Gauhati High Court
Dr Gitali Saikia vs The State Of Assam And 5 Ors on 21 May, 2025
Page No.# 1/38
GAHC010096362023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2653/2023
DR GITALI SAIKIA
D/O LATE PRAFULLA CHANDRA SAIKIA
HEAD OF THE DEPARTMENT OF ENGLISH, HCDG COLLEGE,
NITAIPUKHURI, P.O. NITAIPUKHURI, DIST. SIBASAGAR, ASSAM, PIN-
785671
PERMANENT RESIDENT OF EKORANI SINALI PATH, DEMOW MADHUPUR,
P.O. DEMOW, DIST. SIVASAGAR, PIN-785662
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION (HIGHER) DEPARTMENT,
DISPUR, GUWAHATI-6.
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019.
3:THE INSPECTOR OF COLLEGES
ASSAM
OFFICER OF THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019.
4:THE VICE CHANCELLOR
DIBRUGARH UNIVERSITY
DIBRUGARH
ASSAM
5:THE PRESIDENT
Page No.# 2/38
GOVERNING BODY HCDG COLLEGE
NITAIPUKHURI
P.O. NITAIPUKHURI
DIST. SIVASAGAR
ASSAM
PIN-785671.
6:DR BIRINCHI KUMAR BORA
ASSOCIATE PROFESSOR
DEPARTMENT OF SOCIOLOGY JHANJI HEMNATH SARMA COLLEGE
JHANJI
DIST. SIVASAGAR
ASSA
Advocate for the Petitioner : MR P C DEY, MR. A ULLAH,MR. M B U AHMED
Advocate for the Respondent : SC, HIGHER EDU, MS. P P DAS (R-5),MS P SARMA (R-5),MR. P
P DUTTA(R-5),FOR CAVEATOR,MS M DAS
Linked Case : WP(C)/3298/2023
DR. GITALI SAIKIA
D/O LATE PRAFULLA CHANDRA SAIKIA
HEAD OF THE DEPARTMENT OF ENGLISH
H.C.D.G. COLLEGE
NITAIPUKHURI
P.O.- NITAIPUKHURI
DIST.- SIVASAGAR
ASSAM
PIN- 785671.
PERMANENT RESIDENT OF - EKORANI SINALI PATH
DEMOW MADHUPUR
P.O.- DEMOW
DISTRICT SIVASAGAR
PIN- 785662.
VERSUS
Page No.# 3/38
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
EDUCATION (HIGHER) DEPARTMENT
DISPUR
GUWAHATI-6.
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 781019.
3:THE INSPECTOR OF COLLEGES
ASSAM
OFFICE OF THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
4:THE VICE-CHANCELLOR
DIBRUGARH UNIVERSITY
DIBRUGARH
ASSAM.
5:THE PRESIDENT
GOVERNING BODY
H.C.D.G. COLLEGE
NITAIPUKHURI
P.O.- NITAIPUKHURI
DISTRICT- SIVASAGAR
ASSAM
PIN- 785671.
6:DR. BIRINCHI KUMAR BORA
ASSOCIATE PROFESSOR
DEPARTMENT OF SOCIOLOGY
JHANJI HEMANTH SARMA COLLEGE
JHANJI
DISTRICT- SIVASAGAR
ASSAM.
------------
Advocate for : MR P C DEY Advocate for : SC HIGHER EDU appearing for THE STATE OF ASSAM AND 5 ORS Page No.# 4/38 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN JUDGMENT & ORDER (CAV) Date : 21-05-2025 Heard Mr. P.J. Phukan, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned Standing counsel for the respondent Nos. 1, 2 and 3; Mr. R. Mazumdar, learned Standing counsel for the respondent No. 4 and Mr. P.P. Dutta, learned counsel for the respondent No. 5 and Mr. P. Saikia, learned counsel for the respondent No. 6.
2. By this common Judgment and Order, it is proposed to dispose of these two writ petitions, being WP(C) No. 2653/2023 and WP(C) No. 3298/2023, filed by the same petitioner, namely, Dr. Gitali Saikia, as the issues involved in both the petitions are same and the parties are also identical.
3. In WP(C) No. 2653/2023, the petitioner, namely, Dr. Gitali Saikia, has challenged the selection of the respondent No. 6, namely, Dr. Birinchi Kumar Bora to the post of Principal, H.C.D.G. College, Nitaipukhuri, Sivasagar and to set aside and quash the selection list, so prepared, pursuant to the interview held on 18.04.2023, and also to hold fresh selection process for the abovementioned post as per relevant Rules and guidelines.
3.1. And in WP(C) No. 3298/2023, the petitioner, Dr. Gitali Saikia has prayed for setting aside the order dated 20.05.2023, passed by the respondent No. 2, being Memo No. DHE/CE/AC/PI/259/23/141-A, whereby the respondent No. 6 has been appointed as Principal of H.C.D.G. College, Nitaipukhuri, Sivasagar, and also to declare and adjudge the selection as unconstitutional and violative of Rules and procedure laid down in the Assam College Employees (Provincialisation) Rules, 2010, and also to set aside the select list prepared Page No.# 5/38 pursuant to interview held on 18.04.2023, and also to hold fresh selection for the post of Principal.
Background facts:-
4. The background facts, leading to filing of the present petitions, are briefly stated as under:
"The petitioner, Dr. Gitali Saikia was appointed as Lecturer in the English Department in H.C.D.G. College, Nitaipukhuri and accordingly, she joined on 01.12.1995. During the course of her service in the said department, she was promoted to the post of Head of the Department in English on 01.12.2009 and she has a teaching experience of 27 years with many published books and research papers. Thereafter, an advertisement was published on 07.03.2023, for filling up the post of Principal in H.C.D.G. College, Nitaipukhuri and accordingly, having fulfilled the requisite qualification and experience, she applied for the post and appeared in the interview on 18.04.2023 and altogether, three candidates applied for the said post and she faired well in the interview. Thereafter, the petitioner came to know that the selection committee was not constituted as per Rules by obtaining reply in RTI application and then, she had submitted an application before the Vice-chancellor, Dibrugarh University highlighting the defects and malpractices adopted in the said process and requested to take necessary action, but the same failed to evoke any response.
Thereafter, she preferred a writ petition, being WP(C) No. 2653/2023, before this Court wherein, vide order dated 17.05.2023, a direction was issued to the counsel for the Higher Education Department as to whether any guardian member was included in the selection committee, fixing the Page No.# 6/38 matter on 19.06.2023. The petitioner then furnished the copy of the said order to the respondent No. 2. But, the respondent No. 2, knowing very well the defects of the selection committee, and without considering the order of this Court, passed the impugned order dated 20.05.2023, appointing the respondent No. 6 to the post of Principal, H.C.D.G. College, Nitaipukhuri.
The pleaded case of the petitioner is that constitution of the selection committee by incorporating one member (guardian member), namely, Sri Budheswar Saikia, is a clear violation of the Rules, as he was a graduate and a cultivator by profession nominated as a member of the Governing Body, and he has no requisite qualification for being appointed as a member of the selection committee as he was not an expert in academic administration, which is the requirement of the Rules. And as such, the very constitution of the selection committee as well the selection process, are illegal and violative of the Assam College Employees (Provincialisation) Rules, 2010 ('Rules of 2010', for short), the selection of the respondent No. 6 and his appointment to the post of Principal of H.C.D.G. College, Nitaipukhuri, is illegal and arbitrary and against the established norms and procedure, and the impugned order of appointment of respondent No.6, passed by the respondent No. 2, is liable to be set aside, being illegal."
5. The respondent Nos. 1, 2, 3 and 4 have not filed affidavit-in-opposition. But, the respondent No. 5/the President, Governing Body, H.C.D.G. College has filed affidavit-in-opposition denying the statements and averments made in these petitions. In the said affidavit, the respondent No. 5 has taken a stand that the writ petitions are not maintainable on three grounds, firstly, the petitioner has challenged the selection of the respondent No. 6 after Page No.# 7/38 participating in the interview held on 18.04.2023, without any protest and after being unsuccessful and secondly, the scope of judicial review of Courts in matters of selection is limited and except on the ground of mala-fide or violation of statutory rules, the recommendation of selection committee cannot be challenged and the petitioner has failed to demonstrate any such violation of statutory rule or mala-fide on the part of the selection committee, and thirdly, there is a disputed question of fact regarding expertise of one of the members of the selection committee which cannot be adjudicated in a writ proceeding. Another stand taken by the respondent No. 5 is that the selection committee has not been arrayed as party herein these proceedings and due to non-joinder of necessary party, the petitions are liable to be dismissed.
5.1. It is also stated that all the norms of selection of Principals of provincialised colleges as prescribed by the Director of Higher Education, Assam have duly been followed and that the allegations levelled by the petitioner is after thought and she did not raise any grievance against the Governing Body nominee member in respect of his expertise in academic administration except his qualification to become a guardian member, and that she has taken a contradictory stand that she was aware about selection of the respondent No. 6/Principal, H.C.D.G. College, Nitaipukhuri and no pick and choose policy was adopted while selecting the respondent No. 6 and that the selection was done in a transparent manner.
5.2. It is further stated that Sri Budheswar Saikia was not the guardian member of the selection committee, instead he was the nominee of the Governing Body of H.C.D.G. College having educational qualification of Graduate in Arts, and that he possess the requisite experience of academic administration of the college, and that the inclusion of Sri Budheswar Saikia as one of the Page No.# 8/38 members of selection committee has not been challenged, and therefore, it is contended to dismiss the petitions.
Submissions:-
6. Mr. Phukan, learned counsel for the petitioner submits that the appointment of Principals of provincialised colleges is governed by the Rules of 2010 and in contravention of the said Rules, the selection committee has been constituted for selection of the Principal, H.C.D.G. College, Nitaipukhuri. Mr. Phukan also submits that it is a fact that the petitioner has participated in the selection process and after participation in the process, she has applied for information about constitution of the selection committee by filing one RTI application on 21.04.2023, while the interview was held on 18.04.2023, and only after receiving the reply in RTI, she came to know that the educational qualification of the guardian member of H.C.D.G. College Governing Body in the panel of interview is B.A. degree and is not a guardian of any children pursuing studies in the said college. Referring to the Office Memorandum dated 25.02.2019 (Annexure-9), Mr. Phukan submits that the guidelines for selection of the post of Principal indicates that the candidate must have 15 years of teaching/research/administration in university/colleges and other institutions of Higher Education with at least 55% marks in Masters Degree from a recognized university with Ph.D. degree in the relevant discipline and minimum score as stipulated in the Academic Performance Indicator, and with a minimum 10 research publications in peer reviewed or UGC listed journals and a minimum of 110 research score as per Appendix-II at Table-2, and to select a person of possessing such quality for the post of Principal, a person of simple graduation with profession as agriculture and without being a guardian of any student pursuing studies in the said college, shocked the judicial conscience, and that Page No.# 9/38 the appointment of Sri Budheswar Saikia, being the guardian member and being in the governing body of the college, his participation in the selection process, without being an Academic Administrator, is in contravention of the Rules and guidelines laid down by the University Grants Commission (UGC). And as such, Mr. Phukan submits that the impugned order of appointment of the respondent No.6 as Principal, H.C.D.G. College, Nitaipukhuri warrants interference of this Court.
6.1. Mr. Phukan, by referring to the meaning of 'expert' in Black's Law Dictionary, submits that Sri Budheswar Saikia never fulfilled any of the requirements of being an 'expert' in 'academic administration'. Mr. Phukan also pointed out that the guidelines issued by the UGC is not followed here in this case, and being subordinate legislation, the UGC guidelines are binding upon the State in view of Article 254. In support of his submission, Mr. Phukan has referred to a decision of Hon'ble Supreme Court in the case of (i) Kalyani Mathivanan vs. K.V. Jeyaraj and Others reported in (2015) 6 SCC 363 and also in (ii) Gambhirdan K. Gadhvi vs. State of Gujarat and Ors., reported in (2022) 5 SCC 179.
6.2. Mr. Phukan further submits that the rule that once a candidate participates in the selection process and being unsuccessful in the said selection process, he or she cannot challenge the selection process, is not an universal rule as held by the Hon'ble Supreme Court in the case of Raj Kumar and Ors. vs. Shakti Raj and Ors, reported in (1997) 9 SCC 527 and also by a Coordinate Bench of this Court in the case of Banashree Bharaddash vs. State of Assam and Ors., reported in 2015 (3) GLT 211. Under such circumstances, Mr. Phukan submits that the selection of the respondent No. 6 to Page No.# 10/38 the post of Principal dehors the Rules and as such, the same is liable to be set aside.
7. Per contra, Mr. Gogoi, learned Standing counsel for the respondent Nos. 1, 2 and 3 submits that having participated in the selection process, the petitioner cannot challenge the selection process. In support of his submission, Mr. Gogoi has referred to the decision of Hon'ble Supreme Court in the case of Tajvir Singh Sodhi and Ors. vs. State of Jammu and Kashmir and Ors., reported in 2023 SCC OnLine SC 344.
7.1. Further, referring to two other decisions of Hon'ble Supreme Court in the cases of Jagdish Prasad Sharma and Ors. vs. State of Bihar and Ors, reported in (2013) 8 SCC 633 and Kalyani Mathivanan vs. K.V. Jeyaraj and Ors., reported in (2015) 6 SCC 363, Mr. Gogoi submits that unless adopted by the State Government, the UGC guidelines are not binding upon the State Government and in the aforementioned decisions, the position has been made clear by Hon'ble Supreme Court, and as such, the petitioner cannot be allowed to contend that the selection of the respondent No. 6 is illegal for being selected by the selection committee, constituted without following the guidelines of the UGC, and under such circumstances, Mr. Gogoi has contended that the impugned order, neither suffers from any infirmity nor any illegality and as such, the same warrants no interference of this Court.
8. Per contra, Mr. Mazumdar, learned Standing Counsel for the respondent No. 4, has also made the same contention, which Mr. Gogoi, learned Standing Counsel for the respondent Nos. 1, 2 and 3 had made. Mr. Mazumdar, by referring to the decisions in the cases of Ramjit Singh Kardam vs. Sanjeev Kumar, reported in AIR 2020 SC 2060; Abdul Hye vs. State of Assam Page No.# 11/38 and Ors, reported in 2019 2 GauLR 454; Ashok Kumar and Anr. vs. State of Bihar and Ors., reported in (2017) 4 SCC 357 and Dr. G. Sarana vs. University of Lucknow and Ors, reported in AIR 1976 SC 2428, submits that the petitioner herein, knowing very well about the presence of Sri Budheswar Saikia in the selection committee and also knowing about his qualification, has taken a calculated action, to take part in the interview process and having been unsuccessful in the interview, now she cannot turn around and contend that the committee was constituted in contravention of the relevant Rules, because of the doctrine of estoppel.
8.1. Further, Mr. Mazumdar submits that there is no contravention of any rule or regulation in constitution of the selection committee and as such, selection of the respondent No. 6 as the Principal of H.C.D.G. College, Nitaipukhuri cannot be interfered with. Referring to the meaning of 'Academic Administrator' as defined in Black's Law Dictionary, Mr. Mazumdar has made an endeavour to persuade this Court that being a member of the Governing Body of the college, he possess the requisite qualification of Academic Administrator and merely because his profession is agriculture, it cannot be said that he is not an Academic Administrator, and therefore, Mr. Mazumdar has contended to dismiss the petition on the ground that the petitioner is estopped in raising the issue, after part in the selection process.
9. Mr. Dutta, learned counsel for the respondent No. 5 has also reiterated the points in his affidavit-in-opposition and submits that the petitions are not maintainable. Mr. Dutta further submits that the member of the selection committee, namely, Sri Budheswar Saikia, having B.A. degree, has the requisite qualification for being an Academic Administrator and no Rules and Regulations have been violated in the selection process. Under such circumstances, he Page No.# 12/38 contended to dismiss the petition. In support of his submission, Mr. Dutta has referred to a decision of Hon'ble Supreme Court in the case of Union of India and Ors. vs. Dhanwanti Devi and Ors., reported in (1996) 6 SCC 44.
10. Mr. P. Saikia, learned counsel for the respondent No. 6, had earlier submitted that selection of the respondent No. 6 is not in contravention of any of the Rules and procedure, and that his selection was done by a committee constituted as per rules and since the year 2023, he has been working as Principal of the said College and the same warrants no interference of this Court. Therefore, Mr. Saikia has contended to dismiss the petitions.
11. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petitions and documents placed on record, and also perused the decisions referred by learned Advocates of both sides.
The Issue Before This Court:-
12. In view of the statements and averments made in the pleadings and also in view of the rival submissions, so advanced at the bar, the issues to be decided by this Court are :-
(i) Whether the constitution of the select committee for selection of the Principal of HCDG College, Nitaipukhuri, was in accordance with Clause 3(iv) of Rule 10 of the Assam College Employees (Provincialisation) Act, 2005 as amended up to date and notified on 09.11.2017, and also in accordance with the UGC Guidelines ?
(ii) Whether a candidate having appeared in the interview and taking part in the selection process, can turn around and challenge the selection process, because of estoppels.
Page No.# 13/38
(iii) Whether UGC Guidelines are binding on the State Government ?
13. It is to be noted here that the scope of judicial review of the selection process of candidates in respect of public employment, is well settled in catena of decisions. In this connection, regard may be had to the following decisions.
13.1. In the case of Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan, reported in AIR 1990 SC 434, Hon'ble Supreme Court clarified the scope of judicial review of a selection process, in the following words:
"9...It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the selection committees and to scrutinise the relative merits of the candidates. Whether the candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala- fides affecting the selection etc....."
13.2. In the same line, in the case of Secy. (Health) Deptt. of Health & F.W. vs. Dr. Anita Puri, reported in (1996) 6 SCC 282, Hon'ble Supreme Court has observed as under, as regards the sanctity of a selection process and the grounds on which the results thereof may be interfered with:
"9. ... It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having Page No.# 14/38 technical experience and high academic qualification in the field for which the selection is to be made, the courts should be slow to interfere with the opinion expressed by experts unless allegations of mala-fide are made and established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation......."
13.3. The aforesaid proposition of law was reiterated by Hon'ble Supreme Court in M. V. Thimmaiah vs. Union Public Service Commission, reported in (2008) 2 SCC 119, in the following words:
"21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala-fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion...
xxx
30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of Page No.# 15/38 the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions....."
13.4. Again in the case of Om Prakash Poplai and Rajesh Kumar Maheshwari vs. Delhi Stock Exchange Association Ltd., reported in (1994) 2 SCC 117, which was a case, where an appeal was filed before this Court challenging the selection of members to the Delhi Stock Exchange on the ground that the Selection Committee formed for the aforesaid purpose, arbitrarily favoured some candidates and was thus, against Article 14, wherein, Hon'ble Supreme Court has rejected the allegation of favouritism and bias by holding as under:
"5. ...the selection of members by the Expert Committee had to be done on the basis of an objective criteria taking into consideration experience, professional qualifications and similar related factors. In the present cases, we find that certain percentage of marks were allocated for each of these factors, namely, educational qualifications, experience, financial background and knowledge of the relevant laws and procedures pertaining to public issues etc. Of the total marks allocated only 20 per cent were reserved for interviews. Therefore, the process of selection by Page No.# 16/38 the Expert Committee was not left entirely to the sweet-will of the members of the Committee. The area of play was limited to 20 per cent and having regard to the fact that the members of the Expert Committee comprised of two members nominated by the Central Government it is difficult to accept the contention that they acted in an unreasonable or arbitrary fashion......"
12.1. Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. 13.5. In the case of Tasvir Singh Sodhi (supra), Hon'ble Supreme Court has dealt with the issue as under:-
Thus, Courts while exercising the power of judicial review, cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective criteria employed by the selection Page No.# 17/38 board/interview panel in assessing the suitability of candidates, namely, (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20. (ii) that although the writ petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water.
14. Now, keeping in mind aforesaid principle, an endeavour will be made to find out whether the petitioner herein succeeded, in making out a case for interference of this Court in the selection process.
15. It is to be noted here that the basic facts here in this case are not in dispute. The petitioner herein possess the requisite qualification for the post of Principal and pursuant to the advertisement (Annexure-4), she had applied for the post of Principal of H.C.D.G. College, Nitaipukhuri, wherein she has been working as Head of the Department in English subject. Thereafter, she had taken part in the interview held on 18.04.2023, and thereafter, vide Annexure- 14 of WP(C) No. 3298/2023, the respondent No. 6 was appointed as Principal of H.C.D.G. College, Nitaipukhuri by the respondent No. 2.
15.1. It also appears that on 21.04.2023, after participation in the selection process, held on 18.04.2023, the petitioner filed one RTI application, seeking academic details of all the members of the interview panel of the interview held on 18.04.2023, marking process by the interview panel and bio data of the candidates. Prior to receiving the RTI information on 03.05.2023, she had also filed one representation to the Vice-Chancellor, Dibrugarh University on 20.04.2023 (Annexure-7), conveying her concern about the discrepancies that crept in the interview, held for the post of Principal, H.C.D.G. College, Page No.# 18/38 Nitaipukhuri. She also filed one representation to the Education Minister on the same day. But, the same failed to evoke any response.
15.2. Thereafter, on 03.05.2023, she had received the information sought for under the RTI Act, 2005. Thereafter, she had filed WP(C) No. 2653/2023, wherein a Coordinate Bench of this Court held that in the event of approval for appointment of the respondent No. 6, the same shall be subject to the outcome of the aforementioned petition. However, subsequently, the appointment of the respondent No. 6 was made by the respondent No. 2 on 20.05.2023, vide Annexure-14, which is being challenged in WP(C) No. 3298/2023.
16. It is to be noted here that the appointment of Principals in provincialised colleges of Assam is governed by the Office Memorandum dated 25.02.2019, issued vide Memo No. AHE.45/ 2019/2, by the Principal Secretary to the Government of Assam in the Higher Education Department. For the sake of convenience, the same is reproduced herein below:
"OFFICE MEMORANDUM Subject: Guidelines for Selection of Principals in Provincialised Colleges of Assam.
In cancellation of all previous Govt. OMs, the Government of Assam in Higher Education Department is pleased to notify the following guidelines for selection of Principals in Provincialised Colleges of Assam.
(i) A Master's Degree with at least 55% marks (or an equivalent grade in a point scale whenever grading system is followed) by a recognised University.
(ii) A Ph.D Degree in concerned/allied/relevant discipline(s) in the institutions concerned with evidence of published work.
(iii) Associate Professor/Professor with n total experience of fifteen years of teaching/ research/ Administration in Page No.# 19/38 University/Colleges and other institutions of Higher Education.
(iv) A minimum score as stipulated in the Academic Performance Indicator (API) based on Performance Based Appraisal in Appendix III for direct recruitment of Professors in Colleges.
(v) A relaxation of 5% may be provided at the graduate and master's level for the Scheduled Caste/Schedule Tribe/Differently abled (Physically and visually differently abled) categories for the purpose of eligibility and for assessing good academic record during direct recruitment to teaching positions. The eligibility marks of 55% marks or an equivalent grade in a point scale wherever grading system is followed) and the relaxation of 5% to the categories mentioned above are permissible based on only the qualifying marks without including any grace mark procedures.
(vi) A relaxation of 5% may be provided from 55% to 50% of the marks to the Ph.D Degree holders, who have obtained their Master's Degrees prior to 19 September, 1991.
(vii) Upper age limit of 55 years as per prescribed Rules.
Now the UGC vide regulation dated 18-07-2018 has modified the eligibility criteris for the post of Principals of Provincialised Colleges as shown below:
(i) Ph.D Degree. (ii) Professor/Associate Professor with a total
service/experience of at least fifteen years of teaching/ research in Universities, Colleges and other institutions of Higher Education.
(iii) A minimum of 10 research publications in peer reviewed or UGC listed journals.
(iv) A minimum of 110 Research Score as per Appendix II at Table-2.
This Office Memorandum is issued as per UGC regulation dated 18-07-2018.
Sd/-
(Maninder Singh IAS) Page No.# 20/38 Principal Secretary to the Govt. of Assam Higher Education Department.
Dated Dispur, the 25th February, 2019."
16.1. It also appears that the Governor of Assam makes Rules further to amend the Assam College Employees (Provincialisation) Rules, 2010 and in the principal rules, in Rule 10, the existing clause (A), (B) & (C) and the existing new Clause (A) shall be inserted therein, namely:-
"(A) There shall be a Selection Committee for selection to the post of Principals y direct recruitment in various Provincialised Colleges.
The Selection Committee shall consist of the following:-
(i) Vice Chancellor of the Affiliating University........................
Chairperson
(ii) President of the Governing Body of the College....................Member
(iii) One nominee of the Vice-Chancellor who shall be a Higher Education Expert .... .................................... Member
(iv) One nominee of the Governing Body of the College who shall be an expert in academic administration ............... Member
(v) Three experts consisting of the Principal of a College, a Professor and 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 of the University concerned. ........................ Member
(vi) An academician not below the rank of a Professor shall be nominated by the Vice-Chancellor, if there are candidates/applicants to the post of Principal belonging to SC/ST/OBC/Minority/Women / Differently- able categories and there are no members representing that category in the Selection Committee:--------- Member Provided, that at least five members including two experts from (v) above, shall constitute the quorum."
Sd./ Principal Secretary to the Government of Assam, Higher Education Department.
Page No.# 21/38 16.2. There is also one Notification, dated 18.07.2018, containing the UGC Regulations of Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 and Clause 5.1-VIII(A) of the said Notification deals with composition of selection committee for selection of the post of College Principal and Professor, which reads as under:
"VIII. College Principal and Professor A. Selection Committee
(a) The Selection Committee for the post of College Principal and Professor shall have the following composition:
i) Chairperson of the Governing Body to be the Chairperson.
ii) 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.
iii) Two nominees of the Vice-Chancellor who shall be Higher Education experts in the subject/field concerned out of which at least one shall be a person not connected in any manner with the affiliating University. 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.
iv) Three Higher Education experts consisting of the Principal of a College, a Professor and an 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).
v) 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 Page No.# 22/38 committee does not belong to that category.
vi) Two subject-experts not connected with the college to be nominated by the Chairperson of the governing body of the college out of a panel of five names recommended by the Vice Chancellor from the list of subject experts approved by the relevant statutory body of the university concerned. In case of colleges notified/declared as minority educational institutions, two subject experts not connected with the University nominated by the Chairperson of the College governing body out of the panel of five names, preferably from minority communities, recommended by the Vice Chancellor from the list of subject experts approved by the relevant statutory body.
(b) Five members, including two experts, shall constitute the quorum.
(c) All the selection procedures of the selection committee shall be completed on the day/last 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 an assessment by a Committee appointed by the University as per the composition given in sub-clause (B) of 5.1 (VIII).
(e) After the completion of his/her term as Principal, the incumbent shall join back his/her parent organisation with the designation as Professor and in the grade of the Professor."
16.3. Further, from the RTI reply (Annexure-11) of WP(C) No. 3298/2023, it appears that the selection committee for the post of Principal, H.C.D.G. College was constituted with the following members:
Page No.# 23/38 Sl. No. Name Designation 1 Prof. Jiten Hazarika Chairperson of the Vice Chancellor Selection Committee Dibrugarh University, Dibrugarh 2 Shri Bipin Dutta Member Secretary, President, Governing Body Selection Committee Graduate in Arts, H.C.D.G, College, Nitaipukhuri 3 Prof. Dipak Chetia Member, Selection V.C. Nominee Committee Dept. Of Pharmaceutical Science, Dibrugarh University 4 Shri Budheswar Saikia Member, Selection G.B. Nominee, Committee Graduate in Arts, H.C.D.G. College, Nitaipukhuri 5 Prof. Deb Kr. Charaborty Member, Selection Professor Dept. of Economics Committee Dibrugarh University 6 Prof. Geetika Borah Member, Selection An Accomplished Educationist Committee Dept. of Chemistry, Dibrugarh University 7 Dr. Saumarjyoti Mahanta Member, Selection Principal, Sibsagar Commerce Committee College 16.4. Thus, it appears from the Annexure-11, that in the aforesaid selection committee, at Sl. No. 4, the name of Sri Budheswar Saikia appears as member of the selection committee. It also appears that he is a Governing Body nominee and his educational qualification is Graduate in Arts.
16.5. Further, from the list of Governing Body Members of H.C.D.G. College, Nitaipukhuri, 2023 (Annxure-12 of WP(C) No. 3298/2023), it appears that Sri Budheswar Saikia is a guardian member of the Governing Body of the College Page No.# 24/38 for the year 2023 and by profession he is a cultivator of village - Baputigarh, Nitaipukhuri. And it is the contention of the petitioner that he is a guardian member of the Governing Body, without there being any of his son or daughter studying in the said college.
17. Now, the question is whether the inclusion of Sri Budheswar Saikia, being member of the Governing Body and having qualification as Graduate in Arts and his profession being agriculture, fulfils the requirement of Clause 3(iv) in Rule 10 of the Assam College Employees (Provincialisation) Act, 2005, as amended and notified on 09.11.2017, which provides that one nominee of the Governing Body of the College, who shall be an expert in academic administration.
18. The contention of Mr. Phukan, learned counsel for the petitioner is that Sri Budheswar Saikia, being a graduate and profession as agriculture, cannot be an expert in academic administration in view of the definition of 'expert' in Black's Law Dictionary. It is to be noted here that 'expert' is defined in Black's Law Dictionary, as under:-
(i) One, who is knowledgeable in specialized field, that knowledge being obtained from either education or personal experience, as held in Midtown Properties, Inc. vs. George F. Richardson, Inc., 139 Ga.App. 182, 228 S.E.2d 303, 307.
(ii) One, who by reason of education or special experience has knowledge respecting a subject matter about which persons having no particular training are incapable of forming an accurate opinion or making a correct deduction, as held in Balfour vs. State, Ind., 427 N.E.2d 1091, 1094.
(iii) One, who by habits of life and business has peculiar skill in forming opinion on subject in Page No.# 25/38 dispute, as held in Brown vs. State, 140 Ga.App. 160, 230 S.E.2d 128, 131.
19. That, a perusal of the advertisement (Annexure-4) for the post of Principal of H.C.D.G. College, Nitaipukhuri, the qualifications, experience, latest norms etc., as prescribed by the UGC and the Government of Assam guidelines are given as under:
"1. Masters Degree with at least 55% marks (or equivalent grade in a point scale wherever grading system is followed) from a recognized University.
2. A. Ph.D. Degree in the concerned/allied/relevant/ discipline(s) in the institutions concerned with evidence of published works.
3. Associate Professor/Professor with a total experience of fifteen years of teaching/research/ Administration in University/Colleges and other institutions of higher Education.
4. A Minimum score as stipulated in the Academic Performance indicator (API) based on Performance Based Appraisal (PBAS) In Appendix-III for direct recruitment of Professors in Colleges.
5. A minimum of 10 research publications in peer reviewed or UGC listed journals.
6. A minimum 110 research score as per Appendix-ll of Table 2 as per UGC regulation, 2018.
7. A relaxation of 5% marks may be provided at the Graduate and Master's Degree levels for the SC/ST/Differently-abled (Physically and visually differently-abled) categories for the purpose of eligibility and for assessing good academic record during direct recruitment to teaching positions. The eligibility marks of 55% or an equivalent grade In a point scale wherever grading system is followed, and the relaxation of 5% to the categories mentioned above are Page No.# 26/38 permissible based on only the qualifying marks without including any grace mark procedures.
8. A relaxation of 5% may be provided from 55% to 50% of the marks to the Ph. D Degree holders, who have obtained their Master's Degree prior to 19th September, 1991.
9. Upper age limit 55 years as on 01.01.2023 as per Govt. of Assam notification No. AHE/17/2013/3 dated 26.12.2013.
10. The term of the Principal shall be five years as per Govt.
Guidelines.
11. Application should be in the prescribed proforma issued by the DHE, Assam and to be submitted to the President, H.C.D.G. College, Nitaipukhuri, Sivasagar, Assam, Pin- 785671 within 15 (fifteen) days from the date of publication of this advertisement along with a Demand Draft of Rs. 2000/- (Rupees Two Thousand) only (non refundable) drawn in favour of Principal, H.C.D.G. College, Nitaipukhuri payable at Assam Gramin Vikash Bank, Nitaipukhuri Branch (IFSC-PUNBORRBAGB). The advertisement is uploaded in the college website i.e., www.hcdgcollege.org.
12. Call letters for the Interview will be sent through Registered/Speed post or e-mail ID in due time. No TA/DA is admissible for Interview. Incomplete/defective applications will be rejected at the time of scrutiny and no call letter will be issued to such candidates."
20. Mr. Phukan, learned counsel for the petitioner, submitted with vehemence that Shri Budheswar Saikia, being a Graduate in Arts, and agriculture by profession, cannot satisfy the requirement of being an expert in academic administration, to select a person who must possess the qualification as prescribed in Annexure-4, discussed herein above, and this shock the judicial conscience.
21. Mr. Phukan has also pointed out that there must be rational nexus between Page No.# 27/38 the qualification of the member of the selection committee and the purpose for which the selection committee was constituted and the same apparently missing here in this case as Mr. Budheswar Saikia lacks the requisite qualification for being an expert in academic administration, to select the Principal of H.C.D.G. College, Nitaipukhuri.
22. The submission Mr. Phukan, learned counsel for the petitioner, when examined in the light of given facts and circumstances on the record, this Court finds sufficient force in the same. As pointed out by Mr. Phukan there appears to be lack of rational nexus between the qualification of Sri Budheswar Saikia and the purpose, for which the selection committee was constituted, i.e. for selection of the Principal of the said College. Therefore, this Court is left with no other option but to record concurrence with the submission, so advanced by Mr. Phukan, learned counsel for the petitioner.
23. Though, Mr. Gogoi, the learned Standing Counsel for the respondent Nos. 1, 2 and 3; and Mr. Mazumdar, learned Standing Counsel for the respondent No. 4; Mr. Dutta, learned counsel for the respondent No. 5 and Mr. Saikia, learned counsel for the respondent No. 6, however, tried to persuade this Court that Sri Budheswar Saikia possessed the requisite qualification for being an expert in academic administration since he possessed the minimum qualification i.e. graduation. Even, Mr. Mazumdar, the learned counsel for the respondent No. 4 cited the example of Hon'ble Mr. Justice Wanchoo, who adorned the post of Chief Justice of India, without having a degree in law, to contend that Budheswar Saikia possesses the requisite qualification for being member of the selection committee. But, the submissions of learned counsel for the respondent authorities, are found to be bereft of logic. If Acts and Rules, prevailing at the relevant point of time permits such appointment, then it can be trying to draw Page No.# 28/38 parallels between Hon'ble Mr. Justice Wanchoo and Shri Budheswar Saikia in the present case, appears to be absurd. For the reason discussed herein above, the submissions failed to command acceptance of this Court.
24. Notably, the term 'academic administration' has not been defined either in the Assam College Employees (Provincialisation) Act, 2005 as amended up to date, or in the UGC Regulations 2018. In common parlance, 'academic administration' means management, oversight and coordination of academic programs, policies and activities within educational institution, including responsibilities such as development of curriculum, faculty hiring and supervision, student admissions, scheduling of courses, academic record management, accreditation and compliance with applicable educational regulation and standard etc. Though sometimes, it is a separate branch from the faculty or academics, there is also instances of joint responsibilities.
24.1. Normally, the job responsibilities of an 'academic administrator' is of manifold. Besides, overseeing and ensuring the smooth running of daily operations of the concerned institution, it has the duty to establish and enforce administrative policies and procedures, financial policies such as accounting processes, treasury management, state budget process, budget management and revenue projecting, sponsoring research and research administration, public affairs and communicating institutional information, procurement, facilities organizations and operations, construction projects, technology systems and infrastructure, payroll policies, benefits, travel management, legal issues, internal controls, ethics, and risk assessment and management. It has also the responsibility to develop and manage the curriculum and teaching methods of the institution, it has to monitor and evaluate educator performance, analyze and utilize data for improvement of educational practices and outcomes, Page No.# 29/38 collaborate with teachers, parents, and students to address issues and implement solutions, recruit, hire, and train educational staff, ensure compliance with local, state, and national education regulations and standards, prepare and present reports on academic performance, activities, and initiatives etc. 24.2. Normally, administrators of academic affairs, not only have their advanced degrees, but, also are established scholars in disciplines other than higher education administration. They generally require advancement through the academic ranks to the professorial level, which include department chair, dean of a college, head of a centre or institute, provost, senior research officer, and university or college president.
24.3. As discussed herein above, as per Black's Law Dictionary an 'expert' is one who is knowledgeable in specialized field, that knowledge being obtained from either education or personal experience. It is also stated there that one who by reason of education or special experience has knowledge respecting a subject matter about which persons having no particular training are incapable of forming an accurate opinion or making a correct deduction. Further, it is being stated that one, who by habits of life and business, has peculiar skill in forming opinion on subject in dispute.
24.4. And when it comes to an 'expert' in 'academic administration' he must be knowledgeable in the said field, which was obtained from either education or personal experience. In the case in hand, Shri Budheswar Saikia, who was nominated by the respondent No.4 as an 'expert' in 'academic administration' is neither a faculty nor academics. He is also a guardian representrative of the Governing Body and as alleged by the petitioner, without there being any of his son or daughter studying in the said College. Rather, he is an agriculturist.
Page No.# 30/38
25. Thus, given the educational qualifications, experience, latest norms etc., which are required for being selected to the post of Principal of H.C.D.G. College, Nitaipukhuri, as per the advertisement (Annexure-4) and as prescribed by the UGC and the Government of Assam guidelines, which requires minimum score, as stipulated in the Academic Performance Indicator (API) based on Performance Based Appraisal (PBAS), in Appendix-III, a minimum of 10 research publications in peer reviewed or UGC listed journals, a minimum 110 research score as per Appendix-ll of Table 2 as per UGC regulation, 2018, this Court afraid, a person with graduation in Arts and by profession an agriculturist, without there being special experience and knowledge and training on the subject matter, i.e. academic administration, may not be capable in forming an accurate opinion in adjudging the qualification and experience of the present petitioner, which requires much higher academic qualification and expertise. That being so, he is incapable to adjudge the academic qualification of the petitioner, and consequently, incapable to form an independent opinion on his own and susceptible for being influenced by other members of the selection committee.
26. Under the given factual scenario, this Court is of the view that the very constitution of the selection committee by the respondent No.4, by incorporating the Shri Budheswar Saikia, who cannot be termed as an 'expert' in 'academic administration', as required under Clause 3(iv) in Rule 10 of the Assam College Employees (Provincialisation) Act, 2005, and UGC Regulation, 2018, is illegal and arbitrary and consequently, selection of respondent No.6 by such an illegal committee and his appointment as Principal of H.C.D.G. College, Nitaiphukhuri, by the respondent No.2 is also illegal.
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27. The issue No.(i), as formulated herein above, is answered accordingly in above terms.
28. Now, it has to be seen whether a candidate having appeared in the interview and taking part in the selection process, can turn around and challenge the selection process, because of estoppels.
28.1. In catena of decisions, Hon'ble Supreme Court, has held that a candidate, who had taken part in the selection process and made a calculated attempt and having failed in the interview, cannot turn around and challenge the selection process. Mr. Gogoi and Mr. Mazumdar, learned counsel for respondents' No. 1, 2, 3 and 4 respectively, have rightly pointed this out during argument and the decisions referred by them in this regard, strengthened their submissions.
28.2. However, Mr. Phukan, learned counsel for the petitioner submits that even if the petitioner appeared and took part in the selection process, yet he/she can challenge the selection process, if constitution of the selection committee is illegal and contrary to the rules and statute.
28.3. The submission of Mr. Phukan, learned counsel for the petitioner, appears to have substance and the decisions referred by him in this regard, also strengthened his submission. In the case of Raj Kumar (supra), in paragraph No. 16, Hon'ble Supreme Court has held that it is true that in the case of Madan Lal vs. State of Jammu and Kashmir, reported in (1995) 3 SCC 486, and other decisions referred therein, had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But, in his case, the Government have committed glaring Page No.# 32/38 illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Thereafter, it has been held that the principle of estoppels by conduct or acquiescence has no application to the facts in this case.
28.4. A Coordinate Bench of this Court in the case of Banashree Bharaddash (supra), in paragraph No. 18, has held as under:
"18. In my opinion, any selection made in contravention of the provision of recruitment rules will render the same illegal and cannot be sustained in law; perpetuation of illegality cannot be allowed. It is not a question of estoppel; there can be no estoppel against statute. The composition of the Board for interview made by the APSC is rather ultra vires the provision of the UGC Regulations. Moreover, if an illegal selection is not challenged by an unsuccessful candidate, who will challenge it? After all, an unsuccessful candidate is held to be barred from filing a writ of quo warranto inasmuch as he is said to have a personal interest: PIL in service matter is not maintainable either. In my judgment, to non-suit the petitioner on the mere ground of his participation in the selection process, no matter how illegal the selection process was, will amount to conferring immunity to the illegal action of the APSC or perpetuation of illegality. We live in an age when whistle blowers are welcomed to expose any commission of bribery and corruption by public officials, can we really non-suit a candidate, who wishes to bring to the notice of the court of equity/writ court the violation of recruitment rules by the APSC while constituting the Board for interview for the selection process just because he had already participated therein? The answer must be in the negative: any view contrary to this will give a wrong signal to others. It must be a remarkable candidate, who is practically begging for job, to challenge the recruiting agency on the composition of the Board for Interview board even before she Page No.# 33/38 faces the interview. However, I hasten to add that this observation is not a reflection on the integrity of the Chairman APSC or the Board of interview nor is this the case of the petitioner. In my opinion, violation of UGC Regulations by the APSC in the instant case could stem from bona fide mistake in construing the UGC Regulations and not due to extraneous considerations or malice in fact. Nevertheless, an illegality can be committed even for bona fide reason or unwittingly, but illegality is still illegal no matter even when it is committed due to bona fide reason or ignorance of law or for mala fide reason. The impugned selection is, therefore, liable to be quashed for this reason alone."
28.5. In the case of Dr. (Major) Meeta Sahai vs. State Of Bihar, reported in (2019) 17 SCALE 718, in paragraph No. 18, Hon'ble Supreme Court has held as under:-
"18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."
28.6. In the case of Krishna Rai through Lrs. & Ors. vs. Banaras Hindu University, Through Registrar & ors. in Civil Appeal Nos. 45784580 of 2022, it has been held that it is settled principle that principle of estoppels cannot override the law. Same principle is also reiterated in the case Page No.# 34/38 of M/s. Tata Chemicals Ltd. vs. Commissioner of Customs (Preventive) Jamnagar in Civil Appeal Nos.7439-7440 of 2004 and in Civil Appeal Nos.7628-7629 of 2004, that there can be no estoppel against law. If the law requires that something has to be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all.
29. Since, in the case in hand, there is allegation of violation of the UGC Guidelines for selection of the post of Principal as laid down in the UGC Regulations of Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 in Regulation 5.1-VIII(A)(a) (ii), for being constitution of the selection committee for the post of Principal by incorporating the name of Sri Budheswar Saikia, a Governing Body member, being the guardian representative and without being an expert in academic administration, as required under Clause 10(3)(iv) of the Rules of 2010, of the Assam College Employees (Provincialisation) Act, 2005, this Court is of the view that on account of the same reasoning given by Hon'ble Supreme Court in the case of Raj Kumar (supra) and Dr. (Major) Meeta Sahai (supra) and by a Coordinate Bench of this Court in the case of Banashree Bharaddash (supra), the petitioner herein has the right to challenge constitution of the selection committee and on such count, the principle of estoppels would not come into play in this case.
30. The issue No.(ii), as formulated herein above, is answered accordingly in above terms.
31. Now, it has to be seen whether the UGC Guidelines are binding on the Page No.# 35/38 State Government or not.
32. Though, Mr. Gogoi, learned Standing counsel for the respondent Nos. 1, 2 and 3 has submitted that the UGC Guidelines, 2018, are not adopted by the State of Assam and on such count, the State of Assam is not bound to follow the guidelines, yet, the same fails to command acceptance of this Court, in as much as, in the case of Gambhirdan K. Gadhvi (supra), Hon'ble Supreme Court has held that the eligibility criteria, when once fixed by the UGC, under its regulations would in our view apply to all the Universities which are aided by the UGC, to be bound by the said Regulations even in the absence of the same being incorporated under the respective Universities Act of the respective States. Thereafter, in paragraph Nos. 49 and 50, Hon'ble Supreme Court has held as under:
"49. Therefore, when the appointment of Respondent 4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of Respondent 4 as the Vice-Chancellor of the SP University.
50. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)
(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject "education" is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the Page No.# 36/38 statutory provisions, warranting a writ of quo warranto."
32.1. Similar observation is also made in the case of Kalyani Mathivanan (supra) as under:-
"53. The aforesaid judgment makes it clear that to the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List shall be repugnant to the Central legislation and would be inoperative."
32.2. Again in the case of Jagadish Prasad Sharma and Ors. (supra) in para No. 70 and 72, it has been observed as under:-
"70. The authority of the Commission to frame regulations with regard to the service conditions of teachers in the Centrally-funded educational institutions is equally well-established. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been left to the discretion of the State Governments. The concern of the State Governments and their authorities that UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by UGC relate to Schedule VII List I Entry 66 to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under List III Entry 25, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within the State and the same will have effect Page No.# 37/38 unless they are repugnant to any Central legislation.
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72. As far as the States of Kerala and U.P. are concerned, they have their own problems which are localised and stand on a different footing from the other States, none of whom who appear to have the same problem. Education now being a List III subject, the State Government is at liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by UGC. It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission.
33.3. I have carefully gone through the decisions, so referred by Mr. Gogoi, learned Standing Counsel for the respondent Nos. 1, 2 and 3 in this regard. However, in view of the decision in Gambhirdan K. Gadhvi (supra), and Kalyani Mathivanan (supra) and in the case of Jagadish Prasad Sharma and Ors. (supra), this Court is of the view that the decisions referred by Mr. Gogoi, instead of advancing his argument, strengthened the argument of Mr. Phukan, the learned counsel for the petitioner.
33.4. In view of above discussion and finding, issue No.(iii), as formulated herein above, is answered in affirmative in the aforesaid terms.
34. Since constitution of the selection committee, for selection of the Principal in H.C.D.G. College, Nitaipukhuri is not in accordance with the provisions, so laid down in the UGC Regulations of Minimum Qualification for Appointment of Page No.# 38/38 Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 in Regulation 5.1- VIII(A)(a) (ii), and also not in accordance with Clause 10(3)(iv) of the Rules of 2010, so framed under the Assam College Employees (Provincialisation) Act, 2005, selection of respondent No.6 to the post of Principal, H.C.D.G. College, Nitaipukhuri has to be declared as illegal, being violative of the Rules and Procedure and the impugned order under memo No. DHE/CE/AC/PI/259/23 / 141-A, dated 20.05.2023, so passed by the respondent No.2 appointing the respondent No.6 as the Principal of H.C.D.G. College, Nitaipukhuri has to be set aside and quashed. And accordingly, the same stands set aside and quashed.
35. It is provided that fresh selection process shall be initiated for the post of Principal within two months from the date of receipt of certified copy of this Judgment and Order. The petitioner shall obtain a certified copy of this Judgment and Order and shall place the same before the respondent authorities within a week from today.
36. In the result, both the writ petition stands disposed of with the aforesaid direction. The parties have to bear their own cost.
JUDGE Comparing Assistant