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2019 DIGILAW 128 (GAU)

Bipul Chandra Bhuyan v. State of Assam

2019-01-29

MANOJIT BHUYAN

body2019
ORDER : Manojit Bhuyan, J. 1. Mr. K. Gogoi, learned counsel for respondent nos. 1 & 2. Also heard Mr. G.Z. Ahmed, learned counsel for respondent no. 3 and Mr. A.C. Borbora, learned senior counsel for respondent no. 4. 2. Facts involved are that on 16.06.2016 an advertisement was issued under the hand of the President, Governing Body of HPB Girls' College, Golaghat inviting applications for the post of Principal of the said college. The requisite qualifications, experience, norms etc. were duly prescribed in the said advertisement. As many as 8 (eight) candidates responded to the advertisement, including the petitioner Dr. Bipul Chandra Bhuyan and the respondent no. 4 Dr. Deepa Phukan Baruah, the latter being an Associate Professor and Head of Department of English of the same college. The Selection Committee constituted for the purpose of making selection comprised of: (i) Dr. Nirola Buragohain, President of the Governing Body of the college; (ii) Dr. Bhim Kanta Boruah, as the nominee of the Vice Chancellor of the Dibrugarh University; (iii) Dr. Dipak Chetia, Professor of Dibrugarh University; (iv) Dr. Jiten Hazarika, as an Educationist, who is also a Professor of Dibrugarh University; (v) Dr. Bimal Barah, Principal of J.B. College, Jorhat; and (vi) Dr. Ranjan Bordoloi, as Member of the Governing Body and an Associate Professor of DKD College, Dergaon. The proceeding of the selection took place on 23.07.2016 and a total of 7 (seven) candidates, out of 8 (eight) candidates who had applied, appeared in the interview. On the same date the Selection Committee, on consideration of the academic records, performance in the interview and fulfilment of conditions such as API scores etc. and also incompliance with the guidelines and norms for selection, selected the petitioner Dr. Bipul Chandra Bhuyan and made recommendation for his appointment as the Principal of the college. The Governing Body by its resolution adopted in the meeting held on 24.07.2016 approved the recommendation and resolved to send the proposal to the Director of Higher Education, Assam for necessary approval and action. On 02.08.2016 an order came to be passed under the hand of the Director of Higher Education, Assam appointing the petitioner as the Principal of the college, following which the college made correspondence with the petitioner on 3.8.2016 informing him about his appointment and requesting him to join as Principal at the earliest. On 02.08.2016 an order came to be passed under the hand of the Director of Higher Education, Assam appointing the petitioner as the Principal of the college, following which the college made correspondence with the petitioner on 3.8.2016 informing him about his appointment and requesting him to join as Principal at the earliest. On 4.8.2016 the petitioner reported and joined as the Principal of HPB Girls' College, Golaghat. 3. Cause of action, constraining the petitioner to institute the present proceeding, arose when another order, purportedly issued on 02.08.2016, came to be passed by the Director of Higher Education, Assam, thereby withdrawing and cancelling the appointment order dated 02.08.2016 made in favour of the petitioner as Principal of the college. As per the said order, the appointment was withdrawn and cancelled in terms of Condition No. 1 mentioned in the appointment order and as the Attendance Sheet of the candidates appearing in the interview for selection was found to be manipulated and defective. The college authority was, thus, directed to initiate a fresh process for selection from amongst the candidates who appeared before the interview held on 23.07.2016, meaning thereby, from amongst the 7 (seven) candidates who had faced interview before the Selection Committee on 23.07.2016. For better appreciation, the cancellation order dated 02.08.2016, which is assailed in the present proceeding, is reproduced below along with the Condition No. 1 of the appointment order, which finds mention in the impugned order dated 02.08.2016. "Government of Assam Office of the Director of Higher Education, Assam Kahilipara, Guwahati-19 ************** Order The order issued in respect of Dr. Bipul Chandra Bhuyan, as Principal of H.P.B. Girls' College vide Memo No. DHE/CE/AC/328/2016/230, dated 02.08.2016 is hereby withdrawn and cancelled as per terms and condition No. 1, mentioned in the aforesaid order as the attendance sheet of the candidates appeared in the interview for selection of principal held on 23.07.2016 has been found manipulated and defective. The College authority is hereby directed to re-process the selection process afresh for selection of the candidate for the post of Principal from amongst the candidates appeared before the interview held on 23.07.2016. Sd/- P. Jidung Director of Higher Education, Assam Kahilipara, Guwahati-19." "Terms and conditions:- 1. The College authority is hereby directed to re-process the selection process afresh for selection of the candidate for the post of Principal from amongst the candidates appeared before the interview held on 23.07.2016. Sd/- P. Jidung Director of Higher Education, Assam Kahilipara, Guwahati-19." "Terms and conditions:- 1. If the resolution of the Governing Body of the college is found to be incorrect/defective or if any procedural lapse is detected regarding selection of the candidate, the appointment of the Principal concerned will be cancelled without any prior notice." 4. Alleging violation of the principles of natural justice while passing the impugned order as well as nothing being recorded or alleged to demonstrate any defect or procedural lapse in the selection process and/or any discrepancy in the award of marks by the individual members and/or on any issue touching upon the integrity of the members of the Selection Committee, the petitioner submits that the impugned order is out and out illegal and not sustainable in law. Further submission is that the impugned order or the facts of the case do not demonstrate that in the selection held on 23.07.2016 the 7 (seven) candidates did not appear to face selection and that a fraud had been committed by obtaining their signatures, except for the respondent no. 4, on a later date in another Attendance Sheet to show their presence in the interview held on 23.07.2016. It is also contended that neither the selection and appointment of the petitioner nor the decision-making process resulting in the selection and appointment has been assailed before any other forum. 5. In the affidavit-in-opposition filed by the Director of Higher Education, Assam it is admitted to the extent that 7 (seven) nos. of candidates had appeared before the Selection Committee and the petitioner secured the highest marks. The Governing Body of the college unanimously resolved to approve the recommendation of the Selection Committee and to submit proposal to the higher authority for appointment of the petitioner as Principal, following which appointment was made on 02.08.2016. It is stated that on the same day i.e. 02.08.2016 another order was passed withdrawing and cancelling the appointment order after detecting defect in the report of the Selection Committee dated 23.07.2016, in that, defect was found in the Attendance Sheet of the candidates who had appeared for interview held on 23.07.2016. It is stated that on the same day i.e. 02.08.2016 another order was passed withdrawing and cancelling the appointment order after detecting defect in the report of the Selection Committee dated 23.07.2016, in that, defect was found in the Attendance Sheet of the candidates who had appeared for interview held on 23.07.2016. The defect pointed out and pleaded in the affidavit-in-opposition, as part of paragraph 9 thereof, is as follows: "Out of 7 nos. of candidates appeared for the interview, two candidates namely, Dr. Gakul Ch. Saikia and Dr. Utpal Sharma signed in the Attendance Register on 23.07.2016. Three candidates namely, the petitioner Dr. Bipul Ch. Bhuyan, Dr. Monju Gogoi and Dr. Rulee Bamah signed in the Attendance Register without putting any date. One candidate Dr. Tilok Gogoi signed in the Attendance Register on 27.07.2016 and Dr. Deepa Phukan Baruah a candidate for the post of Principal signed on the attendance sheet on 01.08.2016." The loss of the original Attendance Sheet from the college was considered to be a strange matter and having regard to the same the Director of Higher Education, Assam decided that the theft of the Attendance Register from the interview room vitiated the process of selection for the post of Principal, leading to cancellation of the appointment of the petitioner. 6. Seeking modification/alteration/vacation of the interim order dated 10.08.2016, by which the operation of the impugned order dated 02.08.2016 was kept in abeyance, the respondent no. 4 filed IA(C) No. 1544/2016. In the said Interlocutory Application an affidavit-in-opposition is on record, filed by Dr. Nirola Buragohain, in her capacity as the President of the Governing Body of the college and Chairman of the Selection Committee. She is arrayed as respondent no. 3 in the writ petition. At paragraph 5 of the said affidavit-in-opposition it is stated that immediately before the interview the signatures of all the incumbents present were obtained in the Attendance Register by an employee of the college to record their presence. After completion of the interview and when the Selection Committee required furnishing of the Attendance Register, the employee concerned informed that someone had taken away/stolen the Register from the waiting room. After completion of the interview and when the Selection Committee required furnishing of the Attendance Register, the employee concerned informed that someone had taken away/stolen the Register from the waiting room. It is stated that having regard to the said fact, the matter was placed before the Governing Body of the college, whereupon a decision was taken to request all the candidates who participated in the selection process to put their signatures in the attendance sheet, to which all the candidates agreed, except for the respondent no. 4. It is stated that there was no manipulation of any records/documents, neither the Selection Committee or the Governing Body had violated any Government guidelines and/or any UGC Regulations, nor any challenge has been made by the respondent no. 4 claiming that she is more meritorious than the petitioner. At paragraph 6 of the said affidavit-in-opposition it is further stated that by no stretch of imagination the Attendance Register can be considered as a vital document and that the loss of the same have prejudiced any of the candidates who participated in the selection process. At paragraph 7 thereof, it is contended that a three member Enquiry Committee was constituted to enquire into the matter of theft of the Attendance Register on 23.07.2016. The report submitted by the committee disclosed that the person responsible for the loss could not be identified. The Governing Body of the college, thereafter, had lodged an ejahar regarding the theft before the Golaghat Police Station. 7. On behalf of the respondent no. 4 it is stated that the writ petition is not maintainable on account of non-impleadment of necessary party, in that, the Governing Body of the college is not made party respondent in the case. It is also stated that the Attendance Register is part and parcel of the selection process and any defect found in that regard would necessarily vitiate the selection process. However, the respondent no. 4 have not disputed the merit standing of the candidates, as recorded by the Selection Committee in the selection process. 8. On behalf of the Director of Higher Education, Assam, the learned Standing Counsel submits that the action taken towards cancellation is wholly justified. However, the respondent no. 4 have not disputed the merit standing of the candidates, as recorded by the Selection Committee in the selection process. 8. On behalf of the Director of Higher Education, Assam, the learned Standing Counsel submits that the action taken towards cancellation is wholly justified. However, on a pointed query of this Court, it could not be gathered as to on what basis and at whose instance the impugned order came to be passed on the very same day when the appointing authority had already expressed satisfaction on the selection process and the recommendation of the Governing Body and had issued the appointment order. 9. I have heard the learned counsels for the parties and have also perused the materials on record. There is no dispute to the fact that the original Attendance Register marking the presence of the candidates in the interview went missing. This aspect and the steps taken thereafter are duly explained in the affidavit filed by Dr. Nirola Buragohain. There is also no dispute to the fact that all the 7 (seven) candidates had duly appeared and faced interview before the Selection Committee on 23.07.2016, on which date their inter-se merit was assessed having regard to their qualifications, experience etc., as required to be looked into for making selection. Each of the members of the Selection Committee awarded marks by making individual assessment, whereupon a consolidated statement of marks was prepared in which the petitioner was shown to have secured the highest total marks standing at 373.76, followed by the respondent no. 4 at 328.52. The evaluation and assessment of merit by a duly constituted Selection Committee is not a matter of challenge in any forum. Neither any question has been raised with regard to the decision-making process of the Selection Committee and/or that such selection and awarding of marks is fret with anomalies vitiating the entire selection process. No issue is also raised alleging that assessment of the seven candidates had been made without any one of them having faced/appeared in the selection held on 23.07.2016. The only issue raised is with regard to the missing of the original Attendance Register marking the presence of the candidates on 23.07.2016, which was rectified by following a procedure as indicated in the affidavit filed by Dr. Nirola Buragohain. 10. The only issue raised is with regard to the missing of the original Attendance Register marking the presence of the candidates on 23.07.2016, which was rectified by following a procedure as indicated in the affidavit filed by Dr. Nirola Buragohain. 10. This Court finds it difficult to comprehend as to how the theft/loss of the Attendance Register has any relevance to a selection made by a duly constituted committee purely on merit and when all the seven candidates were admittedly present and had faced the interview on 23.07.2016. In the opinion of this Court, a trivial and unconnected issue is sought to be raised to somehow put a dent to a valid selection process, in which the petitioner was adjudged to be the most meritorious and eligible for selection and appointment as the Principal of the college. In the opinion of this Court, there are no connecting dots between the issue on the Attendance Register and the issue of selection of candidate purely on merit consideration. In this respect, the impugned order of cancellation dated 02.08.2016 do not appear to be a legally valid one. 11. Another aspect of the matter is that, following the appointment order dated 02.08.2016, the petitioner joined as Principal of the college on 04.08.2016. Two days thereafter i.e. on 06.08.2016 he states to have received the cancellation order dated 02.08.2016. Having been appointed following an advertisement and a selection process and having joined in the post, it was imperative that the petitioner ought to have been put to notice before any steps could have taken towards cancellation of his appointment. Apparently, this was not done, thereby impinging upon the rights of the petitioner without following the due process of law and/or by following the cardinal principles of 'Audi Alteram Partem' rule of natural justice. 12. A perusal of the order of cancellation dated 02.08.2016 makes it apparent that the same was issued without due application of mind and without there being any cogent basis to interdict with the appointment order issued in favour of the petitioner. The said impugned order is first stated to have been issued as per terms and condition no. 1 mentioned in the appointment order dated 02.08.2016. The said impugned order is first stated to have been issued as per terms and condition no. 1 mentioned in the appointment order dated 02.08.2016. Having regard to the Condition No. 1 and the facts involved in the case, this Court holds that there are no evidence showing that the resolution of the Governing Body of the college is incorrect or defective or that any procedural lapse occurred while making selection of the candidate by the duly constituted Selection Committee. Further and to reiterate, the issue of Attendance Sheet is of no relevance to the issue regarding assessment of candidates on merit by the Selection Committee, in which the petitioner was adjudged as most meritorious and eligible for appointment. Before parting with the case, this Court would also record that the objection raised as regards the maintainability of the writ petition on ground that the Governing Body of the college is not impleaded as party respondent in the case, the same has no useful purpose. Accordingly, the same is not entertained in the facts of the case. 13. Having regard to the above, this Court finds merit in the writ petition. Accordingly, the same stands allowed by setting aside and quashing the cancellation order dated 2.8.2016, passed by the Director of Higher Education, Assam (Annexure-J). The petitioner shall now be allowed to function as the Principal of the HPB Girls' College, Golaghat without any let or hindrance.