Smti. Rakhi Moni Gogoi vs The State Of Assam And 6 Ors
2021 Latest Caselaw 1249 Gua

                                                                Page No.# 1/7

GAHC010186132020




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

                           Case No. : WA/217/2020

         SMTI. RAKHI MONI GOGOI
         W/O DR. RUPAM KR. GOGOI, METEKA KURULA KATIA GAON, P.O.-
         METEKA, DIST-SIVASAGAR, ASSAM, PIN-785697



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, HIGHER EDUCATION, DISPUR, GUWAHATI-781006

         2:THE DIRECTOR OF HIGHER EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-781019
          DIST-KAMRUP(M)
         ASSAM

         3:THE GOVERNING BODY
          SIBSAGAR COLLEGE
          JOYSAGAR
          DIST-SIVASAGAR
         ASSAM
          PIN-785665 (THROUGH THE PRESIDENT OF THE GOVERNING BODY)

         4:THE PRINCIPAL AND SECRETARY
          SIBSAGAR COLLEGE
          JOYSAGAR
          DIST-SIVASAGAR
         ASSAM
          PIN-785665

         5:THE SELECTION COMMITTEE
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             SIBSAGAR COLLEGE
             (AS REGARDS THE POST OF ASSTT. PROFESSOR IN POLITICAL SCIENCE)
             JOYSAGAR
             DIST-SIVASAGAR
             ASSAM
             PIN-785665 (THROUGH THE CHAIRMAN OF THE SELECTION COMMITTEE)

            6:THE ENQUIRY COMMITTEE
             CONSTITUTED IN G.B.s MEETING HELD ON 30.03.2019 AS REGARDS THE
            POST OF ASSTT. PROFESSOR IN POLITICAL SCIENCE
             SIBSAGAR COLLEGE
             JOYSAGAR
             DIST-SIVASAGAR
            ASSAM
             PIN-785665 (THROUGH THE PRINCIPAL AND SECRETARY SIBSAGAR
            COLLEGE
             JOYSAGAR
             PIN-785665)

            7:ANUPOM BORGOHAIN
             S/O TIRTHA BORGOHAIN
             MECHAGARH
            AMKOTIA
             P.O.-AMKOTIA
             DIST-SIVASAGAR
            ASSAM
             PIN-78569

Advocate for the Petitioner   : MR. S BORTHAKUR

Advocate for the Respondent : SC, HIGHER EDU




                                    BEFORE
                         HONOURABLE THE CHIEF JUSTICE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                        ORDER

Date : 31-03-2021

(Sudhanshu Dhulia, CJ) Heard Mr. S. Borthakur, learned counsel for the writ appellant. Also heard Mr. A.R. Tahbildar, learned counsel representing respondent nos.1 and 2. Mr. P.J. Phukan, learned counsel appears for respondent no.7.

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2. This writ appeal before this Court arises out of a judgment and order dated 25.11.2020 passed by the learned Single Judge in WP(C) No.5691/2019.

3. The matter relates to selection/appointment to the post of Assistant Professor in Political Science at Sibsagar College, Joysagar, which is a Degree College. Against the said advertised post, there were ten candidates out of which six candidates were shortlisted who appeared for the interviewed. The Selection Committee found the present respondent no.7 i.e. Anupom Borgohain [writ petitioner in WP(C) No.5691/2019] to be the most suitable candidate and recommended his name for the post of Assistant Professor in Political Science at Sibsagar College, Joysagar, vide its order dated 24.02.2016 (Annexure-E, page

50). This order was put to challenge by the present writ appellant before this Court in a writ petition i.e. WP(C) No.2615/2016, which was disposed of by the learned Single Judge vide order dated 06.02.2019. While disposing of the said writ petition, the learned Single Judge was of the view that the writ petition was premature and since the Governing Body of the College had yet to take a decision in the matter, passed the following order:-

"It is seen that any recommendation of the Selection Committee is yet to be evaluated by the Governing Body. No exercise has yet been undertaken towards approving or disapproving any recommendation of the Selection Committee. If the allegation made by the petitioner appears to be correct, there is no gainsaying that the Governing Body must appropriately take necessary action in the matter. Further, any approval by the Governing Body will again undergo a further scrutiny process before the Director of Higher Education, Assam. There are, indeed, checks and balances in evaluating any recommendation made by the Selection Committee.

In view of the above and having regard to the fact that the Governing Body of Sibsagar College is yet to take a decision in the matter, this Court while holding the writ petition as being premature, makes a direction to the Governing Body of Sibsagar College to Page No.# 4/7

assess and evaluate any recommendation made by the Selection Committee having regard to the guidelines framed by the State Government and also having regard to the records of the selection. Let the required exercise be completed by the Governing Body as expeditiously as possible, preferably within a period of 2 (two) weeks from the date of receipt of any recommendation of the Selection Committee.

Writ petition stands accordingly disposed of. Interim order passed earlier stands recalled."

4. It appears that consequent to the said order passed in the WP(C) No.2615/2016, the matter was brought to the notice of the Governing Body and the Body constituted an Enquiry Committee to look into the grievance of the writ appellant and thereby the appointment process was stalled. Aggrieved by this new development, the present respondent no.7 (Anupom Borgohain), who was the selected candidate, filed a writ petition before this court being WP(C) No.5691/2019. The learned Single Judge before whom the writ petition came up, after hearing both the parties was of the view that the present writ appellant i.e. Rakhi Moni Gogoi [respondent no.7 in WP(C) No.5691/2019] had not come with clean hands before this Court and came to the conclusion that the Governing Body had already taken a decision approving recommendation of the Selection Committee and it was wrong for the writ appellant to have stated before the Court that the Governing Body has not taken a decision as yet. The learned Single Judge was also of the view that the Governing Body was only directed to consider the weightage being given to each of the candidates and there was no direction for constitution of the Enquiry Committee by the Governing Body. Therefore, the Governing Body had misdirected itself with regard to the order dated 06.02.2019 passed by the learned Single Judge in WP(C) No.2615/2016. Consequently, the order/letter dated 16.11.2019 issued by the Deputy Director of Higher Education, Assam, interference was made and Page No.# 5/7

it directed the Director of Higher Education, Assam for giving approval of the recommendation of the Selection Committee. Aggrieved, the respondent no.7 Rakhi Moni Gogoi (writ appellant) has filed the instant writ appeal.

5. We have however been taken to the entire records of the case including the averment made by the writ appellant in the earlier writ petition [WP(C) No.2615/2016] which was filed by her. Not a whisper was made by the petitioner that the Governing Body had not taken any decision. Therefore, we are afraid we do not agree with the findings recorded by the learned Single Judge that the writ appellant in any manner had misled the Court while obtaining the said order. It appears that full facts were not placed before the learned Single Judge.

6. We have been informed at the Bar that the recommendations of the Selection Committee are before the Governing Body. Now the next process is for the Governing Body to take, but before it can do that, we must, however, look into the grievance raised by the writ appellant which forms the whole substance of the argument before this Court.

7. From the perusal of the records, we find that most of the members of the Selection Committee had given very high marks to the respondent no.7 i.e. Anupom Borgohain. Whereas, the total average marks given to him comes to 60.53, the marks awarded to the writ appellant are 57.07 (Annexure-J, page

67). In other words, there is a difference of more than three marks between the two candidates. The contention of the writ appellant is that this has happened as the marks to be awarded under the heading "Teaching Experience" had not been correctly evaluated and awarded. Admittedly, one is liable to be given "two marks" for Teaching Experience for a year and the maximum marks under this head can be ten marks. The marks under this head which were awarded to the Page No.# 6/7

writ appellant are admittedly "eight marks" whereas she claims that she should have been given "ten marks". Her claim rests on an assertion that she had completed her M.Phil. in the year 2004 and that she has been teaching since 09.07.2010 till the date when she and other candidates were interviewed which

was 24th February, 2016. We find that she has taught for more than five years and therefore five years is the period she has taught after she had the qualifications to become an Assistant Professor, i.e. her M.Phil. Degree. Therefore, she ought to have been awarded "ten marks", i.e. 2 marks for each year, instead of "eight marks", to that extent we are agreed with it. All the same, her next claim is that the respondent no.7 Anupom Borgohain should have been given only "two marks" whereas he has been given "four marks".

This, however, is not correct. Respondent no.7 has been teaching from 14 th July, 2011 continuously. However, he qualified State Eligibility Test (SET) on 26.02.2014 and therefore on the date of his interview which was 24.02.2016, he was barely two days' short of completing two years experience and therefore he has been rightly awarded four marks that is two marks for each year. We have also seen the appointment letters of the respondent no.7 Anupom Borgohain. There are appointment letters of three months at a time, which were continued later. The appointment initially was for a period of three months with an artificial break of one or two days. In one case the break is of more than one month. However, we are not going into these hyper technicalities considering the nature of the issue before us as the artificial breaks would not matter. The Hon'ble Apex Court in the case in Ahalya A. Samtaney -v- State of Maharashtra & Ors., reported in (2018) 9 SCC 92 has stated in paragraph 23 as under:-

"23. We are in complete agreement with the approach adopted by the High Court in the aforesaid judgment of deprecating such artificial breaks to deny the Page No.# 7/7

benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such Lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks."

8. In other words, even though there is a break in service of respondent no.7 (Anupom Borgohain) for a few days, this should not be detrimental to his career and deprive him of the marks he would otherwise have achieved for his teaching experience. With these observations, we dispose of the present writ appeal and direct the Governing Body to act in accordance with law and the procedure laid-down and forward the matter to the Director of Higher Education, Assam for further consideration, in accordance with law.

                                        JUDGE                    CHIEF JUSTICE




Comparing Assistant