumstances. In the case of T. Jayakumar (supra), there was a defect in the application inasmuch as the applicant failed to put his signature. Hence, a second application was submitted by the candidate and that was received by the authorities beyond the last date fixed for receipt of application. Even then the application was accepted and the candidate was called for interview but, ultimately, he was not selected by the concerned authority for the post, realising the fact of delayed submission of application. Under these circumstances, the hon'ble Supreme Court held that the selection authority was not precluded from examining whether the application was complete, in order, within time or otherwise acceptable. The ratio of the judgment is that a defect cannot be cured post selection process. However, in the case before me under 2001 Rules, there was no impediment for the Governing Body of the College to select any person beyond 36 years of age nor the advertisement had stipulated any such age bar. 17. In the case of Mahesh Gogoi (supra) the first candidate in the merit list was not selected for appointment as lecturer in the college on the ground of overage. It is not clear from the judgment whether the petitioner was a candidate of a Junior College or a Degree College. Besides this, the petitioner in the said case had not even applied for relaxation of the age till the disposal of the writ petition (para 10), whereas in the case before me, the age of the respondent No.5 has already been relaxed and her appointment has also been approved by the Government. Besides this, the petitioner in the said case had not even applied for relaxation of the age till the disposal of the writ petition (para 10), whereas in the case before me, the age of the respondent No.5 has already been relaxed and her appointment has also been approved by the Government. There can be no quarrel as regards the law laid down by the Apex Court and by this court in the case of Mahesh Gogoi that the terms and conditions of appointment in a Government job cannot be relaxed, once the selection process takes off. However, as noted earlier, neither the advertisement issued by Respondent Nos.3 and 4 stipulated any age limit for the candidates nor 2001 Rules governing the field of management of Junior Colleges prescribes any age limit for teaching and non-teaching staff. 18. For the reasons alluded hereinabove, I hold that the writ petition has no merit. Consequently, it is dismissed. No costs.