Disposed

Dr. Bishwajit Deb Roy v. the State of Assam and 3 Ors.

Gauhati HC9 Jan 2018WP(C)/2085/2016

Case brief

AI extract

What is this about?

The Gauhati High Court held two interconnected writ petitions premature as the final approval for the Assistant Professor post was pending with the Director of Higher Education. The petitions merged earlier orders, directing the Director to finalize the selection process in compliance with the Assam College Employees (Provincialisation) Act, 2005, Rules, 2010, and UGC guidelines without dismissing

What did the court decide?

Directing Director of Higher Education to finalize selection process complying with Assam College Employees (Provincialisation) Act, 2005, Rules, 2010, and UGC norms.

Dr. Bishwajit Deb Roy Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2018)

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GAHC010170962016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 3083/2016

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1:RAJDEEP MOHANTA

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S/O. R.K. MOHANTA, R/O. "JOGENDRA BHAWAN", BANAMALI ROAD, P.O. KARIMGANJ, KARIMGANJ, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM, DEPTT. OF HIGHER EDUCATION, SECRETARIAT, DISPUR, GHY.-781006.

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Advocate for the Petitioner : MR.R J SARMA Advocate for the Respondent : MRA R BHUYANR-4

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1:DR. BISHWAJIT DEB ROY S/O SRI BIPUL RANJAN DEB ROY R/O H/NO.14 SHYAMSUNDAR LANE CHENKURI ROAD DIST- CACHAR ASSAM PIN-788007

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS

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REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM DEPTT. OF HIGHER EDUCATION ASSAM SECRETARIAT DISPUR GHY-6 ASSAM

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2:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GHY-19 3:THE PRINCIPAL CACHAR COLLEGE SILCHAR CUM SECY. GOVERNING BODY CACHAR COLLEGE SILCHAR DIST- CACHAR ASSAM PIN-788001 4:THE PRESIDENT GOVERNING BODY CACHAR COLLEGE SILCHAR R/O H/NO.35 MM SARANI P.O. RANGIRKHARI P.S. SILCHAR DIST- CACHAR ASSAM PIN-788005

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Advocate for the Petitioner : MR.A K DUTTA Advocate for the Respondent : MR.M A I HUSSAINR-4

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER

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09-01-2018

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In WP(C) No. 2085/2016, heard Mr. R.P. Kakati, learned Sr. Counsel, assisted by Mr. B. Purkayastha, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned Standing counsel Higher Education for the respondent Nos. 1 and 2, Mr. S.P. Choudhury, learned counsel for the Respondent No. 3 and Mr. A.R. Bhuyan, learned counsel for the Respondent No. 4.

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In WP(C) No. 3083/2016, heard Mr. R. De, learned counsel for the

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petitioner. Also heard Mr. K. Gogoi, learned Standing counsel Higher Education for the respondent Nos. 1 and 2, Mr. S.P. Choudhury, learned counsel for the Respondent No. 3, Mr. A.R. Bhuyan, learned counsel for the Respondent No. 4 and Mr. R.P. Kakati, learned Sr. Counsel, assisted by Mr. B. Purkayastha, learned counsel for the Respondent No. 5.

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Both the writ petitions relate to selection and appointment to an unreserved post of Assistant Professor in Botany at Cachar College, Silchar in the terms of an advertisement dated 25.09.2015 issued by the then Principal in-charge of said College. Petitioner of both the writ petitions participated in the selection process for the said post of Assistant Professor in Botany the said College as advertised on 25.09.2015 and these two writ petitions are interconnected. Therefore, as agreed by the parties both the writ petitions are taken up together for a final consideration.

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In WP(C) No. 2085/2016, the petitioner namely Dr. Biswhwajit Deb Roy’s claim is that he has all the qualifications as per the UGC norms and guidelines and possesses all the requisite criteria and eligibility for the post of Assistant Professor in Botany as advertised by the authority of Cachar College, Silchar on 25.09.2015 and therefore, he applied for the said post within the time specified with all the testimonials. Finding his application in order, the authority of the said College issued him a call letter to appear before the concerned selection committee on 08.01.2016 for his interview for the said post. Accordingly, on 08.01.2016 he appeared before the selection committee along with six other candidates and that the petitioner reliably learnt that the selection committee selected him for the said advertised post and that the Governing Body of the said College in its meeting held on 12.01.2016 approved the said selection and directed the Principal of the said College to recommended his name to the Director of Higher Education (DHE), Assam for his necessary approval and issue the appointment order in his favour.

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It is also stated by the petitioner that the respondent No. 3, Principal of said Cachar College, Silchar on13.01.2016 forwarded the proposal to that the DHE,

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Assam recommending the name of the petitioner, as selected by the selection committee for the said advertised post requesting the said authority to issue necessary order of appointment in favour of the said petitioner.

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As the DHE, Assam sat over the matter and did not pass any order on the recommendation of the Principal of said College dated 13.01.2016, the petitioner submitted representations before the DHE, Assam on 01.02.2016, 04.02.2016 and 05.03.2016. Since nothing was forthcoming from the side of the DHE, Assam with regard to the approval and issuance of the appointment order to him as Assistant Professor in Botany the said College, the petitioner has preferred this petition, amongst others, for a necessary direction to the respondent No. 2, the DHE, Assam to issue the appointment order to him.

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On 30.05.2016, the respondent No. 4, President of the Governing Body of the said College filed an affidavit in the matter stating that the said writ petition may be dispose of directing the DHE, Assam, the respondent No. 2 to provide an opportunity of hearing to him as well as the Principal of the College, respondent No. 3, before taking any decision with regard to the appointment of the petitioner on the basis of the letters dated 13.01.2016 and 10.05.2016 submitted by the Principal of the said College and the letter dated 19.05.2016 submitted by the said Department. In his affidavit, the respondent No. 4, President of the Governing Body of the College raised an issue that the selection committee which conducted the selection for the said advertised post of Assistant Professor in Botany in the said College was not properly constituted as required for the said selection. The petitioner did not file any reply to the said affidavit of the respondent No. 4, President of the Governing Body of the College

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In WP(C) No. 3083/2016, the petitioner namely Rajdeep Mohanta’s claim is that he being eligible and qualified has also applied for the post of Assistant Professor in Botany at Cachar College, Silchar as advertised on 25.09.2015 and on receipt of the call letter, he on 08.01.2016 appeared for his interview before the concerned selection committee for the said post, in which

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altogether seven candidates appeared including him and the petitioner of WP(C) No. 2085/2016. The petitioner received a caveat filed by the respondent No. 5, the petitioner of the other writ petition of WP(C) No. 2085/2016 and was surprised to know how the said respondent No. 5 could come to know that he was selected even prior to the finalisation of the selection process. The petitioner on 15.02.2016 sought for the necessary information through RTI from the authority of the said college. Accordingly, on 06.04.2016 Public Information Officer of said Cachar College, Silchar from which he could come to know that the Selection Committee constituted for the purpose of selection to the said advertised post in part in the case, was constituted in violation of the UGC guidelines so as to adopt pick and choose policy for the purpose of favouring the respondent No. 5.

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It is also stated by the petitioner that to lend support to his purported selection the respondent No. 5 already filed WP(C) No. 2085/2016 and being aggrieved with the illegalities in the selection process with regard to the said post of Assistant Professor in Botany at Cachar College, Silchar as advertised on 25.09.2015, he has filed the said writ petition for necessary direction by setting aside the said selection held earlier on 08.01.2016 and to hold fresh selection by reconstituting the selection committee for the said advertised post by complying the rules and guidelines framed by the UGC for the said purpose.

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The respondent No. 5, petitioner of WP(C) No. 2085/2016 on 31.05.2016 has filed his affidavit in the matter rejecting the allegations made by the present petitioner and stating that the selection committee has awarded him the highest mark during the selection and that the said writ petition of the petitioner is a premature one since the DHE, Assam is yet to take a decision on the proposal submitted by the College authority.

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The Cachar College, Silchar is a provincialised College, brought under provincialised Asian w.e.f. 01.12.2005 under the provisions of the Assam College Employees (Provincialisation) Act, 2005. The Assam College Employees (Provincialisation) Rules, 2010 has been framed under the provisions of the Section

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12 of the said Provincialisation Act of 2005 and it has been brought into force w.e.f. 22.11.2010 for carrying out the purposes of the said 2005 Act.

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Rule 5 of said 2010 Rules provides for Method of Recruitment in such provincialised colleges and sub-Rule (2) of Rule 5 of said 2010 Rules prescribes that – for the post of Lecturer/Librarian appointment shall be made by direct recruitment with prescribed qualifications through open advisement in two leading dailies at least in two consecutive issues.

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Sub-Rule (7) of Rule 5 of said 2010 Rules provides that with regard to appointment of Lecturer/Librarian in such provincialised colleges – the Governing Body shall conduct the selection process and recommend to the Director (in the present case it is the Director Higher Education, Assam), issue orders of appointment.

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Rule 7 of said 2010 Rules provides for Direct Recruitment in such provincialised colleges and sub-Rule (a) of Rule 7 of said 2010 Rules provides that – all appointment either by direct recruitment or by promotion shall be made by the Director on the basis of the recommendations of the Governing Body based on the recommendation of the Selection Committee/Departmental Promotion Committee duly constituted (as the case may be) and sub-Rule (b) of Rule 7 of said 2010 Rules provides that - the Director shall communicate his orders within 30 days.

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Further sub-Rule (c) of Rule 7 of said 2010 Rules provides that - the Selection Committee may hold such test of interview for all posts as may be considered necessary. For posts for which UGC has prescribed norms, no candidate shall be recruited without having the required norms and sub-Rule (d) of Rule 7 of said 2010 Rules provides that - all fresh appointment shall be made on the receipt of police verification report.

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Moreover, Rule 10 of said 2010 Rules provides for Selection Committee/Departmental Promotion Committee and sub-Rule (A) of Rule 10 of

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said 2010 Rules provides for – Constitution of the Committee for selection of candidates for appointment on direct recruitment of Lecturers/Librarians.

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It is not denied by any of the parties to these petitions that after the direction of the Court passed earlier on 30.03.2016 in WP(C) No. 2085/2016, the Principal of Cachar College, Silchar submitted the proposal for appointment to the post of Assistant Professor in the Botany Department to the Director of Higher Education, Assam, the respondent No. 2 on 10.05.2016 with regard to the selection made pursuant to the advertisement dated 25.09.2015 and the same was received by the Office of the said Director on 12.05.2016 and that since then the matter is pending before the DHE, Assam for his consideration and necessary order.

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In a case with regard to interview for the post of Professor, a three Judges Bench of the Hon’ble Supreme Court in G. Sarana (Dr.) -Vs- University of Lucknow reported in (1976) 3 SCC 585, have held that – ‘It is difficult to understand how the writ petition or for that matter the present appeal before us is maintainable when the recommendation of the Selection Committee has still to be scrutinised by the Executive Council of the university and either accepted or rejected by it and other remedies by way of representation to the Executive Council and an application for reference of the matter under Section 68 of the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974, to the Chancellor are still open to the appellant and have not been exhausted’ and for that said reasons, the Hon’ble Apex court in the result, dismissed the said appeal.

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19) It is settled that any such recommendation of the Selection Committee per se would not give rise to a cause of action for initiating a legal proceeding because no finality is attached to such a recommendation at a stage prior to according approval by the concerned authority and the Director of Higher Education, Assam in this case and intervention at such stage would amount to pre-empting a decision or decisions to be taken by the designated authorities and in the said case, as the matter relating to selection for appointment to the post of Assistant

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Professor of Botany Department in Cachar College, Silchar is yet to attained finality.

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In the present case the issue relating to the appointment of Assistant Professor of Botany Department in Cachar College, Silchar pursuant to the advertisement dated 25.09.2015, for which interview was held on 08.01.2016, is pending before the Director of Higher Education, Assam for its consideration and the respondents in the Higher Education Department is yet to take a decision in that regard and that the representations of the parties filed before the said Director are yet to be disposed of.

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For the reasons above and considering the stage at which the petitioners have approached the Court challenging the selection and appointment to the said post of Assistant Professor of Botany at Cachar College pursuant to the advertisement dated 25.09.2015, this Court is of the view that present writ petitions, being premature, is not maintainable at this stage as both the petitioners have not acquired any right to the said post.

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22) In view of the above, it is directed that the Director of Higher Education, Assam by complying the relevant provisions of the Assam College Employees (Provincialisation) Act, 2005 and the Assam College Employees (Provincialisation) Rules, 2010 as well as the UGC Guidelines and the Office Memorandums of the State Government in the Higher Education Department in that regard, in proper perspective, shall finalise the selection process to the post of Assistant Professor of Botany in Cachar College, Silchar as advertised on 25.09.2015 for which selection was held on 08.01.2016 forthwith, keeping in mind that proposal for the said post is pending before the said Director since May, 2016 as noted above.

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