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Gauhati High Court · body

2014 DIGILAW 743 (GAU)

Indira Devi v. State of Assam

2014-07-30

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. A.R. Tahbildar, learned counsel for the petitioner and Mrs. R.B. Bora, learned standing counsel, BTC. I have also heard Mr. U.J. Saikia, learned counsel representing the respondent Nos. 4 and 5 and so also Mr. N. Sarma, learned standing counsel, Education Department. Mr. T.J. Mahanta, learned counsel appearing for the respondent No. 6 has also been heard. The challenge in this writ petition is the decision of the respondents to appoint the respondent No. 6 to the post of Lecturer in Economics in the respondent college, although in the merit list, he was placed at serial No. 3 as against the serial No. 2 occupied by the petitioner. It is on record that the selectee No. 1 opted out from the purview of appointment and thus it is the petitioner who occupied the first merit position in the matter of appointment. As against the total marks of 129.1 secured by the petitioner in the selection, the respondent No. 6 secured 122.5. 2. Inspite of the aforesaid recommendation of the petitioner ahead of the respondent No. 6, the Governing Body of the college by its resolution adopted in the meeting held on 10th December, 2010 decided to appoint the respondent No. 6 on the ground that he had Statistics and Mathematics in degree level, which was preferential qualification in the advertisement. The Director of Education, BTC also accepted the said resolution of the Governing Body and appointed the respondent No. 6 vide Annexure-V order dated 21st February, 2011. 3. Mr. Tahbildar, learned counsel for the petitioner placing reliance on the decision of this Court in Maktem Dai Vs. State of Arunachal Pradesh & Ors. reported in 2002 (1) GLT 17 submits that the authorities ought to have adhered to the merit position reflected in the select list and could not have altered the merit position so as to appoint the respondent No. 6 although the petitioner occupied higher merit position than him. 4. Both Mrs. Bora, learned standing counsel, BTC and Mr. reported in 2002 (1) GLT 17 submits that the authorities ought to have adhered to the merit position reflected in the select list and could not have altered the merit position so as to appoint the respondent No. 6 although the petitioner occupied higher merit position than him. 4. Both Mrs. Bora, learned standing counsel, BTC and Mr. Mahanta, learned counsel representing the respondent No. 6, on the other hand, submit that the advertisement having clearly indicated about the preference to be given and the respondent No. 6 having been conformed to the said requirement, the Governing Body in its wisdom selected the respondent No. 6 and thus his appointment is not required to be interfered with exercising the writ jurisdiction. 5. Mr. Saikia, learned counsel representing the Governing Body of this college has adopted the said argument. However, Mr. Sarma, learned standing counsel, Education Department submits that the petitioner having occupied the higher merit position than the respondent No. 6 perhaps he could not have been superseded in the matter of appointment. 6. I have considered the submissions advanced by the learned counsel appearing for the parties and also perused the materials on record. 7. Annexure-A is the advertisement by which the applications were invited for the post of Lecturer of Economics by the respondent College. As laid down in the said advertisement, the candidates were required to posses at least second class Master Degree in the subject of economics. It was also observed that preference would be given to the candidates having Statistics and Mathematics at degree level. The Selection Committee constituted for the purpose of selection, considered all the materials in terms of the advertisement and recommended the following candidates in order of merit:- 1. Shri Dulen Kr. Gogoi - Opted out. 2. Smti. Indira Devi - Petitioner 3. Shri Mrinal Saikia - Respondent No. 6 (appointed). 8. As noted above, the candidate at serial No. 1 opted out from the competition and thus it is the respondent No. 6 and the petitioner, who remained in the fray. Inspite of the aforesaid recommendation of the Selection Committee, the Governing Body of the college, vide its resolution referred to above, decided to recommend the third nominee, i.e. the respondent No. 6 for appointment. The BTC authority also accepted the said recommendation and appointed the respondent No. 6. 9. Inspite of the aforesaid recommendation of the Selection Committee, the Governing Body of the college, vide its resolution referred to above, decided to recommend the third nominee, i.e. the respondent No. 6 for appointment. The BTC authority also accepted the said recommendation and appointed the respondent No. 6. 9. The only ground on which such a course of action has been adopted is that the advertisement indicated the preference for a candidate who had Mathematics and Statistics at degree level. 10. The term "preference" has been interpreted by the Apex Court in the decision in Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu & Ors. reported in (2003) 5 SCC 341 . It has been held that the meaning of preference in the context of selection would mean that preference to additional qualification is applicable only when other things are qualitatively and quantitatively equal. It is only in such circumstances those having additional qualification would be preferred. Same view has been expressed in State of U.P. & Anr. Vs. Om Prakash & Ors. reported in (2006) 6 SCC 474 . 11. In the instant case, the Selection Committee recommended the petitioner ahead of the respondent No. 6 considering all the relevant criteria and materials including their qualification. It is not that both of them have scored equal marks in the selection. As pointed out above, the petitioner secured 129.1 as against 122.5 secured by the respondent No. 6. Thus it is not the case of applying the principle of preference in reference to other things being qualitatively and quantitatively equal. 12. There is another aspect of the matter, once the selection Committee recommended the petitioner ahead of the respondent No. 6, the Governing Body could not have made a super selection bypassing the said selection. Similarly, the Director of Education, BTC also did not apply his mind in reference to the selection that was conducted, but simply accepted the recommendation of the authority. 13. In view of the above, the writ petition is allowed by setting aside and quashing the decision of the Governing Body and consequential appointment of the respondent No. 6. The matter shall now go back to the Director of BTC for passing appropriate order as expeditiously as possible preferably within a month. Writ petition is allowed without, however, any order as to costs. Petition allowed