Gauhati High Court
Tapan Kr. Sarma vs The State Of Assam And Ors on 20 April, 2016
Author: A. K. Goswami
Bench: A. K. Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (C) NO.1551 OF 2011
Shri Tapan Kr.Sarma,
Son of Sri Durgeswar Sarma,
Resident of Village & PO: Niz-bahjani,
District: Nalbari, Assam.
........Petitioner
,
-Versus-
1. The State of Assam, represented by the Commissioner &
Secretary, Government of Assam, Education Department,
Dispur, Guwahati-6.
2. The Director of Higher Education, Assam, Kahilipara,
Guwahati-19.
3. The Deputy Director for Sanskrit Education, Assam,
Kahilipara, Guwahati-19.
4. Sri Nabin Ch. Sarma, Chairman, Selection Committee,
Srimanta Sankar Sanskrit Vidyapith, Kalipur, Ghy-9.
5. Sri Brajendra Nath Sarma, Member Secretary, Selection
Committee, Srimanta Sankar Sanskrit Vidyapith, Kalipur, Ghy-9.
6. Sri Sarat Ch. Taluker, Member, Selection Committee,
Srimanta Sankar Sanskrit Vidyapith, Kalipur, Ghy-9.
7. Sri Bhabani Prasad Goswami, Member, Selection Committee,
Srimanta Sankar Sanskrit Vidyapith, Kalipur, Ghy-9.
8. Dr. Basanta Kr. Dev Goswami, Member, Selection
Committee, Srimanta Sankar Sanskrit Vidyapith, Kalipur, Ghy-9.
9. Sri Narayan Ch. Sarma,Member, Selection Committee,
Srimanta Sankar Sanskrit Vidyapith, Kalipur, Ghy-9.
10. Sri Chachindra Sarma,
Resident of Amyapur, District: Nalbari, Assam.
........Respondents
B E F O R E HON'BLE MR. JUSTICE A. K. GOSWAMI For the petitioner : Mr. A.K. Bora, Advocate.
For respondent Nos.1 to 3 : Mr. M. Mahanta, Standing Counsel, Higher Education Deptt..
WP(C) No.1551/2011 Page 1 of 11 For respondent Nos.4 to 9 : Mr. P.P. Baruah, Advocate.
For respondent No.10 : Mr. P.K. Roy Choudhury, Advocate,
Mr. R. Sarma, Advocate.
Dates of hearing : 25.02.2016, 08.03.2016 & 30.03.2016.
Date of Judgement & Order : 20.04.2016.
JUDGMENT & ORDER (CAV)
Heard Mr. A.K. Bora, learned counsel for the petitioner and Mr. M. Mahanta, learned standing counsel, Higher Education Department appearing for the respondent Nos.1 to 3. Also heard Mr. P.P. Baruah, learned counsel appearing for the respondent Nos.4 to 9 and Mr. P.K. Roy Choudhury as well as Mr. R. Sarma, learned counsel representing the respondent No.10.
2. The case projected in the writ petition is that the petitioner passed HSLC Examination in 3rd division, HSSLC Examination in 3rd division and BA Examination in 2nd class and that he had also completed Ratnamala Vyakarana Sastri in the year 2002 in 2nd division. He was appointed as temporary Assistant Graduate Teacher (Arts) in Kaina Dhara M.E. School on 01.06.2000 and continued as such till 02.02.2008, for a period of 8(eight) years 1(one) month. He responded to an advertisement published in the Assam Tribune on 19.08.2010 inviting applications for appointment to the post of second Adhyapaka in Srimanta Sankar Sanskrit Vidyapith. He was called for the interview held on 20.09.2010, which was, however, deferred to 09.11.2010. He appeared in the interview and thereafter, came to learn that the Government nominated members in the Selection Committee was interested to appoint respondent No.10 and as such, before appointment of the respondent No.10, filed an application dated 15.11.2010 to the respondent No.2 to look into the matter. No select list was published, but the respondent No.10 was appointed. From the documents furnished on an application made under the Right to Information Act, 2005, he could learn that the respondent No.10 secured first position with 66.5 marks and the petitioner had secured second position with 61.8 marks and the mark-sheets of the interviewed candidates prepared by the Members of the Selection Committee indicated that respondent Nos.5, 7 and 8, who were part of the Selection Committee, had committed irregularities at the time of preparing the mark-sheets. It is alleged that the respondent WP(C) No.2361/2015 Page 2 of 11 No.5 initially had given 12 marks to the respondent No.10, which was subsequently converted to 14 and that he had also overwritten the marks awarded for experience. With regard to the respondent No.7, it is stated that he changed the experience mark awarded in respect of the respondent No.10 from "3" to "8" and that respondent No.8 changed interview marks in favour of the respondent No.10 from "10" to "12". It was also mentioned that the respondent No.9 had also overwritten the mark of the petitioner under the heading of "Experience". It is further alleged that according to the resolution of the Selection Committee, as the respondent No.10 had secured 3rd division in Ratnamala Vyakarana Sastri, he should have got 5 marks for the said qualification but instead, the Selection Committee awarded him 10 marks. The respondent No.10 had experience as a teacher for only 2(two) years 7(seven) months as compared to 8(eight) years 1(one) month as that of the petitioner and yet the respondent Nos.6 and 8 did not award any mark on the head of "Experience" but had awarded 3 marks each, on that count to the respondent No.10.
3. By the time, the writ petition was filed, the respondent No.10 was already appointed and he had also joined in the school and, therefore, there was no prayer for stay in the writ petition wherein, the petitioner prayed for setting aside the appointment of the respondent No.10 as second Adhyapaka in Srimanta Sankar Sanskrit Vidyapith and also prayed for a direction to appoint him as second Adhyapaka in Srimanta Sankar Sanskrit Vidyapith on proper evaluation of the marks by an Expert Committee.
4. During the course of the proceeding, the respondent Nos.4 to 9 as well as the respondent No.10 filed their respective affidavits on 18.04.2012. Affidavit-in-reply to the aforesaid affidavits were also filed by the petitioner on the same day, i.e. 15.06.2012. An additional affidavit was filed by the petitioner on 04.03.2013. The respondent No.3 filed an affidavit on 16.12.2014. Additional affidavit-in-opposition was filed by the respondent No.10 on 10.02.2015 and the petitioner had also filed an affidavit-in-reply to the said additional affidavit of the respondent No.10 on 27.04.2015. Before proceeding further, it will be appropriate to take note, in brief, salient features of the aforesaid pleadings.
5. In the affidavit, the respondent No.10 did not offer any comment with regard to the experience of the petitioner as an Assistant Graduate Teacher (Arts). The allegation that the respondent Nos.5, 7 and 8 had committed irregularities at the time of preparing the mark-sheet was denied and it is asserted that whenever there is any overwriting, initials were put by the respective Members of the Selection Committee. It is stated that the respondent No.5 had awarded same marks for interview and experience to the WP(C) No.2361/2015 Page 3 of 11 petitioner and to him. The respondent No.10 also denied that he had secured 3rd division in Ratnamala Vyakarana Sastri. It is pleaded that when a candidate passes any Sastri Examination then in the subsequent Sastri Examination, the candidate has to appear only in 4(four) papers. He had passed Kavya Sastri Examination in the year 2006 and in the year 2007, had appeared in Ratnamala Vyakarana Sastri Examination, wherein he secured 55.25% marks and, therefore, according to the norms, he is entitled to 10 marks. The experience of the petitioner as an Assistant Graduate Teacher (Arts) in an M.E. School was not relevant as per resolution of the Selection Committee and on the other hand, he had experience as Pradhan Adhyapaka at Arabinda Sarma Sanskrit Vidyapith and also as Sanskrit Teacher at Chatala Anchalik H.S. School with effect from 01.06.2003 to 25.07.2007. In essence, the respondent No.10, in his affidavit, denied the allegations of irregularities made by the Selection Committee Members. In his affidavit, he had stated that he had passed HSLC as well as HSSLC (Arts) Examination in 2nd division and passed BA Examination securing 2nd class with major in Sanskrit.
6. In the affidavit filed by the respondent Nos.4 to 9, allegation of the writ petitioner that the Government nominated members were interested to appoint the respondent No.10 was denied. In the said affidavit, the said respondents had taken the stand similar to respondent No.10, as noted hereinabove. It is pleaded that the Selection Committee took resolution that teaching experience in "Toll" will count but not in any other. The respondent Nos.6 and 8 did not award any marks to the writ petitioner on the head of "Experience", as they considered that the petitioner did not have experience according to the resolution adopted. They stood by the selection process, which, according to them, was held properly and in a transparent manner.
7. In the affidavit-in-reply filed by the petitioner to the affidavit-in-opposition of the respondent Nos.4 to 9, it is stated that the prayer of the petitioner for condoning his over age was allowed by 1(one) year. While reiterating the averments made in the writ petition, it is also stated, additionally, that respondent No.5 reduced experience mark given to the petitioner from "8 to 7" and converted "0 to 7" in respect of the respondent No.10. It is asserted that the respondent No.10 did not secure 2nd division in Ratnamala Vyakarana Sastri Examination and, therefore, he was not entitled to 10 marks and that the resolution adopted by the Selection Committee on 09.11.2010 resolved to allot 10 marks for experience to a teacher of "Toll" as well as other subject teachers. The affidavit filed by WP(C) No.2361/2015 Page 4 of 11 the petitioner to the affidavit-in-opposition filed by the respondent No.10 is more or less identical.
8. In the additional affidavit filed by the petitioner, the petitioner has enclosed a set of General Rules published by the Secretary, Assam Sanskrit Board and has relied on Rule 2(c)(iv) to contend that under no circumstances, it can be construed that the respondent No.10 had secured 2nd division in Ratnamala Vyakarana Sastri Examination.
9. In the affidavit filed by the respondent No.3, it is stated that the Selection Committee for selection of candidates was duly constituted by the Managing Committee of Srimanta Sankar Sanskrit Vidyapith as per the provision of Section 5(2) of the Assam Classical Institutions [Sanskrit and Pali and Prakrit (Provincialisation)] Act, 1996 and the same was forwarded to him by the Pradhan Adhyapaka/Secretary of the Vidyapith vide letter dated 13.09.2010 for approval and accordingly, vide order dated 18.09.2010 he had accorded approval to the constitution of the Selection Committee (Annexure-9 to the writ petition). By the said order dated 18.09.2010, the guidelines and procedures were also indicated. It is denied that without publication of the result, the respondent No.10 was appointed.
10. In the additional affidavit filed by the respondent No.10, it is stated that the result of the candidates, who appeared in 4(four) subjects is declared as "simple pass" but that does not mean that in Ratnamala Vyakarana Sastri Examination, they would not be entitled to any division. He secured 55.25% marks and, therefore, according to the norms, he secured 2nd division. If the marks obtained in 2(two) compulsory subjects, wherein he appeared earlier, are added, then also his percentage of marks would be 51.83 and thus, he would be placed in 2nd division.
11. In the said additional affidavit, the respondent No.10 had also placed on record a letter dated 18.09.2010 issued by the Secretary, Assam Sanskrit Board, wherein a clarification was issued with regard to the word "simple pass" appearing in Rule 2(c)(iv) of the General Rules. It is also stated that as the writ petitioner had secured 3rd division, he would not be entitled to 5 marks but would be entitled to only 3 marks and, therefore, actually the writ petitioner had secured 59.8 marks.
12. Mr. A.K. Bora, learned counsel for the petitioner has submitted that there are telltale marks of manipulation, which will be manifest even on a cursory look on the mark-
WP(C) No.2361/2015 Page 5 of 11sheet of individual Members of the Selection Committee and, therefore, there is no sanctity in the selection process. He has submitted that, unjustifiably, no marks were given to him by 2(two) of the Selection Committee Members on account of experience and even if he was given 3 marks each by the said Selection Committee Members, as was given to the respondent No.10, he would have figured in the top position. He has assiduously argued with reference to Rule-2(c)(iv) of the General Rules that the respondent No.10 was not entitled to 10 marks, which was given to him on a wrong consideration that the respondent No.10 had secured 2nd division in Ratnamala Vyakarana Sastri Examination and in fact, he was not awarded any division. Accordingly, he submits that the appointment of the respondent No.10 is liable to be set aside with a direction to hold a fresh interview.
13. Mr. P.P. Baruah, learned counsel appearing for the respondent Nos.4 to 9 had submitted that merely because there were marks or overwriting will not lead to the conclusion that there was any manipulation, especially when total marks given by the respective Member has not been changed, which means that the overwriting are not made with an extraneous consideration. It is submitted by him that the letter dated 18.09.2010 of the Secretary, Assam Sanskrit Board, which was issued before the interview had taken place, had made it abundantly clear that the respondent No.10 would be entitled to 10 marks. He submits that, all throughout, the respondent No.10 had better academic record and selection process having been conducted in accordance with law, no interference is called for with the selection process.
14. Mr. P.K. Roy Choudhury, learned counsel appearing for the respondent No.10 as well as Mr. M. Mahanta, learned standing counsel, Higher Education Department appearing for the respondent Nos.1 to 3 had also argued that no interference is called for with regard to the selection and appointment of the respondent No.10. Mr. Roy Choudhury has placed reliance on a decision of the Apex Court in the case of Dalpat Abasaheb Solunke -Vs- Dr. B.S. Mahajan reported in AIR 1990 SC 431 to impress upon the Court that it is not the function of the Court to scrutinize the relative merits of the candidates as the Court has no such expertise.
15. I have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record.
16. Qualification prescribed in the advertisement for the post of Second Adhyapaka was Sastri in Ratnamala Vyakarana Sastri with graduation in Arts. The Selection Committee, WP(C) No.2361/2015 Page 6 of 11 before conducting the interview process, on 09.11.2010, had taken certain resolutions, the vernacular version of which is placed by the petitioner at Annexure-15. The said resolution reads as follows:-
"Resolution No.1 : - Total marks for interview will be 100 marks.
Resolution No.2 : - HSLC mark for the candidate will be for 1st division-10 marks, 2nd division-5 marks and 3rd division-3 marks. Resolution No.3 : - Higher secondary mark for candidate will be for 1st division-10 Marks, 2nd division-5 marks and 3rd division- 3 marks.
Resolution No.4 : - For experience tolia educated teacher and other subject teacher will be included. In this event 10 mark fix for the candidate.
Resolution No.5 : - For subject knowledge only academician, govt.
nominee and Pradhan adhyapak can give the mark. Resolution No.6 : - Marks for Vyakarana Sastri - for 1st division-20 marks.
for 2nd division-10 marks.
for 3rd division-5 marks.
Resolution No.7 : - Marks for graduation with Sanskrit
For Special graduate 20 marks.
For General graduate 10 marks.
Resolution No.8 : - Marks for viva-voce - 15 marks and Marks for subject
Knowledge - 15 marks."
17. The learned counsel for the parties, at the time of hearing, had submitted that the English translation in respect of resolution No.4 is not correct. Conceding that there is some amount of vagueness in the vernacular version in respect of resolution No.4, it is suggested that the correct translation of the aforesaid resolution would be more or less to the effect "with regard to experience, teaching in Tolia Institutions and subject outside curriculum would be included. 10 marks are fixed for this purpose."
18. Rule-2(c)(iv) of the General Rules, on which much argument has been advanced, reads as follows:
"2.(c) Sastri Courses
(iv) A candidate who, having passed the Sastri examination in one subject, intends to prosecute studies in another subject, is eligible for admission into the first year course of that particular subject provided he/she had passed the special paper of the relevant Madhyama Examination.
Candidates of this category may be allowed to appear in the four special papers only. The results of the successful candidates would, however be declared as 'Simple Pass'. No scholarship is awarded for this category of candidates."
WP(C) No.2361/2015 Page 7 of 1119. The respondent No.10 in Ratnamala Vyakarana Sastri Examination had appeared in 3rd, 4th, 5th and 6th papers and had secured 221 out of 400 marks and his result was shown as "P" meaning thereby pass.
20. The letter dated 18.09.2010 of the Secretary, Assam Sanskrit Board reads as follows:-
"To, The Member Secretary, Selection Committee, Srimanta Sankar Sanskrit Vidyapith, Kalipur, Ghy - 9.
Ref: Clarification of the word "Simple Pass" Rule 2(C)(iv) of the General Rules and Revised Syllabus, 2001 of the Assam Sanskrit Association.
It is hereby clarified that the Rule 2(C)(iv) of the General Rules and Revised Syllabus, 2001 of the Assam Sanskrit Association issued by the Assam Sanskrit Board, Kahilipara, Guwahati - 19, provides that a candidate who, having passed the Sastri Examination in one subject, intends to prosecute studies in another subject, is eligible for admission into the first year course of that particular subject provided he has passed the special paper of the relevant Madhyama Examination and candidates of this category may be allowed to appear in the four special papers only. The results of the successful candidates would, however, be declared as 'simple pass'.
The word 'simple pass' does not mean that the candidates is not awarded any division. The candidate of such category though shows 'simple pass' in the mark sheet but for the purpose of evaluation when required in terms of Division, the percentage of marks acquired in 4(four) papers will be treated equal to the corresponding Division awarded by the Assam Sanskrit Board in examination i.e. 60% on above = 1st Division, 40% above = 2nd Division, below 40% or above 36% = 3rd Division."
21. A reading of Rule-2(c)(iv) of the General Rules alongwith the letter dated 18.09.2010, would go to show that for the purpose of evaluation when required in terms of division, the percentage of marks will be treated as equal to the corresponding division awarded by the Assam Sanskrit Board and, therefore, the respondent No.10 having secured 221 marks out of 400, his percentage of marks is 55.25% and, therefore, is placed in 2nd division. In terms of the resolution adopted, therefore, he would be entitled to 10 marks. It is to be noticed that in the writ petition, the plea taken was that the respondent No.10 secured 3rd division and, therefore, would be only entitled to 5 marks. However, during the hearing it is sought to be canvassed on the basis of Rule 2(c)(iv) that he would not be entitled to any marks in terms of Resolution No.6. In view of the above, argument advanced by Mr. Bora that the respondent No.10 will not be entitled to 10 marks for passing Ratnamala Vyakarana Sastri is found to be without merit.
WP(C) No.2361/2015 Page 8 of 1122. In the selection process, the Selection Committee comprising of the respondent Nos.4, 5, 6, 7, 8 and 9, had awarded the following marks to the petitioner as well as the respondent No.10:-
Tapan Kumar Sarma (Petitioner) Members of the HSLC HSSLC Sastri Graduation Experience Subject Interview Total Selection Knowledge Committee Special General Respondent No.4 3 3 10 20 - 10 - 10 56 Respondent No.5 3 5 10 20 - 7 15 14 74 Respondent No.6 3 3 10 20 10 0 - 10 56 Respondent No.7 3 3 10 20 - 10 - 10 56 Respondent No.8 3 3 10 20 - 0 5 8 49 Respondent No.9 3 3 10 20 - 5 7 5 53 Chachindra Sarma (respondent No.10) Members of the HSLC HSSLC Sastri Graduation Experience Subject Interview Total Selection Knowledge Committee Special General Respondent No.4 5 5 10 20 - 7 - 6 53 Respondent No.5 5 5 10 20 - 7 8 14 69 Respondent No.6 5 5 10 20 10 3 - 10 63 Respondent No.7 5 5 10 20 - 8 - 7 55 Respondent No.8 5 5 10 20 - 3 11 12 66 Respondent No.9 5 5 10 20 - 8 14 8 70
23. In terms of the resolution No.5, the respondent No.5, respondent No.8 and the respondent No.9 were entitled to give marks for "subject knowledge". In "subject knowledge", the petitioner in total got 27 marks and the respondent No.10 got 33 marks. Each of the aforesaid respondents had awarded marks out of 15 marks allotted to each of the Members. Total mark on "interview" awarded in respect of the petitioner was 57 and the respondent No.10 had also been awarded in total 57 marks. The average of the total marks obtained by the candidates from all the Selection Committee Members was taken for preparing the select list and the total obtained by the petitioner out of 100 was 61.8 and the respondent No.10, 66.5. The petitioner had alleged wrong doing on the part of the respondent No.5 but it appears that he had awarded 15 marks out of 15 marks to the petitioner on "subject knowledge" while awarding only 8 marks to the respondent No.10. He had also awarded 14 marks out of 15 on "interview" to the petitioner. Total marks awarded by the respondent No.5 to the petitioner was 74 and to the respondent No.10, 67, WP(C) No.2361/2015 Page 9 of 11 and this itself demonstrates that there was no design on the part of respondent No.5 to facilitate selection of respondent No.10. It is also noticed that there is no corresponding corrections in the total and, therefore, it would appear that there was no deliberate attempt to favour a particular candidate. If the respondent No.5 wanted to favour the respondent No.10, he would not have granted 15 out of 15 in the "subject knowledge" component to the petitioner while granting only 8 to the selected candidate, respondent No.10.
24. Similarly the respondent No.7, who also was alleged to have committed irregularities, had awarded 10 marks each to the petitioner on "experience" and "interview" while awarding 8 and 7 marks to the selected candidate, respondent No.10. The respondent No.7 had awarded total marks of 56 to the petitioner and 55 to the respondent No.10 and, therefore, decisively, there was no pronounced slant to favour the respondent No.10. The respondent No.8, who is an academician, had awarded total 49 marks to the petitioner and 66 to the respondent No.10.
25. The writings and over writings, as alleged by the petitioner, in view of the discussions above, cannot be said to be motivated or an afterthought, fortified by the fact that no corrections had been made in the total marks with regard to the petitioner and the respondent No.10. Respondent No.4 against whom no allegation was made, had also made some corrections. Petitioner was entitled to 3 marks for having passed HSLC but that 3 marks was given treating the petitioner to have passed in 2nd division and, therefore, there was a correction. Grand total in respect of one Amalendu Goswami was also corrected because there was a calculation error in totaling and there were no writings or over writings in the marks allotted to the said candidate. Total was also corrected in respect of one Rajib Kr. Sarma because of apparent calculation error as there are no corrections in the marks given to the said candidate on individual heads. Respondent No.6 also made corrections though not referred to by the petitioner. The correction made was inserting 10 on account of Sastri Examination against 2nd division, which he had put under 3rd division. The fact that there was no change or corrections in the total marks in respect of the petitioner and the respondent No.10 in the hands of any of the Selection Committee Members belies the claim of the petitioner of improper motive of some Members of the Selection Committee, more so, in the background of marks awarded to the petitioner and the respondent No.10. The petitioner is seeking to make a mountain of a molehill.
26. The resolution with regard to "experience", namely, resolution No.4, is little ambiguous and surely the resolution could have been drafted in a much better way. It is WP(C) No.2361/2015 Page 10 of 11 correct that the respondent No.6 and respondent No.8 did not give any marks to the petitioner. In total, the petitioner had got 32 marks on the head of "experience" on a cumulative basis from the marks awarded by all the Selection Committee Members. The respondent No.10 was given 36 marks on that count by 6(six) Members of Selection Committee and, therefore, the average comes to 6, which is also reflected in the final result sheet. On the same pattern, on the head of "experience", on the basis of average worked out, the petitioner was awarded 5.3 marks. Assume that the respondent No.6 and respondent No.8 had given full marks, i.e., 10 marks each out of 10. In that event, total marks on "experience" head of the petitioner would have been 52 (32+20) and then, the average would have been 8.7 instead of 5.3 and thus, 3.4 marks (8.7 - 5.3) are to be added to 61.8, the present total of the petitioner. If 3.4 marks are added to 61.8, the same comes to 65.2, which is still less than 66.5 marks obtained by the respondent No.10. Thus, there would have been no material alteration of the position of the petitioner and the respondent No.10.
27. In view of the above discussion, in the totality of the facts and circumstances of the case, I am of the considered opinion that no interference is called for with the selection of the respondent No.10 and taking that view, the writ petition is dismissed. No costs.
JUDGE M. Sharma WP(C) No.2361/2015 Page 11 of 11