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2018 DIGILAW 1302 (GAU)

Chandamita Thakuria v. State of Assam

2018-09-03

M.R.PATHAK

body2018
JUDGMENT : 1. Heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. R.K.D. Choudhury, learned Senior Government Advocate, Assam for the State respondent Nos. 1 to 3. 2. Challenge in this writ petition is to the selection and appointment of the respondent No. 4 to the unreserved post of Demonstrator of Borgeet in Luit Konwar Rudra Borua State College of Music, Panjabari, Guwahati disregarding better claim of the petitioner, for which an advertisement was issued on 1.9.2015, interview was held on 25.1.2016, selection result was declared on 3.3.2016 by the Director of Cultural Affairs, Assam and appointment order was issued to the respondent No. 4 on 23.5.2016, pursuant to which said respondent joined his service in the said advertised post on 23.5.2016 itself. 3. The Director of Cultural Affairs, Assam on 1.9.2015, along with some other posts also advertised for one unreserved post of Demonstrator of Borgeet in Luit Konwar Rudra Barua State College of Music, Panjabari, Guwahati in the Pay Band-2 of Rs. 5,200 to Rs. 20,200 with Grade Pay of Rs. 3,000 per month having Education and Requisite Qualification of — (a) Must have passed HSSLC Examination from recognised Board/Council, (b) B. Music Degree from recognised University or its equivalent, (c) Teaching Experience of at least 3 years in any recognised School or College, (d) Knowledge of indigenous traditional and Folk Music/Dance will be an additional qualification and Traditional or professional artist which highly commendable professional achievement in the subject concerned, and (e) Candidate should have good knowledge in Assamese. 4. Earlier on 20.5.2016, petitioner filed WP(C) No. 3234/2016 challenging the selection of the respondent No. 4 in the post of Demonstrator of Borgeet advertised on 1.9.2015 in the State College of Music and this court while issuing notice to the respondents on 27.5.2016, in the interim, directed not to make appointment to the said post till the next date of the case. As in the meanwhile, prior to the said order of the court dated 27.5.2016, the respondent No. 4 joined the said post of Demonstrator of Borgeet in terms of his appointment order dated 23.5.2016 passed by the Director of Cultural Affairs, Assam and when this fact was brought to the notice of this court, by the said Director by filing an affidavit-in-opposition in the matter on 13.7.2016, the petitioner on 15.7.2016 withdrew the said WP(C) No. 3234/2016 with liberty to approach this court again and accordingly, said writ petition was dismissed on withdrawn and filed the present petition. 5. The contention of the petitioner is that the selection committee did not consider her knowledge, experience, efficiency and achievements and that she is a postgraduate in the subject of Assamese for which the petitioner was expecting preferential treatment in selection as per the terms of the advisement. But, the said Selection Committee deprived the petitioner of granting marks for her additional qualifications and selected the respondent No. 4, their interested candidate, though he is lesser qualified. 6. Hence, this petition by the petitioner praying for a writ of mandamus or certiorari or any other direction for setting aside and quashing the impugned selection pursuant to which, the respondent No. 4 was appointed to the said advertised post. 7. The State respondents filed their affidavit stating that pursuant to the said advertisement dated 1.9.2015, 81 numbers of candidates submitted their applications for the said advertised post of Demonstrator of Borgeet. It is also stated that the State Government in the Cultural Affairs Department by the Notification No. CAD 269/2012/125 dated 19.10.2015 constituted the Selection Committee with (i) the Director of Cultural Affairs, Assam as Chairman, and (ii) the Deputy Director of Cultural Affairs, Assam, (iii) the Deputy Director of Directorate of Employment and Craftsman Training, Assam, (iv) the Deputy Director of Directorate of Handloom and Textile, Assam, (v) the Deputy Director of Directorate of Archaeology, Assam, and (vi) Representative of Welfare Plain Tribe and Backward Classes Department as the Members of the said Selection Committee and the said Selection Committee in its meeting held on 7.11.2015 selected the Sangeet Natak Academy Award winner Sri Prabhat Sarma as the expert for selection of the candidate for the said advertised post. Later, the State Government in the Cultural Affairs Department by the Notification No. CAD 269/2012/Pt. Later, the State Government in the Cultural Affairs Department by the Notification No. CAD 269/2012/Pt. 1/101 dated 11.2.2016 included the Principal (in-charge) of said Luit Konwar Rudra Barua State College of Music, in the said Selection Committee a Member for selection of candidate to the post of Demonstrator of Borgeet. 8. The respondents also stated that in the meeting of the Selection Committee held on 6.2.2016, it was decided that total marks for the interview for the said post of Demonstrator of Borgeet shall be 50 out of which 25 for general knowledge, teaching experience and personality test and the other 25 marks for theory and the practical test. The interview for the said post was held on 24th and 25th of February, 2016 wherein 48 candidates appeared in interview out of 81 applicants and in the said selection, the respondent No. 4 securing 78 marks in total secured the first position. Accordingly, result was declared on 1.3.2016, appointment order was issued to the selected candidate, i.e., the respondent No. 4 on 23.5.2016 and he joined the said post on 23.5.2016 as Demonstrator of Borgeet. 9. With regard to furnishing information under the RTI, the respondent stated that all other information have been furnished by the State Public Information Officer of the Directorate of Cultural Affairs, Assam, except the signed copy of the mark-sheets given to each candidate, individual result sheet prepared by the Board Members and compiled signed final result-sheet, as those were exempted under the provisions of the section 8(1)(e) of the RTI Act, 2005 (‘2005 Act’) and further, as the selected candidate, respondent No. 4, by submitting a letter requested the Director of Cultural Affairs, Assam not to furnish his personal details to anyone, as per the provisions of section 11(1)(e) of the said 2005 Act, the same was not furnished to the petitioner. 10. Mr. R.K.D. Choudhury, learned Senior Government Advocate, Assam has produced the records of selection before the court. 11. In the present case, the petitioner's case is that her knowledge, experience, efficiency, achievements and her Master Degree in the subject of Assamese were ignored by the Selection Committee during the selection process and she was not provided any preferential treatment as specified in the advertisement and selected the respondent No. 4, a less meritorious candidate as he is their interested candidate. Having a Post Graduate Degree in Assamese was not a requisite criteria but one of the criteria for the post was that the candidate should have good knowledge in Assamese, which both the petitioner as well as the respondent No. 4 possess as found by the Selection Committee. 12. The hon'ble Supreme Court in the case of Sanchit Bansal v. Joint Admission Board, (2012) 1 SCC 157 , have held that— “An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide.” 13. In the case of Dalpat Abasaheb Solunke v. B.S. Mahajan, (1990) 1 SCC 305 , the hon'ble Supreme Court consisting of three hon'ble Judges, have held that— “It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection, etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.” 14. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.” 14. It is the duly constituted Selection Committee which has the expertise on the subject to select and decided that the respondent No. 4 is fit for the post of Demonstrator of Borgeet. The writ court is not an Appellate Court to hear appeals over the decisions of the Selection Committee and to scrutinize the relative merits of the candidates as the court has no such expertise and it is the duly constituted Selection Committee which has the expertise on the subject to determine as to whether the candidate is fit for a particular post or not and the same has to be decided by the said expert committee. 15. From the records of the Selection Committee placed before the court, it is seen that the said Committee including the expert member have allotted the marks to the candidates appeared in the selection process on the basis of their merit and in compliance of the criteria prescribed in the advertisement dated 1.9.2015 and such undue favour or influence as alleged by the petitioner was not detected during the selection process. Any such illegality or patent material irregularity in the constitution of the Selection Committee is not under challenge in this proceeding nor the petitioner challenged the procedure vitiating the selection and she failed to prove any such mala fides affecting the selection in question. 16. Accordingly, this writ petition being devoid of merit stands dismissed. 17. Records of selection placed before the court be returned to Mr. R.K.D. Choudhury, learned Senior Government Advocate, Assam.