Disposed

Dr. Deepali Das v. the State of Assam and 5 Ors.

Gauhati HC27 Apr 2022WP(C)/2034/2017

Case brief

AI extract

What is this about?

The High Court held that a Departmental Promotional Committee recommendation was invalid due to non-compliance with statutory composition rules. Instead of granting relief directly, the Court directed respondents to constitute a proper DPC within 30 days to decide seniority, pay scale, and promotion.

What did the court decide?

Directing respondents to constitute a proper DPC within 30 days and grant benefits if the petitioner is eligible.

Dr. Deepali Das Vs the State of Assam and 5 Ors. — Service and Employment | Gauhati HC (2022)

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GAHC010018612017

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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)/2034/2017

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DR. DEEPALI DAS

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W/O SRI BISWA PRADIP SAIKIA R/O CHETIA GAON, WARD NO. 4, BIRACHA DOLEY PATH, NORTH LAKHIMPUR- 787001.

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VERSUS

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THE STATE OF ASSAM and 5 ORS. REP. BY THE COMMISSIONER AND SECRETARY DEPARTMENT OF EDUCATION, GOVT. OF ASSAM, DISPUR, GUWAHATI -6.

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2:DIRECTOR OF HIGHER EDUCATION

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ASSAM KAHILIPARA GUWAHATI -19.

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3:THE SECRETARY

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FINANCE GOVT.OF ASSAM DISPUR GUWAHATI-6.

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4:THE ACCOUNTS GENERAL

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MAIDAMGAON BELTOLA GUWAHATI -29

5:THE PRINCIPAL

L.T.K. COLLEGE AZAD

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NORTH LAKHIMPUR PIN - 787031

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6:CHAIRPERSON OF THE DEPARTMENTAL PROMOTION COMMITTEE

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L.T.K. COLLEGE AZAD NORTH LAKHIMPUR PIN - 78703

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Advocate for the Petitioner : MRR CHAKRABORTY

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Advocate for the Respondent : SC, HIGHER EDUCATION

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Date : 27-04-2022

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Heard Mr. G. Choudhury, learned counsel for the petitioner and Mr. K. Gogoi, learned counsel appearing on behalf of the respondent Nos. 1 and 2. Also heard Ms. E. Yangthan learned counsel for the respondent No. 4 and Mr. B. Gogoi, learned counsel appearing on behalf of the respondent No. 3. None appears on behalf of the respondent Nos. 5 and 6 on call.

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The instant writ petition has been filed by the petitioner seeking a direction upon the respondent Nos. 1 to 4 to consider and approve the recommendation of the Departmental Promotional Committee (for short ‘DPC’) dated 11.07.2015 to grant Associate Professor Scale of Pay to the petitioner w.e.f. 19.03.2015 and consequently to consider promotion to the post of Associate Professor of Home Science at L.T.K. College, Azad, North Lakhimpur as well as direction to the said respondents to grant the arrear salary w.e.f. 19.03.2015 in Associate Professor Scale of Pay to the writ petitioner in terms of the recommendation of the DPC dated 11.07.2015.

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The case of the petitioner is that the petitioner initially joined as a Lecturer in a non-sanctioned post at L.T.K. College, Azad, North Lakhimpur on 01.06.1999 in the Department of Home Science. Pursuant to a resolution of the Governing Body dated 03.03.2001, the appointment of the petitioner as Lecturer was approved against the sanctioned post and pursuant thereto by an order dated 18.05.2001, the petitioner’s appointment as Lecturer, Home Science was formally approved by the Director, Higher Education against a sanctioned post. The date of the effect of the said order dated 18.05.2001 was made effective w.e.f. 19.03.2001.

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It is the further case of the petitioner that the writ petitioner did not have the requisite NET qualification during her initial appointment as a Lecturer. However, upon acquiring the NET qualification on 25.07.2002, the respondent No. 2 allowed regular UGC Scale of Pay with incremental benefit w.e.f. 25.07.2002. The petitioner further states that in terms of the provisions of Rule 13 of the Assam College Employees (Provincialization) Rules, 2010, the services of the petitioner as Lecturer was confirmed by the Director, Higher Education, Assam vide an order dated 31.07.2003.

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It is the further case of the petitioner that in terms of UGC norms the Assistant/Associate Professors etc of a college, who were initially appointed without the requisite qualification of NET/SLET/Ph.D etc., the seniority of such incumbents are reckoned with effect from the date of acquiring such norms as prescribed by the UGC were adopted by the State Government vide a Notification No. AGE.165/2010/15 dated 16.12.2010 and the same was reiterated and reconfirmed vide the Office

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Memorandum dated 10.07.2015 issued by the Addl. Chief Secretary to the Government of Assam, Education (Higher) Department under No. AHE.502/2014/38.

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The petitioner completed her Ph.D in Anthropology from Dibrugarh University on 29.12.2015 and to that effect, the notification dated 01.01.2016 was issued by the Registrar, Dibrugarh University confirming her Ph.D and a certificate dated 15.02.2016 was issued by the Controller of Examinations, Dibrugarh University. On the basis thereof, the petitioner claims to be qualified for Senior Scale of Pay while serving as Assistant Professor, Home Science w.e.f. 19.03.2007 and thereafter, the petitioner was eligible to receive Selection Grade Scale w.e.f 19.03.2012. The petitioner was also eligible to receive Associate Professor Scale of Pay w.e.f 19.03.2015.

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The Director, Higher Education, Assam had sent office letter dated 17.07.2015 to the all the Principals of the Government/Provincialized Colleges/Mahavidyalayas of Assam, thereby asking for fresh proposals for seniority, eligibility for UGC pay scale and promotions etc. with regard to college teachers.

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On the basis of the communication dated 17.07.2015, issued by the Director, Higher Education, Assam a DPC was formed under the Chairmanship of the Principal of the said college. The petitioner duly appeared before the DPC on 11.07.2015 and pursuant to deliberations, the DPC had recommended the Associate Professor Scale of Pay in favour of the writ petitioner w.e.f. 19.03.2015 due to fulfillment of all the requisite conditions for the Associate Professor Scale of Pay. Subsequent thereto, however, as the respondent Nos. 1 to 4 did not consider and

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approve their recommendation of the DPC dated 11.07.2015 and did not grant the Associate Professor Scale of Pay to the writ petitioner w.e.f. 19.03.2015 and the petitioner was not considered for promotion to the post of Associate Professor as well as the arrear salary w.e.f. 19.03.2015 in the Associate Professor Scale of Pay was not paid to the petitioner in terms with the recommendation of the DPC dated 11.07.2015, the petitioner has approached this Court under Article 226 of the Constitution.

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The respondent No. 2 has filed an affidavit-in-opposition wherein it has been mentioned that the petitioner became a regular employee only from 25.07.2002 i.e. from the date of clearing the NET. In paragraph 10 which is of vital relevance for the purpose of adjudication of the instant dispute, it has been mentioned that the DPC so formed and made the recommendation on 11.07.2015 was not in accordance with Rule 10(C) of the Assam College Employees (Provincialization) Rules, 2010 and as such the said recommendation cannot be acted upon. Paragraph 10 of the said affidavit-in-opposition being relevant is quoted herein below:

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“10. That with regard to the statements made in paragraphs 9, 10, 11 and 12 of the Writ Petition, the deponent begs to state that, the proposal received from the college authority to place/ recommended the Associate Professor Scale of Pay in favour of the petitioner is not in order. The Departmental Promotional Committee (DPC) is not in order. The Principal of the College himself has signed as President of the College Level DPC, whereas the President of Governing Body is the Chairman as per UGC Guideline and the existing Rules. The service of the petitioner is governed by the Assam College Employees (Provincialization) Rules, 2010. Rule 10 of the said Rule, deals with Selection Committee/ Departmental Promotion Committee. As per Rule 10(C) Departmental Promotion Committee for all posts shall consists of the following :-

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(i) President of the Governing Body – Chairman

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(ii) Principal of the College- Member Secretary

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(ii) One senior most Head of the Department of the College – Member.

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This mandatory provision was not followed by the College Authority in the meeting of the Departmental Promotion Committee (DPC) held on 11.07.2015.”

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The writ petitioner had filed an affidavit-in-reply countering to the various allegations made against the petitioner. It was also mentioned that the DPC held on 11.07.2015 rightly recommended for Associate Scale of Pay in favour of the petitioner w.e.f. 19.03.2015 i.e. the date of acquiring the Ph.D qualification. It was mentioned that seniority has to be reckoned w.e.f. 19.03.2001 in the light of the OM dated 24.05.2018. It was also mentioned that the DPC was constituted in terms with Rule 10 of the Assam College Employees (Provincialization) Rules, 2010.

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I have heard the learned counsel for the parties and given my anxious consideration to the matter.

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A perusal of Rule 10 of the Assam College Employees (Provincialization) Rules, 2010 stipulates that constitution of the Selection Committee/Departmental Promotional Committee. While Clause (A) of Rule 10 stipulates the constitution for selection of candidates for appointment on direct recruitment of lecturers and librarians, Clause (B) of Rule 10 stipulates the constitution of selection committee for selection of candidates for appointment of direct recruits for all other posts. As the instant case comes within the ambit of the DPC, the constitution of the DPC is to be done in terms of sub-Rule (C) of Rule 10 which stipulates that the DPC for all posts shall consist of the following i.e. (i) President of the Governing Body - Chairman, (ii) Principal of the College - Member Secretary and, (iii) One senior most Head of the Department of the

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College – Member.

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A perusal of the minutes of the meeting of the DPC dated 11.07.2015 enclosed as Annexure-11 to the writ petition shows that the said DPC consisted of the Principal of the college, two nominees of the Vice-chancellor, two subject experts, President of the Governing Body and the Associate Professor Head of Department, English. The pleadings on being perused do not indicate in any manner that the petitioner had any hand in the constitution of the said DPC.

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It is a well established principle of law when an Act or a statute stipulates a thing to be done in a particular manner, it is required that the same be done in that manner or not at all, this Court is, therefore, of the opinion that the recommendations so made by a DPC not in consonance to Rule 10(C) of the Assam College Employees (Provincialization) Rules, 2010 cannot be considered to be a recommendation as mandated under the said Rules and as such the directions sought for by way of the instant writ petition cannot be issued.

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Be that as it may, as it is not the fault of the petitioner which led to the consideration and recommendation by a not properly constituted DPC, this Court deems it proper to direct the respondent Nos. 5 and 6 to constitute a DPC in terms with Rule 10(C) of the Assam College Employees (Provincialization) Rules, 2010 within a period of 30(thirty) days from the date a certified copy of this order is served upon the respondent No. 5. Thereafter, the said constituted DPC shall take into consideration the eligibility of the petitioner for the Associate Professor Scale of Pay and pass such recommendation within a period of 15(fifteen) days from the date of such sitting. The said DPC shall also

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take into consideration as to from which date the petitioner is entitled to Associate Professor Scale of Pay and make appropriate recommendation in that regard. The said Committee shall also take into consideration the petitioner’s entitlement for promotion to the post of the Associate Professor, Home Science at L.T.K College, Azad, North Lakhimpur.

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On the basis of the said recommendation as directed herein to be made within a period of 15(fifteen) days from the date of sitting of the properly constituted DPC, the recommendation be sent to the respondent No. 2 who shall act upon it within a period of 30(thirty) days thereof and grant the benefits to the petitioner to which she is entitled.

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With the above observations and directions, the petition stands disposed of.

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JUDGE

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Comparing Assistant

Dr. Deepali Das v. the State of Assam and 5 Ors.

Case brief

What is this about?

What did the court decide?

Dr. Deepali Das v. the State of Assam and 5 Ors.

Case brief

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