Dr. Dipanjali Saikia vs The State Of Assam And 7 Ors
2022 Latest Caselaw 2172 Gua

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GAHC010121272022




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

                          Case No. : WP(C)/4169/2022

         DR. DIPANJALI SAIKIA
         W/O- DHYAN JYOTI HAZARIKA, B.SC IN ZOOLOGY (MAJOR), M.SC. IN
         BIOTECHNOLOGY, PH.D., GATE, SLET, R/O VILL. HAAHCHARA,
         BORALIGAON, DIST.- NAGAON, ASSAM, PIN- 782140.

         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY, TO THE GOVT.
         OF ASSAM, DEPARTMENT OF HIGHER SECONDARY EDUCATION, DISPUR,
         GUWAHATI, ASSAM, PIN- 781006.

         2:THE DIRECTOR OF HIGHER EDUCATION
         ASSAM KAHILIPARA
          GUWAHATI
         ASSAM PIN- 781019.

         3:THE ASSAM UNIVERSITY
          SILCHAR
          REPRESENTED BY ITS VICE CHANCELLOR
          DIST. CACHAR
         ASSAM PIN- 788014.

         4:THE GAUHATI UNIVERSITY
          GUWAHATI
          REPRESENTED BY ITS VICE CHANCELLOR
          JHALUKBARI
          GUWAHATI
         ASSAM PIN- 781014.

         5:THE UNIVERSITY GRANT COMMISSION
          REPRESENTED BY ITS CHAIRPERSON
          BAHADUR SHAH ZAFAR MARG
          NEW DELHI PIN- 110002.
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            6:THE DIRECTOR GENERAL
             COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH
             MINISTRY OF SCIENCE AND TECHNOLOGY
             GOVT. OF INDIA
            ANUSANDHAN BHAWAN
             2 RAFI AHMED KIDWAI MARG
             NEW DELHI- 110001.

            7:THE DIBRUGARH UNIVERSITY
             DIBRUGARH
             REPRESENTED BY ITS REGISTRAR
             DIBRUGARH UNIVERSITY
             DIBRUGARH
            ASSAM PIN- 786004.

            8:THE PRINCIPAL
             NOWGONG GIRLS COLLEGE
             NAGAON
            ASSAM PIN- 782001

Advocate for the Petitioner : MR. B PURKAYASTHA
Advocate for the Respondent : SC, HIGHER EDU


                                           BEFORE
                 HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                           ORDER

24-06-2022

Heard Mr. B. Purkayastha, learned counsel for the petitioner and Mr. K. Gogoi, learned Standing counsel, Higher Education Department as well as Central Government Counsel for the respondent Nos. 1, 2 and 6. Also heard Ms. G. Hazarika, learned counsel, Assam University for the respondent No.3; Mr. P. J. Phukan, learned counsel, Gauhati University for the respondent No.4; Mr. A. Chamuah, learned counsel, UGC for the respondent No.5 and Mr. R. Mazumdar, learned counsel, Dibrugarh University for the respondent No.7.

The petitioner is a Graduate in Science with Zoology as Major and Master Degree holder in Bio-technology. Petitioner has also obtained Ph.D., qualified in SET (State Eligibility Test) and GATE (Graduate Aptitude Test in Engineering).

Pursuant to the direction of the Director of Higher Education, Assam issued under No. Page No.# 3/8

DHE.CE/Misc./49/2021/113 dated 29.01.2022, the respective provincialised Degree Colleges of the State of Assam initiated the process of selection for the post of Assistant Professors against vacant sanctioned post lying in their Colleges. Accordingly, the petitioner applied for the post of Assistant Professor of Zoology in Nowgong Girls' College, Nagaon. But no interview/call letter was issued to her. On being enquired, the petitioner came to know that as she does not have the Master Degree in Zoology and on the ground of the Notification dated 02.02.2022 of the Gauhati University under No.GU/M/AR/2022/02 issued by the Academic Registrar of the said University being in force (Annexure-13 A to this petition) as well as the letter of the Registrar of Dibrugarh University under No. DU/RG/01.01./2021/4209 dated 12.01.2021 (Annexure 13 C to this petition) she was not called in the interview for the post of Assistant Professor in Zoology in the said College.

The contention of the petitioner is that those two Notifications dated 02.02.2022 and 12.01.2021 are not legally tenable, as those Notifications have been issued by the Academic Registrar of the respondent Gauhati University and by the Registrar of Dibrugarh University, respectively, who does not have any such jurisdiction and authority to issue such Notifications debarring the candidates having Master Degree in Bio-technology to appear in the selection process for the post of Assistant Professor in Zoology in the provincialised Degree Colleges of the State.

Hence, this writ petition by the petitioner challenging those two Notifications dated 22.02.2022 as well as 12.01.2021 issued by the respondents in the Gauhati University as well as the Dibrugarh University.

Heard learned counsels for the parties.

Issue with regard to the appointment to the post of Assistant Professor in the Degree Colleges of the State in Botany and Zoology having Master Degree in Bio-technology, Molecular Biology etc., was decided by this Court earlier vide order dated 16.09.2019 passed in WP(C) No. 7318/2017 (Aniruddha Sen Vs. State of Assam and 7 Others) , wherein the Court at paragraph 14 observed as follows:-

"14) The fact is that there is already a decision taken by Gauhati University as far back in 1992 as notified on 01.07.1992 that the Academic Council in their meeting held on 26.02.1992 had approved that the candidates having M.Sc. degree in Applied Botany and Bio-technology will be Page No.# 4/8

eligible for Lecturer in Botany."

In said decision dated 16.09.2019, the Court accepted that it is the Academic Council of the University who has the authority to prescribe the eligibility criteria and if, any decision had been taken by the Academic Council of the University in that regard and if there is need for any change in such decision, it is only the Academic Council of the Gauhati University who would have the competency to do so and not by any other authority, which is not superior to the said Academic Council including the Department of Botany of the Gauhati University.

In the said matter, the Court found that the Department of Botany of the Gauhati University of its own had reviewed the decision dated 01.07.1992 taken by the Academic Council of the said University and the Court observed that the Academic Council of the Gauhati University is admittedly a higher authority to the Department of Botany. The Court further opined that, even if, the Department of Botany takes a view based on the present situation that persons having qualification in Applied Botany and Bio-technology shall be eligible for appointment in the Department of Botany, yet it is the Academic Council which has to take the final call in that regard.

Finally, the Court by the said order dated 16.09.2019, passed in WP(C) No. 7318/2017 observed that until and unless the Academic Council of the Gauhati University takes a decision revising or reviewing its earlier decision dated 01.07.1992, no other authority, which is subordinate to the Academic Council, can take a decision contrary to said decision taken by the concerned Academic Council on 01.07.1992. Since the matter pertains to academic matters, the Court did not interfere with the same except observing that the matter requires re-examination by the authorities concerned. The Court further observed that till any such change is made by the Academic Council of the University as regards the qualification for appointment to the post of Lecturer in Botany, the earlier decision of the Academic Council of the Gauhati University shall prevail with regard to the candidates having Master Degree in applied Botany and Bio-technology who shall also be eligible for appointment to the post of Lecturer, now re-designated as Assistant Professor in Botany. The matter was finally forwarded to the Academic Council of the Gauhati University for its decision.

Subsequent to that, in a similar matter, a co-ordinate Bench of this Court vide order dated 22.02.2021, passed in WP(C) No. 1034/2021 while considering the decision of this Page No.# 5/8

Court in said WP(C) No. 7318/2021, disposed of on 16.09.2019 as well as the decision of the Hon'ble Apex Court in the case of Anand Yadav & others v. State of Uttar Pradesh & others reported in AIR 2020 SC 5383 as well as University Grants Commission & others Vs. Neha Anil Bobde (Gadekar) reported in (2013) 10 SCC 519, directed the respective Academic Councils of the Universities i.e., Gauhati University, Dibrugarh University, Tezpur University and Assam University to take a decision as regards the eligibility of a candidate having M.Sc. Degree in Bio-technology to participate in any recruitment process for the post of Assistant Professor in Botany and Zoology within the time specified therein. Pursuant to the said order of the Court dated 22.02.2021, passed in WP(C) No. 1034/2021, the Academic Registrar of Gauhati University issued the impugned Notification dated 02.02.2022 by which it held that as per the Resolution No.AC.02/2021/8 dated 23.12.2021 of the Academic Council of Gauhati University the M.Sc. Degrees in subjects like Bio-technology, Microbiology, Molecular Biology etc. can't be considered as 'concerned subjects' for the post of Assistant Professor in Botany and Zoology in the degree colleges affiliated to Gauhati University and the said Notification was circulated by the Director of Higher Education, Assam to the Principals of the Colleges under it vide Notification No.DHE/CE/Misc/ 49/2021/Pt/23 dated 15.03.2022 (Annexure 13 A to this petition).

Further, a co-ordinate Bench of this Court vide judgment and order dated 17.11.2020, passed in WP(C) No. 3642/2020 where four petitioners having Master Degree in Bio- technology and Microbiology challenged the Notification dated 03.10.2017 of the Director of Higher Education, Assam by which the said Director circulated that candidates having M.Sc. Degree in Botany and Zoology would only be eligible to apply for the post advertised for the subjects of Botany and Zoology. Those writ petitioners also placed before the Court that in such advertisement for the post of Assistant Professor of Botany and Zoology in the provincialised Colleges of the State, Educational qualification have been prescribed that the candidates must have 55% marks or have equal grade at the Master Degree level in the 'concerned subject'. After deliberating the matter, the Court by order dated 17.11.2020, disposed of said WP(C) No. 3642/2020 directing the Director of Higher Education, Assam to clarify the concerned subject as specified in the advertisement with regard to the post of Assistant Professor in Botany and Zoology in the Degree Level Colleges of the State. In that Page No.# 6/8

circumstances, the Director of Higher Education, Assam pursuant to the order of the Court dated, 17.11.2020, passed in said WP(C) No. 3642/2020 wrote to the Dibrugarh University wherein the Registrar, Dibrugarh University vide Notification dated 12.01.2021 informed the Director of Higher Education, Assam as follows:--

"With reference to the above, the matter was discussed with the Department of Life Science, Dibrugarh University (DU) who informed that he matter was placed in the Departmental Management Committee (DMC) comprised of all the teachers of the Department of Life Sciences, DU who opined that the disciplines like Bio-technology, Microbiology, Molecular Biology, etc. re the offshoots of the parent subject Botany and/or Zoology and developed as separate disciplines in their respective domains. Hence, they have some relevance. Furthermore, as the court curricula for Botany and Zoology in degree colleges affiliated to DU are designated by the Board of Studies in Life Sciences, DU, the members strongly felt that making these subjects as concerned subject for the appointment of Assistant Professor in Botany and Assistant Professor in Zoology in the affiliated colleges of DU is not justified. Therefore, the Committee unanimously resolved that the M.Sc. Degrees in subjects like Bio-technology, Microbiology, Molecular Biology etc. cannot be considered as concerned subject for the post of Assistant Professor in Botany and Assistant Professor in Zoology in the affiliated Colleges of DU and hence is not justified. Therefore, the candidates having M.Sc. in Botany and M.Sc. in Zoology are only eligible to participate in the recruitment process in the post of Assistant Professor in Botany and Assistant Professor in Zoology respectively."

The petitioner herein contended that since the Academic Council either of the Gauhati University or that of the Dibrugarh University does not have such jurisdiction and authority to specify the relevant eligibility criteria for appointment to the post of Assistant Professor in the Degree Colleges and as such power is vests only with the Executive Council of the respective Universities and to clarify such decision, therefore, the impugned Notification No.GU/M/AR/2022/02 dated 02.02.2022 issued by the Academic Registrar, Gauhati University as well as the Communication No. DU/RG/01.01./2021/4209 dated 12.01.2021 issued by the Registrar, Dibrugarh University, noted above, being bad in law should be set aside and quashed.

It is seen that the Academic Council of the Gauhati University issued the impugned Notification dated 02.02.2022 pursuant to the order of the Court dated 22.02.2022 passed in WP(C) No. 1034/2021, whereby the Court directed that the Academic Council of the said University to specify their decision with regard to M.Sc. Degrees in the Subjects of Bio- technology, Micro-biology and Molecular Biology etc., vis-à-vis in the subjects of Botany and Zoology in the Degree Colleges affiliated to the Gauhati University.

Similarly, pursuant to the order of the Court dated 17.11.2020, passed in WP(C) No. Page No.# 7/8

3642/2020, the Dibrugarh University issued the Notification dated 12.01.2021 clarifying its stand in conformity with the judgment dated 16.09.2019.

It is to be noted herein that the order passed by this Court on 22.02.2021 in WP(C) No. 1034/2021 as well as the order dated 17.11.2020, passed in WP(C) No. 3642/2021 are still valid and stands affirmed not being challenged in any higher forum. Therefore, the decision of the Academic Council of the Gauhati University dated 02.02.2022 (Annexure 13A) as well as that of the Dibrugarh University dated 12.01.2021 (Annexure 13C) impugned in this writ petition, being passed by the authorities of those Universities pursuant to the directions of the Court shall stand valid, unless those decisions/orders of the Court allowing the Academic Councils of those Universities to take a decision in that regard are modified or reviewed in a review petition by the concerned Court or modified and/or set aside and quashed in a higher forum like in writ appeal and/or appeal.

For the reasons above, as those Notifications dated 02.02.2022 and 12.01.2021 (Annexure 13 A and 13 C to this petition) issued by the respective Academic Councils of the Universities pursuant to the orders of the Court, noted above, being still valid and are in force till date, this writ petition being devoid of merit stands dismissed.

JUDGE

Comparing Assistant Page No.# 8/8