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Gauhati High Court · body

2017 DIGILAW 107 (GAU)

Mrinal Kumar Borah v. State of Assam

2017-01-24

UJJAL BHUYAN

body2017
JUDGMENT : This order will dispose of both WP(C) Nos.5441 and 5668/2015, as subject matter of the two writ petitions are inter-related and identical. 2. Both the writ petitions were heard on 19.01.2017 and today is fixed for delivery of judgment. Accordingly judgment is dictated in the open Court. 3. Heard Mr. P Mahanta, learned counsel for the petitioner in WP(C) No.5441/2015, Mr. SK Talukdar, learned counsel for the petitioner in WP(C) No.5668/2015, Mr. B Kaushik, learned Standing Counsel, Higher Education Department, Govt. of Assam and Mr. SN Sarma, learned Senior Counsel appearing for the Governing Body of Biswanath College. Also heard Mr. A Chamuah, learned Standing Counsel, University Grants Commission (UGC) and Mr. R Saloi, learned counsel for respondent No.6 in WP(C) No.5441/2015 (who is respondent No.7 in WP(C) No.5668/2015). 4. Matter relates to selection and appointment of Principal in the Biswanath College in the district of Sonitpur. 5. In WP(C) No.5441/2015, it is stated that an advertisement was published in the daily newspaper, “The Assam Tribune” on 07.12.2014 for the post of Principal in Biswanath College (College). Petitioner responded to the said advertisement. However, for undisclosed reason, the interview was not held whereafter, the post was re-advertised in the said newspaper on 12.04.2015. In the re-advertisement, it was mentioned that candidates who had already applied for the post of Principal pursuant to the earlier advertisement need not apply again. Thereafter, interview was held on 27.05.2015. According to the petitioner, in this interview, he was selected and placed in the first position having fulfilled all eligibility criteria. Though recommendation was made by the Governing Body, Director of Higher Education, Assam (Director) cancelled the said selection on 10.07.2015 and directed re-initiation of the selection process. Following such directive, fresh interview was held on 25.08.2015. Altogether seven candidates, including petitioner and respondent No.6 appeared in the interview. It is stated that in the said interview, petitioner was treated as an overaged candidate and not selected. On the contrary, the Selection Committee undeservingly awarded 10 marks under the head of “administrative experience” to respondent No.6 and thereby, selected him. Governing Body of the College thereafter adopted resolution on 26.08.2015 to appoint respondent No.6 as Principal of the College and forwarded the same to the Director for approval. 6. Contention of the petitioner is that respondent No.6 did not have the eligibility for appointment as Principal. Governing Body of the College thereafter adopted resolution on 26.08.2015 to appoint respondent No.6 as Principal of the College and forwarded the same to the Director for approval. 6. Contention of the petitioner is that respondent No.6 did not have the eligibility for appointment as Principal. It is stated that respondent No.6 did not have any guideship from Gauhati University, which is the parent University of the College; rather, he had guideship from a private University called, Himalayan University in the state of Arunachal Pradesh. It is stated that Himalayan University is not a recognized University under the UGC and does not have jurisdiction over the State of Assam. Petitioner has contended that he is the only eligible candidate amongst all the candidates who had appeared in the interview and, therefore, the Selection Committee made a manifest error in selecting respondent No.6 overlooking the eligibility and better merit of the petitioner. It is however, contended that respondent No.6 is a teacher in the College in the Department of Zoology and possibly this had influenced the selection. 7. Aggrieved, the writ petition came to be filed. 8. On 09.09.2015, this Court passed an interim order to the effect that no appointment should be made to the post of Principal of the College. Thereafter, on 22.09.2015, this Court issued notice and passed an interim order directing the Director of Higher Education not to approve the recommendation of the Governing Body for the post of Principal without the leave of the Court. 9. Governing Body of the College (respondent Nos.3 & 4) in their affidavit has stated that the interview which was held on 25.08.2015 was a transparent one and was conducted strictly as per rules and regulations of UGC and the State Government. Earlier interview held on 27.05.2015 was cancelled by the Governing Body of the College on 02.06.2015 because it was found that the local MLA was a member of the Selection Committee and he had taken active part in awarding marks to the candidates. So it was decided to reconstitute the Selection Committee. After obtaining approval of the Director, fresh interview was held on 25.08.2015 by the reconstituted Selection Committee. In this interview, 7 candidates had appeared. After the statement of marks was prepared, it was found that respondent No.6 stood first and another candidate Dr. Ajit Hazarika (petitioner in WP(C) No.5668/2015) secured the second position. After obtaining approval of the Director, fresh interview was held on 25.08.2015 by the reconstituted Selection Committee. In this interview, 7 candidates had appeared. After the statement of marks was prepared, it was found that respondent No.6 stood first and another candidate Dr. Ajit Hazarika (petitioner in WP(C) No.5668/2015) secured the second position. Petitioner has secured the third position only. Petitioner’s contention that he was the only eligible candidate amongst all the candidates who had appeared in the interview, has been denied. Besides, it is stated that under the head “administrative experience”, respondent No.6 was awarded 6 marks and not 10. Marks were allotted as per prescribed guidelines. It is stated that respondent No.6 got research guide-ship from Himalayan University (Arunachal Pradesh), which has not violated UGC guidelines. Since petitioner has secured only the third position, his age or overage has no role to play in the selection. It is stated that following representation submitted by the petitioner, Deputy Director of Higher Education, Assam vide letter dated 07.09.2015 had requested respondent No.3 to furnish all relevant documents for the purpose of approval to be accorded by the Director. Consequently, all the relevant documents have been forwarded to the office of the Director. 10. Respondent No.6 in his affidavit has defended his recommendation by the Selection Committee. He has stated that he fulfills all the eligibility criteria as per the advertisement. Since, it was found that respondent No.6 had better merit, Selection Committee rightly selected him whereafter, Governing Body of the College has recommended his name for appointment as Principal. 11. UGC in its affidavit has stated that under the University Grants Commission (Minimum Standard and Procedure for Award of M.Pil./Ph.D. Degree) Regulation, 2009, all Universities, Institutions, Deemed to be Universities and Colleges/Institutions of national importance shall lay down the criteria for the faculty to be recognized as Research Supervisor both for M.Phil. and Ph.D. programmes. As per the UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010, the qualification required for Principal of a College has been provided, which are as under:- “4.2.0 Principal i. A Master’s degree with at least 55% marks or equivalent grade by a recognized University. ii. A Ph.D. degree in the concerned/allied/relevant disciplines in the institution concerned with evidence of published work and research guidance. iii. ii. A Ph.D. degree in the concerned/allied/relevant disciplines in the institution concerned with evidence of published work and research guidance. iii. Associate Professor/Professors with a total experience of 15 years of teaching/research/administration in Universities, Colleges and other institutions of higher education. iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS) as set out in Appendix-III for direct recruitment of Professors in Colleges.” 12. Clarifying the above, it is stated that a person, who applies for the post of Principal should have the above qualifications which includes that the person should be a Research Guide to M.Phil. and/or Ph.D scholars. Regarding Himalayan University, Arunachal Pradesh, it is stated that it is a private University established by an act of the State Legislature of Arunachal Pradesh. It is empowered to award degrees, but the said University can conduct its course through regular mode at its main campus only. UGC has not granted any permission to the Himalayan University to offer course through study centres/off campus centres. It is also clarified that M.Phil./Ph.D. degree courses cannot be offered through distance education mode. 13. Petitioner has not only filed reply-affidavit to the affidavits of the respondents, but has filed additional-affidavit in support of the writ petition. 14. In WP(C) No.5668/2015, petitioner, Dr. Ajit Hazarika has been placed in the second position by the Selection Committee. He has challenged the selection and recommendation of respondent No.7 (who is respondent No.6 in WP(C) No.5441/2015) in the first position on the ground that he did not have necessary experience of Research Guide which is an essential condition for the post of Principal. Respondent No.7 had submitted documents to contend that he was a Research Guide under the Himalayan University of Arunachal Pradesh. But the said University does not have recognition of UGC. Therefore, the Selection Committee ought not to have considered the documents submitted by respondent No.7 in support of being a Research Guide. On the other hand, petitioner is a Research Guide under the University of Science and Technology, Meghalaya, which is recognized by the UGC. Petitioner has also alleged that he was not given commensurate marks under the head “administrative experience”. If there is proper assessment of petitioner’s “administrative experience”, petitioner ought to have been awarded additional 8 marks as against 2 marks awarded. Petitioner has also alleged that he was not given commensurate marks under the head “administrative experience”. If there is proper assessment of petitioner’s “administrative experience”, petitioner ought to have been awarded additional 8 marks as against 2 marks awarded. This additional 8 marks would have materially altered the selection, as petitioner than would have been placed in the first position above respondent No.7. 15. With the above grievance, present writ petition has been filed for quashing of the resolution of the Governing Body dated 26.08.2015 and for a direction to the respondents to appoint the petitioner in the post of Principal of Biswanath College. 16. This Court passed order dated 22.09.2015 whereby notice was issued and, as an interim measure, it was directed that Director of Higher Education, Assam shall not approve recommendation of the Governing Body of the College dated 25.08.2015 for the post of Principal in the said College. 17. Here also affidavits have been filed by the Governing Body of the College as well as by the recommended candidate i.e., respondent No.7 justifying the selection and consequential recommendation of the Governing Body. Petitioner has filed reply-affidavit to the affidavits so filed by the said respondents. UGC has also filed an affidavit identical to the one filed in WP(C) No.5441/2015. 18. Though learned counsel for the parties have made detailed submissions, since the submissions made are on pleaded lines, Court is of the view that a detailed reference to the same may not be necessary. However, the rival submissions made have received the due consideration of the Court. 19. From the above factual narrative, what transpires is that a selection process is presently underway for appointment of Principal in the College. In the interview held, respondent No.6/7 has been selected by the Selection Committee in the first position. Governing Body of the College has approved such selection and forwarded the selection record to the Director of Higher Education. It is at this stage that the two writ petitions have been filed. While petitioner in WP(C) No.5441/2015 contends that both the candidates at Sl. Nos.1 & 2 in the select list are not eligible as per UGC guidelines which is reflected in the advertisement and he is the only eligible candidate, petitioner in WP(C) No.5668/2015, on the other hand, contends that the candidate selected at Sl. While petitioner in WP(C) No.5441/2015 contends that both the candidates at Sl. Nos.1 & 2 in the select list are not eligible as per UGC guidelines which is reflected in the advertisement and he is the only eligible candidate, petitioner in WP(C) No.5668/2015, on the other hand, contends that the candidate selected at Sl. No.1 does not have the qualification as per UGC norms and, therefore, his candidature should be rejected. 20. Before proceeding further, it would be appropriate to refer to the advertisement dated 12.04.2015. The required qualification prescribed for the post of Principal as mentioned in the advertisement is extracted hereunder:- “i. A Master’s Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) from a recognized University. ii. A Ph.D. Degree in concerned/allied/relevant disciplines in the institution concerned with evidence of published work and research guidance. iii. Associate Professor/Professor with a total experience of 15 (fifteen) years of Teaching/Research/Administration in Universities/Colleges and other institutions of higher education. iv. A minimum score as stipulated in the Academic Performance Indicator (API) based on the performance Based Appraisal in Appendix-III for direct recruitment of professor in Colleges. v. A relaxation of 5% may be provided at the Graduate and Masters level for the ST, SC differently-abled (Physically & Visually differently-abled) categories for the purpose of eligibility and for assessing good Academic record during direct recruitment to teaching position. The eligibility marks of 55% (or and equivalent in a point scale wherever grading system is followed) and the relaxation of 5% of the categories mentioned above are permissible, based on only the qualifying marks without including any grace mark procedures. vi. A relaxation of 5% may be provided from 55% to 50% of the marks to the Ph.D. Degree holders who have obtained their Master’s Degree prior to 19th September, 1991. vii. Upper age limit of 55 years as per prescribed Rules.” 21. On a perusal of the qualifications mentioned in the advertisement and the qualifications mentioned in the affidavit of UGC, it is seen that qualifications as prescribed in the said advertisement follows the UGC prescribed norms. After analyzing the rival contentions, it appears that the bone of contention centers around the following three issues:- i. The selected candidate’s guide in his Ph.D. programme was not from the same University. ii. After analyzing the rival contentions, it appears that the bone of contention centers around the following three issues:- i. The selected candidate’s guide in his Ph.D. programme was not from the same University. ii. The selected candidate does not possess the qualification of being a Research Guide of M.Phil./Ph.D. scholars which is a requirement as per UGC norms. iii. Serious anomalies in the awarding of marks under the heading of “administrative experience” which has materially affected the selection. 22. Having noticed the above, it would be apposite to briefly refer to the relevant legal provisions relating to selection of Principal of provincialised colleges. 23. There is no dispute at the Bar that the College is a provincialised college and is governed by the provisions of the Assam College Employees (Provincialisation) Act, 2005 (2005 Act) and the Assam College Employees (Provincialisation) Rules, 2010 (2010 Rules). As per section 6 of the 2005 Act, appointment of both teaching and non-teaching staff in the college shall be made by the Director of Higher Education on the basis of selection and recommendation of the Governing Body of the college in accordance with rules and procedure of the Government in force. 2010 Rules have been framed under section 12(1) of the 2005 Act. As per Rule 5(1), appointment to the post of Principal shall be by direct recruitment through selection. For this purpose, Governing Body shall constitute a Selection Committee, which shall select a person on the basis of an interview from amongst eligible candidates who apply in response to an open advertisement in newspapers. The Governing Body shall recommend the selected candidate to the Director who shall issue order of appointment. As per Rule 7(c) of the 2010 Rules, for posts in which UGC has prescribed norms, no candidate shall be recruited without having the requisite norms. 24. Having noticed the scheme of selection for the post of Principal in a provincialised college, what is unmistakable in the present case is that the selection process has not yet attained finality. It is only when the Director accords approval to the recommendation of the Governing Body that the selection would attain finality. This aspect of the matter was gone into by this Court in a recent decision in the case of Sonali Bora Saharia Vs. State of Assam (WPC No.6474/2014), disposed of on 04.08.2016. It is only when the Director accords approval to the recommendation of the Governing Body that the selection would attain finality. This aspect of the matter was gone into by this Court in a recent decision in the case of Sonali Bora Saharia Vs. State of Assam (WPC No.6474/2014), disposed of on 04.08.2016. It has been held that until the Director grants approval to the selection process, no final decision can be said to have been taken in respect of the selection. No definitive cause of action can be said to have accrued at such a stage to clothe an un-recommended candidate as aggrieved party thereby enabling him to initiate a legal action. Selection by the Selection Committee or recommendation by the Governing Body per se, would not give rise to a cause of action for initiating a legal proceeding because no finality is attached to such recommendation at a stage prior to acceptance or non-acceptance by the Director. It was held as under:- “The post of Lecturer in colleges has been re-designated as Assistant Professor following notification issued by the UGC. Recruitment of Assistant Professor in colleges is governed by a set of statutory rules called Assam College Employees (Provincialisation) Rules, 2010 which has been framed in exercise of powers conferred under Section 12(1) of the Assam College Employees (Provincialisation) Act, 2005. Rule 5 lays down the method of recruitment. As per Rule 5(2), for the post of Lecturer, re-designated as Assistant Professor, appointment shall be made by direct recruitment with prescribed qualifications through open advertisement in two leading dailies atleast in two consecutive issues. As per Sub-Rule (7) of Rule 5 the Governing Body shall conduct the selection process and make recommendation to the Director who shall issue order of appointment. Rule 7 lays down the detailed procedure while making such direct recruitment. From a perusal of Rule 7, it is seen that the recommendation of the Governing Body would be based on the recommendation of the Selection Committee duly constituted for the purpose whereafter the Director shall pass appropriate order and communicate the same within 30 days. Implicit in this is that the Director has to examine the recommendation and approve the same whereafter consequential appointment order is to be issued. For posts for which UGC has prescribed norms, no candidate shall be recruited without having the required norms. Implicit in this is that the Director has to examine the recommendation and approve the same whereafter consequential appointment order is to be issued. For posts for which UGC has prescribed norms, no candidate shall be recruited without having the required norms. Constitution of Selection Committee is laid down in Rule 10. Having gone through the scheme of selection provided under the Rules, it is quite apparent that the matter relating to selection for appointment to the post of Lecturer/Assistant Professor, Education in Sipajhar College has not yet attained finality. The Director who is the appointing authority is yet to consider the recommendation made by the Governing Body. In his affidavit, the Director has stated that he has not yet received the entire set of documents relating to the selection. In so far contention of the petitioner is concerned regarding allocation of marks to respondent No. 7 under the heads of M.Phil. and teaching experience, it is evident that the same is yet to be examined by the appointing authority. In the opinion of the Court, at the stage when the writ petition has been filed, no definitive cause of action can be said to have accrued enabling the petitioner to move the Court. No final decision has been taken by the appointing authority under Rules 5(7) and 7 of the Rules. Intervention by the Court at this stage would amount to preempting a decision by the designated authority. It is only when a decision is taken as provided under the Rules an unsuccessful candidate can be said to be an aggrieved party and such order of the Director either granting approval or not granting approval to the recommendation of the Governing Body would give rise to a cause of action enabling the aggrieved person to initiate a legal proceeding. Recommendation of the Selection Committee or recommendation of the Governing Body per se would not give rise to a cause of action for initiating a legal proceeding because no finality is attached to such recommendation at a stage prior to acceptance or non-acceptance of the same by the Director. Viewed in that context, the writ petition appears to be pre-mature as the appropriate authority is yet to take a decision one way or the other.” 25. At this stage, one may ponder over the role of the Director in the scheme of selection. Viewed in that context, the writ petition appears to be pre-mature as the appropriate authority is yet to take a decision one way or the other.” 25. At this stage, one may ponder over the role of the Director in the scheme of selection. Though the language of Rule 5(1) of the 2010 Rules is couched in mandatory language by use of the word shall twice, a deeper examination of the same would show that the Director is not to act like a rubber stamp according his approval to the recommendation of the Governing Body in a mechanical manner. The last sentence of Rule 5(1) reads as under:- “The Governing Body shall recommend this candidate to the Director who shall issue orders of appointment.” 26. At first blush, it would appear that once recommendation is made by the Governing Body, the Director has no discretion, but to issue order of appointment. Rule 7(a) provides that all appointments either by direct recruitment or by promotion shall be made by the Director on the basis of recommendation of the Governing Body based on the recommendation of the Selection Committee. As per clause (b), the Director is required to communicate his order within 30 days. As per clause (c) of Rule 7 in respect of posts for which UGC has prescribed norms, no candidate shall be recruited without having the required norms. 27. Therefore, from a careful and conjoint analysis of the provisions of Rule 5(1) and Rule 7 of the 2010 Rules, what logically emerges is that before according approval to the recommendation of the Governing Body and before issuing order of appointment, the Director should satisfy himself that the selection and recommendation was carried out in accordance with law. He should also satisfy himself that in respect of post like that of the Principal for which UGC has laid down detailed eligibility norms, recommendation of the selected candidate conforms to such norms. This Court in the case of Dr. Akhil Ch. Kalita Vs. State of Assam, WP(C) No.6538/2016, disposed of on 04.11.2016, has held that issuance of appointment order by the Director is not an empty formality; the Director of Higher Education before passing such order is required to scrutinize the selection record and only after being satisfied, he is to issue the consequent appointment order. 28. Akhil Ch. Kalita Vs. State of Assam, WP(C) No.6538/2016, disposed of on 04.11.2016, has held that issuance of appointment order by the Director is not an empty formality; the Director of Higher Education before passing such order is required to scrutinize the selection record and only after being satisfied, he is to issue the consequent appointment order. 28. Section 15 of the General Clauses Act, 1897 provides that power to appoint any person would include power to appoint ex-officio. Likewise, section 16 of the said Act provides that when a power to make any appointment is conferred on any authority, than unless a different intention appears, the authority having and exercising that power to make appointment shall also have the power to suspend or dismiss any person so appointed. By extending the rationale of the above provision, it can safely be inferred that the power to accord approval would also include the power not to accord approval provided the Director is satisfied that the recommendation is not as per law. 29. But this is a decision which has to be taken by the Director. Any intervention by the writ court prior to such decision being taken by the competent authority would amount to pre-empting the decision of the designated authority. It is trite that the writ court is not the primary authority to arrive at a finding based on evaluation of facts. That decision has to be taken or such finding has to be reached by the designated authority at the first instance and if a legal challenge is made to such decision or finding, the writ court would then examine the legality and validity of the same. Therefore, it would be in tune with the settled legal proposition to eschew any intervention by the writ court at a stage prior to such decision being taken by the designated authority. 30. Having regard to the above and considering the grievance raised by the petitioners, Court is of the view that since the matter is before the Director of Higher Education, Assam he shall certainly examine all relevant aspects before taking a decision as provided under Rules 5 & 7 of the 2010 Rules within a period of 8 weeks from the date of receipt of a certified copy of this order. To facilitate such decision making by the Director, all interim orders are hereby vacated. 31. To facilitate such decision making by the Director, all interim orders are hereby vacated. 31. Before parting with the record, it is made clear that no opinion has been expressed on merit. Both the writ petitions are accordingly disposed of. No costs.