Dr. Mrs. Lukima Saikia vs The State Of Assam And 6 Ors
2022 Latest Caselaw 949 Gua

                                                              Page No.# 1/11

GAHC010027082017




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

                         Case No. : WP(C)/3589/2017

         DR. MRS. LUKIMA SAIKIA
         C/O- RUPAM BORGOHAIN, R/O- KAMLA ENCLAVE, B4 TYPE, SURVEY
         BELTOLA, GUWAHATI, DIST- KAMRUPM, ASSAM, PIN- 781028



         VERSUS

         THE STATE OF ASSAM and 6 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
         HEALTH AND FAMILY WELFAREB DEPTT., DISPUR, GUWAHATI- 781006

         2:THE SECRETARY
         TO THE GOVT OF ASSAM
          HEALTH AND FAMILY WELFAREB DEPTT.
          DISPUR
          GUWAHATI-06

         3:THE ASSAM PUBLIC SERVICE COMMISSION
          JAWAHARNAGAR
          KHANAPARA
          GHY-22

         4:SWEETIMANI KAKATI
          D/O- MR. SRIKANTA KAKATI
          R/O- VILL- AND P.O- MUKALMUA
          DIST- NALBARI
         ASSAM

         5:RUKIYA NABIA AHMED
          C/O- KAJIMUDDIN AHMED
          R/O- H NO. 69
          PUTULI RASUL PATH
          NEAR SATGAON NOWAPARA KABARASTHAN
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             PANJABARI ROAD
             PANJABARI
             GHY-37
             DIST- KAMRUPM
             ASSAM

            6:SANGITA PATIR
             LECTURER COMMUNITY HEALTH NURSING DEPTT.
             BSC NURSING COLLEGE
             DIBRUGARH
            AMCH CAMPUS
             DIST- DIBRUGARH
            ASSAM
             PIN- 786002

            7:INDIAN NURSING COUNCIL
             COMBINED COUNCILS BUILDING
             KOTLA ROAD
            TEMPLE LANE
             NEW DELHI- 11000

Advocate for the Petitioner   : MS.S BHUYAN

Advocate for the Respondent : MR.P K GOSWAMI




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                        ORDER

Date : 21-03-2022

Heard Mr. B.D. Konwar, learned senior counsel assisted by Mr. J. Singh, learned counsel for the petitioner. Also heard Mr. K. Konwar, learned Additional Advocate General appearing as standing counsel for respondent no.3, i.e. APSC, Mrs. D. Bora, learned standing counsel for the respondent nos.1 and 2, representing the Health Department, Dr. P.K. Goswami, learned counsel for respondent nos.4 and 5, Mr. A. Chetri, learned counsel for the respondent no.6 and Mr. K. Talukdar, learned counsel for the respondent no.7.

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2. On the insistence by the learned senior counsel/ counsel for the appearing parties, the matter has been heard at the admission stage.

3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing the select list dated 24.03.2017 notified by the Assam Public Service Commission (APSC for short), thereby recommending the name of respondent nos.4, 5 and 6 for appointment to the post of Lecturer in Community Health Nursing in the Nursing Colleges of Assam, for a direction upon the respondent authorities to select/ recommend and to appoint the petitioner to the said post and/or to regularise the service of the petitioner as Lecturer in the Regional College of Nursing, Guwahati.

4. The case of the petitioner, in brief, is that an advertisement dated 18.07.2013 was issued by the Director of Medical Education, Assam for a walk-in-interview for recruitment under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 to the post of Lecturer in 3(three) Nursing Colleges of Assam. Accordingly, pursuant to a selection process vide notification dated 09.10.2013 issued by the Health and Family Welfare (B) Department, the petitioner was appointed as Lecturer in Community Health Nursing/ Public Health Nursing in Regional College of Nursing, Guwahati. On 05.07.2015 an advertisement was issued by APSC for filling up 23 posts of Lecturer in the Nursing Colleges of Assam under the Health and Family Welfare (B) Department. The last date of receiving application form was fixed on 03.08.2015.

5. It is projected that the viva-voce tests were conducted on 22 nd, Page No.# 4/11

23rd and 24th March, 2017 and the APSC had announced the result on 24.03.2017 and five names were recommended in order of merit and that the names of respondent nos.4, 5 and 6 appeared at position nos.1, 3 and 5 respectively for the post of Lecturer of Community Health. As per RTI reply issued by the APSC, the respondent nos.4, 5, 6 and the petitioner had secured the following marks, viz., respondent no.4 (General) - 81, respondent no.5 (General) - 80, respondent no.6 (STP) - 71 and petitioner (OBC) - 78 marks. As per the RTI reply, fraction of 0.50 and above had been rounded up. As per the RTI reply, the break- up of marks secured by the petitioner is as follows, viz., HSLC - 6.13, HS - 5.78, Degree - 7.65, Master Degree - 9.36, Additional qualification - 2, Experience - 3, General Bearing - 22, Subject knowledge - 22, Grand total - 78. It was also mentioned herein that fraction of 0.50 and above had been rounded up.

6. The learned senior counsel for the petitioner has referred to the UGC Regulations on "Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010" to project that certain minimum standards has been fixed for appointment of Lecturers and that for the purpose of recruitment of teaching positions, the APSC was required to invite three subject experts for which the concerned University was required to be involved in the selection process. In this regard, the learned senior counsel for the petitioner has also referred to the "Guidelines and Minimum Requirements to Establish B.Sc. (N) College of Nursing" to project that for recruitment of Assistant Professor, the candidate must have M.Sc. (N) with 3(three) years teaching experience and it is also submitted that as per the said guidelines, the post of Lecturer is not envisaged and accordingly it is submitted Page No.# 5/11

that it must be construed that the post of Lecturer is equivalent to the Assistant Professor. In this regard, reference is also made to the Syllabus and Regulations for M.Sc. (N) published by the Indian Nursing Council where mention is made to the post of Lecturer with Master degree in Nursing with 3(three) years teaching experience after M.Sc. (N). Hence, it is submitted that the selection and appointment of the private respondents, specifically respondent no.5 is vitiated on three counts- (1) The respondent no.5 does not hold the requisite qualification to be appointed as Assistant Professor/ Lecturer which requires candidate to have Master degree in Nursing as well as 3(three) years teaching experience after acquiring Master degree, (2) Rounding up of marks above 0.50 was dehors the APSC rules which is deprecated in case of Orissa Public Service Commission and another Vs. Rupashree Chowdhary and another, (2011) 8 SCC 108 and (3) The respondent no.5 was wrongly awarded 2.5 marks for experience and that without rounding up of marks and without considering 2.5 marks awarded to the respondent no.5, her grand total marks would have been 77.26 and that of the petitioner would have been 77.94 marks.

7. Per contra, the learned State and departmental counsel and the learned counsel for the private respondents have opposed the prayers made in the writ petition and amongst others, have taken the plea that the present writ petition was barred by res judicata. The learned standing counsel for the APSC has produced the records relating to selection and recommendation.

8. The prayers made in connection with the present writ petition has been narrated above. In W.P.(C) 1938/2017, which was jointly filed by 7 petitioners, the petitioner herein was arrayed as petitioner no. 4. In the said writ petition, the petitioners had prayed for setting aside and quashing the select list Page No.# 6/11

dated 24.03.2017 for the post of lecturers in different Nursing Colleges of the State initiated on the basis of advertisement dated 05.07.2015 by APSC and/or to allow the petitioners to continue as lecturers in the present places of posting and/or to regularise the service of the petitioners and/or to adjust the petitioners in the posts lying vacant at Regional College of Nursing, Guwahati. In connection with the said writ petition, by filing an interlocutory application, registered as I.A.(C) No. 1657/2017, the petitioner herein had made a prayer for deletion of her name. The said prayer was allowed by order dated 02.06.2017. It is observed that there was no prayer in the said interlocutory application for seeking leave of this Court to approach this Court again for similar reliefs. Therefore, the Court is of the considered opinion that having withdrawn her name as petitioner in W.P.(C) 1938/2017, the present writ petition is hit by the principles of res judicata as the relief sought for in the present writ petition is directly and substantially in issue in the previous writ petition, i.e. W.P.(C) 1938/2017. Moreover, this Court in the order dated 02.06.2017 in I.A.(C) 1657/2017 has specifically recorded the submissions made by the learned counsel for the petitioner herein that she does not want to pursue with the said writ petition. Therefore, the name of the petitioner no. 4 therein was struck-off. Thus, when the petitioner herein has abandoned her claim made in W.P.(C) 1938/2017, she cannot be permitted to renew similar prayers in this subsequent writ petition. The said order dated 02.06.2017 in I.A.(C) 1657/2017 [arising in W.P.(C) 1938/2017], permitting the name of the petitioner herein to be struck- off because she did not want to pursue W.P.(C) 1938/2017, has attained finality.

9. In the previously instituted writ petition, the petitioner had not assailed the appointment of the private respondent nos. 4 to 6. In connection with the said prayer, the present writ petition, which is filed subsequently in Page No.# 7/11

point of time, is found to be hit by the principles of constructive res judicata, which is enshrined in Explanation-IV of Section 11 of the Civil Procedure Code, which squarely applies in a writ petition filed under 226 of the Constitution of India.

10. Notwithstanding the finding of the present writ petition being barred by the principles of res judicata and/or constructive res judicata, the Court has also examined the case on merit.

11. The learned senior counsel for the petitioner has forcefully laid stress on two points, firstly, the post of Lecturer is equivalent to the post of Assistant Professor, and secondly, the University Grants Commission as well as the Indian Nursing Council had provided for certain qualifications for selection and appointment to the post of Assistant Professor. In this regard, the stand of the Health Department of the State is that the post of Tutor was upgraded to Lecturer, for which the Indian Nursing Council had prescribed the "qualification and experience" as "M.Sc.(N) or B.Sc.(N) with 1 year experience". In this regard, the learned standing counsel for the APSC as well as the learned standing counsel for the Health Department have both placed reliance on the order dated 25.07.2019 passed by this Court in W.P.(C) 1991/2017 (Kalpana Nath v. The State of Assam & 4 others), wherein, the submission for the learned senior counsel for the petitioner herein was mentioned in para-9 thereof the following effect - "Mr. B.D. Konwar, learned Sr. Counsel ....He also submits that in the course of the proceeding an enquiry was directed by this Court pursuant to which enquiry was conducted and report submitted. As per report, the post of Lecturer in Psychiatric Nursing is equivalent to the post of Tutor." Therefore, when the stand of the Health Department is that the post of Tutor was Page No.# 8/11

upgraded to "Lecturer", in the absence of any record to the contrary, the Court is unable to accept the claim made by the petitioner that the post of "Lecturer" was equivalent to "Assistant Professor".

12. There is no dispute that in the employment advertisement dated 05.07.2015, for the post of Lecturer, Community Health Nursing/ Public Health Nursing, the required educational qualification was "Master Degree in Nursing in respective speciality from a recognised institute", with no requirement of any particular length of experience. The learned counsel for the private respondent nos. 4 and 5 has rightly submitted that even in the Guidelines of the Indian Nursing Council, the prescribed qualification for the post of "Tutor" is "M.Sc.(N)" or "B.Sc.(N)/ P.B.B.Sc.(N) with one year experience". Thus, for a candidate having M.Sc. degree in Nursing, the employment advertisement did not prescribe any post qualification experience. In this regard, the Court is of the considered opinion that having participated in the selection process, it is not open to the petitioner to turn around and now claim that the eligibility criteria was wrongly prescribed by the APSC in the employment advertisement. If any authority is required on the point, one may refer to the case of (i) Ramesh Chandra Shah & Ors. v. Anil Joshi & Ors., (2013) 11 SCC 309 (para 18) , and (ii) Madras Institute of Development Studies & Anr. v. K. Sivasubramaniyan & Ors., (2016) 1 SCC 454 (para 14), cited by the learned standing counsel for the APSC.

13. In the aforesaid context, it may be mentioned that in this writ petition, the petitioner has projected that when he had participated in the recruitment process she was serving as Lecturer in Community Health Nursing/ Public Health Nursing in Regional College of Nursing, Guwahati. Therefore, it is not believable that she could not understand the nature of qualification and Page No.# 9/11

experience criteria that a candidate must possess while applying for the post of Lecturer in Community Health Nursing/ Public Health Nursing. Therefore, if the petitioner was aggrieved by the qualification prescribed in the employment advertisement, the petitioner ought to have challenged the same at an appropriate time. The petitioner has not been able to demonstrate that the selection and recommendation of the names of respondent nos. 4, 5 and 6 was made in digression of the criteria mentioned in the said advertisement dated 05.07.2015. Thus, in the opinion of the Court, even on merit no case has been made out by the petitioner to entitle her to any relief whatsoever.

14. One leg of submissions of the learned senior counsel for the petitioner is that rounding-up of fraction of marks above 0.50 was deprecated by the Supreme Court of India in the case of Orissa Public Service Commission (supra). The said issue has not been gone into in this case because as indicated herein before, for the post of Lecturer, no experience was prescribed, as such the 2.5 marks granted by APSC to the respondent no.5 for experience cannot be interfered with. Therefore, if 2.5 marks awarded to the respondent no.5 is not interfered with, the merit position of the petitioner would not change and/or get altered. Thus, the issue would only be academic, which is left open to be decided in another deserving case.

15. Another leg of argument was that appropriate 3 subject experts as per UGC norms were not invited for the viva-voce test in this case. In this regard, the petitioner has not been able to demonstrate that she had suffered any prejudice because only one expert was called along with another member in the interview board. More than 5 (five) years of selection and appointment of the private respondent nos. 4 to 6 has gone-bye. Therefore, it would be Page No.# 10/11

inequitable to set aside the selection and appointment process, merely because certain guideline prescribed by the UGC for the selection of teaching staff has not been strictly adhered to by calling only one expert to participate in the viva- voce test instead of three experts.

16. It may be mentioned that it was also urged by the learned senior counsel for the petitioner that as sufficient vacant posts of Lecturer in Community Health Nursing/ Public Health Nursing was available in the State for being filled-up direction may be issued to the State respondent authorities to appoint the petitioner. In this regard, the Court is not inclined to direct the respondent authorities to fill up another post, which would lead to appointment in excess of the post advertised to be filled-up. Therefore, the Court is disinclined to issue any such direction to the State respondents.

17. The learned senior counsel for the petitioner, by referring to the judgment and order dated 28.02.2022, passed by this Court in WP(C) 573/2020

- Kunjalata Gogoi & ors. Vs. The State of Assam & ors., has submitted that if at all the petitioner has to participate in a fresh process, the authorities shall consider relaxation of the age of the petitioner as she might be over-aged by then. In the said regard, the Court is of the considered opinion that as the discretion to relax is vested with the competent authority, if applied for. Therefore, if such an occasion arises for the petitioner to participate in the future recruitment process, she has the liberty to make a prayer before the competent authority to relax her age which shall be considered by the competent authority in accordance with law.

18. As a result, this writ petition fails and the same is dismissed.

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However, there shall be no order as to costs.

19. The records produced by the APSC are returned. The Court Master shall also send back the records of W.P.(C) 1938/2017 to the concerned Section, which was requisitioned for perusal of the Court.

JUDGE

Comparing Assistant