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2019 DIGILAW 1292 (GAU)

Mrinal Baishya v. State of Assam

2019-11-26

ACHINTYA MALLA BUJOR BARUA, AJAI LAMBA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. R.C. Saikia, learned counsel for the appellant as well as Mr. B. Gogoi, learned standing counsel for the Health Department, Mr. B. Sinha, learned counsel for the respondent No.3 being the Assam Public Service Commission and Mr. B.C. Das, learned senior counsel for the respondent No. 6. 2. The appellant as well as the respondent No.6 were appointed as Medical Officer (Ayur) on the recommendation of the Assam Public Service Commission (in short APSC) vide notification dated 23.07.2004 of the Secretary to the Govt. of Assam in the Health and Family Welfare Department. 3. An advertisement dated 20.06.2015 was issued by the APSC for filling up one post of lecturer in Roga Nidan Department, amongst others, in the Government Ayurvedic College and Hospital under the Health and Family Welfare (B) Department, Govt. of Assam. The eligibility condition for the post was as under: "EDUCATIONAL QUALIFICATION : A (a) A degree in Ayurved from a University established by Law or a Statutory Board/Faculty/Examine Body of Indian Medicine or its equivalent as recognized under Indian Medicine Central Council (IMCC) Act, 1970, (b) A post Graduate qualification in the subject/specialty concerned included in the schedule to Indian Medicine Central Council (IMCC) Act, 1970. (c) Candidate should be registered in State Council of Indian Medicine, Assam" 4. Both the appellant as well as the respondent participated in the selection process pursuant to the advertisement of 20.06.2015. In the selection, the APSC on 08.06.2016 had recommended the respondent No.6 for the post of lecturer. The said recommendation of 08.06.2016 in favour of respondent No. 6 was assailed in the writ petition WP(C) 3643/2016. In the writ petition the appellant took the stand that when he was required to appear in the viva voce interview for the post, there was a requirement to bring the original copies of all the certificates alongwith the mark sheets that may be relevant for the candidature. Accordingly, the appellant took a stand that his teaching experience in the concerned department as well as his completion of the Master's degree in the subject were required to have been given necessary weightage. 5. Accordingly, the appellant took a stand that his teaching experience in the concerned department as well as his completion of the Master's degree in the subject were required to have been given necessary weightage. 5. On the other hand, in the writ petition, the respondent No. 6 took the stand that as the advertisement itself did not prescribe for any experience in teaching, therefore the requirement to have a teaching experience cannot be inferred merely because the candidates were required to bring all their academic and other certificates etc. 6. By the judgment dated 29.08.2019, the learned Single Judge dismissed the writ petition by arriving at its conclusion that the nature of the challenge made by the appellant did constitute a challenge to the advertisement itself. Therefore, having participated in the selection process and after being unsuccessful, the appellant now cannot go back and challenge the advertisement. The learned Single Judge also arrived at a conclusion that the contention of appellant that his certificate pertaining to teaching experience was not considered and the respondent No. 6 was appointed on some extraneous reason was unacceptable. 7. Against the judgment dated 29.08.2019, the intra court appeal has been preferred. Mr. R.C. Saikia, learned counsel for the appellant raises the following contention:- (a) The provision of Clause 5.1.5 of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010, (in short UGC Regulation of 2010) which provides for the composition of the selection committee for the post of Assistant Professor in Colleges including Private Colleges had not been followed. (b) The selection committee to which the appellant and the respondent No.6 were subjected comprised of one Mr. Rakesh Paul and another subject expert. Although the requirement of Clause 5.1.5 of UGC Regulation of 2010 was that the committee must have one chairman and atleast two representatives from the university, where one must be the dean of college development council in the university and the other an expert in the concerned subject. But in the instant case, the selection committee comprised of only two members including the Chairman of the APSC, in a situation where even the Chairman of the APSC was involved in several frauds. 8. Without going into the merits of the contention of Mr. But in the instant case, the selection committee comprised of only two members including the Chairman of the APSC, in a situation where even the Chairman of the APSC was involved in several frauds. 8. Without going into the merits of the contention of Mr. R.C. Saikia, learned counsel for the appellant as regards the credential of the Chairman of the APSC, who was also member of the selection committee, we enquire from the learned counsel as to whether the same ground was also urged upon in the writ proceeding before the learned Single Judge. The answer given by Mr. R.C. Saikia is that the said ground was not urged upon. Secondly, upon going through the writ petition, we find that no such contention was raised before the learned single Judge. Upon being confronted, Mr. R.C. Saikia has made a submission that the composition of the selection committee is a question of law and it can be raised at any stage of the proceeding, including in an appellate proceeding. 9. To substantiate his stand Mr. R.C. Saikia learned counsel for the appellant relies upon an earlier judgment of this Court dated 29.04.2015 in WP(C) 3413/2012. In the said judgment where an issue regarding the composition of the selection committee of the APSC was also involved, a question was raised that as per Section 4 of the Assam Public Services Commission (Limitation of Functions) Regulations, 1951 read together with Clause 5.1.4 (c) of the UGC Regulation, a selection committee must consist of at least three subject experts. By the judgment dated 29.04.2015, the selection procedure as well as the recommendation of the APSC was interfered on the ground that the selection committee was constituted in deviation of the prescribed rules. 10. Without expressing any view on the conclusion arrived at by learned Single Judge in its judgment and order dated 29.04.2015 in WP(C) 3413/2012, it is taken note of that paragraph 3 and 8 of the said judgment makes it apparent that the ground as regards the constitution of the selection committee was taken in the writ petition itself and accordingly an issue was framed and the matter stood adjudicated. But in the instant case as already indicated no such plea was taken in the writ petition, nor the ground was urged upon before the learned Single Judge. As regards the contention of Mr. But in the instant case as already indicated no such plea was taken in the writ petition, nor the ground was urged upon before the learned Single Judge. As regards the contention of Mr. R.C. Saikia, learned counsel that a question of law can be taken up at any stage, we are of the view that although it is a correct proposition but the question as to whether the selection committee was duly constituted by the APSC, would be a mixed question of fact and law. As a question of fact is also involved, the same can be raised when a plea thereof has been taken in the original proceeding. 11. From the said point of view, we are unable to accept the contention of Mr. R.C. Saikia, learned counsel for the appellant that the constitution of selection committee is a question of law alone and it can be urged upon at any stage, including in the appellate stage. 12. In view of the above, the sole ground urged upon by the appellant in the present appeal is unacceptable and the writ appeal is accordingly found to be devoid of any merit. 13. Writ appeal accordingly stands dismissed.