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2015 DIGILAW 1201 (GAU)

Governing Body of Burhinagar Junior College v. State of Assam

2015-09-17

TINLIANTHANG VAIPHEI

body2015
JUDGMENT : Tinlianthang Vaiphei, J. 1. In this writ petition, the Governing Body of Burhinagar Junior College is the petitioner, which is represented by its President, and is aggrieved by the order dated 9.10.2014 issued by the respondent No. 2 refusing to approve the selection of the pro forma respondent as Principal of the College. The controversy arose when the petitioner issued the advertisement dated 19-6-2014 in the local daily, Assam Tribune, inviting applications from eligible candidates for the post of Principal of the College on a regular pay scale. The date of interview was fixed for 6.7.2014 at 11 AM in the College premises. The respondent No. 4, who then was the Principal-in-Charge, approached this Court in WP(C) No. 3183 of 2014 complaining about the inaction of the respondent authorities in not holding regular selection for the appointment of the Principal. This Court by the order dated 25.6.2014 disposed of the writ petition by directing the respondents including the petitioner, which was arraigned as respondent No. 3 therein, to expedite the selection. Eight candidates appeared in the interview conducted by the Selection Committee: out of the eight candidates, four candidates were qualified as they did not have 10 years of experience and were accordingly not empanelled. The Selection Committee eventually prepared the select list and placed the same before the petitioner in the emergency meeting held on 13.7.2014 and approved the name of the pro forma respondent No. 5. The selection was made on merit and by giving weightage to the position of the respondent No. 5 as the local candidate and his position as the member of the founding family of the College for appointment to the post. The name of the respondent No. 5 was accordingly forwarded to the respondent No. 2 for approval. 2. Aggrieved by this, the respondent No. 4 once again approached this Court in WP(C) No. 3629/14 challenging the selection process in question and praying for a direction to the respondent authority to frame the service rules in accordance with the Assam Junior College (Provincialization) Act, 2012, declare as inoperative the possession of BE/BT degree as the essential qualification for the post of the Principal in provincialized Junior Colleges of the State of Assam in conformity with the NCTE Regulation, 2001 and quash the entire selection process arising out of the said advertisement. This Court, without expressing any opinion on the merit of the case, disposed of the writ petition by the order dated 25.7.2014 by directing the respondent No. 2 to take into consideration the representation of the petitioner (the respondent No. 4 herein) keeping in mind the resolution dated 13.7.2014 but without passing any adverse order without hearing the petitioner as well as the respondent No. 5 herein. The respondent No. 2 thereafter took up the case, fixed the date of hearing and issued an interim order directing the petitioner herein not to give effect to the result of the selection. After conclusion of the hearing, the respondent No. 2 issued the order dated 9.10.2014 declining to approve the selection of the respondent No. 5, and cancelled the said select list by holding that the advertisement giving preference to local candidate was unjust Contending that the rejection of the impugned selection process was based on flimsy ground and is, therefore, mala fide, illegal and arbitrary, the petitioner is filing this writ petition for appropriate remedy. 3. The State-respondents as well as the respondent No. 4 opposed the writ petition and filed their respective counter affidavits. The respondent No. 5, however, supports the stance taken by the petitioner and files his affidavit separately. According to the State-respondents, the Selection Committee selected the respondent No. 5 for the post of Lecturer though he is junior to the respondent No. 4 who secured 211.3 and was placed in the 1st position while the respondent No. 4 obtained 203.8 marks and was awarded 0.1 mark for administrative experience. Out of the eight candidates, who had appeared in the interview, four candidates were from outside and were disqualified though it was not in the advertisement that local candidates would get preference (?). The answering respondent noted in the impugned order that no service rules have been framed for Junior Colleges and that the College authorities should have waited for the rules to be framed or an Office Memorandum or order from the Government or Director laying down the guidelines for selection of the post of Principal for Junior Colleges. The answering respondent noted in the impugned order that no service rules have been framed for Junior Colleges and that the College authorities should have waited for the rules to be framed or an Office Memorandum or order from the Government or Director laying down the guidelines for selection of the post of Principal for Junior Colleges. The decision for regular appointment of Principal would be taken after receipt of the Office memorandum from the Government The respondent authorities also took the view that if there was no restriction of outside candidates, men why the Selection Committee had not interviewed the four outside candidates: the Selection Committee interviewed only four candidates who were working in the said College. It is true that BT/B.ED. Degree is not the essential criteria for the post of Principal of a Junior College as there is no service rule for the same, yet the Selection Committee should have given marks for those who have BT/B.ED. degree. These are the principle stands taken by the respondent authorities in defending the impugned decision. 4. The contention of the respondent No. 4, who has filed her affidavit, is that in the order of provincialization of the College dated 18.3.2014, her name figured on top of the list by virtue of her being the senior-most lecturer of the College and has, therefore, been made the Principal-in-Charge of the College. At the time of issuance of the letter dated 8.10.2013, the College was run as a Venture Institute wherein she was working as the Principal-in-Charge. As she had fulfilled all the required qualifications and the eligibility criteria for the post of Principal on regular basis as per the service rules applicable to secondary educational institute, her service is required to be regularized against the post of Principal. However, the President of the Governing Body of the College in connivance with the Ex-Secretary of the Governing Body (Sri Dina Nath Deka), who is none other than the father of the respondent No. 5, tried to fill up and succeeded in doing so by issuing the letter dated 8.10.2013 for advertising the post with the intention to accommodate the respondent No. 5. It is the allegation of the respondent No. 4 that the father of the respondent No. 5 in his capacity as the then Secretary of the Governing Body of the College had inserted the name of the respondent No. 5 by overwriting in the resolution No. 5(kha) of the Governing Body dated 17.8.1997 though no such resolution was actually adopted. The appointment of the respondent No. 5 as Lecturer of the College is thus unauthorised and illegal. In a provincialized College, the appropriate authority to frame the rules of recruitment for the staff is the Government: the Governing Body has no authority to formulate any conditions of recruitment in a provincialized College. The resolution dated 14.6.2014 is, therefore, without any jurisdiction and is thus a nullity. According to the answering respondent, the President of the Governing Body never consulted the respondent No. 2 prior to issuing the said advertisement. It is the further case of the answering respondent that the order dated 25.6.2014 was passed by this Court by recording the wrong submission of the learned counsel for the petitioner therein and she was consulting her counsel for filing a review petition, but since the date of interview was fixed for 6.7.2014, she appeared before the Selection Committee without prejudice to her claim for modification of the said advertisement dated 19.6.2014. 5. According to the answering respondent, she came to know in the course of her interview that the selection had not been conducted in a free and fair manner or on the basis of merit and experience and that members of the Committee were not given a free hand for selecting the best candidate: no guidelines had been formulated for awarding marks by the members of the Committee, which had conducted the selection at the whims and caprice of the President of Governing Body and with a pre-determined mind to somehow appoint the respondent No. 5 devoid of merit. The four candidates were not called for the interview as they are not from the College: the respondent No. 5 was selected on the ground that he is a local candidate as well as member of the founder family, which is not permissible in law. The four candidates were not called for the interview as they are not from the College: the respondent No. 5 was selected on the ground that he is a local candidate as well as member of the founder family, which is not permissible in law. As there is no specific rules or administrative instructions for selection of the post of Principal of Junior Colleges of Assam, the rules applicable to Higher Secondary Schools should be followed, more so, when the Junior College has two classes i.e. Class XI and Class XII like Higher Secondary Schools. As per the Assam Secondary Education (Provincialized) Service Rules, 2012 as well as the Office memorandum dated 6.6.2014, the minimum qualification for the post of Principal of Higher Secondary School is Master Degree in any stream with BT./B.Ed. degree and 15 years of service as post graduate teacher and must cross 40 years of age and the post is to be filled up by direct recruitment. If such rules are followed, the answering respondent and not pro forma respondent No. 5 should be the one who is eligible for the post Apart from that, the NCTE Regulations have made the B.Ed. degree as compulsory for recruitment to the post of Principal and other teachers up to the senior secondary level. The Selection Committee ought to have followed the principles formulated by the NCTE, namely, the possession of B.Ed./B.T. for appointment to the post of lecturer in a Junior College. These are the sum and substance of the case of the respondent No. 4. 6. After perusing the pleadings of the parties and on hearing Mrs. N. Saikia, the learned counsel for the petitioner, Mr. U.K. Goswami, the learned standing counsel for Education (Secondary) Department, Mr. D.K. Sarmah, the learned counsel for the respondent No. 4 and Mr. S. Sarma, the learned counsel for the respondent No. 5, the first point for consideration is whether the petitioner, which is the Governing Body of the College, has the locus standi to file this writ petition? If the petitioner has no locus standi, the writ petition will not be maintainable and shall have to be dismissed. Who is the petitioner is in this writ petition? The petitioner is admittedly the Governing Body of the Junior College, which is represented by its President. If the petitioner has no locus standi, the writ petition will not be maintainable and shall have to be dismissed. Who is the petitioner is in this writ petition? The petitioner is admittedly the Governing Body of the Junior College, which is represented by its President. The petitioner says that it is aggrieved by the decision of the respondent No. 2 declining to approve its selection of the respondent No. 5 as the Principal of the Junior College. Whether the petitioner is really an aggrieved person is the moot point. Undoubtedly, it is the Governing Body of the College which floated the advertisement inviting intending candidates, who were otherwise eligible for the post of lecturer, to apply for appointment to the said post and which constituted the Selection Committee for selecting the candidate for the post. The Selection Committee eventually prepared the select list wherein the name of the respondent No. 5 was placed on the top of the list and placed the same before the petitioner-Governing Body of the College. The petitioner, after examining the proceedings of the Selection Committee and the select list so prepared approved the name of the respondent No. 5 for the post on the grounds already noticed earlier. The petitioner thereafter forwarded the select list with their recommendation to the respondent No. 2 for approval, which is the requirement of law. The respondent No. 2, however, declined to accept the recommendation of the petitioner and issued the impugned order. The question, on the facts so founds, whether the right of the petitioner is many manner affected and in what way. In my judgment, all that can be said is that the petitioner is obviously dissatisfied or disappointed by the impugned order because the respondent No. 2 did not approve its selected candidate. It must have also felt that it has been taken for a ride by the respondent No. 2, but that is all and nothing more. Being taken for a ride or being snubbed by the act of the respondent No. 2 in refusing to approve its selection cannot, by any stretch of imagination, be construed to be invasion of its right. Being taken for a ride or being snubbed by the act of the respondent No. 2 in refusing to approve its selection cannot, by any stretch of imagination, be construed to be invasion of its right. True, it can be said that the respondent No. 5 can very well complain that its right to be considered for appointment on the basis of the select has been violated and can be said to have, ipso facto, the locus standi to file the writ petition. However, whether he can succeed in the writ petition or not is entirely a different matter. The law is now well-settled from a catena of the decisions of the Apex Court that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of writ petition in public interest i.e. now popularly referred to as "PIL". The existence of the legal right of the petitioner which is alleged to have been infringed is the foundation for invoking the jurisdiction of the High-Court under the aforesaid article. I am fortified in my view by the recent judgment of the Apex Court in Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra, (2013) 4 SCC 465 , which is illustrative and reads thus: "9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he fells within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. [Vide State of Orissa v. Madan Gopal Rungta: AIR 1952 SC 12 , Saghir Ahmad v. State of U.P.: AIR 1954 SC 728 , Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B.: AIR 1962 SC 1044 , Rajendra Singh v. State of M.P.: (1996) 5 SCC 60 : AIR 1996 SC 2736 and Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C. Sekan (2009) 2 SCC 784 ]. 10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised. (Vide Shanti Kumar R. Canji v. Home Insurance Co. of New York: (1974) 2 SCC 387 : AIR 1974 SC 1719 and State of Rajasthan v. Union of India: (1977) 3 SCC 592 : AIR 1977 SC 1361 )." For the reasons stated in the foregoing, this writ petition is not maintainable, which is, therefore, dismissed The interim order, if any, stands vacated. On the facts and in the circumstances of the case, I direct the parties to bear their respective costs.