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2019 DIGILAW 960 (GAU)

Mrinal Baishya v. State of Assam

2019-08-29

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. Heard Mr. A. C. Borbora, learned Senior counsel assisted by Mr. M. Smith, learned counsel for the petitioner. Also heard Mr. A. K. Bhattacharrya learned Senior Counsel assisted by Mr. A. K. Choudhury, learned counsel for the respondent No.6, Mr. B. Sinha, learned counsel for the respondent No.3 and Ms. D. Bora, learned Standing Counsel, Health Department. 2. This writ petition is filed by the petitioner challenging the selection / recruitment of respondent No.6 to the post of Lecturer of Roga Nidan department in the Government Ayurvedic College and Hospital, Guwahati by the selection Board. 3. The petitioner and the respondent No.6 were appointed as Medical Officer(Ayur) on the recommendation of the Assam Public Service Commission(APSC). Vide notification of the Secretary, Health and Family Welfare Department dated 23.7.2004, the petitioner was posted at Alupatti Char PHC, Barpeta from the year 2004 to 2009 where after he was nominated by the Govt. of Assam to pursue Master's Degree in the Roga Nidan Evam Vikriti Bigyan. The petitioner successfully completed his Master's Degree in October, 2012 where after he came back and joined the State Dispensary at Nityanandapur, Hailakandi as Medical Officer. 4. The Central Council of Indian Medicine(CCIM) denied permission to the Government Ayurvedic College, Guwahati for admission of students in M.D (Ayur) in Kayachikitsa and other P.G. Courses due to lack of minimum number of teachers in the said college. Accordingly the Government decided to appoint Lecturers in the deficit departments in the college as the Government had already deposited the required fee to the CCIM for inspection. In pursuance of the said decision the service of the present petitioner alongwith other three Medical Officers(Ayurvedic) were placed at the Government Ayurvedic College, Guwahati to utilize their specialty and allowed to work as Lecturer in the department shown against his name vide notification dated 10.12.2013. However the said notification clearly mentioned that the petitioner would continue to draw his salary from existing place of posting under the Health and Family Welfare(A) Department. The petitioner joined on 11.12.2013 in the said college as Lecturer of Roga Nidan Department. 5. The APSC vide advertisement No. 12/15 dated 20.6.2015 invited applications from young candidates for filling up of several vacant posts at the Government Ayurvedic College and Hospital under the Health and Family Welfare(B) Department, Assam which includes amongst other one post of Lecturer in Roga Nidan Department. 5. The APSC vide advertisement No. 12/15 dated 20.6.2015 invited applications from young candidates for filling up of several vacant posts at the Government Ayurvedic College and Hospital under the Health and Family Welfare(B) Department, Assam which includes amongst other one post of Lecturer in Roga Nidan Department. The requisite educational qualification of the candidates for the post as advertised are as follows: "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." 6. The petitioner was called for to appear in the viva-voce interview for the said post asking the petitioner to bring original copies of all the academic certificates along with Marksheets from HSLC or equivalent examination onward issued by the Boards, Council and University etc., HSLC Admit Card for age proof, caste certificate and any other certificate/document that may be relevant for the candidature of the individual candidates. The petitioner faced the said viva-voce interview and the APSC on 8.6.2016 recommended the name of respondent No.6 for the said post of Lecturer in the Department of Roga Nidan. It is the recommendation which is challenged by the petitioner. 7. Mr. Borbora, learned Senior Counsel submits that in the call letter a specific direction was given to the petitioner to produce certificate / document that may be relevant for the candidature of the petitioner. As per the practice in an advertisement pertaining to filling up of post of Lecturer in various medical disciplines, a preferential clause is incorporated to give preference to the incumbents who has teaching experience in the said post. However, in respect of the advertisement dated 20.6.2015 although no preferential clause for teaching experience was incorporated, yet instructions were given to the technical expert member conducting the interview of the viva-voce test to take into account the experience of teaching of the candidates and published papers in the concerned discipline while granting grading in the interview. However, in respect of the advertisement dated 20.6.2015 although no preferential clause for teaching experience was incorporated, yet instructions were given to the technical expert member conducting the interview of the viva-voce test to take into account the experience of teaching of the candidates and published papers in the concerned discipline while granting grading in the interview. The petitioner submitted the certificates pertaining to his teaching experience in the concerned department and the said certificates were issued by the Principal of the Government Ayurvedic College, Guwahati and in addition to that the petitioner completed his Master's Degree in the subject of the required department and as indicated in the call letter necessary weight age ought to have been given to the certificates issued to the petitioner. It is further submitted that academically the petitioner has a brilliant career. The respondents more specifically the Members in the interview board ought to have considered the supporting qualification more so the teaching experience and ought to have selected the petitioner. Further it is the submission of Mr. Borbora, that the petitioner answered to the queries put by the expert in the viva-voce test and he has reason to believe that the expert members had given the petitioner the highest possible grading . But because of the undue interference by the administrative member who happens to be the Chairman of the APSC, selected the respondent No. 6 who did not have any teaching experience and publications in her name. It is further submitted that as the records are before this court the same may be verified as to the uniformity of the grades given to the candidates. 8. Mr. Bhattacharyya, learned Senior Counsel for the respondent No. 6 countered the submissions of Mr. Borbora by submitting that the educational qualification as advertised by the APSC, does not require any teaching experience inasmuch as except the criteria mentioned in the head of educational qualification there are no other criteria to give weight age to the teaching experience of any candidates. The petitioner is aggrieved as his teaching experience nor the papers published were considered in the selection process. The petitioner cannot after appearing in the said interview as advertised by the APSC, come back and challenge the requisite criteria advertised for participation of a candidate in the said interview. The petitioner is aggrieved as his teaching experience nor the papers published were considered in the selection process. The petitioner cannot after appearing in the said interview as advertised by the APSC, come back and challenge the requisite criteria advertised for participation of a candidate in the said interview. The petitioner is estopped and as such, the writ petition is not at all maintainable for the said reason. In support of his contention Mr. Bhattacharjee relies on Ranjan Kumar and others Vs State of Bihar and others, (2014) 16 SCC 187 and submits that the petitioner in the writ petition had appeared in the examination without any protest whatsoever and filed this writ petition only after he realised that he would not succeed in the examination. Such act cannot be accepted and the petitioner is estopped from challenging the said process of interview as unfair. The advertisement itself fixed the standard of educational qualifications required for a candidate in order to participate in the interview process and once such standard is set out the same must be rigorously followed. 9. I have considered the submissions of the learned counsel. The petitioner and the respondent No.6 are both holders of the degree in Ayurveda and both of them were appointed as the Medical Officers (Ayurved) by the Government and both of them have Master's Degree in the required subject. If we look back the educational qualifications set to be required for offering the candidature in the advertisement, the respondent No. 6 satisfies the criteria mentioned in the said head of educational qualification. Under no circumstances it can be inferred or concluded that additional weight age is to be given to the candidates with teaching experience in the concerned subject nor that was made known to the prospective candidates by way of the advertisement. Mere asking to bring any other certificates by the candidates in the call letter cannot be held to be the basis of the educational qualification already advertised which is referred hereinabove. 10. Mr. Borbora, the learned Senior Counsel submits that direction to bring such certificates other than those academic certificates issued by the Boards or Council/ University must have some intent in mentioning in the said call letter and accordingly the petitioner having the requisite experience in teaching ought to have been considered. 10. Mr. Borbora, the learned Senior Counsel submits that direction to bring such certificates other than those academic certificates issued by the Boards or Council/ University must have some intent in mentioning in the said call letter and accordingly the petitioner having the requisite experience in teaching ought to have been considered. In my opinion the said submission cannot be accepted inasmuch as once the criteria is laid down so far the requirement of educational qualification is concerned, the respondent APSC cannot deviate from the said terms laid down. There is no bar in submitting other certificates. But the APSC cannot discard the candidature of other candidates by considering the extraneous certificates or qualifications. In this regard Mr. Bhattacharyya aptly referred to the excerpt of Mr. Justice Frankfurter in Viteralli Vs Saton 359 U.S 535: Law Ed( Second Series) 1012 relied in Ramana Dayaram Shetty vs. International Airport Authority of India and others by the Hon’ble Apex Court, (1979) 3 SCC 489 which is reproduced here in below: ". It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr Justice Frankfurter in Viteralli v Sato where the learned Judge said: An executive agency must be rigorously held to the standards by which it professes its action to be judged.. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword." 11. The educational qualification as laid down by the APSC must be rigorously followed inasmuch it is the APSC who thought it proper to set the educational qualifications as per the requirements of the college and APSC must follow the said criteria it has set scrupulously. APSC cannot transgress the said criteria of educational qualification as advertised and consider the certificate showing experience in teaching of the petitioner. 12. Mr. APSC cannot transgress the said criteria of educational qualification as advertised and consider the certificate showing experience in teaching of the petitioner. 12. Mr. Borbora raised the issue that the petitioner was able to answer all the questions asked by the expert member and he is confident that the said expert member had given the highest possible grading in the test but because of the interference by the administrative member who happens to be the Chairman of APSC, the petitioner was deprived by giving more marks to the respondent No. 6 who had no teaching experience and publications in her name. The records were called for pertaining to the viva-voce test to the post of Lecturer in Roga Nidan which is produced by Mr. Sinha the learned Additional Standing Counsel, APSC. I have perused the said records and I do not find any irregularities in the marking system inasmuch as the criteria adopted in the marking system is uniform in respect of all the candidates appeared before the interview Board. The records does not support the contention of Mr. Borbora 13. The petitioner cannot challenge the criteria mentioned in the educational qualification as advertised after participating in the interview process. He is estopped once he participated in the interview process. If at all the petitioner was aggrieved by the standard set for the educational qualification by the respondent APSC he ought to have challenged the said advertisement. Instead, the petitioner participated in the interview and having failed to get through the test of viva- voce, the petitioner is estopped to challenge the criteria adopted in deciding the competency of the candidates in the interview process. In Ranjan Kumar and others Vs State of Bihar and others (supra) the Hon'ble Apex Court held that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. 14. In the present case in hand the petitioner was well aware of the qualification required for a candidate to participate in the interview process. Subsequently he raised the issue before this court that his certificates supporting the teaching experience along with other published papers were not considered and instead the respondent No.6 is appointed on some extraneous reasons. 14. In the present case in hand the petitioner was well aware of the qualification required for a candidate to participate in the interview process. Subsequently he raised the issue before this court that his certificates supporting the teaching experience along with other published papers were not considered and instead the respondent No.6 is appointed on some extraneous reasons. In fact the APSC as hereinabove stated set the required educational qualification and the educational qualification as prescribed must be rigorously followed while examining the performance of the candidates and as such the petitioner is estopped to raise the said plea before this court. From the aforesaid discussions I am constrained to hold that this writ petition has no merit and the same stands dismissed accordingly. No costs. 15. Interim order passed on 17.6.2016 stands vacated.