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2017 DIGILAW 455 (GAU)

Dibya Kumar Rajkhowa(Dr. ) v. State of Assam

2017-04-18

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. K Gogoi, learned standing counsel, Higher Education Department, appearing for respondent Nos.1 and 2, and Mr. P. Mahanta, learned counsel appearing for newly impleaded respondent No.6, who is the Secretary of the Governing Body of Swahid Maniram Dewan College, Charing. None appears for respondent Nos.3, 4 and 5, despite the names of the learned counsel being shown in the cause-list. The respondent Nos.3 and 4 are the Governing Body of Swahid Maniram Dewan College, Charing and its President, respectively. The respondent No.5 is the Selection Committee to the post of Principal of Swahid Maniram Dewan College, Charing. 2. The respondent No.6 had filed an application for vacation of the interim order dated 22.01.2016, registered as I.A (Civil) No.2341/2016. 3. The learned counsel for the parties submit that having regard to the issues involved, instead of taking up the application for vacating the interim order, it will be more appropriate to consider and dispose of the writ petition itself. It is further submitted by Mr. Mahanta that as the respondent No.6 represents the Governing Body, being the Secretary, there will be no impediment for disposal of the writ petition, even though the counsel for the respondent Nos.3, 4 and 5 are not present, as the interest of the respondent Nos.3, 4 and 5 is suitably protected by the respondent No.6. 4. Having perused the materials on record and having regard to the submissions advanced, I propose to dispose of the writ petition, instead of considering the application for vacation of the interim order. 5. The facts, in brief, necessary for the purpose of disposal of the writ petition are that the petitioner responded to an advertisement published in the "Assam Tribune" on 18.07.2015 for filling up of the post of Principal of Swahid Maniram Dewan College, Charing, Sivasagar. 3(three) candidates, including the petitioner, had applied for the post in question and the interview was held on 08.09.2015, in which 2(two) candidates appeared. The petitioner, though allowed to enter the interview room, was told by the members of the Selection Committee that he is not qualified to appear in the interview without assigning the ground which makes the petitioner ineligible. The petitioner, though allowed to enter the interview room, was told by the members of the Selection Committee that he is not qualified to appear in the interview without assigning the ground which makes the petitioner ineligible. The Selection Committee did not select any candidate and took a resolution on that very date itself, i.e. 08.09.2015, to the effect that no candidate was found eligible for the post of Principal in view of the UGC Circular Nos.F.10-6/2011 (PS) Misc dated 06.06.2015 and F.10-6/2011 (PS) Misc dated 04.09.2015. 6. Subsequent thereto, the President of the Governing Body of the college addressed a letter dated 23.11.2015 to the Director of Higher Education, Assam seeking permission to re-advertise for the post of regular Principal of the College. 7. At that stage the writ petition was filed by the petitioner contending that the Circulars referred to in the resolution of the Selection Committee adopted on 08.09.2015 are not applicable to the petitioner as his Guideship Certificate (Annexure-G) was issued by the Vinayaka Mission University, Salem in the year 2007, which was prior in point of time of coming into force of the UGC (Minimum Standard and Procedure for Award of M. Phil/PHD degree) Regulations, 2009 and, therefore, rejection of his candidature by the Selection Committee is, per se, bad in law. 8. Mr. P. Mahanta has submitted that the writ petition is premature as the Director of Higher Education has not yet considered the recommendation made by the Selection Committee. He has further submitted that, based on the resolution of the Selection Committee, the President of the Governing Body had written a letter dated 23.11.2015 to the Director of Higher Education seeking permission for re-advertisement. Since no decision has been taken by the Director of Higher Education, a direction may be issued to the Director of Higher Education to consider the request made by the Governing Body, he contends. 9. Mr. Borthakur, learned counsel for the petitioner has submitted that the materials on record do not disclose that the Governing Body had taken any resolution based on the recommendation made by the selection Committee and that it will be obligatory on the part of the Governing Body to forward the resolution, if any, taken by the Governing Body, accepting the recommendation of the Selection Committee, to the Director of Higher Education. 10. Mr. 10. Mr. Gogoi has submitted that Rule 5 read with Rule 7 of the Assam College Employees (Pronvicialisation) Rules, 2010, (for short, "2010 Rules"), cast a duty on the Director of Higher Education for according approval of the recommendation of the Governing Body and as no final decision has been taken by the Director of Higher Education, this Court may not continue to entertain the writ petition but instead, direct the Director of Higher Education to consider the matter in its entirety and to take such decision as may be considered appropriate in connection with filling up of the post of Principal. 11. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. The Selection Committee had adopted the following resolution on 08.09.2015: "Resolution of The Selection Committee, For The Post Of Regular Principal Of Smd College, Charing, Held On 08/09/2015. 1. The following candidates appeared the interview:- i. Dr. Dibya Kumar Rajkhowa ii. Dr. Partha Ganguli 2. The Selection Committee unanimously resolved to recommend to the G.B of SMD college, Charing and DHE, Assam, that under the cognizance of the UGC's circular No. F.10-6/2011 (PS) Misc dated 06/06/2015 and F.10-6/2011 (PS) Misc dated 04/09/2015 and as per the advertisement publish in the Dainik Janambhumi dated 10/07/2015 and the Assam Tribune dated 18/07/2015, no candidate is found eligible for the post of regular Principal of SMD College, Charing. 3. UGC's notice - 2 nos, Govt. of Assam, Finance Dept's Circular -01 no." 13. The respondent No.6 in his application has not stated that pursuant to the resolution adopted by the Selection Committee in the meeting held on 08.09.2015, any resolution was adopted by the Governing Body to accept such recommendation. 14. Rule 5 of the 2010 Rules provides that appointment to the post of Principal of a Provincialised College shall be by direct selection and for the said purpose, the Governing Body shall constitute a Selection Committee which shall select a person on the basis of an interview from amongst eligible candidates and thereafter, the Governing Body shall recommend a candidate to the Director, who then shall issue an order of appointment. Rule 7 provides that all appointment, either by direct recruitment or by promotion, shall be made by the Director on the basis of recommendation from the Governing Body based on the recommendation of the Selection Committee/Departmental promotion committee duly constituted. 15. From the scheme of the aforesaid Rules, it appears that the Governing Body has to recommend a candidate selected by the Selection Committee to the Director for issuance of the order of appointment. Though not expressly provided in the Rules, it appears to the Court that even if a resolution is adopted by the Selection Committee not to recommend any candidate on the ground that the candidates appearing for selection do not meet the eligibility criteria, the same has to be endorsed by the Governing Body of the College by adopting a resolution to that effect. It does not appear that any resolution had been taken by the Governing Body in the instant case, though Mr. Mahanta has submitted that before issuance of the letter dated 23.11.2015 (Annexure-D) seeking permission for re-advertisement for the post of Principal, resolution was duly adopted by the Governing Body resolving to accept the recommendation of the Selection Committee. 16. A decision by the Selection Committee endorsed by the Governing Body holding that a candidate is not duly qualified is prejudicial to the interest of such candidate and, therefore, it stands to reason to hold that such a decision is also required to be examined by the Director of Higher Education, as in the case where a recommendation is made for appointment. The Director is obliged to scrutinize the selection record before he takes a decision in the matter. 17. Viewed in that context, it appears to the Court that it will be imperative for the Governing Body to consider the recommendation of the Selection Committee dated 08.09.2015, if not already done and to forward such resolution to the Director of Higher Education. Thereafter, the Director of Higher Education will consider the materials pertaining to the selection process and take such decision with regard to filling of the post of the Principal of the College in question. Till such decision is taken, fresh advertisement shall not be issued for filling up of the post of Principal of Swahid Mani Ram Devan College, Charing, Sivasagar. 18. The writ petition stands disposed of with the aforesaid directions and observations.