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2016 DIGILAW 830 (GAU)

Jyotismita Goswami v. State of Assam

2016-09-01

UJJAL BHUYAN

body2016
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. C Baruah, learned counsel for the petitioner, Mr. A. Deka, learned Standing Counsel, Education Department, Assam and Mr. S Borthakur, learned counsel appearing for respondent Nos. 3 and 4. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the Director of Higher Education, Assam, not to grant permission for issuance of advertisement to fill up the post of Assistant Professor of Economics in JDSG College, Bokakhat (college) and further seeks a direction to treat the petitioner as the appointed candidate for the aforesaid vacant post of Assistant Professor of Economics in the said college. 3. According to the petitioner, following a selection process, he was appointed as Assistant Professor of Economics in the JDSG College, Bokakhat in a non-sanctioned post in the year 2007. It is stated that since then petitioner has been rendering her service not only as an Assistant Professor but also as a warden of the girls' hostel, on responsibility being entrusted by the Governing Body of the college. It is stated that petitioner had obtained M. Phil. Degree in July, 2009, and, is presently pursuing PHD degree, which is on the verge of completion. 4. Principal-cum-Secretary of the college published an advertisement on 06.06.2011, to fill up the post of Assistant Professor in Economics along with certain other subjects. It was mentioned that the post for which the advertisement was issued was temporary and salary would be paid as per college norms. 5. Petitioner being eligible, responded to the said advertisement and participated in the selection. Petitioner was selected for the post of Assistant Professor in Economics, where after, the Governing Body of the college adopted resolution dated 05.11.2011, to appoint her as Assistant Professor of Economics, as per recommendation of the selection committee. Thereafter, appointment letter was issued to the petitioner by the Principal of the college and it was stated in the appointment letter that petitioner's service seniority would be counted from the date of rendering service in the college w.e.f. 16.07.2007. 6. Principal of the college informed the Director of Higher Education on 26.09.2012 that Sri Bhogeswar Saikia, Vice Principal and Head of the Department of Economics would retire on 31.10.2012. It was mentioned that petitioner was serving in the college since 2007, without any break. She had made useful contribution towards the college. 6. Principal of the college informed the Director of Higher Education on 26.09.2012 that Sri Bhogeswar Saikia, Vice Principal and Head of the Department of Economics would retire on 31.10.2012. It was mentioned that petitioner was serving in the college since 2007, without any break. She had made useful contribution towards the college. She was selected and appointed as a candidate to fill up the resultant vacancy, due to superannuation of Sri Bhogeswar Saikia. Accordingly, the Director was requested to approve her appointment in the college from the date of retirement of Sri Bhogeswar Saikia. 7. It appears that in this regard, several rounds of correspondences took place between the college authorities and the Directorate of Higher Education, Assam. Petitioner had also submitted application to consider her appointment in the vacancy caused due to superannuation of Sri Bhogeswar Saikia. All of a sudden, Principal of the college wrote to the Director of Higher Education, Assam, on 16.10.2014, seeking permission to issue advertisement to fill up the post in Economics, which fell vacant following retirement on 30.10.2012. 8. It was at that stage that the present writ petition came to be filed. 9. This Court vide order dated 21.11.2014, while issuing notice, passed an interim order to the effect that post of Assistant Professor (Economics) of the college should not be advertised. 10. Thereafter, Principal of the college issued letter to the petitioner on 28.02.2015, informing her that her contractual engagement as a teacher in Economics Department of the college was terminated with immediate effect. Thereafter, writ petition was amended and the aforesaid letter has been brought on record. 11. College authorities, i.e. respondent Nos. 3 and 4 have filed a common affidavit. While acknowledging about the letter dated 26.09.2012, written by the Principal of the college, it is stated that the said letter ought not to have been issued as adjustment of teachers appointed against non-sanctioned posts in sanctioned posts was no longer permissible in view of the Government office memorandum dated 17.07.2004, which was issued only to take care of those lecturers appointed in such manner prior to 17.07.2004. It is stated that while the college authority is sympathetic towards the case of the petitioner, it could not have waited for an indefinite period, awaiting reply from the Director. Therefore, it was compelled to terminate the service of the petitioner as regularisation of her service was not possible. It is stated that while the college authority is sympathetic towards the case of the petitioner, it could not have waited for an indefinite period, awaiting reply from the Director. Therefore, it was compelled to terminate the service of the petitioner as regularisation of her service was not possible. Petitioner was appointed on 08.11.2011, whereas, the sanctioned post fell vacant only on 31.10.2012. 12. Director of Higher Education (respondent No. 2) in his affidavit, has stated that petitioner was appointed by the college on contractual basis on 16.07.2007. Thereafter, following advertisement dated 06.06.2011, which was without approval of the Director, petitioner was appointed on temporary basis. Thereafter, Principal of the college had submitted proposal on 26.09.2012 for adjustment of appointment of the petitioner in the permanent post of Assistant Professor. It is stated that the State Government had brought 52 colleges under the deficit system of grants-in-aid, including the college in question. Thereafter, sanctioning of new posts of lecturer (now designated as Assistant Professor) was stopped. Since the Government was not in a position to sanction new posts, following cabinet decision, an office memorandum dated 17.07.2004 was issued, which permitted absorption of lecturers appointed against non-sanctioned posts in sanctioned vacancies. However, by a subsequent Office Memorandum dated 12.10.2004, appointment of persons against any sanctioned post was stopped. Reverting to the facts of the present case, it is stated that the advertisement was issued in the year 2011 against non-sanctioned post, but the sanctioned post fell vacant only on 31.10.2012. It is stated that the governing body of the college had advertised the post without taking prior approval of the Director of Higher Education. Referring to a judgment of this Court in Mizanur Rahman v. State of Assam; reported in 2012 (1) GLT 520, it is stated that those who were appointed as lecturers against non-sanctioned posts after 17.07.2004, were not entitled to the benefit of absorption under the Office Memorandum dated 17.07.2004. However, it is admitted that following the enactment of the Assam College Employees (Provincialization) Act, 2005, the college has been provincialized. After provincialization, Governing Body of the college has no authority to appoint teaching and non-teaching staff without prior approval of the Government. 13. Petitioner has filed rejoinder affidavits to the affidavits filed by the college authority as well as by the Director. 14. Submissions made by learned counsel for the parties have been considered. 15. After provincialization, Governing Body of the college has no authority to appoint teaching and non-teaching staff without prior approval of the Government. 13. Petitioner has filed rejoinder affidavits to the affidavits filed by the college authority as well as by the Director. 14. Submissions made by learned counsel for the parties have been considered. 15. From the materials placed on record and on consideration of the rival submissions made, it is the admitted position that the College is now a provincialized college after coming into force of the Assam College Employees (Provincialization) Act, 2005. Therefore, it would be apposite to briefly refer to the relevant provisions of the Assam College Employees (Provincialization) Act, 2005 (hereinafter, in short 2005 Act'). The 2005 Act has been enacted to provide for provincialization of the services of employees of non-government colleges in receipt of deficit system of grants-in-aid in the State of Assam. The effect of provincialization has been explained in Section 2(f), which provides for taking over all liabilities for payment of salary etc. of the college employees as admissible to the Government employees of similar category under the Government of Assam. As per Section 3, all employees of the colleges, which have been provincialized, shall be deemed to have become employees of the Government and from the date on which the college has been brought under the deficit system of grants-in-aid. As per Section 6, appointments of both teaching and non-teaching staff of the college shall be made by the Director of Higher Education, Assam, on the basis of selection and recommendation of the Governing Body of the respective colleges. Section 12 is the rule making power. In exercise of powers conferred under Sub-Section (1) of Section 12 of the 2005 Act, the Assam College Employees (Provincialization) Rules, 2010, has been enacted. Rule 5 deals with method of recruitment. As per Rule 5 (2), the post of Lecturer shall be filled up by direct recruitment with prescribed qualifications through open advertisement in 2 (two) leading dailies at least in two consecutive issues. As per Sub-Rule (7) of Rule 5, the Governing Body shall conduct the selection process and recommend to the Director, who shall issue orders of appointment. As per Rule 5 (2), the post of Lecturer shall be filled up by direct recruitment with prescribed qualifications through open advertisement in 2 (two) leading dailies at least in two consecutive issues. As per Sub-Rule (7) of Rule 5, the Governing Body shall conduct the selection process and recommend to the Director, who shall issue orders of appointment. As per Rule 7 (a), all appointments either by direct recruitment or by promotion shall be made by the Director on the basis of recommendation of the Governing Body, which in turn is based on the recommendation of the Selection Committee/Departmental Promotion Committee, as the case may be. The Selection Committee may hold such test or interview for all posts as may be considered necessary. The Director shall communicate his order(s) within 30 (thirty) days. 16. Though the college might have been under the deficit system of grants-in-aid earlier, which provided for a different kind of recruitment procedure, after coming into force of the 2005 Act, more particularly, of the Rules framed thereunder, recruitment procedure has undergone a change and all recruitment procedure carried out after coming into force of the 2005 Act would have to be judged on the touchstone of the 2005 Act and the Rules framed thereunder. The 2005 Act and the Rules framed thereunder do not provide for any such procedure vesting the Director with power(s) to approve or disapprove issuance of advertisement to fill up the post of Lecturer (Assistant Professor). The scheme of the 2005 Act and the Rules framed thereunder makes it abundantly clear that it is the Governing Body, which shall conduct the selection process through a Selection Committee and make recommendation to the Director, who shall, thereafter, issue the order of appointment. 17. Reverting to the facts of the present case, insistence of the Director or rather complaint made by the Director that advertisement issued by the Governing Body of the college on 06.06.2011 was without approval of the Director and therefore, the Director could not have granted approval to the selection made by the Selection Committee and the consequential recommendation of the Governing Body, does not find support from the provisions of the 2005 Act and the Rules framed thereunder. It could have been the procedure prior to enactment of the 2005 Act, but after the 2005 Act has come into force, the recruitment procedure would have to be in tune with the 2005 Act and the Rules framed thereunder. 18. As already noticed above, the power to conduct selection and make recommendation is vested with the Governing Body of the college. Governing Body of the college had the knowledge that the sanctioned post of Lecturer in Economics would fall vacant on 31.10.2012, on superannuation of the incumbent. The 2005 Act and the Rules framed thereunder nowhere prohibits initiation of recruitment process at a date prior to the post falling vacant and no approval of the Director is mandated. The Selection Committee had selected the petitioner and it had the recommendation of the Governing Body. Director had not raised objection regarding validity of the selection or ineligibility of the petitioner. Objection of the Director is that petitioner was appointed against a non-sanctioned post and therefore, she could not have been adjusted against a sanctioned vacancy, which occurred subsequently. In the considered opinion of the Court, such objection raised by the Director does not stand to reason at all. As already noticed above, under the 2005 Act, the selection and recommendation has to be made by the Governing Body of the college to the Director, "who shall issue order(s) of appointment". One possible interpretation of the aforesaid expression as appearing in Rule 5 (7) would be that the Director has no discretion other than to issue order(s) of appointment, based on the recommendation of the Governing Body. Though such an interpretation would appear to be rather inflexible, such a view cannot altogether be ruled out as it is a plausible view. However, one thing is certain, which is that, under the 2005 Act and the Rules framed thereunder, Director is not vested with the power to grant or withhold approval for issuance of advertisement by the college Governing Body to make direct recruitment to the post of Lecturer. A more flexible interpretation of the aforesaid expression would be that the Director can either issue order(s) of appointment on acceptance of the recommendation or refuse to issue order(s) of appointment, if he does not accept the recommendation of the Governing Body, but he certainly cannot direct the Governing Body to issue advertisement afresh. 19. A more flexible interpretation of the aforesaid expression would be that the Director can either issue order(s) of appointment on acceptance of the recommendation or refuse to issue order(s) of appointment, if he does not accept the recommendation of the Governing Body, but he certainly cannot direct the Governing Body to issue advertisement afresh. 19. In such circumstances, Court is of the view that Director of Higher Education is required to reconsider the recommendation of the Governing Body dated 05.11.2011 for appointment of the petitioner, against a sanctioned vacancy, which is now available. Consequently, the action of the Governing Body in abruptly terminating the service of the petitioner on 28.02.2015, that too, without issuing any notice to her and when the Court was in seisin of the matter cannot be sustained and the same is accordingly set aside and quashed. 20. Having regard to the discussions made above, Director of Higher Education, Assam, is directed to take a decision on the recommendation of the Governing Body of the college dated 05.11.2011, in the light of the vacancy occurring in the sanctioned vacancy on 31.10.2012, in terms of Rule 5 (7) and Rule 7 of the Assam College Employees' (Provincialization) Rules, 2010, within a period of 4 (four) weeks from the date of receipt of a certified copy of this order. In the meanwhile, college authorities shall continue the service of the petitioner in the capacity in which she was serving, immediately prior to 28.02.2015 and petitioner would be entitled to all consequential benefits. 21. Writ petition is allowed, but without any order as to cost(s).