Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 1041 (GAU)

Dhrubajyoti Goswami v. State of Assam

2014-12-04

UJJAL BHUYAN

body2014
JUDGMENT : Ujjal Bhuyan, J. 1. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of advertisement dated 17.6.2009 issued by the Principal, Shri Bishnudev Janajati (Jr.) College, Jorhat inviting applications from eligible candidates to fill up one vacant post of Lecturer in the Department of Assamese in the said college reserving that post for Other Backward Class (OBC). Petitioner further seeks a direction to consider his case for appointment as Lecturer in Assamese in view of his selection. Case of the petitioner is that he has a brilliant academic career to his credit. After completing his Masters in Assamese literature, he has obtained M. Phill degree as well as Ph.D. degree. He has a number of literary works to his credit. 2. An advertisement was issued by the Principal of Shri Bishnudev Janajati (Jr.) College, Jorhat (respondent No. 4) inviting applications for the post of Lecturer in Assamese. Be it stated that the said Shri Bishnudev Janajati (Jr.) College (hereafter 'College') is a Government aided deficit college. The advertisement was published in the local newspaper on 25.3.2005. The vacancy had arisen following promotion of Smt. Ilu Saikia, Senior Lecturer in Assamese to the post of Principal. Petitioner appeared in the interview on 14.5.2005. Petitioner could gather that in the selection, he was placed at Sl. No. 1 in order of merit. Therefore, he was expecting his selection and appointment against the advertised post. It appears that the Governing Body of the College (respondent No. 3) had submitted proposal to the Director of Secondary Education, Assam on 12.9.2005 for approval to the appointment of Smt. Juri Bora, respondent No. 5. Director of Secondary Education vide letter dated 19.12.2005 informed respondent No. 4 that the grounds given by the Governing Body of the College for appointment of respondent No. 5 as Lecturer in Assamese were not acceptable and hence could not be approved. Respondent No. 3 was requested to resubmit the proposal for appointment with fresh resolution of the Governing Body to be considered for approval. Respondent No. 4 thereafter informed the Director of Secondary Education, Assam vide letter dated 26.12.2005 that an emergent meeting of the Governing Body was held on 26.12.2005 wherein it was unanimously agreed to place respondent No. 5 in the first position, she being the only selected OBC candidate and to take steps for her appointment. Respondent No. 4 thereafter informed the Director of Secondary Education, Assam vide letter dated 26.12.2005 that an emergent meeting of the Governing Body was held on 26.12.2005 wherein it was unanimously agreed to place respondent No. 5 in the first position, she being the only selected OBC candidate and to take steps for her appointment. Thus approval of her appointment was sought for. 3. At that stage, petitioner moved this Court by filing a writ petition which was registered and numbered as W.P.(C) No. 100/2006 challenging the action taken by the respondent Nos. 3 and 4. This Court heard the matter and after due consideration set aside the communication dated 26.12.2005 vide judgment and order dated 2.4.2009 with the observation that it would be open to the Governing Body to take fresh decision in the matter relating to the appointment of Lecturer in Assamese and to proceed thereafter. In the said decision, this Court noticed that there was no indication in the advertisement that the post was reserved for OBC. Petitioner was placed at Sl. No. 1 in order of merit whereas respondent No. 5 was placed at Sl. No. 4. Proceedings of the Selection Committee were accepted by the Governing Body. Governing Body having accepted the proceedings of the Selection Committee had to appoint the person strictly in terms of the merit position. Nothing was placed before the Court to show that there was any backlog in respect of OBC quota. Thus, in such circumstances the communication of respondent No. 3 dated 26.12.2005 was set aside with the observation as indicated above. 4. While petitioner was expecting that the college authorities i.e. respondent Nos. 3 and 4 would act in terms of the above judgment of this Court, respondent No. 4 however issued the impugned advertisement dated 17.6.2009 inviting applications from eligible candidates for appointment in the vacant post of Lecturer in Assamese specifically stating that the said post was reserved for OBC. Aggrieved, the present writ petition has been filed seeking the reliefs as indicated above. 5. This Court by order dated 1.7.2009 passed an interim order to the effect that no appointment to the post of Lecturer in the Department of Assamese in the College should be made without the leave of this Court. 6. Director of Secondary Education, Assam, respondent No. 2 has filed an affidavit. 5. This Court by order dated 1.7.2009 passed an interim order to the effect that no appointment to the post of Lecturer in the Department of Assamese in the College should be made without the leave of this Court. 6. Director of Secondary Education, Assam, respondent No. 2 has filed an affidavit. Stand taken in the affidavit is that pursuant to the advertisement dated 25.3.2005, 17 candidates had applied and appeared in the interview which was held on 14.5.2005. Respondent No. 4 submitted the result-sheet of the interview prepared by the Selection Committee and it was found from the result-sheet that petitioner had secured the 1st position whereas respondent No. 5 had secured 4th position in the selection. However, the Governing Body of the College adopted a resolution to appoint respondent No. 5 on the ground that she belongs to OBC. It is further stated that respondent No. 5 has been working in the College since March, 2004. Directorate of Secondary Education, Assam did not approve the said resolution and requested the College authorities to resubmit the proposal for appointment with fresh resolution. Referring to the earlier decision of this Court, Director has stated that he did not receive any communication from the College authorities regarding implementation of the judgment and order dated 2.4.2009. Even when the impugned advertisement was issued, Directorate of Secondary Education, Assam sought for a detailed report from the College but there was no response. 7. Heard Mr. A.C. Borbora, learned senior counsel for the petitioner, Mr. U.K. Goswami, learned Standing Counsel, Education (Secondary) Department and Mr. D. Baruah, learned counsel for respondent Nos. 3 and 4. Also heard Mr. N. Borah, learned counsel for respondent No. 5. Mr. Borbora, learned senior counsel for the petitioner submits that this Court in the earlier round of litigation had clearly held that the advertised post was not reserved for OBC backlog vacancy and therefore the post in question could not be earmarked exclusively for OBC candidate. In fact, the post advertised is not meant for OBC candidate and therefore the decision of the College authorities to reserve the said post for OBC is illegal and untenable. He further submits that this Court had abundantly made it clear that the Governing Body having accepted the proceedings of the Selection Committee, has to make appointment strictly in terms of the merit position. He further submits that this Court had abundantly made it clear that the Governing Body having accepted the proceedings of the Selection Committee, has to make appointment strictly in terms of the merit position. As such, the Governing Body ought to have appointed the petitioner in terms of his merit position and therefore the decision to go for fresh advertisement is not a correct decision. He submits that petitioner being placed at Sl. No. 1 in the selection on the basis of his merit, Governing Body of the College was required to adopt a resolution appointing him as the Lecturer. Not doing so and instead issuing a fresh advertisement is wholly unjustified and illegal and requires interference by the Court. He also submits that being a single vacancy, the advertised post cannot be reserved for a particular category as it would amount to 100% reservation which is not permissible. In support of his submission, Mr. Borbora has referred to a decision of the Apex Court in the case of Post Graduate Institute of Medical Education & Research, Chandigarh Vs. Faculty Association & Ors., reported in (1998) 4 SCC 1 . 8. Mr. D. Baruah, learned counsel appearing for respondent Nos. 3 and 4 i.e., the College authorities submits that though the said respondents could not file the affidavit, they would like to submit a bunch of relevant documents for consideration of the Court. On permission granted by the Court, learned counsel has submitted a total of 13 documents along with a signed filing memo. Referring to the documents so filed, learned counsel for respondent Nos. 3 and 4 fairly admits that out of 14 teaching staff of the College at present, 4 belong to OBC category. Therefore, question of there being any backlog vacancy for OBC does not arise. The post advertised was earlier held by Smt. Ilu Saikia who has since been appointed as Principal. She belongs to the general category. Therefore, on this count also, the post advertised perhaps could not have been reserved for OBC. He however strenuously argues that this Court in the judgment and order dated 2.4.2009 did not tie down the Governing Body to the selection process undertaken pursuant to the advertisement dated 25.3.2005 but gave liberty to the Governing Body to take a fresh decision. Therefore, on this count also, the post advertised perhaps could not have been reserved for OBC. He however strenuously argues that this Court in the judgment and order dated 2.4.2009 did not tie down the Governing Body to the selection process undertaken pursuant to the advertisement dated 25.3.2005 but gave liberty to the Governing Body to take a fresh decision. In terms of such liberty granted by this Court, the Governing Body decided to go for selection and accordingly impugned advertisement was issued. Therefore, to that extent, there is no infirmity in the impugned advertisement Instead of keeping the advertised post exclusively reserved for OBC, it should be treated as a general vacancy for which selection should now be permitted. 9. Submissions made by Mr. D. Baruah, learned counsel for respondent Nos. 3 and 4 found support from Mr. N. Borah, learned counsel for respondent No. 5. Additionally, he submits that respondent No. 5 being a backward category candidate is entitled to preferential treatment. Submissions made have been considered. 10. Since Mr. Baruah, learned counsel for respondent Nos. 3 and 4 has fairly conceded that the advertised post could not have been earmarked for OBC, the grounds urged and arguments advanced against reserving the advertised post solely for OBC would no longer survive. Therefore, all contentions raised relating to reservation of the advertised post for OBC need not be gone into. 11. However, the subsequent submission of Mr. Baruah that in view of the liberty granted by this Court, the College authorities can go for fresh advertisement would require due consideration. 12. To consider the same it would be apposite to refer to the earlier judgment of this Court dated 2.4.2009. Relevant portion of the said judgment is quoted hereunder:- "9. It is not in dispute that in the advertisement dated 25.3.2005 there is absolutely no indication relating to the reservation of the post for any reserved category including the OBC. It is also not in dispute that the Selection Committee constituted by the Governing Body for the purpose of selection of the candidates pursuant to the said advertisement prepared the merit list wherein the name of the petitioner finds place at Sl. No. 1 and that of the respondent No. 5 at Sl. No. 4. The feet of acceptance of the proceeding of the Selection Committee by the Governing Body is also not in dispute. No. 1 and that of the respondent No. 5 at Sl. No. 4. The feet of acceptance of the proceeding of the Selection Committee by the Governing Body is also not in dispute. The Governing Body having accepted the said proceeding of the Selection Committee has to appoint the persons strictly in terms of the position in the merit list and not otherwise. The Governing Body, however, for good and sufficient reason can decide to appoint any other persons whose names finds place below in the list. 10. In the instant case, it appears from the communication dated 26.12.2005 issued by the Governing Body to the Director seeking prior approval for appointment of the respondent No. 5 that the Governing Body has decided to place the respondent No. 5 at Sl. No. 1 of the select list thereby ignoring the claim of the petitioner and two others who have been placed at Sl. No. 1, 2 and 3 in such merit list. The Governing Body has taken the decision on the ground that the respondent No. 5 belongs to OBC and is entitled to the reservation, without, however, indicating in the aforesaid advertisement that the post is meant for the OBC candidate only. The Governing Body also either by filing affidavit or by producing the records before this Court has not demonstrated that there is backlog in respect of the OBC quota. Hence the ground on which the candidature of the petitioner has been ignored by the Governing Body cannot be accepted. 11. The contention of the learned counsel appearing on behalf of the respondent No. 5 that the petition is premature as the Director is yet to take action pursuant to the Governing Body's communication also cannot be accepted as the petitioner has challenged the said communication as well as the resolution of the Governing Body in placing the respondent No. 5 at Sl. No. 1 in the merit list thereby ignoring the claim of the petitioner. 12. In view of the above, the impugned communication dated 26.12.2005 issued by the Governing Body reflecting its decision and seeking prior approval for appointment of the respondent No. 5 is set aside. It is open to the Governing Body to take a fresh decision in the matter relating to the appointment of Lecturer in Assamese and proceed thereafter." 13. 12. In view of the above, the impugned communication dated 26.12.2005 issued by the Governing Body reflecting its decision and seeking prior approval for appointment of the respondent No. 5 is set aside. It is open to the Governing Body to take a fresh decision in the matter relating to the appointment of Lecturer in Assamese and proceed thereafter." 13. A careful perusal of the aforesaid judgment would indicate that this Court had recorded a finding that the Governing Body had accepted the proceedings of the Selection Committee pursuant to the advertisement dated 25.3.2005. This Court then held that the Governing Body having accepted the proceedings of the Selection Committee, it has to appoint the person strictly in terms of the merit position and not otherwise; however a departure can be made for good and sufficient reason. This Court had also noted that the petitioner was placed at Sl. No. 1 in the select list in order of merit and respondent No. 5 was placed at Sl. No. 4. The ground given by the Governing Body for ignoring the candidature of the petitioner and in preferring the candidature of respondent No. 5 i.e. on the ground of reservation was held to be not acceptable by this Court. It was held to be not a good and sufficient reason to make a departure from the merit position. Therefore, the final order of this Court after quashing the communication of the Governing Body dated 26.12.2005 leaving it open to the Governing Body to take a fresh decision in the matter relating to appointment of Lecturer in Assamese has to be understood and construed in the light of the above findings of the Court. When this Court had held that the Governing Body having accepted the proceedings of the Selection Committee should make appointment in terms of the merit position, it was not open to the Governing Body to abandon the said selection process and to go for fresh advertisement. There has to be some sanctity attached to a selection process. A valid selection process cannot be abandoned at the whims and fancies of the College authorities or of the Departmental authorities. 14. Having regard to the above, this Court is of the unhesitant view that issuance of the impugned advertisement dated 17.6.2009 cannot be justified. The same is accordingly set aside and quashed. Respondent Nos. A valid selection process cannot be abandoned at the whims and fancies of the College authorities or of the Departmental authorities. 14. Having regard to the above, this Court is of the unhesitant view that issuance of the impugned advertisement dated 17.6.2009 cannot be justified. The same is accordingly set aside and quashed. Respondent Nos. 3 and 4 are directed to act on the proceedings of the Selection Committee pursuant to the advertisement dated 25.3.2005 and submit proposal before respondent No. 2 for appointment of Lecturer in Assamese strictly in accordance with the merit position. Writ petition is accordingly allowed. However, there shall no order as to cost.