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2018 DIGILAW 850 (GAU)

Arijita Paul v. State of Assam

2018-05-22

A.S.BOPANNA, SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. S.K. Talukdar, learned counsel appearing for the appellant. Also heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. K. Uddin, learned counsel representing the respondent No. 5. Mrs. R. Choudhury, learned Standing Counsel, Higher Education Department has appeared for respondent Nos. 1 and 2. 2. This intra-Court appeal has been preferred against the judgment and order dated 02.01.2017 passed by the learned Single Judge in WP(C) No. 4881/2016 filed by the respondent No. 5 whereby, the writ petition was allowed by setting aside the order dated 08.07.2016 issued by the respondent No. 2. 3. The facts of the case, briefly stated, are that there was a vacancy in the post of Assistant Professor of Chemistry in the Srikishan Sarda College, Hailakandi and the Managing Committee of the college headed by the Principal In-charge, had issued an advertisement notice on 22.11.2015 inviting the applications from suitable candidates, who fulfill the eligibility norms. In the advertisement notice published on 22.11.2015, it was mentioned that preference would be given to the candidates having Organic Chemistry as special paper. 4. Altogether 30 candidates including the appellant and the respondent No. 5 had applied for the post and the interview was held on 23.05.2016 wherein 15 short listed candidates had participated. In the selection process, the respondent No. 5 had secured 60.77 marks and had emerged at the top position in order of merit whereas the appellant, having secured 59.94 marks, stood second. Notwithstanding the same, the Selection Committee had recommended the name of the appellant for appointment Although, no unanimous decision could be taken in the matter, yet, the Governing Body of the College, in its meeting held on 04.06.2016, took a decision to place the matter before the Director of Higher Education, Assam i.e. respondent No. 2 for taking a final decision in the matter. However, by the letter dated 18.06.2016, the respondent No. 2 had returned the matter back to the Governing Body with an observation that since the appellant had secured the second position and the respondent No. 5 had come first in the selection process, an unanimous resolution in the matter be adopted after placing the same before the Governing Body of the College. Accordingly, the Governing Body of the college in its meeting held on 08.07.2017 considered the matter and thereafter, unanimously resolved to select and recommend the name of the respondent No. 5 i.e. the first rank holder, for the post. Accordingly, the Governing Body had forwarded his name for appointment. On receipt of the said recommendation, the respondent No. 2 did not approve the same but had issued the letter dated 08.07.2016 directing the Principal of the College to re-initiate the process for selection of a candidate from amongst the candidates who have already appeared before the Selection Committee on 23.05.2016. 5. Aggrieved by the order dated 8.7.2016, the respondent No. 5 had approached this Court by filing WP(C) 4881/2016 which was allowed by the learned Single Judge by the impugned judgment and order. 6. Mr. Talukdar submits that it was mentioned in the advertisement notice dated 22.11.2015 that preference would be given to those candidates having Organic Chemistry as special paper. Since the appellant fulfilled the said criteria and the respondent No. 5 did not have Organic Chemistry as a special paper, taking note of the requirements laid down by the advertisement notice, the Selection Committee had rightly recommended the name of his client. He contends that the primary task of the Selection Committee is to assess the suitability of the candidate for the post in question and having regard to the prescription of Rule 7 of the Assam College Employees (Provincialisation) Rules, 2010 (for short Rules of 2010), the Governing Body cannot sit in appeal over the decision of the Selection Committee and reverse the recommendation made therein. In support of his aforesaid argument, Mr. Talukdar has placed reliance on a decision of the Division Bench of this Court rendered in the case of Amit Sharma Vs. Jyotishmoy Bora & Ors. reported in 2002 (2) GLT 45. 7. The learned counsel for the appellant further submits that since the respondent No. 5 had not been selected by the Selection Committee, hence, his name could not have been recommended by the Governing Body. According to Mr. Talukdar, under the given circumstances, the only way out in the matter was to conduct a fresh selection as per the letter dated 08.07.2016 issued by the respondent No. 2. In that view of the matter, submits Mr. Talukdar, the learned Single Judge was not correct in allowing the writ petition. 8. Mr. According to Mr. Talukdar, under the given circumstances, the only way out in the matter was to conduct a fresh selection as per the letter dated 08.07.2016 issued by the respondent No. 2. In that view of the matter, submits Mr. Talukdar, the learned Single Judge was not correct in allowing the writ petition. 8. Mr. M.K. Choudhury, learned senior counsel appearing on behalf of the respondent No. 5, on the other hand, contends that the respondent No. 5 was the candidate who secured the first position and the Governing Body was well within its competence to recommend the name of the candidate securing the highest rank in order of merit. Mr. Choudhury submits that preference can be given only when two candidates secure equal marks. He submits that the learned Single Judge has passed a reasoned order relying upon various decisions of the Supreme Court governing the subject so as to come to a conclusion that the impugned order dated 8.7.2016 issued by the respondent No. 2 was without jurisdiction. As such, there is no justifiable ground for this Court to interfere with the impugned judgment. 9. We have considered the rival submissions made at the bar and have also perused the materials available on record. 10. The procedure for making direct recruitment to the post of lecturer in the provincialized colleges in Assam has been laid down in the Rules of 2010. As per the Rule 7 of the Rules of 2010, all appointments by direct recruitment is to be made by the Director on the basis of recommendation of the Governing Body based on the recommendations of the Selection Committee. Rule 5(7) provides that it is the Governing Body which shall conduct the selection process and make recommendation to the Director who shall issue orders of appointment. From the aforesaid provisions of the Rules, it is apparent that the responsibility to conduct the selection and make recommendation of the candidate for appointment lies with the Governing Body whereas the power of the Director is confined to issuing the order of appointment. 11. In the present case, the Governing Body had constituted a Selection Committee comprising of experts so as to conduct the interview process. It is not in dispute that the respondent No. 5 had secured the highest mark and, therefore, occupied the first position on merit whereas the appellant came second. 11. In the present case, the Governing Body had constituted a Selection Committee comprising of experts so as to conduct the interview process. It is not in dispute that the respondent No. 5 had secured the highest mark and, therefore, occupied the first position on merit whereas the appellant came second. Notwithstanding the same, the Selection Committee had forwarded the name of the appellant as the selected candidate. Such a recourse was apparently taken by the Selection Committee in view of the preference criteria mentioned in the advertisement notice. Although, the Governing Body had initially forwarded the name of the appellant, yet, the matter having been returned back by the Director for passing an unanimous resolution, a meeting of the Governing Body was convened on 08.07.2016 wherein the following resolution in the form of resolution No. 3 was passed:- "Resolution No. 3 : Regarding the appointment of Assistant Professor in the Department of Chemistry as per DHE's DHE/CE/AC/NET/SLET/259/2016/92 dated 18.06.2016. It is unanimously resolved and selected the first rank holder in the interview Dr. Md. Dilwar Alam Khan for the appointment for the post of Assistant Professor in the Chemistry Department and the Principal is requested to submit papers of Dr. Khan to DHE, Assam as early as possible." 12. From the above resolution, it is clear that the Governing Body had chosen the first rank holder i.e. the respondent No. 5 and recommended his name for appointment to the respondent No. 2. Since the resolution adopted in the meeting dated 08.07.2016 was based on authentic data available before the Governing Body as regards the merit position of the candidates, having regard to Rule 5(7), we are of the view that the Governing Body was competent to select the first rank holder and recommend his name for appointment. Such decision of the Governing Body, in our opinion, cannot be held to be sitting in appeal over the decision of the Selection Committee since there is no difference in opinion between the Selection Committee and the Governing Body on the point that the respondent No. 5 has secured the highest marks. In view of the above, the decision in the case of Amit Sharma (Supra) relied upon Mr. Talukdar will not be of any assistance to him in the facts of this case. 13. In view of the above, the decision in the case of Amit Sharma (Supra) relied upon Mr. Talukdar will not be of any assistance to him in the facts of this case. 13. The learned Single Judge has held that the appellant had secured lesser marks than the respondent No. 5 and, therefore, the question of giving preference to the candidate securing lesser mark did not arise. It was also held that the Governing Body was right in adopting the resolution dated 08.07.2016 and, therefore, the Director, Higher Education was not justified in issuing the letter dated 08.07.2016 directing initiation of fresh selection process. We find ourselves in complete agreement with the views expressed by the learned Single Judge. Since the Governing Body has recommended the name of the first rank holder, no fault can be found with the resolution dated 08.07.2016. Moreover, the appellant has not challenged the resolution adopted in the Governing Body meeting held on 08.07.2016 recommending the name of the respondent No. 5 for appointment. As such, we are of the view that there was no valid ground available to the respondent No. 2 in this case not to accept the said recommendation of the Governing Body to appoint the respondent No. 5 and instead, direct a fresh process of selection to be initiated. 14. At this stage, the learned counsel for the respondent No. 5 has apprised us that due to delay in service of notice in this appeal, the respondent No. 5 has already been appointed as Assistant Professor, Chemistry in Srikishan Sarda College, Hailakandi and is working in the said post. That apart, it is also submitted that the appellant has, in the meantime, been regularly appointed as a lecturer in the Karimganj College and she is serving in the said post. Be that as it may, having regard to the observations made herein above, we hold that this appeal is devoid of any merit and the same is accordingly dismissed. There would be no order as to costs.