Gauhati High Court
Ganga Dhar Das vs The State Of Assam And 6 Ors on 12 March, 2020
Author: S. Saikia
Bench: Manojit Bhuyan, Soumitra Saikia
Page No.# 1/11
GAHC010052282018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 111/2018
1:GANGA DHAR DAS
S/O LATE DINA NATH DAS ,
R/O .VILLAGE KALJAR
P.O. BARBALA
DIST. BARPETA
DIST. 781316, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 6 ORS
THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT
OF ASSAM, DEPARTMENT OF EDUCATION HIGHER EDUCATION, , DISPUR,
GUWAHATI-6
2:THE DIRECATION OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI -19.
3:THE GOVERNING BODY
B.H. COLLEGE
HOWLY
THROUGH ITS PRESIDENT
DISTRICT- BARPETA
PIN. 781316.
4:THE SELECTION COMMITTEE
RELATING TO THE SELECTION OF PRINCIPAL OF B.H. COLLAGE
THROUGH THE CHAIRMAN OF THE COMMITTEE- CUM -THE PRESIDENT
GOVERNING BODY
B.H. COLLEGE
HOWLY
Page No.# 2/11
DIST. BARPETA
PIN.781316 .
5:SRI RAM AVATAR SARADA
PRESIDENT
GOVERNING BODY
B.H. COLLEGE
HOWLY
DIST. BARPETA PIN. 781316 .
6:DR. BHUSAN CHANDRA PATHAK
B.H. COLLEGE HOWLY
DIST. BAREPETA
PIN. 781316
7:UNIVERSITY GRANTS COMMISSION
TO BE REPRESENTED BY ITS SECRETARY
BAHADUR SHAH ZAFFAR MARG
NEW DELHI 110002
Counsel for appellant : Mr. NN Upadhaya
Counsel for respondent Nos.1, 2 & 7 : Mr. A Chamuah
Counsel for respondent Nos.3, 4 & 5 : Mr. S Bharali
Counsel for respondent No.6 : Mr. KN Choudhury, Senior Advocate
Mr. DJ Das
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Date of hearing & judgment : 12.03.2020
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JUDGMENT & ORDER
(S. Saikia, J.)
Heard Mr. NN Upadhyay, learned counsel for the appellant. Also heard Mr. A Chaumah, learned counsel appearing for respondent Nos.1, 2 and 7, Mr. S Bharali, learned counsel appearing for respondent Nos.3, 4 and 5 and Mr. KN Choudhury, learned senior counsel assisted by Mr. DJ Das, learned counsel appearing for respondent No.6.
2. This appeal is carried to this Court in challenge to the judgment and order dated 13.2.2018 passed in WP(C) 29/2013 whereby the writ petition preferred by the appellant herein was dismissed.
3. The short case projected by the appellant is that the appellant is an Associate Professor in the B.H. College, Howly. By an advertisement dated 25.8.2011, respondent No.3, i.e. the Governing Body of B.H. College, Howly invited applications from the intending candidates for filling up the regular vacant post of Principal in the B.H. College, Howly. The said advertisement prescribes the required qualification of a Master's Degree with at least 55% marks from a recognised University, Ph.D. Degree in the concerned/allied/relevant discipline and to have a total 15 years of teaching experience/research/administration in Universities/colleges etc. as an Associate Professor. Pursuant to the selection as per the consolidated statements of marks, the respondent No.6, i.e. Dr. Bhusan Chandra Pathak who was the selected candidate, secured total marks of 456. The appellant secured total marks of
368. Being aggrieved by his non-selection to the said post of Principal, the appellant assailed the selection and appointment of respondent No.6 by the Governing Body by way of the writ petition.
4. The primary ground of challenge to the selection and appointment of respondent No.6 is that as per clause 10.1(f) of the UGC Regulations, period of service rendered by the respondent No.6 as ad-hoc/temporary basis cannot be taken into account for consideration of 15 years of experience as required in terms of the advertisement issued as well as the said UGC Regulations. According to the appellant, respondent No.6 did not satisfy the requirement of 15 years of experience in teaching/research/administration in Universities/colleges and the Page No.# 4/11 action of the respondent No.3, the Governing Body in selecting the respondent No.6 is in contravention to the UGC Regulations which are required to be mandatorily followed by colleges/Universities.
5. The respondent No.6 has opposed the contention of the appellant and contended that there is no infirmity in the conclusion arrived at by the learned Single Judge and since the learned Single Judge has correctly interpreted the UGC Regulations, there is no merit in the present appeal and the same should be dismissed accordingly. Further contention of respondent No.6 is that pursuant to his selection, he joined in the post of Principal of B.H. College, Howly w.e.f. 23.1.2012 and he has already completed more than 8 years of regular service as the Principal of B.H. College, Howly.
6. We have heard the learned counsel for the parties, and noted their rival contentions. We have also perused the pleadings relied on by the contesting parties. The issue involving in the matter is within the very short compass as to whether while counting 15 years of total experience in teaching/research/administration as per the UGC Regulations and as per the Advertisement dated 25.8.2011, the period of service rendered by the incumbent while he was on ad-hoc/temporary service can be taken into account or not.
7. For resolving the issue as referred to above, it will be apposite to refer to the UGC Regulations. By communication dated 30.6.2010, the University Grants Commission (UGC) brought in "UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010". These regulations are required to be adhered to by all UGC affiliated colleges/Universities for minimum qualifications for appointment and other service conditions of University and college teachers, Librarians, Directors of Physical Education and Sports for the maintenance of standards in higher education and revision of pay scale.
Under clause 4.2.0 the minimum qualifications required for direct recruitment to the post of Principal are enumerated.
Under clause 5.1.6, composition of the selection committee for selection to the post of College Principal is prescribed.
Page No.# 5/11 Under clause 10.0 counting of past services for direct recruitment and promotions under CAS is described and under clause 10.1.(f) it is provided that previous appointments as guest lecturer or ad-hoc or leave vacancy less than one year duration will generally not be counted except under the circumstances provided therein.
Aforesaid clauses of the UGC Regulations are extracted hereinbelow:
"4.2.0. PRINCIPAL i. A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University. ii. A Ph.D. Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance. iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education.
iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges.
5.1.6 College Principal
(a) The Selection Committee for the post of College Principal shall have the following composition:
1. Chairperson of the Governing Body as Chairperson.
2. Two members of the Governing Body of the college to be nominated by the Chairperson of whom one shall be an expert in academic administration.
3. One nominee of the Vice Chancellor who shall be a Higher Education expert.
In case of Colleges notified/declared as minority educational institutions, one nominee of the Chairperson of the College from out of a panel of five names, preferably from minority communities, recommended by the Vice-Chancellor of the affiliating university of whom one should be a subject expert.
4. Three experts consisting of the Principal of a college, a Professor and an Page No.# 6/11 accomplished educationist not below the rank of a Professor (to be nominated by the Governing Body of the college) out of a panel of six experts approved by the relevant statutory body of the university concerned.
5. An academician representing SC/ST/OBC/Minority/Women/Differently-abled categories, if any of candidates representing these categories is the applicant, to be nominated by the Vice Chancellor, if any of the above members of the selection committee do not belong to that category.
(b) At least five members, including two experts, should constitute the quorum.
(c) All the selection procedures of the selection committee shall be completed on the day of the selection committee meeting itself, wherein, minutes are recorded along with the scoring proforma and recommendation made on the basis of merit with the list of selected and waitlisted candidates/Panel of names in order of merit, duly signed by all members of the selection committee.
(d) The term of appointment of the college principal shall be FIVE years with eligibility for reappointment for one more term only after a similar selection committee process.
10.0 COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS.
10.1 Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III - Table No. II provided that:
(a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be.
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(b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor.
(c) The candidate for direct recruitment has applied through proper channel only.
(d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be.
(e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/Concerned Institutions, for such appointments.
(f) The previous appointment was not as guest lecturer for any duration, or an ad hoc or in a leave vacancy of less than one year duration. Ad hoc or temporary service of more than one year duration can be counted provided that:
(i) the period of service was of more than one year duration;
(ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and
(iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service, without any break.
(g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause."
8. A perusal of the regulations above extracted reveals that the pre-requisites laid down for the post of Principal has been adhered to by the college authorities in Advertisement dated 25.08.2011. There is also no dispute with regard to other qualifications prescribed by UGC. The only dispute which was urged by the appellant before the learned Single Judge and Page No.# 8/11 which was rejected is that while counting total experience of 15 years of teaching/research/administration in Universities/Colleges and other institutions, the period of service rendered by any incumbent on temporary/ad-hoc/leave vacancy is prohibited from being counted under the UGC Regulations as the same is hit by clause 10.1.(f) of the UGC norms or the Regulations.
The appellant urges that the period of service claimed by the respondent No.6 for the purpose of his selection to the post of Principal includes the service rendered under leave vacancy and on ad-hoc basis under Regulation 3(f). The appellant contends that at para 7 of the affidavit of the Director of Higher Education i.e. the respondent No.2, the service rendered by the respondent No.6 has been described which is not disputed by the respondent No.6. Said statements have also been reflected in paragraph 5 of the affidavit-in-opposition filed by the respondent No.6. For ready reference para 7 of the affidavit of respondent No.2 is extracted hereinbelow:
Name of Institution Period of Service Post held
1 B.H. College, Howly 01.05.1993 to 30.09.1993 Lecturer (Lien Vacancy)
2 Cotton College, Guwahati 01.10.1993 to 10.02.1999 Lecturer-Regulation 3 (f)
3 Doom Dooma College 12.02.1999 to 02.09.2003 Lecturer
4 Cotton College, Guwahati 03.09.2003 to 18.01.2010 Assistant Professor
5 Tezpur University 19.01.2010 to 25.08.2011 Associate Professor
9. The appellant strongly contends that the period of service rendered by the respondent No.6 shown at Sl Nos.1 and 2 above cannot be taken into account in view of the mandate of Regulation 10.1.(f) of the UGC Regulations as the same was rendered in leave vacancy and under Regulation 3 (f). If the said service of the respondent No.6 cannot be counted in calculating 15 years of experience as required under Regulation 4, then the selection and consequent appointment of the respondent No.6 is bad in law as the same is in contravention of the UGC Regulations.
10. Per contra, Mr. Choudhury, learned senior counsel for the respondent No.6 submits that the reference to clause 10 of the UGC Regulations is totally out of context in so far as the process of selection for the post of Principal is concerned. According to respondent No.6, the Page No.# 9/11 provisions of Regulation 10 including 10.1.(f) are relevant only for the purposes of direct recruitment and promotion under Career Advancement Scheme (CAS) system. Respondent No.6 contends that the issue involved in the present case is not under the CAS system. It is for filling up of a regular vacant post of the Principal by way of direct recruitment and consequently, the prescriptions under Rule 10 and 10.1.(f) are not applicable at all.
Further contention of respondent No.6 is that in the present case, requirement of Regulation 4 has been satisfied as is evident from the Advertisement dated 25.8.2011 and there is no complaint to that effect by the appellant/petitioner. Accordingly, the interpretation sought to be projected by the appellant is irrelevant and totally out of context and therefore, learned Single Judge has rightly accepted the submissions of respondent No.6 and dismissed the writ petition.
11. We have taken note of the arguments recorded by the learned Single Judge in the impugned judgment and order dated 13.2.2018. We have also perused the relevant provisions of the UGC Regulations. It is seen that Regulation 4 mentions the qualifications necessary for being considered for selection to the post of Principal. The said qualifications include requirement of 15 years of experience in teaching/research/administration in Universities, colleges and other institutions of Higher Education. Nowhere in the said Regulation there is a reference of "service". Regulation 4.2.0.(iii) categorically prescribes total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education (emphasised by us). Under the said Regulation, there is no bar/restriction/prescription as to how the service is to be rendered, i.e. whether it is to be rendered in regular/temporary/ad-hoc basis.
12. Regulation 10 prescribes counting of past service for direct recruitment and promotion under CAS. There is no reference of "experience" of teaching/research/administration referred to under the said regulation 10. Regulation 10 is specifically for counting of services for direct recruitment and promotion under CAS. Admittedly, filling up of regular vacant post of Principal in B.H. College, Howly by way of Advertisement dated 25.8.2011 is not under CAS. There is no challenge made to the Advertisement and/or the process of selection. The appellant accepted the parameters laid down in the advertisement and participated in the selection process without any demur.
Page No.# 10/11 Accordingly, the learned Single Judge is correct in holding that reference to Regulation 10 in the facts of the present case is wholly irrelevant and totally out of context.
13. We have also perused the judgments placed before the learned Single Judge. In the case of Dr. Asim Kumar Bose vs. Union of India and others, reported in (1983) 1 SCC 345, the Supreme Court has held that in so far as teaching experience is concerned there is hardly any difference whether it is to be acquired on regular appointment or in ex-officio capacity. In the facts of the present case, the appellant has not disputed the fact that the respondent No.6 did not render his service in teaching/research/administration during the period from 1.5.1993 to 30.09.1993 as a Lecturer (leave vacancy) in the B.H. College, Howly or between the period from 1.10.1993 to 10.2.1999 as a Lecturer (under 3 (f)) in the Cotton College, Guwahati. There is no malice projected against the respondent No.6 and/or selection committee or any of its members. Under the circumstances, the judgment rendered by the Supreme Court in Dr. Asim Kumar Bose (supra) has been rightly referred to and relied upon by the learned Single Judge and the appellant has not been able to bring out any distinguishing features in the present proceedings to contend that the said judgment of the Supreme Court is not applicable to the facts and circumstances of the present proceedings. Para 29 of Dr. Asim Kumar Bose (supra) is extracted hereinbelow;
"29. It is necessary to emphasis that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex officio designation. As the statutory rules do not provide that the teaching experience gained in an ex officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the appellant while holding the post of Radiologist-cum-Associate Professor of Radiology (ex officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College."
(emphasised by us) Page No.# 11/11
14. In view of the above discussions, we are not persuaded to differ with the views of the learned Single Judge and accordingly, we dismiss the appeal.
15. Parties are left to bear their own costs.
JUDGE JUDGE Comparing Assistant