Gauhati High Court
Dr. Tanuja Kalita vs The State Of Assam And 6 Ors on 22 March, 2016
Author: A. K. Goswami
Bench: A. K. Goswami
1
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
WP(C) 6550/2015
Dr. Tanuja Kalita,
D/o Late Dhirendra Chandra Kalita,
R/o House No. 2, Namghar Path,
Hengerabari, Guwahati-36,
District- Kamrup (M), Assam.
- Petitioner
-Versus-
1. The State of Assam
through the Commissioner and Secretary to the Government of Assam,
Education (Higher) Department,
Dispur, Guwahati-781006.
2. The Assam Public Service Commission,
Jawaharnagar, Khanapara,
Guwahati-781022.
3. The Secretary,
The Assam Public Service Commission,
Jawaharnagar, Khanapara,
Guwahati-781022.
4. The Director, Higher Education,
Kahilipara, Guwahati-781019.
5. The Principal,
Kokrajhar Govt. College,
Kokrajhar, Assam, PIN-783370.
6. The Selection Committee/Interview Board,
Represented by the Member, APSC,
Jawaharnagar, Khanapara,
Guwahati-781022.
7. Ms. Banashree Bharaddash @ Bharadwaj
D/o Late Dhaneswar Sarma,
Vill-Agdala, P.O. Baihata Chariali,
District-Kamrup (R), Assam, PIN-781381.
- Respondents
BEFORE HON'BLE MR. JUSTICE A. K. GOSWAMI Advocates present:
For the petitioner : Mr. M. K. Choudhury, Sr. Advocate,
Mr. N. Baruah, Advocate
For respondent Nos. 1, : Mr. M. Choudhury, Advocate
4 and 5 SC, Education (Higher) Department,
For respondent Nos. 2, 3 : Mr. C. Baruah, SC, APSC,
W P(C ) 6 550/ 2015
2
and 6 Mr. R. K. Talukdar, Advocate,
Ms. D. Tamuli, Advocate
For respondent No. 7 : Mr. B. D. Das, Sr. Advocate,
Mr. D. Nath, Advocate
Dates of hearing : 02.02.2016 and 16.02.2016
Date of judgement : 22.03.2016
JUDGMENT AND ORDER
Heard Mr. M. K. Choudhury, learned Senior counsel, appearing for the petitioner. Also heard Mr. M. Choudhury, learned Standing counsel, Education (Higher) Department, Assam, appearing for respondent Nos. 1, 4 and 5; Mr. C. Baruah, along with Mr. R. K. Talukdar and Ms. D. Tamuli, learned Standing counsel, APSC, appearing for respondent Nos. 2, 3 and 6 and Mr. B. D. Das, learned Senior counsel, appearing for respondent No. 7.
2. On the request of the learned counsel for the parties, this writ petition was taken up for disposal at the admission stage.
3. This is the second round of litigation in connection with the selection for the post of Assistant Professor in Kokrajhar College in the subject of Philosophy. It was the respondent No. 7 herein who had earlier approached this Court by filing a writ petition, registered as WP(C) 3413/2012, assailing the selection made by the Assam Public Service Commission (for short, 'APSC') selecting the present petitioner for the post in question.
4. An advertisement was issued on 14.11.2011 by the APSC for recruitment to various posts including the post of Assistant Professor in the Kokrajhar Government College in the subject of Philosophy, which was reserved for open category. Required qualification was also prescribed in the said advertisement. The petitioner was selected on 15.06.2012 and was recommended for appointment. The selection list dated 15.06.2012 was the subject-matter of challenge in WP(C) 3413/2012. The writ petition was allowed by judgement and order dated 29.04.2015. The selection of the writ petitioner in the present case was set aside on the ground of APSC not having invited three experts from the Gauhati University thereby contravening the provision of Clause 5.1.4(c) of the University Grants Commission (Minimum Qualification for Appointment of Teacher and Other Academic Staff in University and Colleges and Other Measures for Maintenance of Standards in Higher Education) Regulations, 2010 (for short, the 'UGC Regulations'). The aforesaid Clause 5.1.4 (c) of the UGC Regulations requires inviting of three subject experts of the concerned University for the selection process.
5. In terms of the judgement dated 29.04.2015, a fresh interview was required to be held amongst the eligible candidates participating in the interview. Accordingly, interview was again W P(C ) 6 550/ 2015 3 held on 11.09.2015 and, this time around, respondent No. 7 had been selected and, therefore, this writ petition is filed by the earlier selected candidate. It is to be noted, at this juncture, that the judgement dated 29.04.2015, rendered in the earlier round of litigation is presently under challenge at the instance of the petitioner in WA 254/2015.
6. It is pleaded in the writ petition that the petitioner fails to fathom as to how the Selection Board of the APSC, with the addition of two subject experts, could have arrived at a different finding in respect of the inter-se merit of the petitioner and the respondent No. 7 when the APSC had justified the petitioner's earlier selection on superior merit. Averments are made that the respondent No. 7 presumably had been awarded marks for publications, which she did not possess earlier and which she had not shown on the last date of submission of the application. The documents relating to experience and other certificates, which the respondent No. 7 had annexed in the writ petition filed by her, would demonstrate that majority of the conferences/seminars were not related to her subject and she could not have been awarded marks on the basis of such papers. The petitioner pleads that no additional documents could have been submitted by the respondent No. 7 to facilitate award of marks on that count and, therefore, it is a mystery as to on what basis respondent No. 7 stole a march over the petitioner. It is also pleaded that the petitioner ought to have been awarded 6 and 5 marks, in the category of research paper/publications and papers presented in seminars/conferences, respectively. She ought to have been also awarded 2 marks for her two years of contractual service in Bongaigaon College and 1 mark for her 1 year service in Pandu College. It is also contended that if the respondent No. 7 had not been awarded 2 marks for her contractual service at Kokrajhar Government College, the petitioner would also not agitate regarding non- award of marks for her contractual service.
7. Plea is taken that the subject experts were only entrusted with 20 marks for each candidate, whereas an Office Memorandum dated 25.06.2012 specifies that 30 marks are to be allotted to the subject experts and, therefore, there is an apprehension that 10 marks were purposefully assigned to the discretion of the APSC nominated Advisor to the Board. It is also pleaded that there cannot be any dispute with regard to rest 70% of marks for academic qualification/research works as the same had been already determined in the first interview and, hence, change of composition of the Selection Board would make no difference. It is further pleaded that if the respondent No. 7 had been awarded extra marks for submission of additional documents, the petitioner would also be entitled to additional marks for her subsequently acquired Ph.D. Degree, additional papers and research publication.
8. By way of an additional affidavit, the petitioner has pleaded that the information furnished to the petitioner in reply to the application filed by the petitioner under the Right to W P(C ) 6 550/ 2015 4 Information Act, 2005, goes to show that 50% of the marks, meant for interview, is allocated against academic/professional/ preferential qualification with service experience and the rest 50% comprises of 'General Bearing' (30%) and 'Subject Knowledge' (20%). Special heads of 'Subject Knowledge' are not worked out and, therefore, the same is violative of the UGC Regulations, more particularly, Appendix-III thereof as well as the procedure prescribed by the Director of Higher Education in matters of recruitment of college professors and lecturers. Averments are also made that the APSC had defended the selection of the present petitioner in the earlier round of litigation by way public advertisement. Averments are also made that the Director of Higher Education, Assam, had issued a letter dated 13.12.2011 to the Principals of all colleges in Assam enclosing therewith a copy of the guidelines for selection of Assistant Professor, Librarians, etc., as per the UGC Regulations wherein distribution of marks had been clearly delineated, which had been ignored by the APSC.
9. Mr. Choudhury, learned Senior counsel, appearing for the petitioner has submitted that the impugned selection process undertaken by the APSC is clearly in contravention of the UGC Regulations and, to demonstrate the point, he has drawn the attention of the Court to Annexure-B of the additional affidavit filed on 26.11.2015, which is the particulars of the marks obtained by the candidates, out of total 100 marks, under different heads, who appeared in the interview on 11.09.2015, and to Appendix-III Table-II(c) of the UGC Regulations. It is submitted by him that this Court had, in the earlier round of litigation, held that the UGC Regulations, in the case of selection of all levels of teaching posts in all Government colleges affiliated to UGC, have to be mandatorily applied and, therefore, the submission advanced qua Annexure-B of the additional affidavit is that the allocation of marks on the basis of which the selection had taken place is not in the prescriptive pattern laid down by the UGC guidelines. To demonstrate the incongruity, learned Senior counsel submits that whereas 30 marks is laid down in the UGC guidelines for assessment of domain knowledge and teaching skills, only 20 marks were allocated for that purpose in the impugned selection process taking domain knowledge to be the knowledge of the subject. He has submitted that the 'General Bearing' component in the selection process, for which 30 marks had been assigned, may be considered to be interview performance as there is no other head anywhere near the term of 'General Bearing'. He submits that 30 marks can decisively tilt the scales in favour of a particular candidate and this is also not in conformity with the 20 marks visualized under the UGC Regulations. It is submitted that while there is no segregation in the UGC guidelines relating to marks prescribed for academic and research performance, nonetheless, due weightage has to be given to both academic record and research performance and the table at page No. 7 of the additional affidavit would demonstrate that research performance had been given a total go-by as for academic qualification, clearly 40 marks have been given W P(C ) 6 550/ 2015 5 and additional qualification, service experience comprise the balance 10 marks under the head 'Academic record'.
10. Thus, contention is advanced that the research credentials of the petitioner was not even taken note of and that had the same been taken note of, that would have changed the scenario in the selection process completely. There could have been no justification also for restricting the assessment of domain knowledge to 20 marks instead of 30 marks even after the authoritative pronouncement of this Court in the earlier round of litigation that the UGC Regulations is to be followed in any selection process for recruitment of all levels of teaching posts in a Government College affiliated to UGC. Likewise, 30 marks for 'General Bearing' instead of 20 at the most is also a vitiating factor.
11. Mr. B. D. Das, learned Senior counsel, appearing for respondent No. 7 has submitted that Annexure-B to the additional affidavit of the petitioner shows that respondent No. 7 secured 77 marks, whereas the petitioner secured 73 marks. It is submitted by him that the respondent No. 7, all throughout, has much better academic record compared to the petitioner. He submits that the respondent No. 7 passed HSLC Examination in First Division with 71.33% marks, HSSLC Examination in First Division with 76.8% marks, B.A. Examination with Honours in Philosophy with 61.5% marks and M. Phil. in First Class with 67.56% marks, whereas the petitioner obtained 63% marks in HSLC Examination, 69.6% marks in HSSLC Examination, 55.1% marks in B.A. Examination and 64.3% in M.A. Examination. Respondent No. 7 was not awarded any marks on additional qualification, whereas the petitioner was awarded 3 marks on that count and, thus, even after the respondent No. 7 having been unjustifiably denied marks, respondent No. 7 was selected. It is also submitted by Mr. Das that in the earlier interview, the respondent No. 7 had secured 76 marks and the present petitioner had secured 78 marks out of which the respondent No. 7 was awarded 23 marks on account of 'General Bearing' and the petitioner 28 marks and only because of that the petitioner secured more marks then the present respondent No. 7. It is submitted by him that the interview on 11.05.2012 was conducted by two Members, one subject expert and the other a Government nominated Member, namely, Mrigen Kalita, against who allegation of bias was attributed as he was a former student of the school in which the father of the present petitioner was a teacher. Mr. Das has submitted that the plea taken by the petitioner that the selection was conducted in violation of the UGC Regulations is unfounded and the petitioner is estopped from raising such plea. He has further submitted that in the prescribed Application Form there was no column to mention the details of research paper/publication, etc., but, even then, against column No. 15, under the heading 'Extra Curricular Activities', respondent No. 7 had provided the particulars of various seminars and annexed certificates in respect thereof, but, at the time of interview, those were not asked for. It is submitted that even in W P(C ) 6 550/ 2015 6 the last selection, the difference in margin was only 2 marks and, under the column of 'Additional qualification' the petitioner was given 2 additional marks while no mark was given to the respondent No. 7.
12. Mr. C. Baruah, learned Standing counsel, APSC, has produced the relevant records and has submitted that it is not clear on what basis the petitioner was awarded 3 marks under the heading "Additional qualification (NET/SLET/Ph.D./M. Phil)". He submits that the fresh interview was conducted in terms of the judgement of this Court by following the same procedure as had been followed in the previous round of interview. He has also placed before the Court papers (photocopies) relating to selection process.
13. I have considered the submission of the learned counsel for the parties and have also the materials on record.
14. Two comparative tables, in respect of the marks obtained by the petitioner and the respondent No. 7 in various examinations as well as in the two interviews are reproduced below for ready reference:
Academic Qualification Banashree Bharaddash Tanuja Kalita H.S.L.C. 71.3% 63.1% H.S. 76.8% 69.6% B.A. 61.5% 55.0% M.A. 67.5% 64.3% NET Passed Passed Marks secured in the Selection Banashree Bharaddash Tanuja Kalita (petitioner) (respondent No. 7) 2011 2015 2011 2015 HSLC 7.1 7.13 6.3 6.31 HS 7.7 7.68 7 6.96 Graduation 6.2 6.15 5.5 5.5 Post-Graduation 6.8 6.75 6.4 6.43 Additional 5 ---- 7 3 qualification (NET - 5) (NET/SLET/Ph.D/ (Addl. - 2) M.Phil Service 2 2 2 2 Experience Knowledge of 18 19 16 17 the Subject General 23 28 28 26 bearing Grand Total 76 77 78 73 W P(C ) 6 550/ 2015 7
15. It will be relevant to take note of the stand taken by the present petitioner in the additional affidavit filed in the earlier round of litigation. In paragraph 4 of the said additional affidavit, the present petitioner had contended that the selection process was not a selection process initiated by the university or college and the Selection Committee had been constituted neither by an university nor a college and that the Selection Board was constituted under paragraph 21 of the APSC (Procedure and Conduct of Business) Rules, 2010, and, as such, the APSC has to follow the procedure for direct recruitment envisaged by these Rules and, therefore, the Rules having not been challenged by the respondent No. 7 in the said writ petition, APSC was bound to follow its own Rules. The present petitioner did not question about allotment of 30 marks for 'General Bearing' and 20 marks for 'Subject Knowledge' as arbitrary or illegal, which is sought to be canvassed by her in the present writ petition, as being in conflict with the UGC Regulations.
16. From the records produced by Mr. Baruah, it is seen that against 'Subject Knowledge', two experts had given respondent No. 7 'Very good' and one had given 'Excellent' and that one of the experts, who had given 'Excellent' to the respondent No. 7, had also given 'Excellent' to the petitioner. The other two experts graded the petitioner as 'Good'. The record also reveals the mechanism for converting the grading given by the experts into marks. For 'Excellent' - 20, for 'Very good' - 18, for 'Good' - 16, for 'Fair' - 14 and for 'Average' - 12 marks are earmarked and, accordingly, by averaging the marks given by the experts, the total marks obtained on the subject 'Subject Knowledge' is arrived at.
17. The Application Form, which has been also placed before the Court, does not contain any column for presentation of papers, attending seminars and so on and so forth. At no point of time any grievance was raised by any of the candidates, including the present petitioner and the respondent No. 7, with regard to the Application Form. Mr. Baruah has also submitted that in respect of other posts for Kokrajhar College, the same procedure of evaluation of the candidates was adopted. The procedure that was adopted by the APSC was laid bare in the previous round of litigation and the present petitioner, who was selected, did not raise any objection with regard to the procedure adopted and, on the contrary, asserted that she was selected in accordance with law and that there was not even a requirement for holding of the interview with three experts. It appears that the parties were at ad idem with the selection procedure adopted by the APSC with the exception of the issue of holding of the interview by three experts instead of one and it is in this context that the Court directed the APSC to hold the interview process with three experts.
18. A letter dated 13.12.2011 was issued by the Director of Higher Education, Assam, to the Principals of various colleges giving a fresh guideline for awarding marks in the selection W P(C ) 6 550/ 2015 8 of Assistant Professor and Librarian as per the UGC guideline. It is to be understood that the said guideline will be applicable in the matter of selection by the college authorities and not by a statutory body like APSC. In the said notification dated 13.12.2011, 30 marks have been assigned for Academic Record with specific allocation of marks for HSLC, HSSLC, Degree and Master Degree. 20 marks have been assigned for Research Papers with specific marks assigned to various categories as indicated therein. The relevant portion of the notification dated 13.12.2011, with regard to distribution of marks, is reproduced below:
"DISTRIBUTION OF MARKS:
1) Academic Record and Research Performance (50 marks)
a) Academic Record (30 marks)
i) HSLC or equivalent examination (6 marks) 6 marks
(6% of the total percentage of marks)
ii) HSSLC or equivalent examination (6 marks) 6 marks
(6% of the total percentage of marks)
iii) Degree (8 marks) 8 marks
(a) 8% of the total percentage of marks in Hons/Major subjects for Hons/Major students
(b) 8% of the total percentage of marks in General course students without Hons/Major
iv) Master Degree (10 marks) 10 marks
b) Research Performance (20 marks)
i) Ph.D. from UGC recognized/approved university 5 marks (If the candidate has Ph.D. Degree in addition to eligibility requirement of NET/SLET/SET.
There will be no marks for the Ph.D. Degree if it is counted in lieu of NET/SLET/SET.
ii) M. Phil. Degree from UGC recognized/approved university 2 marks
iii) Research paper/article published with ISSN number and research based book 6 marks with ISBN number.
(2 marks for each publication subject to maximum 6 marks)
iv) Chapter/article published in research/text book with ISBN number 2 marks
v) Presentation of papers in international/national Seminar, Workshop etc. 5 marks (2 marks for each paper subject to maximum 5 marks) There shall be no marks only for attending Seminar, Workshop etc. The Selection Committee may like to verify the Abstract volume to authenticate the presentation of paper.
2) Assessment of Domain Knowledge and Teaching skills (30 marks)
a) Assessment of knowledge on the subject 15 marks
b) Teaching skills 10 marks (The Selection Committee shall assess the ability for teaching and/or research aptitude through a seminar or lecturer in a class room situation or group discussion on the capacity to use latest technology in teaching and research at the interview stage)
c) Teaching Experience 3 marks (1 mark for each completed year of service in an affiliated Degree college subject to maximum 3 marks)
d) Extra-curricular activities 2 marks NCC "C" Certificate/National level Certificate of Scout or Guide/National level W P(C ) 6 550/ 2015 9 certificate of extra-curricular activities like cultural performance/games & sports/debating etc.
3) Interview Performance (20 marks) Interview Performance 20 marks (While assessing the Interview performance, the Selection Committee shall give weight ages on the various dimensions like communication skills, mode of expression, body language, positive attitude, general knowledge, I.Q. and computer literary etc.) TOTAL 100 marks Sd/-
Director, Higher Education, Assam Kahilipara, Guwahati-19"
19. It will also be appropriate to reproduce Appendix-III Table (II)(c) for ready reference.
APPENDIX - III TABLE -II(c) Minimum Scores for APIs for direct recruitment of teachers in university departments/ colleges, Librarian/Physical Education cadres in Universities/Colleges, and weightages in Selection Committees to be considered along with other specified eligibility qualifications stipulated in the Regulation.
Assistant Professor/ Associate Professor/ Professor/equivalent Equivalent cadres (Stage 1) Equivalent cadres Cadres (stage 5) (Stage 4) Minimum API Scores Minimum qualifications Consolidated API score Consolidated API score as stipulated in these Requirement of 300 Requirement of 400 regulations points from category III points from category III of APIs. of APIs Selection Committee a) Academic record and a) Academic Background e) Academic background criteria/weightages research performance (50%) (20%) (20%) (Total weightages = b) Assessment of Domain b) Research performance f) Research performance
100) knowledge and Teaching based on API score and based on API score and skills (30%) quality of publications quality of publications
c) Interview performance (40%) (40%) (20%) c) Assessment of Domain g) Assessment of Domain knowledge and Teaching knowledge and Teaching skills (20%) skills (20%)
d) Interview performance h) Interview performance (20%) (20%)
20. It is to be noted that in Appendix-III Table-II(c), for the 50% marks allocated to Academic record and Research performance, no separate percentage of marks are assigned in any of the categories and, therefore, the plea taken now by the petitioner that in terms of the notification dated 13.12.2011, she has to be granted 6 marks and 5 marks, respectively, for Research paper and presentation of paper in seminars/workshops, respectively, is not well founded. Office Memorandum dated 25.06.2012, which was mentioned in the pleading of the petitioner, is a guideline for selection of Lecturer (Assistant Professor)/Librarian in W P(C ) 6 550/ 2015 10 provincialised colleges of Assam as per UGC guidelines excluding the criteria of awarding oral marks and, therefore, the same being not applicable in the instant case, is not referred to at the time of arguments. It is to be noted that according to the evaluation process adopted by the APSC, 40 marks have been earmarked for academic qualification, 5 marks had been earmarked for NET/SLET/Ph.D./M. Phil, 2 marks for service experience and 3 marks for additional qualification. As rightly submitted by Mr. Baruah, it is not very clear on what basis the writ petitioner was awarded 3 marks under the broad heading "Additional qualification (NET/SLET/Ph.D./M. Phil)". If the 3 marks are awarded on account of NET/SLET/Ph.D./M. Phil, it is apparent that the respondent No. 7 was denied at least 3 marks on account of NET/SLET/Ph.D./M. Phil as it is not in dispute that she has such qualification. If, on the other hand, 3 marks, which is maximum possible, were awarded to the petitioner for additional qualification, although the yardstick of granting 3 marks for additional qualification is not very clear, the same being in favour of the petitioner, the Court may not go into this aspect of the matter. However, in that case, it will appear that no marks were awarded both to the petitioner and the respondent No. 7 on account of NET/SLET/Ph.D./M. Phil. Both the petitioner and the respondent No. 7 were given 2 marks for service experience.
21. According to Appendix-III Table-II(c), 30% of the marks is to consist of assessment of domain knowledge and teaching skills, which expression is not found in the allocation of marks assigned by the APSC. Subject Knowledge, for which 20 marks have been assigned by APSC, according to the understanding of the Court, would mean assessment of domain knowledge and teaching skills. In Appendix-III Table-II(c), 20 marks are assigned for interview purpose, but 30 marks have been assigned in the marks allocated by the APSC for General Bearing, which may be considered to be marks for interview performance. Apparently, there is a discrepancy in the allotment of marks. The petitioner did not challenge the allotment of marks on that count as she stood to benefit by grant of 28 marks as compared to 23 marks given to the respondent No. 7 in the earlier interview under General Bearing. The petitioner has not alleged any mala fide. In the earlier round of interview also, the respondent No. 7 had secured 18 marks on 'Subject Knowledge' compared to 16 marks secured by the present petitioner, i.e., 2 marks more than the present petitioner and in the present round of interview also, they have secured 19 and 17 marks, respectively, the difference in marks remaining the same. It is to be remembered that the expert had graded the candidates, which was thereafter quantified into marks based on a prescribed norm. If the marks in the hands of experts is raised from 20 to 30, and the grading awarded by the experts is quantified, the difference of marks in between the petitioner and the respondent No. 7 would go up to 3 marks and if marks for 'General Bearing' is correspondingly truncated to 20 marks, instead of the present difference of 2 marks, there will be difference of 1.4 marks and, therefore, it cannot be said that because W P(C ) 6 550/ 2015 11 of the aforesaid prescription of 20 marks and 30 marks, the petitioner is prejudiced in any manner. This Court will certainly not condone deviation from norms, which have got binding force. However, having regard to the fact that the petitioner had not raised any objection to the perceived deviation in the norms, it will be wholly inequitable, in the facts and circumstances of the case, to upset the selection made when, distinctly, no prejudice is caused to the petitioner. If, by application of such norms, prejudice was caused to the petitioner, may be, the Court would have looked at the entire issue in a different perspective, but not in a case where the petitioner had stood by the process adopted in the earlier round of interview. In absence of any prejudice caused to her, though a fine legal point may have been raised, in the facts and attending circumstances of the case, when the post of Lecturer of Philosophy is lying vacant for last four years, bearing in mind the interest and welfare of the students, the Court is inclined to uphold the selection of the respondent No. 7.
22. In the result, the writ petition is dismissed. No cost.
23. Before parting with the records, this Court considers it appropriate to observe that in all future selections, the APSC will abide by the UGC Regulations.
24. The papers placed before the Court by Mr. C. Baruah be returned back.
JUDGE RK W P(C ) 6 550/ 2015 12 W P(C ) 6 550/ 2015