Gauhati High Court
Diganta Choudhury vs The State Of Assam And Ors on 29 May, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM &ARUNACHAL
PRADESH)
WP(C)No.4762 of 2011
Sri Diganta Choudhury,
Son of Sri Naba Kumar Choudhury,
Resident of Village-Barbang (Choudhuripara),
P.O- Barbang, P.S. Patacharkuchi,
District- Barpeta, Assam,Pin-781325.
....Petitioner
-Vs-
1. The State of Assam, represented by Commissioner
and Secretary to the Government of Assam, Department of
Higher Education, Dispur, Guwahati-6.
2. The Director of Higher Education, Assam,
Kahilipara, Guwahati-19.
3. The Governing Body of Bajali College,
represented by the Secretary cum Principal of
Bajali College, Pathsalar, P.O- Pathsala,
District-Barpeta, Assam, Pin-781325.
4. The Selection Committee, represented by the
Chairman- Cum- President of the Governing Body,
Bajali College, Pathsala, P.O- Pathsala, District-
Barpeta, Assam, Pin- 781 325.
5. Sri Upakul Mahanta, son of Sri Dhiren Mahanta,
Milanpur (Opposite CDPO Office),
PO- Pathsala, District- Barpeta, Assam,
PIN- 781325.
....Respondents
BEFORE HON'BLE MR. JUSTICE MANOJIT BHUYAN For the petitioner : Mr. U.K.Das. Advocate Mr. K.M.Haloi, Advocate.
For the Respondents : Mr. M. Choudhury, Advocate,
Mr. C. Chowdhury,Advocate,
Ms. D. Borgohain, Advocate
Date of hearing : 5.5.2015
Date of judgment : 29.5.2015
JUDGMENT & ORDER (CAV)
Heard Mr. U. K. Das, learned counsel representing the writ petitioner as well as Mr. M. Choudhury, learned counsel representing respondent Nos. 1 & 2. Also heard Mr. C. Choudhury, learned counsel representing respondent Nos. 3 & 4 and Ms. D. Borgohain, learned counsel representing respondent no.5.
1. The petitioner, Diganta Choudhury passed M.Sc. in Physics in the year 2001 and had also completed M. Phil in the year 2009 and has undergone U.G.C. and Standard Orientation Programme at North Eastern Hill University (NEHU), Shillong. Having the basic qualification, he secured appointed as a Lecturer in the Department of Physics at Barama College, to which post he joined on 27.2.2006. According to the petitioner, the said Barama College was established in the year 1971 and was brought under the deficit system of grants-in-aid in the year 1978. In so far as the Science Stream is concerned, it was started in the year 1992. Permission for T.D.C. (Science) was granted by the Gauhati University in the year 1995 and concurrence was given by the Government of Assam in the year 2000. Subsequently, in the year 2006, the Bodoland Territorial Council had taken over the Science Stream of Barama College along with some other Colleges with effect from 12.1.2006, vide Notification dated 13.1.2006, issued under the hand of the Joint Secretary, Bodoland Territorial Council.
2. Another College, namely Bajali College, Pathsala had initially issued an Advertisement on 29.7.2009, inviting applications for certain posts of Lecturers including that of Physics. Although no selection process was initiated pursuant to the said Advertisement dated 29.7.2009 as well as in terms of the subsequent Advertisement dated 27.2.2010, however, pursuant to another Advertisement dated 29.4.2011, a selection process was duly initiated. According to the petitioner, he had applied against the post of Physics and also appeared before the Interview held on 22.6.2011 before the Selection Committee constituted for the purpose.
3. On 23..7.2011, the petitioner made application before the Public Information Officer, Bajali College, Pathsala under the Right to Information Act, 2005 seeking information and documents, more particularly, the consolidated statement of marks along with individual marking sheets pertaining to the selection in question. The complete information and documents sought for was made available to the petitioner only on 29.8.2011.
4. From the documents so furnished, the petitioner came to learn that for the purpose of selection the Selection Committee had followed the Government Guidelines contained in Memo No. B(2) H 242/202/240 dated 20.2.2003. Since the norms laid down in the said Guidelines gains utmost significance for deciding the present proceedings, as such the relevant part thereof is extracted hereunder:
" Norm s for the post of lecturer/ Librarian :
a) *** *** ***
b) *** *** ***
c) *** *** ***
d) .....................
Academic Teaching Knowledge of Interview Total
qualification experience the subject
Maximum 65 Maximum 5(1 15 15 100
point for one
year only for
complete year
of teaching in
Govt./Deficit
Colleges only)
....................................."
5. It is the case of the petitioner that according to the said norms under the Guidelines dated 20.2.2003, a candidate for the post of Lecturer is entitled to a maximum of 5 (five) points/ marks on the basis of a computation of 1 (one) point for 1 (one) year only for a complete year of teaching in Government /Deficit College only under the head of 'teaching experience'. The petitioner is aggrieved that despite being entitled to 5 marks for his years of service at Barama College, not a single mark was given to him on account of his teaching experience. The petitioner alleges manipulation of records, in that, although 6 members of the Selection Committee out of the total 7 members had initially granted 5 marks to the petitioner, the same were subsequently struck off without any initials of the said members. The petitioner contends that had he been granted the 5 marks to which he was entitled to, his total marks would have been 55.14 as against the total marks of the respondent no.5 who had secured 50.14 marks and eventually appointed. The petitioner submits that he was not only deprived of the said 5 marks but the office of the Principal of Bajali College had also deliberately caused delay in furnishing the complete information to the petitioner, as a result of which and in the meantime the Governing Body of Bajali College, Pathsala had passed Resolution No. 2(a) on 10.7.2011 appointing the respondent no.5 i.e. Sri Upakul Mahanta to the post of Lecturer in the Department of Physics and which appointment had also been provisionally approved by the Director of Higher Education, Guwahati, Assam on 20.8.2011.
6. On the facts above, the petitioner submits that he was illegally deprived of the said marks on extraneous consideration and due to favouritism shown by the authority in favour of the respondent no.5. Further, the norms of the recruitment process were not adhered to, thereby, rendering the entire selection process as not tenable in the eye of law. In the premises the petitioner prays for setting aside the consolidated statement of marks prepared by the Selection Committee on 22.6.2011 in respect of the post of Lecturer of Physics, the Resolution No.2(a) dated 10.7.2011 passed by the Governing Body of Bajali College and the order dated 20.8.2011 by which the Director of Higher Education, Assam had provisionally approved the resolution adopted by the Governing Body of Bajali College. Prayer was also made for setting aside the appointment order issued in faovur of the respondent no., 5 however, without enclosing a copy of the said appointment order.
7. Mr. M. Choudhury, learned counsel representing the respondent no.2 i.e. the Director of Higher Education, Assam submits that the selection and appointment was made in strict compliance of the Government Guidelines. According to Mr. Choudhury, the petitioner is not entitled to the 5 marks under 'teaching experience' in as much as, the petitioner was serving as a Lecturer in the Science Stream of Barama College which had not been provincialised nor brought under the deficit system of grants-in-aid. It is contended that the petitioner was serving in a non- sanctioned post at Barama College and since the science stream of the College was not provincialised for the period for which the petitioner had claimed marks towards his 'teaching experience', as such, the non-award of marks was not in violation of the Government Guidelines. Mr. Choudhury further clarifies that only the Arts Stream of Barama College had been brought under the deficit system of grants-in-aid and not the science stream of the College at the relevant point of time. Referring to the Advertisement dated 29.4.2011, Mr. Choudhury submits that as per the eligibility criteria laid down, a candidate must possess the latest UGC norms of NET/SLET/SET qualifications which are mandatorily required and/or must possess M. Phil degree obtained and or before 10.7.2009. As against the said qualification, Mr. Choudhury submits that the petitioner on his own showing do not have NET/SLET/SET qualification save and except M. Phil degree which he had obtained only in November, 2009 through distance mode, while on the other hand, the respondent no.5 had NET qualification. The contention put forward is that in view of the qualification/eligibility criteria so laid down, the petitioner was not even qualified to apply and/or to appear in the selection process. Taking it forward, Mr. Choudhury refers to the Civil Appeals arising out of SLP (Civil) Nos. 36023- 36032 of 2011 in the case of P . Suseela & ors.-vs- University Grants Com m ission and ors . Referring to the said judgment, Mr. Choudhury submits that in the said case before the Apex Court the constitutional validity of the University Grants Commission Regulation (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) (the third Amendment) Regulations, 2009, under which NET/SLET is to be the minimum eligibility condition for recruitment and appointment of Lecturers in Universities /Colleges/ Institutions, had come up for consideration. While deciding the issue, the Apex Court had also taken note of two Resolutions dated 12.8.2010 and 27.9.2010 wherein the U.G.C. had opined that since the Regulation of 2009 is prospective in nature, all candidates having M. Phil Degree on or before 10.7.2009 shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. The said case was decided by holding that keeping in mind the object of the U.G.C. Regulation of 2009/2010, there is nothing arbitrary or discriminatory in the minimum eligibility condition of passing NET as laid down under the Regulation. Rejecting the argument based on Article 14 made against the Central Government direction dated 12.11.2008 read with the UGC Regulations of 2009/2010 and looking at the object of maintaining excellence in the standards of higher education, the Apex Court did not find anything arbitrary or discriminatory in the minimum eligibility condition by observing that it is a core function of the UGC to see that the excellence of teaching standard in Universities /Colleges /Institutions do not get diluted.
8. Mr. C. Choudhury, learned counsel representing respondent nos. 3 and 4 i.e. the Governing Body of Bajali College and the Selection Committee submits, by referring to the affidavit-in-opposition so filed on 22.4.2013, that the Science Stream of Barama College was not been provincialised nor brought under the deficit system of grants-in-aid. Further, the petitioner who was working as a Lecturer of Physics in Barama College against a non-sanctioned post was, therefore, not entitled to any extra marks as per the Government Guidelines. It is further contended that contrary to the allegations leveled, the entire selection process was done in strict compliance of the Guidelines and the selection of the respondent no.5 was due to the fact that he performed better in the interview and had also obtained better marks. Mr. C. Choudhury submits that the petitioner having failed to secure the job, instigated him to level frivolous and baseless allegations against the Selection Committee. Referring to the additional affidavit-in-opposition filed by the said respondents in June/2013, Mr. Choudhury submits that the petitioner was not found qualified to appear in the interview as he did not fulfill the UGC norms. In support, it is submitted that the petitioner had obtained M. Phil degree after 10.7.2009 whereas as per the U.G.C. Notification on the subject, issued vide Resolution dated 27.9.2010 adopted in its 472nd Meeting, a candidate for the post of Lecturer must obtain M. Phil degree on or before 10.7.2009 in order to get exemption from NET qualification. This decision of the UGC has been adopted by the Govt. of Assam, Education (Higher) Department vide Notification dated 1.1.2011. Accordingly, as the petitioner had obtained the M. Phil Degree from Vinayak Missions University, Salem, Tamilnadu in the month of November, 2009 i.e. after 10.7.2009, as such, he was not even qualified to appear in the interview. According to Mr. C. Choudhury and on information received, the petitioner's service in the Science Stream at Barama College was provincialised w.e.f. 1.1.2013.
9. Ms. D. Borgohain, learned counsel representing respondent no.5 i.e. Upakul Mahanta, refers to the aforesaid Guidelines dated 28.2.2003 to say that as per norms laid therein for the post of Lecturer, teaching experience is gained while working in a Govt./Deficit College. The Science Stream of Barama College not having been provincilised nor brought under the deficit system of grants-in-aid, as such, the petitioner is not entitled to claim 5 marks as of right. Ms. D.Borgohain further submits that the petitioner was not appointed at Barama College substantively against a sanctioned post and, therefore, he was not an employee of Barama College at the relevant time within the meaning of Section 2(b) of the Assam College Employees (Provincialisation) Act, 2005. As such, marks under the heading of 'teaching experience' was rightly denied to the petitioner.
10. Having noticed the facts above, the moot question for decision is whether the Selection Committee had erred in law in not granting 5 marks to the petitioner on account of teaching experience at Barama College. The additional question that is inextricably linked to the adjudication of the present proceedings is as to whether the petitioner was at all eligible to apply and appear for selection and appointment to the post of Lecturer in Physics in the teeth of the Regulations/ Resolutions of the UGC and that of the decision of the Apex Court in the case of P . Suseela and ors (supra).
11. Going back to the norms under the Guidelines dated 20.2.2003 with regard to "teaching experience", the entitlement to the maximum 5 marks is on the basis of complete year of teaching in Govt./Deficit Colleges only. At the relevant time Barama College was an Institution under the deficit system of grants-in-aid but the same was limited to the Arts Stream only. Admittedly, the petitioner was in the teaching roll of the Science Stream which had neither been provincialised nor brought under the deficit system of grants-in-aid. His appointment at Barama College was not against a sanctioned post. He could not claim himself to be a full-fledged employee entitled to provincialisation benefits at par with the teaching staff under the Arts Stream appointed against sanctioned posts. He was neither an "employee" nor an "existing employee" nor entitled to "provincialisation" benefits as contemplated under the Assam College Employees (Provincialisation) Act, 2005 on any date prior to 1.1.2013, that is, the date on which his service in the Science Stream was provincialised at Barama College. The norms under the Guidelines with regard to "teaching experience" being clear and definite and since the petitioner's teaching experience was not in a deficit College where either the Science Stream or his services was brought within the purview of the Assam College Employees (Provincialisation) Act, 2005, it leaves no room for doubt that the petitioner was not entitled to any marks under the head of "teaching experience". Situated thus, no error or illegality or fault in the decision-making process can be attributed to the Selection Committee.
12. The Advertisement dated 29.4.2011 was in sync with the UGC Regulations of 2009 as well as under the aforestated Notifications issued by the UGC and the Government of Assam. Under the said Regulations and Notifications, NET qualification is a mandatory requirement, save and except in cases where exemption has been provided - one being where a candidate with M. Phil degree had obtained such degree on or before 10.7.2009. From the materials on record, the petitioner neither had NET qualification nor had secured M.Phil degree on or before 10.7.2009.
On this short ground and having regard to the Apex Court decision in the case of P . Suseela and ors .(supra), the petitioner cannot claim himself to have had the requisite qualification to vie for the post of Lecturer/ Assistant Professor in the Department of Physics at Bajali College, Pathshala.
13. Without elaboration, the consistent view of the Apex Court is that a Court should be slow in interfering with the decision of an expert body in the absence of any allegations of malafide made against the members of the Selection Committee. In the instant case, no definite and specific allegation has been made, by name, against any of the members of the Selection Committee, save general allegations with regard to manipulation of records and favouritism shown to respondent no.5. The vagueness in the petitioner's allegations cannot give him any advantage even if there be no specific denial of the general allegations.
14. Before concluding, it would be but necessary to touch upon another aspect of the matter. The selection made pursuant to the Advertisement dated 29.4.2011 has already been acted upon by issuing letter of appointment in favour of respondent no.5. The said order of appointment has neither been filed with the writ petition nor brought on record by the petitioner, with the leave of the Court, by means of an amended writ petition. Law is clear on this aspect that when a writ petition is filed against certain order and the copy of the order is not filed with the petition, it would be improper to set aside the order.
15. For all the reasons discussed above, the writ petition is devoid of merits and is liable to be dismissed, which is accordingly done. The parties are left to bear their own costs.
JUDGE Nandi