Paramita Acharjee vs The State Of Assam And 3 Ors
2021 Latest Caselaw 1526 Gua

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GAHC010128322020




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

                              Case No. : WP(C)/3814/2020

           PARAMITA ACHARJEE
           D/O LATE NARAYAN ACHARJEE,
           W/O DR. BISHWAJIT BHATTACHARJEE
           RESIDENT OF ROYNAGAR, WARD NO. 25, PO AND DIST KARIMGANJ.
           ASSAM 781711



           VERSUS

           THE STATE OF ASSAM AND 3 ORS.
           REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
           OF HIGHER EDUCATION, GOVERNMENT OF ASSAM, DISPUR, GUWAHATI
           06

           2:THE DIRECTOR OF HIGHER EDUCATION
           ASSAM KAHILIPARA
            GUWAHATI 19 ASSAM

           3:THE PRESIDENT
            GOVERNING BODY
            RADHAMADHAB COLLEGE
            SILCHAR
            CACHAR
            788006 ASSAM

           4:THE PRINCIPAL CUM SECRETARY
            RADHAMADHAB COLLEGE
            SILCHAR
            CACHAR
           ASSAM 78800

Advocate for the Petitioner : MR. A DHAR
Advocate for the Respondent : SC, HIGHER EDU
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                                                 BEFORE
                     HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                               ORDER

26.04.2021

Heard Mr. Arunangshu Dhar, learned counsel for the petitioner and Mr. Kaustav Gogoi, learned Standing counsel, Higher Education, Assam for the respondent Nos. 1 and 2.

Pursuant to the order dated 07.10.2020, Mr. Gogoi, learned Standing counsel, Higher Education placed photocopies of the relevant record.

Matter pertains to selection and appointment to the post of Assistant Professor in Bengali (unreserved category) in the UGC Scale of pay at Radhamadhab College, Silchar (hereinafter referred to as the said College) in pursuance of the advertisements published on 22.06.2014 and 26.06.2014.

Pursuant to the said advertisements dated 22 nd and 24th June 2014, initially the interview for the said post was held on 19.11.2014 and the selection committee after the interview prepared a panel of three candidates on the basis of their merits that includes (i) Dr. Abhijit Choudhury, M.A., Ph.D.; (ii) Dr. Swatilekha Roy, M.A., M.Phil., Ph.D. and (iii) Smti. Arupa Chakraborty, M.A.

The present petitioner in pursuance of the said advertisements dated 22.06.2014 and 26.06.2014 applied for the post of Assistant Professor in Bengali in the said College. But the College authority did not issue any call letter to her. As such, she preferred a writ petition being WP(C) No. 6205/2014 against the said selection. The Court by order dated 02.12.2014 while issuing notice to the respondents in said WP(C) No. 6205/2014, in the interim directed that the process of appointment for the said advertised post in the College shall not be finalised till the returnable date. The College authority submitted before the Court that application of the petitioner was rejected as she did not sign her bio-data annexed with her application. The Court found that the petitioner signed her application form. Finding that the action of the College authority in rejecting the application of the petitioner to be arbitrary and unjustifiable, the Court by Judgment dated 15.06.2018 disposed of said WP(C) No. 6205/2014 setting aside the said rejection of the application of the petitioner by the College authority and directed the College authority to consider the case of the petitioner for the post of Assistant Professor in Bengali along with other candidates whose applications have not been rejected as Page No.# 3/7

reflected in the consolidated statement of marks of the candidates who applied for the post of Assistant Professor in Bengali as placed by the College authority in its affidavit. In the said judgment dated 15.06.2018, the Court specified that in the event of any of the candidates who were eligible to be considered for appointment on the basis of the advertisements published on 22.06.2014 and 26.06.2014 for the post of Assistant Professor of Bengali Department in Radhamadhab College, Silchar becoming over-aged, the respondents in the Higher Education Department of the State as well as the College authority shall condone the over-age of such candidate(s).

After disposal of said WP(C) No. 6205/2014 on 15.06.2018, fresh selection for the post of Assistant Professor in Bengali of Radhamadhab College, Silchar was held on 03.12.2018 and the concerned Selection Committee for the said post selected a panel of three candidates on the basis of their merits consisting the names of (i) Dr. Paramita Acharjee (present petitioner), (ii) Dr. Abhijit Chaudhury and (iii) Dr. Swatilekha Ray.

This time Dr. Abhijit Chaudhury preferred a writ petition being WP(C) No. 8517/2018 alleging that though he had the requisite NET and Ph.D. Degree with research paper, but the Selection Committee in the said selection held on 03.12.2018 did not give him any marks in that regard. In said WP(C) No. 8517/2018, present petitioner was arrayed as respondent No.7. The Court by order dated 12.12.2018 while issuing notice to the respondents in said WP(C) No. 8517/2018, in the interim provided that the subsequent selection pursuant to the interview dated 03.12.2018 in respect of advertisements dated 22.06.2014 and 26.06.2014 shall not be proceeded further.

By order dated 19.09.2019, the Court disposed of said WP(C) No. 8517/2018 observing that as per rules applicable in the State of Assam, appointment to the teaching posts in a college in terms of recommendation made by the Selection Committee has to be approved by the Governing Body of the College first and the Governing Body after accepting the approval of the recommendation made by the Selection Committee has to forward the same to the Higher Education Department who after approving the same will issue the appointment order as provided under Rule 7 of the Assam College Employees (Provincialisation) Rules, 2010. The Court found that the claim of the petitioner of said WP(C) No. 8517/2018 a premature one, as the same can be examined by the Governing Body of the College and in turn the Director of Higher Education has to examine the same and in the process, the grievance of the said petitioner could perhaps be addressed and resolved. By the said order dated 19.09.2019, the Court directed the petitioner of WP(C) No. 8517/2018 to submit a detail representation before the Governing Body of the College within a period of 2 (two) weeks from the date of receipt of certified copy of that order and also directed the Governing Body of the College to Page No.# 4/7

consider the said representation of the petitioner at the time of considering the recommendation made by the Selection Committee. The Court further observed that in the event the Governing Body does not entertain the plea of the said petitioner, he may prefer detail representation before the Director of Higher Education Department, who shall also consider the same at the time of considering the recommendation so forwarded by the Governing Body of the College in terms of Rule 7 of said 2010 Rules. By the said order dated 19.09.2019, the Court accordingly vacated the interim order passed earlier in said WP(C) No. 8517/2018 and granted liberty to its petitioner to approach the Court again if he is still aggrieved by the decision of the Director, Higher Education Department.

Petitioner of said WP(C) No. 8517/2018 on 25.10.2019 accordingly filed his representation before the Governing Body of the College. As the authority of the said College did not take any final decision regarding recommendation of the selection committee pursuant to the interview held on 03.12.2018 with regard to the post of Assistant Professor of Bengali in said College in respect of advertisements dated 22.06.2014 and 26.06.2014 and as directed by the Court on 19.09.2019 in WP(C) No. 8517/2018, the present petitioner submitted application under RTI before the College authority and in reply, came to know that the College authority did not select any candidate for recommendation to the Director of Higher Education Department of the State. The College authority in their reply to her RTI application informed the petitioner that as soon as any comparative statement regarding the proposal for the said appointment is made, copy of the same would be furnished to her. Petitioner on 10.07.2020 has already filed an appeal before the Director of Higher Education, Assam and also submitted a reminder on 21.08.2020. It is stated by the petitioner that her appeal is still pending for disposal.

Though the selection process noted above have not been stayed by any order of the Court and/or no such stay order is in force, but due to non action on the part of the respondents both in the Higher Education Department of the State as well as on the part of the respondents in the College authority, in not approving the Comparative Statement of the candidates for the post of Assistant Professor in the Department of Bengali in said Radhamadhab College, Silchar as advertised on 22.06.2014 and 26.06.2014 for which interview was held on 03.12.2018, the petitioner being aggrieved has preferred this writ petition praying amongst others - (i) a Writ in the nature of Mandamus directing the President of the Governing Body of Radhamadhab College, Silchar, respondent No.3 to forward the recommendation of the Selection Committee for appointment to the post of the Assistant Professor, Bengali pursuant to the interview held on 03.12.2018 for consideration of the Director of Higher Education, Assam, respondent No.2 and (ii) a Writ in the nature of Page No.# 5/7

Mandamus directing the Director of Higher Education, Assam, respondent No.2 to communicate the order of appointment to the post of Assistant Professor, Bengali of Radhamadhab College, Silchar in accordance with the Rules.

From the records placed before the Court by Mr. Gogoi Standing counsel, Higher Education of the State, it is seen that the Governing Body of the College in its meetings held on 11.01.2020 and 04.03.2020 considered the recommendation made by the Selection Committee on 03.12.2018 with regard to the appointment to the post of Assistant Professor of Bengali in Radhamadhab College, Silchar. By resolution dated 04.03.2020 the Governing Body of the College found that the Selection Committee held on 03.12.2018 did not award 7 (seven) marks to the petitioner of WP(C) No. 8517/2018, Abhijit Chaudhury for his Ph.D. degree on the ground that he did not clear NET on the date of the first interview that was held on 19.11.2014, though he had qualified the NET before the

2nd interview held on 03.12.2018. Considering the 4 th clause of the Circular (Office Memorandum) No. AHE.28/2020/24 dated 04.02.2020 of the State Government in the Higher Education Department wherein it is specified that - "Eligibility like M.Phil./Ph.D./ Seminar Paper/Publications can be acquired and submitted on the date of interview and not beyond" and following the Order dated 19.09.2019 passed by the Court in WP(C) No. 8517/2018, the Governing Body of the College in its meeting held on 04.03.2020 awarded 7 (seven) marks to said Abhijit Chaudhury for his Ph.D. Degree and

accordingly placed him in the 1 st position in the panel of three candidates prepared on the basis of merit, above the present petitioner, in the said selection held on 03.12.2018. However, it is seen that the said resolution dated 04.03.2020 is without the signature of the President of the Governing Body of the College. By communication dated 20.06.2020 submitted before the Director of Higher Education, Assam the President of the Governing Body of the College resigned from the said post due to his personal reason with immediate effect and also intimated the Principal of the College about it. Thereafter, the Director of Higher Education, Assam by order No. DHE/PA/G.B./Gov.Per/3/2020/239 dated 08.09.2020 reconstituted the Governing Body of said Radhamadhab College, Silchar with Dr. Lakshi Kanta Bhattacharjee as its President. By letter dated 16.10.2020 the Principal of said College informed the Director of Higher Education, Assam that said resolution dated 04.03.2020 adopted by the Governing Body of the College remained unsigned by the concerned President.

On being enquired, Mr. K Gogoi, learned Standing counsel, Higher Education, Assam informed the Court that the authority of said Radhamadhab College, Silchar have not yet forwarded the original records of selection pertaining to the un-reserved post of Assistant Professor of Bengali in said College as advertised on 22.06.2014 and 26.06.2014, for which re-interview was held on 03.12.2018 in Page No.# 6/7

pursuance of the Judgment of the Court dated 15.06.2018 passed in WP(C) No. 6205/2014, noted above. The Court has also noticed that the Circular (Office Memorandum) No. AHE.28/2020/24 dated 04.02.2020 of the State Government in the Higher Education Department, mentioned in the resolution of the Governing Body of the College dated 04.03.2020, is subsequent to the interview held on 03.12.2018 as well as the Order of the Court dated 19.09.2019 passed in WP(C) No. 8517/2018, noted above.

Taking into consideration of the facts noted above; on hearing the learned counsels for the parties and considering the Judgment dated 15.06.2018 passed in WP(C) No. 6205/2014 (Smti. Paramita Acharjee Vs. State of Assam and 3 others) as well as the Order dated 19.09.2019 passed by the Court in WP(C) No. 8517/2018 (Abhijit Choudhury Vs. State of Assam and 6 others), this writ petition is disposed of directing the President of the Governing Body of Radhamadhab College, Silchar, respondent No.3 as well as the Principal-cum-Secretary of the said College, respondent No.4 to submit its resolution regarding the selection to the un-reserved post of Assistant Professor of Bengali in the College that was advertised on 22.06.2014 and 26.06.2014, for which interview was held on 03.12.2018 following the direction of the Court dated 15.06.2018 passed in WP(C) No. 6205/2014, before the Director of Higher Education, Assam, along with the entire records of said selection in original within a period of 21 (twenty one) days from the date of receipt of a certified copy of this order.

Thereafter, within a period of 60 (sixty) days from the date of receipt of such resolution of the Governing Body of said College, as directed above, the Director of Higher Education, Assam, respondent No. 2 shall pass necessary order following the direction of the Court dated 19.09.2019 passed in WP(C) No. 8517/2018 and the provisions of the Assam College Employees (Provincialisation) Rules, 2010 with regard to the selection and appointment to the unreserved post of Assistant Professor of Bengali in said Radhamadhab College, Silchar as advertised on 22.06.2014 and 26.06.2014 for which interview was held on 03.12.2018.

It is also made clear that prior to passing the final order as directed above, the Director of Higher Education, Assam shall dispose of the appeal of the present petitioner which she had filed on 10.07.2020, where she had also submitted a reminder on 21.08.2020 in that regard. The Director of Higher Education, Assam shall intimate the petitioner about the outcome of her said appeal. It is also made clear that as observed by the Court on 19.09.2019 in WP(C) No. 8517/2018, if its petitioner Abhijit Choudhury submitted or submits a detail representation before the Director of Higher Education, Assam the said authority shall also consider the same at the time of considering the Page No.# 7/7

recommendation so forwarded by the Governing Body of the College in terms of the Rule 7 of the Assam College Employees (Provincialisation) Rules, 2010.

Petitioner shall submit certified copies of this order before the Director of Higher Education, Assam, respondent No. 2 along with a copy of her said appeal dated 10.07.2020 forthwith, with her e- mail address, mobile No(s), and her other addresses for communication, obtaining necessary acknowledgement from the said authority in that regard.

The petitioner shall also submit certified copies of this order before the President of the Governing Body of Radhamadhab College, Silchar, respondent No.3 as well as the Principal-cum- Secretary of the said College, respondent No.4 forthwith obtaining necessary acknowledgement from them.

With the above observation and direction, this writ petition stands disposed of.

JUDGE

Comparing Assistant