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Gauhati High Court · body

2010 DIGILAW 370 (GAU)

Sangeeta Baruah Saikia v. State of Assam And Ors.

2010-05-26

P.K.MUSAHARY

body2010
1. Heard Mr. N. Dutta, learned senior counsel assisted by Mr. D.K. Saikia, for the petitioner and Mr. Khatonier, learned Standing Counsel, Education Department, Assam. None appears for the respondent Nos. 3 and 4. 2. Challenge in this writ petition is to the order dated 21.4.2009 passed by the Director of Higher Education, Assam, Kahilipara, whereby the earlier order of approval to the resolution No. 6(a) dated 13.2.2001 communicated under Memo No. G(B)AC.76/2004/11 dated 10.1.2005 was withdrawn with a direction to the college authority to act upon accordingly. 3. A little advertence to the facts of the case is necessary. The petitioner applied for appointment to the post of Lecturer in Geography Department in Digboi College pursuant to an advertisement issued by the said College authority. On being selected, she was appointed as Lecturer in Geography at a fixed pay of Rs. 1,500 per month and subsequently the special body of the College resolved to convert one post of Lecturer in Bengali Department to Geography. The said resolution was forwarded to the respondent-Director for approval. Since the said resolution was pending unattended, the petitioner had to approach this court by filing a writ petition, namely WP(C) No. 25367 2004 which was disposed of on 6.4.2004 with a direction to the respondent authorities to pass appropriate order. Pursuant to the said order, the respondent-Director vide his order dated 10.1.2005 accorded approval to the resolution dated 13.2.2001. After the approval was received, the Governing Body of the College by another resolution decided to convert the posts to some other department. Aggrieved by the said resolution, the petitioner again approached this court by filing a writ petition, being No. WP(C) 6444/2006 which was disposed of on 11.11.2008 remanding the matter to the Director of Higher Education, Assam for taking a decision after meticulously verifying the relevant facts. The operative portion of the aforesaid judgment and order dated 11.11.2008 is quoted herein below: "In the above view of the matter, the issue stands remanded to the Director of Higher Education, Assam for a decision thereon on a meticulous verification of all relevant facts. He would verify all relevant facts and records and decide as to whether his approval dated 10.1.2005 needs to be reviewed or endorsed. For this, the said authority would be at liberty to initiate steps as would be felt necessary to arrive at a just and fair conclusion. He would verify all relevant facts and records and decide as to whether his approval dated 10.1.2005 needs to be reviewed or endorsed. For this, the said authority would be at liberty to initiate steps as would be felt necessary to arrive at a just and fair conclusion. To effectuate such a result both the parties would be notified and be afforded reasonable opportunity of hearing. As the issue is pending for long, the exercise as ordered should be completed within a period of six (6) weeks from the date of receipt of certified copy of this order". Pursuant to the aforesaid order of this court, the respondent-Director has passed the impugned order dated 21.4.2009 (Annexure K to the writ petition). 4. Mr. N. Dutta, learned senior counsel for the petitioner submits that the relevant rules, namely, Assam Non-Government College Management Rules, 2001 provides no power to review the order of approval/decision taken by the Director and as such, the impugned order is unauthorized and illegal. According to him, the power of review must be provided in the Act or Rules and in absence of such power in the statute any order passed reviewing the earlier order is illegal and unsustainable in law. He has taken me through rules 14, 18 and 19 of the aforesaid Rules of 2001. In support of his submission, he has placed reliance on the decision of the Apex Court in the case of Patel Narshi Thakershi and Ors. v. Shri Pradyumansinghji Arjunsinghji, 1971 (3) SCC 844 , wherein it is held that the power of review is not an inherent power and it must be conferred by law either specifically or by necessary implication. 5. Mr. Khatonier, learned Standing Counsel for the Education Department, relying on the averments made in the affidavit filed by the respondent-director, submits that the resolution dated 13.2.2001 was adopted by the Governing Body of the College and the same was approved by the respondent-Director at the time when there was no permission for opening the Geography Department in the College and the petitioner was appointed against a non-sanctioned post on a fixed monthly salary w.e.f. 4.9.2000. It was subsequently found that the approval to the resolution dated 13.2.2001 was accorded by mistake, and as such, the respondent-Director felt it necessary to review the earlier approval order dated 10.1.2005. It was subsequently found that the approval to the resolution dated 13.2.2001 was accorded by mistake, and as such, the respondent-Director felt it necessary to review the earlier approval order dated 10.1.2005. Moreover, the Governing Body of the College by another resolution dated 4.12.2005 reviewed the earlier resolution and requested the respondent-Director to re-convert the Geography teacher to Computer Application Department. 6. I have carefully considered the pleadings and the submissions made by the learned counsel for the parties. It appears that the subsequent resolution dated 4.12.2005, if it is implemented, there would be no Lecturer in the Geography Department. On the other hand, it is found that the respondent-authorities have already given permission for opening the Geography Department in the said College. If that be so, there was necessity for retaining the post of Geography teacher and no justification could be given in passing the impugned order dated 21.4.2009, inasmuch as, a particular department cannot be left without any teacher. 7. It has been submitted at the bar that there were 3(three) posts in the department of Bengali and on conversion of one post to the Geography Department, there would remain 2(two) more posts of Lecturer in the Bengali Department. From Annexure DC to the writ petition, it is found that enrolment of students in the Bengali Department has been limited to maximum 21 in the year 2000-2001 in the T.D.C. 1st year. As per the aforesaid enrolment chart of the College during 2008-2009, there were only 16 students in the 1st year TDC, 14 students in the 2nd year TDC and Nil in the 3rd year TDC. If it is so, the department of Bengali could be managed by existing two Lecturers. As per Annexure X to the writ petition, the enrolment of Geography Department in the years 2008-2009 is as under: "TDC 1st year 16 TDC 2nd year 16 TDC 3rd year 11" 8. Comparatively there is better enrolment in the department of Geography in the said College, but unfortunately l(one) Lecturer has to manage as many as 3 courses, namely, TDC 1st year, 2nd year and 3rd year which is humanly not possible and not to the advantage of the students. Comparatively there is better enrolment in the department of Geography in the said College, but unfortunately l(one) Lecturer has to manage as many as 3 courses, namely, TDC 1st year, 2nd year and 3rd year which is humanly not possible and not to the advantage of the students. In my considered view, the first resolution dated 13.2.2001 adopted by the Governing Body of the College was adopted with a view to cope with the demand of a Lecturer in the Geography department and it was rightly approved by the respondent-director. I see no justification in passing the impugned review order by the respondent-director, no matter the College Governing Body passed a resolution on 4.12.2005. 9. The power to review its own order by an authority is not available unless it is provided in the statute itself. This being the settled law and no provision having been made in the 'Assam Non-Government College Management Rules, 2001' as discussed earlier, in my considered view, the decision rendered by the Apex Court in Patel Narshi's case (supra) would be applicable to the present case. 10. Considering the entire facts and circumstances of the case, I hold that the impugned order dated 21.4.2009 was passed by the respondent-Director without being authorized by the Rules and the same is liable to be set aside and quashed. Accordingly, the same is set aside and quashed. 11.1 pass no order as regards the prayer for regularization of the services of the petitioner. However, the petitioner would be at liberty to file a representation before the appropriate authority for consideration and regularization of her services in accordance with existing rules, law and procedure. 12. With the above observations and directions, this writ petition stands disposed of.