Gauhati High Court
Joyanti Saha vs The State Of Assam And 4 Ors on 22 June, 2022
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
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GAHC010181562019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6105/2019
JOYANTI SAHA
S/O. SRI PARITOSH SAHA, R/O. THAKUR RAM KRISHNA ROAD, NAGAON,
P.O. NAGAON, P.S. NAGAON SADAR, DIST. NAGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
EDUCATION (HIGHER) DEPTT., DISPUR, GUWAHATI-781006.
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM KAHILIPARA
GUWAHATI-16.
3:THE PRINCIPAL
NOWGONG GIRLS COLLEGE
NAGAON DIST. NAGAON
ASSAM.
4:THE GOVERNING BODY
REP. BY ITS PRESIDENT
NOWGONG GIRLS COLLEGE
NAGAON DIST. NAGAON
ASSAM.
5:RITA KALITA
VICE PRINCIPAL
NOWGONG GIRLS COLLEGE
NAGAON DIST. NAGAON
ASSAM
Advocate for the Petitioner : MR. M K CHOUDHURY
Advocate for the Respondent : SC, HIGHER EDU
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
22-06-2022 Heard Mr. M. K. Choudhury, learned Senior counsel assisted by Mr. P. Bhardwaj, learned counsel for the petitioner and Mr. K. Gogoi, learned Standing counsel, Higher Education Department for the respondent Nos. 1 and 2. Also heard Ms. S. Chutia, learned counsel for the respondent No. 3 and Mr. N. Barua, learned counsel for the respondent No.4.
2) Petitioner is the Associate Professor in the Department of Bengali in Nowgong Girls' College, Nagaon.
3) The Governing Body of said College by its decision dated 27.04.2007 allowed the petitioner, the senior most Lecturer of its Bengali Department to be the Head of the Department (HOD) of said College, which was approved by the Director of Higher Education, Assam on 29.12.2007.
4) By an order dated 31.12.2018 under No. NGC/PS/2018/9229, (Annexure - 7 to the petition) the Principal of said College informed the petitioner about releasing her from the charge of the HOD of Bengali of said College directing her to handover charge of HOD of Bengali Department to its Vice Principal, respondent No.5 on or before 01.01.2019.
5) Though the petitioner handed over the charge of HOD of Bengali Department to the respondent No.5, but being aggrieved with such action on the part of the Principal of Nowgong Girls' College, removing her from the Headship of Bengali Department in violation of the provisions of the Office Memorandum under No.AHE.177/2012/5 dated 05.07.2012, the petitioner has preferred this writ petition praying for setting aside the order dated 31.08.2018 issued by the Principal of Nowgong Girls' College, Nagaon, noted above. It is contended by the petitioner that she is the senior most and only Associate Professor of the Bengali Department of the College.
6) Mr. N. Barua, learned counsel appearing for the Governing Body of the Nowgong Girls' College, Nagaon submitted that the respondent No.5, Vice Principal of said College on attaining the age of superannuation of 60 years had already retired from service.
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7) The OM dated 05.07.2012, noted above, pertains to the Guidelines for adopting Rotation in Headship of Provincialised Colleges of Assam. It is seen that the State Government in the Higher Education Department in provincialised Colleges, constituted a 3 (three) member Committee consisting of the President of the Governing Body of the College as its Chairman, Principal of the College as its Member Secretary and Vice Principal or Senior Most Faculty Member of the College in absence of Vice Principal as its Member and that the said Committee is required to discharge its function towards implementation of rotation in Headship amongst the different disciplines of their Colleges and to look after the other allied matters.
8) In terms of the said OM dated 05.07.2012, amongst others, the 3 Member Committee is required to ensure the following :--
'(1) to ensure that the College can have HOD in all the Department of the College for smooth functioning of the Department, (2) to ensure that the HOD is made/Selected amongst the Associate Professors of respective Departments in order of seniority. If Associate Prof. is not available in the Department, the senior most Assistant Professor of the concerned Department can function as HOD with the approval of Governing Body, (3) The Headship will be for a period of 3 years and it will be rotated at a regular interval of 3 years by the College authority. On expiry of 3 year term of a HOD the next senior most Associate Professor in the department shall be the HOD of the concerned department. There will be no rotation amongst the Assistant Professors of the Department automatically. If in a College only Assistant Professors are available in a department, or there are only one or two Assistant Professors, the Governing Body of the College will appoint from the eligible candidates i.e. Assistant Professors, a HOD of that Department. However, performance of the HODs will have to be reviewed every year by the Committee and if the performance of a HOD is not found satisfactory, the Committee will have the power to recommend to remove the HOD from the Headship to the Governing Body and the G.B's decision shall be final. (4) the faculties who avail study leave under UGC FIP scheme or avail any leave having the duration of 6 months or more at the stretch, shall not be considered for Headship. 5. The Committee shall exercise power to recommend for appointment of Headship and also for removal of the Headship as mentioned in the foregoing paras of the Office Memorandum.6. Govt. will not provide any financial assistance for discharging duties as HOD of any department in a College.'
9) The Principal of the respondent Collage filed its affidavit in the matter on 01.10.2019 annexing the copy of the show-cause issued by him to the petitioner under Memo No.NGC/PS/2017/6536 dated 01.04.2017 as Annexure-I to his said affidavit.
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10) From the reading of the said show cause issued to the petitioner by the Principal of said College, it can be seen that though the petitioner applied for Casual Leave, which was rejected, but the petitioner without paying any hid to it remained absent in the College during the period in which she sought for Casual Leave. The said period was during University Examination of the College students.
11) Considering the said act of the petitioner, to be a gross insubordination and insolence along with negligence towards duty in performing the invigilation duty of the examination conducted by the University, therefore, by the said show cause, the Principal of said College directed the petitioner to submit her written reply as to why disciplinary action should not be initiated/taken against her as per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 directing her to submit her reply within 7 days from the date of receipt of the same, to which the petitioner submitted her reply. However, after filing her reply the College authority did not take any action against the petitioner.
12) Much later, the Screening Committee of said Nowgong Girls' College consisting of the Chairman of the Governing Body of the College as well as the Member Secretary of the said Committee/Secretary of the Governing Body of the College i.e., the Principal of said College in its Resolution dated 21.12.2018 resolved to remove the petitioner from the Headship of the Bengali Department of the College w.e.f., 01.01.2019 for the reasons that she is not at all cooperating with the administration and always argues with the Principal, refuses to evaluate the Answer Scripts of the University Examination allotted to her and did not answer to the calls given by the authorities of the College in order to submit the required documents before the Accountant and the IQAC Coordinator.
13) By the said decision dated 21.12.2018 the Screening Committee has considered the fact that as there is no Associate Professor in the Department of Bengali except the petitioner, the said Committee decided to handover the charge of HOD of Bengali to the Vice Principal of said College, respondent No.5. It is seen that the said action of the respondent authorities dated 21.12.2018 can be well presumed to be a punitive one and the said action taken by the respondent College authorities without issuing any show cause notice to the petitioner in violation of the principles of natural justice.
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14) It is noticed that with regard to the show-cause notice dated 01.04.2017 issued to the petitioner earlier by the Principal of the College, the College authorities did not proceed further. Therefore, the order dated 31.12.2018 of the Principal of Nowgong Girls' College, Nagaon relating to removal of the petitioner from the Headship of Department of Bengali of the College being issued without giving an opportunity of hearing to the petitioner is bad in law.
15) Since it is more than 3 years now, from the date of issuance of the impugned order dated 31.12.2018 and as the respondent No. 5 had already retired from service, as noted above, the concerned Committee consisting of the President of the Governing Body of the College, Member Secretary of the College and the Vice Principal or the Senior Most faculty member of the College in absence of Vice Principal in terms of the said OM dated 05.07.2012 of the State Government in the Higher Education Department is directed to consider and to select and appoint the Head of the Bengali Department of said Nowgong Girls' College, Nagaon, a provincialised College of the State forthwith, complying with the provisions of said OM dated 05.07.2012.
16) Petitioner shall submit a certified copy of this order before the Principal of Nowgong Girls' College, Nagaon, respondent No.3 as well as the President of the Governing Body of the said College forthwith obtaining necessary acknowledgement from them in that regard.
17) With the above observation and direction, this writ petition stands disposed of.
JUDGE Comparing Assistant