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2019 DIGILAW 166 (GAU)

KONSENG BARUAH v. STATE OF ASSAM

2019-02-05

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. J.C. Gogoi, learned counsel for the petitioner and Mr. K. Gogoi, learned counsel for the respondent Nos. 1 & 2. No one appears for the respondent Nos. 3 to 8. 2. It is noticed that the respondent Nos. 3 to 7 have filed their affidavit-in-opposition and were represented by their respective counsels Mr. R. Thakuria and Mr. L.P. Sharma. However, both the learned counsels are absent today. Office note dated 21-01-2015 indicates that A/D card has returned back from the respondent No. 8. Under the circumstance, the case is taken up for final disposal. 3. Brief facts of the case for disposing the writ petition may be noticed at the outset. The petitioner responded to an advertisement dated 13-07-2012 floated in the local daily for the post of Assistant Professor in Philosophy meant for OBC/MOBC at Bapujee College, Sarthebari, Sarukhetri in the district of Barpeta. As per the advertisement, the criteria for selection is as per the guidelines issued by the State Government in the Higher Education Department. The guidelines have been issued by the Department concerned vide Office Memorandum under Memo No. AHE.262/2012/13 dated 25-06-2012 (Annexure-7). As per the guidelines, the marks which can be allotted to the candidates inter alia is towards their teaching experiences. 1 mark for each completed year of service in an affiliated Government Last Degree College can be awarded to the candidate subject to a maximum of 5 marks. 4. Amongst 12 applicants who submitted their application, only 9 candidates finally participated and the Selection Committee vide its recommendation dated 22-08-2012 recommended the petitioner for appointment to the said post. It may be noted that the petitioner scored 58.54 marks as per the assessment of the Selection Committee on the basis of the Office Memorandum dated 25-06-2012. However, the respondent No. 8 submitted a complaint before the Principal of the College claiming that she ought to have been awarded an additional 1 mark for her teaching experience. If that was done, her total marks would come to 59.31 against the marks of 58.31 she was given by the Selection Committee and thus be selected for the post. The complaint of the respondent No. 8 was looked into by the Director of Higher Education along with the proposal of the Governing Body of the College to have a re-advertisement. The complaint of the respondent No. 8 was looked into by the Director of Higher Education along with the proposal of the Governing Body of the College to have a re-advertisement. Consequently, the Director vide speaking order dated 15-11-2013 concluded that there was no provision for re-advertisement as per the standing guidelines and that the Selection Committee in making its recommendation in favor of the petitioner on 22-08-2012 did not commit any mistake. Accordingly, the Governing Body of the College was asked to adopt the Resolution for appointment of the petitioner to the post concerned. Despite the speaking order, as the Governing Body failed to adopt a Resolution to appoint the petitioner in terms of the recommendation made by the Selection Committee, the petitioner has approached this Court through the present writ petition. 5. The learned counsel Mr. J.C. Gogoi submits that the provision for recruitment to the post of Assistant Professor in the College concerned is the Assam College Employees (Provincialisation) Rules, 2010 (Rules of 2010). He submits that as per Rule 7 (a) of the Rules of 2010, all appointments either by direct recruitment or by promotion are to be made by the Director on the basis of recommendation of the Governing Body and which in turn is on the basis of the recommendation of the Selection Committee/Departmental Promotion Committee duly constituted. In the present case, apart from the Selection Committee being constituted as per the relevant Rules, the Selection Committee also adopted the guidelines, issued by the Department concerned in this regard vide Office Memorandum dated 25-06-2012. Since there was a complaint from the respondent No. 8 about the allotment of marks, the Director examined the complaint and consequently, vide speaking order dated 15-11-2013, the Director found that the Selection Committee did not commit any error in awarding marks to the respective candidates who participated. Consequently, the Director asked the Governing Body to act upon the recommendation of the Selection Committee dated 22-08-2012. The learned counsel submits that as per the claim of the respondent No. 8 herself, she had the experience of teaching since 5th October, 2009. The Selection Committee met on 22-08-2012 and by which time, she had not completed 3 years of teaching experience. Therefore, as per the guidelines, the Selection Committee rightly allotted 2 marks towards teaching experience to the respondent No. 8. The Selection Committee met on 22-08-2012 and by which time, she had not completed 3 years of teaching experience. Therefore, as per the guidelines, the Selection Committee rightly allotted 2 marks towards teaching experience to the respondent No. 8. Thus, the recommendation of the Selection Committee dated 22-08-2012 does not suffer from any infirmity or irregularity. He further submits that as per his information, the respondent No. 8 has already secured appointment elsewhere i.e., Dudhnoi College in the district of Goalpara and apparently, that is why she has failed to respond to the notice issued by the Court. 6. The learned counsel for the petitioner also submits that unless the Selection Committee has failed to abide by the guidelines for awarding marks to the candidates who had participated in the selection process, there is little or no scope for the Managing Committee to have a different opinion. Same will be the case for the Court as well while exercising powers under Article 226 of the Constitution. In this connection, he relies upon the decision of this Court rendered by a coordinate Bench in the case of Jayanta Duarah v. State of Assam & Others, reported in, (2015) 2 GauLT 843 . 7. Mr. K. Gogoi, learned Standing Counsel for the Higher Education Department submits that as per the Rules of 2010, the Governing Body of the concerned College is to conduct a selection process through a duly constituted Selection Committee. Thereafter, the recommendation of the Selection Committee on being approved by the Governing Body is to be sent to the Director for issuance of the appointment order. He submits that in the present case, the Selection Committee undisputedly was constituted as per the relevant provision of the Rules. The Selection Committee in terms of the guidelines issued by the Department vide office memorandum dated 25-06-2012 allotted marks to each of the candidates who had applied for the post. Therefore, the Governing Body of Bapujee College will be required to adopt Resolution for appointment of the candidates recommended by the Selection Committee. Further, an early appointment of a regular teacher i.e. Assistant Professor in the Department of Philosophy is required for the interest of the students. Therefore, Court may issue an appropriate direction in this regard. 8. Therefore, the Governing Body of Bapujee College will be required to adopt Resolution for appointment of the candidates recommended by the Selection Committee. Further, an early appointment of a regular teacher i.e. Assistant Professor in the Department of Philosophy is required for the interest of the students. Therefore, Court may issue an appropriate direction in this regard. 8. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record, including the authority relied upon by the petitioner's counsel. 9. As may be noticed, there is no dispute with regard to the composition of the Selection Committee and therefore, in so far as the same is concerned, the same requires no examination. The Governing Body of the College in view of the complaint submitted by the respondent No. 8 felt the necessity to go for re-advertisement. The basis for this as already stated is on account of the complaint submitted by the respondent No. 8. Clause 2 & 2a of the said Office Memorandum dated 25-06-2012 provides that for practicing experience, 1 mark can be allotted for each completed year of service in an affiliated Government Last Degree College subject to maximum of 5 marks. As per the Certificate submitted by the respondent No. 8 herself in response to the advertisement, she has the experience of teaching in Hari Gayatri Das College, Azara since 5th October, 2009. The Selection Committee held the selection on 22-08-2012 and therefore, it can only be seen that the respondent No. 8 had not completed 3 years of teaching as on the date of the assessment. The guidelines vide Office Memorandum dated 25-06-2012 only speaks for itself. Under the circumstances, this Court does not find any discrepancy in the decision taken by the Selection Committee. 10. In that view of the matter, upon considering the entire facts and circumstances, I am of the considered view that the writ petitioner has made out a case for interference of this Court and accordingly, the writ petition is disposed of with a direction to the respondent No. 4 to forward its Resolution on the basis of the recommendation made by the Selection Committee on 22-08-2012 to the Director of Higher Education (respondent No. 2) within a period of 1 (one) month from the date of receipt of a certified copy of this order. The respondent No. 2 on receipt thereof shall act upon the recommendation by issuing the appointment order as stipulated by the Rules of 2010 without further delay. 11. With the above observation and direction, writ petition stands disposed of as allowed. No cost.