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2015 DIGILAW 495 (GAU)

NG. Dayamay Singha v. State of Assam and Ors.

2015-04-27

MANOJIT BHUYAN

body2015
1. Heard Mr. A. Dhar, learned counsel appearing for the petitioners. Also heard Mr. M.K. Misra, learned counsel appearing for respondent Nos.l and 2, Mr. J. Patowary, learned counsel appearing for respondent Nos.3 and 4 and Mr. A.R. Bhuiyan, learned counsel appearing for respondent No.5. 2. As agreed to by learned counsel appearing for the parties, this matter is taken up for final disposal. 3. The petitioners have put to test the letter dated*20.7.2013 issued under the hand of the Deputy Secretary to the Government of Assam, Higher Education, addressed to the Director of Higher Education (also alluded to as DHE), Assam indicating that the names of five persons shown in the said letter have received one time approval towards their appointment to the post of Principal in the provincialised Colleges and, accordingly, no steps be taken regarding appointment of the regular Principal in the said Colleges until rules are framed/finalized. By the said letter dated 20.7.2013, the Government of Assam in the Higher Education Deptt. conveyed its approval allowing appointment of only the five numbers of persons indicated therein who have already been selected by the concerned Governing Body of the Colleges for the post of Principal. Whether the said letter dated 20.7.2013 insofar as the Respondent No.5 is concerned, is legal and valid vis-a-vis the facts and law in question, is the issue for determination in the present proceedings. 4. The petitioners, who are serving at Lala Rural College, Hailakandi as Teachers and as Members of the Governing Body have brought to challenge the aforesaid letter/order dated 20.7.2013. 5. The facts unfolding is that on 29.11.2011, an advertisement was issued inviting applications for the post of Principal at Lala Rural College, Lala, Hailakandi, under the hand of the President of the Governing Body of the said College. Pursuant thereto, a Selection Committee was constituted and the case of the lone aspirant, i.e., respondent No.5 was taken up for consideration. According to the Report of the Selection Committee, the said respondent No.5 failed to fulfill the minimum requirement of API score of 160. In fact, by Resolution No.l of 23.1.2012, the Governing Body of the College, on the basis of the Report of the Selection Committee, did not accept the candidature of the respondent No.5 and unanimously resolved to accept the Report of the Selection Committee. In fact, by Resolution No.l of 23.1.2012, the Governing Body of the College, on the basis of the Report of the Selection Committee, did not accept the candidature of the respondent No.5 and unanimously resolved to accept the Report of the Selection Committee. What followed thereafter is nothing but persistent interference by the DHE, Assam towards selection and appointment of the respondent No.5. By a letter dated 1.2.2012, addressed to the President of the Governing Body, the DHE indicated that although Respondent No.5 had secured an API score of 147, however, after verification it appeared that the said respondent No.5 had secured an API score of 167. The said letter of 1.2.2012, according to the writ petitioner and as categorically stated at paragraph 11 of the writ petition, having been delivered to the College administration by hand by the respondent No.5, a further Resolution was adopted on 23.8.2012 with regard to ascertaining the authenticity of the said letter dated 1.2.2012. 6. The persistent effort of the Directorate towards appointment of respondent No.5 also figured in the letter dated 18.10.2012, issued under the hand of the Deputy Director of Higher Education, Assam. By the said letter, the Principal In-charge of Lala Rural College was informed that the calculation with regard to API score of Respondent No.5 had been re-assessed by appointing one Dr. Santanu Kr. Baishya, Associate Professor of Cotton College and Sri Jagannath Patgiri, Associate Professor of Pragjyotish College, Guwahati and the said experts had submitted a Report on 12.10.2012 indicating that API score in respect of the respondent No.5 is 160. 7. The confusion arising with regard to API score in respect of the respondent No.5, which according to the Director is 167 and according to the letter of the Deputy Director of Higher Education is 160 and that of the Selection Committee being 147, the Governing Body of the College adopted another Resolution on 6.4.2013 resolving to refer the two API scores received from the DHE and the Dy. DHE respectively to the Selection Committee, earlier constituted for appointment of Principal at Lala Rural College, for the purpose of undertaking scrutiny and for seeking valued opinion in order that a meeting of the Governing Body can be held on the findings of the Committee and the entire matter disposed of finally. The Principal In-charge was requested to arrange the meeting of the Selection Committee accordingly. The Principal In-charge was requested to arrange the meeting of the Selection Committee accordingly. Each of the members of the Selection Committee were apprised of the fact situation vide letter dated 16.4.2013 with request to suggest a date, as per their availability, in order that a meeting of the Selection Committee could be held. Pursuant thereof, the Selection Committee met on 4.5.2013 for scrutiny of API score of respondent No.5 and on a detailed consideration held that the API score to which the Respondent No.5 is entitled, stands at 147. Two letters followed thereafter -- one from the Director, Higher Education Assam alleging willful negligence on the part of the President of the Governing Body with regard to appointment of regular Principal at Lala Rural College, the other being the impugned letter dated 20.7.2013 whereby the Government of Assam in the Higher Education Deptt. had indicated its approval as a one-time measure towards selection made by the concerned Governing Bodies in respect of the five Colleges mentioned therein. At serial No.5 of the said impugned letter dated 20.7.2013, the name of respondent No.5 figured as against Lala Rural College, Lala. The petitioners have also brought on record the orders passed by this court in the present proceedings and the interpretation rendered by the DHE in respect of the court's order dated 2.3.2015 which, according to the petitioners, is wholly incorrect and is only an attempt to pressurize the Governing Body of the College to act in favour of respondent No.5. By once such communication dated 6.4.2015, the DHE has also indicated that steps would be taken which may lead to dissolution of the Governing Body. 8. Mr. A. Dhar, learned counsel appearing for the petitioners submits that appointment of a Principal of a College is governed under the Assam College Employees (Provincialisation) Rules, 2010. Rule 5 thereof prescribes the manner of recruitment to the post of Principal, which has to be by direct selection. Under the said rule 5, the Governing Body is to constitute a Selection Committee and the said Committee shall, on the basis of the interview from amongst eligible candidates select the candidate, whereupon the Governing Body will make recommendation to the Director, who is required to issue orders of appointment. Under the said rule 5, the Governing Body is to constitute a Selection Committee and the said Committee shall, on the basis of the interview from amongst eligible candidates select the candidate, whereupon the Governing Body will make recommendation to the Director, who is required to issue orders of appointment. Rule 7 further makes it clear that all appointments either by direct recruitment or by promotion are to be made by the Director on the basis of the recommendation of the Governing Body based on the recommendation of the Selection Committee duly constituted. Rule 7(c) envisages that the Selection Committee may hold such test of interview for all posts as may be considered necessary and in respect of the post for which the University Grants Commission (UGC) has prescribed norms, the same are to be followed. Mr. Dhar on the basis of the provisions under the Assam College Employees (Provincialisation) Rules, 2010, further submits that the impugned order of 20.7.2013 cannot stand the scrutiny of law, inasmuch as, respondent No.5 was neither selected by the Selection Committee nor recommended by the Governing Body of the College. As such, the said order/letter dated 20.7.2013, insofar as respondent No.5 is concerned, is wholly void and non est in law, being rendered without any legal basis. 9. Mr. A.R. Bhuiyan, learned counsel for respondent No.5 as well as Mr. M.K. Misra, learned counsel for respondent Nos.l and 2 submits that the petitioners are without locus to institute the present proceeding, inasmuch as, they are not aggrieved parties. Mr. Bhuiyan further submits that since the case involves ascertainment of the correct API score, as such the Selection Committee ought to have been arrayed as a party respondent so that respondent No.5 could have got an opportunity to understand the yardstick adopted by the Selection Committee in determining the API score. 10. Mr. J. Patowary, learned counsel appearing for the respondent Nos.3 and 4, i.e., the President as well as the Secretary of the Governing Body, Lala Rural College, submits that the impugned letter dated 20.7.2013 is wholly illegal and a void document, inasmuch as, the Respondent No.5 was neither selected by the Selection Committee nor any recommendation towards appointment as a regular Principal of the College was made by the Governing Body. 11. 11. The question with regard to locus of the writ petitioners do not pose a serious question for determination in view of the facts unfolding from available records as well as the stand of respondent Nos.3 and 4 being the President and Secretary of the Governing Body, who fully support the case of the petitioners. Further, the writ court cannot ignore and remain a silent spectator to the blatant illegal and arbitrary action of the State respondent, disclosing not only an adamant attitude to somehow give benefit to respondent No.5 but also going to the extent to shower benefit contrary to provisions of the Rules in question. 12. Considering the rival submissions made by the parties and upon consideration of the provisions under the Assam College Employees (Provincialisation) Rules, 2010, there is no gain-saying that the impugned letter dated 20.7.2013 had been passed without any basis and in utter disregard to the provisions of law with regard to selection and appointment of a Principal of a College. The one-time approval granted by the Government of Assam in the Higher Education Department, as indicated in the impugned letter dated 20.7.2013, is an action without legal support. In fact, the approval conveyed by the Higher Education Department is not envisaged under the provisions of the Assam College Employees (Provincialisation) Rules, 2010. 13. In view of the above, the letter/order dated 20.7.2013 (Annexure 11 to the writ petition) warrants interference, which is accordingly done. Resultantly, the said impugned order dated 20.7.2013, insofar as the respondent No.5 is concerned, is set aside and quashed. 14. The writ petition accordingly stands allowed, however, without any order as to costs.