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Gauhati High Court · body

2017 DIGILAW 494 (GAU)

Dimpy Das (Dr. ) v. State of Assam

2017-04-25

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. Heard Ms. M. Barman, learned counsel for the petitioner. Also heard Mr. K. H. Choudhury, learned Sr. Counsel appearing for respondent Nos. 7 & 8 assisted by Mr. Sheikh Muktar and Mr. M. Z. Ahmed, learned Sr. Counsel along with Mr. A. M. Dutta, learned counsel appearing for respondent Nos. 4, 5 & 6, Mr. K. Gogoi, learned Standing Counsel, Education (Higher) Department appearing for the respondent Nos. 1, 2 & 3. 2. The petitioner was appointed as an Assistant Professor, Department of Botany in M.C. College, Barpeta, i.e. respondent No. 7, under Rule 7 (a) of the Assam College Employees (Provincialisation) Rules, 2010 (for short, the Rules), on the basis of recommendation of the Selection Committee and the Governing Body's Resolution No. 2 dated 28.07.2013. The petitioner submitted joining report on 09.09.2013. 3. On 11.01.2014, the Principal In-charge, DHSK College, Dibrugarh i.e. respondent No. 5, issued an advertisement for filling up of, amongst others, one post of Assistant Professor of Botany (unreserved) prescribing eligibility criteria therein and requiring the intending candidates to submit their applications complete in all respects within 15 days of the publication of the advertisement. 4. The petitioner submitted her application along with a No Objection Certificate dated 24.01.2014 issued by the Joint Director, Higher Education, Assam conveying that the Directorate had no objection if she appears for interview for the post of Assistant Professor, Department of Botany in D.H.S.K. College, Dibrugarh. Subsequent to information furnished to the petitioner under Right to Information Act, 2005, for short, RTI Act, the petitioner came to learn that 21 candidates out of 27 had appeared for the interview for the post in question and that the petitioner had obtained highest marks with grant total of 421.8 marks in the interview that was held on 01.03.2014. The report of the proceedings of the interview for the post in question indicates that the Selection Committee could not reach a unanimous decision for the recommendation of a selected candidate as the candidate with the highest score (i.e. the petitioner) submitted her application with a No Objection Certificate from the Joint Director, Higher Education without formally forwarding her application from the Principal, M.C. College, Barpeta where she held a substantive post. Subsequent thereto, a resolution was adopted by the Governing Body vide Resolution No. 3 (b) dated 04.03.2014 resolving that the post of Assistant Professor of Botany be re-advertised as recommended by the Selection Committee. Pursuant to the aforesaid resolution, once again an advertisement was published on 26.05.2014 for filing up of the said post of Assistant Professor of Botany. 5. On the aforesaid factual matrix, the petitioner had approached this Court by filing this petition under Article 226 of the Constitution of India for setting aside the report dated 01.03.2014 (Annexure-8), resolution of the Governing Body dated 04.03.2014 (Annexure-9) and the re-advertisement dated 26.05.2015 (Annexure-10) along with the prayer for issue of a writ of mandamus to the respondents to complete the selection process held pursuant to the advertisement dated 11.01.2014 and to appoint the petitioner as the Assistant Professor in the Department of Botany in D.H.S.K. College. 6. Ms. Barman has submitted that the action taken by the Governing Body is arbitrary and unreasonable and when the Joint Director of Higher Education had issued the No Objection Certificate, the respondent Nos. 4, 5 & 6 could not have, in effect, rejected the candidature of the petitioner. She has submitted that in the subsequent advertisement dated 26.05.2014, it is specifically mentioned that in-service candidates must apply through the head of the institutions and they must furnish a No Objection Certificate from their respective heads and conspicuously, this stipulation was absent in the earlier advertisement dated 11.01.2014. Therefore, on that count also, the petitioner cannot be faulted with for enclosing along with her application a No Objection Certificate from the Joint Director of Higher Education, she submits. 7. Relying on the affidavit filed by the respondent Nos. 4, 5 & 6, Mr. M. Z. Ahmed, learned Sr. Counsel has submitted that Rule 24 of the Rules in categorical terms provides that No Objection Certificate is to be issued by the Governing Body for making application for other jobs and therefore, on the face of the extant Rules, the No Objection Certificate issued by the Joint Director of Higher Education cannot be a substitute of the requirement under the law. He further submits that merely because the petitioner was called for the interview, the same did not divest the Selection Committee of the power to consider as to whether the applicant had fulfilled all conditions for selection and appointment. 8. He further submits that merely because the petitioner was called for the interview, the same did not divest the Selection Committee of the power to consider as to whether the applicant had fulfilled all conditions for selection and appointment. 8. Though no affidavit was filed by the respondent Nos. 7 & 8, Mr. K. H. Choudhury, learned Sr. Counsel has submitted that subsequently the petitioner was issued a No Objection Certificate by M.C. College when the petitioner wanted to apply for the post of Assistant Professor of Botany in Digboi College. The petitioner having been selected for appointment as Assistant Professor of Botany in Digboi College, she was appointed in terms of Rule 7(a) of the Rules as Assistant Professor of Botany by the Director of Higher Education by an order dated 20.04.2015 and subsequently, the petitioner was released from M. C. College on 23.04.2015. 9. Ms. Barman, learned counsel for the petitioner does not dispute the aforesaid submission of Mr. Choudhury. 10. Mr. K. Gogoi, learned Standing Counsel, Education (Higher), placing reliance on the affidavit filed, has submitted that no formal report or resolution of the Governing Body of the M.C. College, Barpeta was received before issuance of the No Objection Certificate dated 24.01.2014. In substance, Mr. Gogoi submits that No Objection Certificate issued by the Joint Director of Higher Education is not in accordance with the requirement of the Rules. 11. I have considered the submissions made by the parties and have perused the materials on record. 12. Both M.C. College, Barpeta and D.H.S.K. College Dibrugarh are provincialised colleges. So also is Digboi College. The petitioner was appointed by way of direct recruitment under Rule 7 of the Rules and therefore, the petitioner is governed by the Rules. Even if the advertisement dated 11.01.2014 did not contain any stipulation with regard to submission of the application along with a No Objection Certificate from the Governing Body of the College where the candidate is serving, the same will not be of any consequence, as being a member of the cadre under the Rules, the petitioner is duty bound to obtain a No Objection Certificate while applying for a new job while serving. The petitioner was aware that there was a requirement of obtaining a No Objection Certificate and it is not a case where the petitioner, because of not mentioning of the requirement of enclosing a No Objection Certificate, she had not enclosed any No Objection Certificate. Rule 24 provides that it is the Governing Body who shall issue No Objection Certificate to the college employees for applying for admission to course of higher studies and for other jobs. In view of the aforesaid Rules, necessarily, a serving employee cannot apply to a similarly situated provincialised college or to any other establishment unless a No Objection Certificate is duly obtained. 13. In paragraph-7, the petitioner made a statement that the authorities of the M.C. College did not provide the petitioner with a No Objection Certificate and that consequent thereto, the petitioner, by her application dated 24.01.2014, requested the appointing authority to grant her a No Objection Certificate. 14. The petitioner has not brought on record the application dated 20.01.2014. However, there is a letter dated 03.03.2014 (Annexure-11 of the writ petition) wherein it is stated by the petitioner that the Principal of M.C. College, Barpeta refused to issue No Objection Certificate to her and that thereafter, she had approached the Director for issuing a No Objection Certificate, which was, accordingly, issued to her. 15. From the above, it is clear that the petitioner had approached the college authorities for grant of a No Objection Certificate. Issue of No Objection Certificate is not automatic and for good grounds, Governing Body can legitimately refuse to issue No Objection Certificate. If the prayer for grant of No Objection Certificate is refused, the petitioner could have availed appropriate remedies for redressal. She could not have substituted the requirement of obtaining No Objection Certificate from Governing Body by obtaining a No Objection Certificate from the Joint Director of Higher Education Department. No role is envisaged under the Rules for issuance of a No Objection Certificate by the Joint Director of Higher Education. 16. When a statute or a Rule requires performance of a duty in a particular manner, the same has to be done in that prescribed manner and in no other manner. No role is envisaged under the Rules for issuance of a No Objection Certificate by the Joint Director of Higher Education. 16. When a statute or a Rule requires performance of a duty in a particular manner, the same has to be done in that prescribed manner and in no other manner. It is on record that subsequently the petitioner had obtained No Objection Certificate from the college authorities of M.C. College while applying for the post of Assistant Professor in the Department of Botany of Digboi Collage. 17. As the application of the petitioner was not accompanied by a valid No Objection Certificate from M.C. College, I am of the considered opinion that the decision of the respondent Nos. 6 & 7 cannot be faulted with. Taking that view, this writ petition is dismissed. 18. Interim order passed earlier shall stand vacated. 19. No costs.