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2017 DIGILAW 698 (GAU)

Ratan Biswas v. State of Assam

2017-05-30

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Ms. P. Bhattacharjee, learned counsel for the respondent No. 7 and Mr. K. Gogoi, learned counsel for the No. 1 as well as Mr. M. Khataniar, learned counsel for the respondent Nos. 2 and 3 None appears for the petitioner. The claim of the petitioner in this writ petition is that the petitioner has been serving as a lecturer in the Department of Chemistry in the additional Science stream of Tangla College since 01.08.2011. He was appointed after going through a proper selection process pursuant to the advertisement dated 08.02.2000 and he joined the department on 01.08.2001. It is stated that the respondent No. 7 also joined the department of Chemistry on the same day on the basis of a simple application and without going through any interview or due process. 2. Although, the respondent No. 7 was erroneously placed against the 3rd post of the department, but the Governing body vide its Resolution No. 15 dated 03.11.2005, had made its necessary rectification and placed the petitioner in the 3rd post and the respondent No. 7 was 4th post of the department. The resolution No. 15 dated 03.11.2005 provides that the Governing body of the Tangla college appointed Shri PI Phanindra Deka, being the respondent No. 7 a lecturer in the Chemistry purely on temporary basis and the petitioner Ratan Biswas as a lecturer in the same department in the 4th post also temporarily appointed vide Resolution No. 6. The resolution further states that Ratan Biswas was found to have been appointed after due advertisement in the Assam Tribune and selected by an interview board and after he had stood first in the interview. But as regard the respondent No. 7, no records are available relating to any advertisement in interview. It is also stated that the petitioner Ratan Biswas was appointed after going through the proper procedure. Accordingly, the Governing body was of the view that the appointment of the respondent No. 7 was through oversight or mistake and therefore, it cannot be said that the said respondent No. 7 is holding 3rd post in the department. It is also stated that the petitioner Ratan Biswas was appointed after going through the proper procedure. Accordingly, the Governing body was of the view that the appointment of the respondent No. 7 was through oversight or mistake and therefore, it cannot be said that the said respondent No. 7 is holding 3rd post in the department. It is also stated that there is merit in the claim of the petitioner Ratan Biswas for the 3rd post of lecturer, and accordingly, it was resolved to place the petitioner in the 3rd post and the respondent No. 7 in the 4th post. 3. The petitioner is aggrieved that in spite of the aforesaid resolution of the Governing body, the respondent No. 7 had been placed at serial No. 13 of the list of faculty of the college for the purpose of provincialisation, whereas, the petitioner had been placed at serial No. 17. It is stated that as only 15 numbers of post are available for provincialisation against any stream under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, the placement of the petitioner at serial No. 17 has led to a situation, where the petitioner had been deprived of his legitimate legal right. 4. Although the petitioner had submitted a number of representations, such representations had not been given its due consideration. In the affidavit filed by the Director of Education. BTC, it has been stated in paragraph-12 that the seniority list was prepared strictly in accordance with the guidelines published in the Assam Gazette Extraordinary, Govt. of Assam, Legislative Department. As per the guidelines published vide notification dated 05.09.2011, it had also been stated that there is no question of dropping the name of the petitioner, since the entire list was prepared on the basis of seniority and not on department basis. The respondent No. 7 also filed affidavit-in-opposition, wherein, it has been stated that the list of particulars of teaching and non-teaching staff of Tangla teacher was prepared by the Principal vide communication dated 10.12.2011. It is stated that the same was prepared on the basis of seniority and seniority was counted on the basis of date of joining and if the date of joining is same, then the time of joining or date of birth is taken into account. It is stated that the same was prepared on the basis of seniority and seniority was counted on the basis of date of joining and if the date of joining is same, then the time of joining or date of birth is taken into account. Accordingly, it is stated that the respondent No. 7 was correctly shown above in the list and as senior to the writ petitioner. 5. It is further stated in the affidavit of the Governing body that the resolution dated 03.11.2005 was based no evidence and the same had been adopted at the behest of the writ petitioner with the help of some person. 6. Upon considering the rival stand, it has been noticed that the resolution No. 15 dated 03.11.2005 of the Governing body of Tangla College was not taken into consideration. while the list of teacher for provincialisation was prepared on 10.12.2011 by the Principal of the college. Neither the affidavit of the Director of Education, BTC had given due consideration to the aforesaid fact. The affidavit of the Director of BTC merely states that seniority list was prepared strictly in accordance with the notification dated 5.9.2011 and that the entire list was prepared on the basis of seniority and not on departmental basis. 7. The affidavit-in-opposition of the respondent No. 7 also does not indicate any explanation that as per the resolution of the Governing body dated 03.11.2005, the said respondent No. 7 is not entitled for any seniority, inasmuch as the manner of entry of the respondent No. 7 to the service was not made by following the due procedure of law. Further, the said resolution of 03.11.2005 clearly provides that the Governing body had rectified the earlier mistake and have provided the fact that the respondent No. 7 had entered into service without following the due procedure of law and the petitioner has entered into service by following due procedure of advertisement and selection and accordingly, the writ petitioner was held to be senior to the respondent No. 7, although the date of joining of both the incumbents in the college was same. 8. 8. In such view of the matter, this Court is of the considered view that the resolution of the Governing body dated 03.11.2005 providing that the Governing body had rectified the earlier mistake and had placed the petitioner above the respondent No. 7, is a vital fact which ought to have been taken into consideration by the authorities at the time of preparing the seniority list for the purpose of provincialisation. Accordingly, this petition is disposed of with a direction to the Director of Education, BTC to give due consideration to the aforesaid fact and pass appropriate order as regards the inter-se seniority position between the petitioner the respondent No. 7 in the Tangla College. While deciding the matter, the Director shall also take into consideration the resolution No. 15 dated 03.11.2005 of the Governing body. The Director shall also give personal hearing to the petitioner as well as to the respondent No. 7 to present their individual stands on the matter and if so desired, be allowed to produce the additional materials. For arriving at an appropriate decision, the Director shall call for the records from the Governing body and verify the manner in which the petitioner as well as the respondent No. 7 had been appointed in the college and shall pass subsequent consequential order regarding the provincialisation of the petitioner as well as respondent No. 7. 9. The aforesaid exercise shall be completed within a period of 3 (three) moths from the date of receipt of a certified copy of this order. 10. Interim order, if any, passed earlier stands vacated.