Swapan Gogoi vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1609 Gua

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GAHC010308422019




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

                               Case No. : WP(C)/9337/2019

            SWAPAN GOGOI
            S/O- JAYKANTA GOGOI, R/O- LACHIT NAGAR, NAMGHAR PATH, P.O-
            MORANHAT, DIST- DIBRUGARH, ASSAM, PIN- 785670



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REP. BY ITS COMMISSIONER AND SECRETARY, DEPTT OF HIGHER
            EDUCATION, ASSAM, JANATA BHAWAN, DISPUR, GUWAHATI- 781006

            2:DIRECTOR OF HIGHER EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI
             PIN- 781017

            3:PRINCIPAL OF DHSK COMMERCE COLLEGE
             DIBRUGARH
             P.O- DIBRUGARH
            ASSAM

            4:DIPANKAR DEBNATH
             LIBRARY ASSISTANT
             DHSK COMMERCE COLLEGE
             DIBRUGARH
             P.O AND DIST- DIBRUGARH
            ASSAM
             PIN- 78600

Advocate for the Petitioner   : MR. B K DAS

Advocate for the Respondent : SC, HIGHER EDU

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER(CAV)

Date : 13-05-2022

Heard Mr. B.K. Das, the learned counsel appearing for the Petitioner, Mr. K. Gogoi, the learned counsel appearing for the Respondent No. 1 and 2 and Mr.A. Sarma. the learned counsel appearing for the Respondent Nos. 4.

2. The instant writ petition has been filed for setting aside the appointment of the Respondent No. 4 to the post of Library Assistant in D.H.S.K. Commerce College, Dibrugarh and also for a direction to the Respondents to grant 5 marks to the Petitioner and to appoint the Petitioner to the post of Library Assistant in the said college.

3. The facts of the instant case is that the Petitioner passed out the H.S.L.C. Examination in the year 1992 and thereafter in the year 1994 the Petitioner passed his Higher Secondary Examination (Sc.) and finally completed his B.A. Examination in the year 2000 from the Dibrugarh University. In the meantime, the Petitioner also completed Diploma Course in computer application in the year 2001. In the year 2014, the Petitioner was appointed as Library Assistant on temporary basis.

4. An advertisement was published from eligible candidates having experience for the post of Library Assistant by the Respondent No. 3. The Petitioner applied for the post of Library Assistant in pursuance to the said advertisement and was issued a call letter dated 30/10/2017 asking the Page No.# 3/10

Petitioner to appear in the written test held on 19/10/2017 with Roll No. LA-22. The Petitioner appeared in the interview and the Respondent No. 3 issued a letter dated 16/2/2019 asking the Petitioner to appear for the computer test on 3/3/2019. The Petitioner duly appeared in the computer test. The Petitioner and the Respondent No.4 was awarded 72.5 marks and 76.5 marks respectively by the Selection Committee and thereupon the Respondent No.4 was selected and appointed to the post of Library Assistant. Being aggrieved as not selected and appointed to the post of Library Assistant, the Petitioner has filed the instant writ petition under Article 226 of the Constitution.

5. At the stage, it is relevant to take note of that a perusal of the writ petition would show that it is the case of the Petitioner that there is a guideline dated 2/2/2017 for selection of Grade -III post and in terms with the said guidelines, 5 marks were earmarked for experience i.e. one mark for one year experience. The case of the Petitioner is that, from a perusal of Annexure-6 annexed to the writ petition which is a tabulation of the various candidates who appeared in the written examination for the post of Library Assistant; no marks has been awarded on the ground of experience in terms with the guideline dated 2/2/2017 and it is the case of the Petitioner that if 5 marks would have been awarded to the Petitioner, the Petitioner would have secured more marks than the Respondent No. 4 and would have been consequently selected and appointed.

6. The Respondent No. 2 filed an affidavit in opposition. In the said affidavit in opposition, it has been mentioned that the selection to the post of Library Assistant in the D.H.S.K. Commerce College was mainly assessed under three heads -- (a) marks obtained on academic qualification, (b) marks obtained in written test and (c) marks obtained in computer typing test by the candidates.

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It was also mentioned that vide a Communication bearing DHE/CE/Misc/341/2016/12 dated 29/4/2017, the guidelines/Notification dated 2/2/2017 was superseded and as such the question of granting marks on the basis of experience in terms with the guidelines dated 2/2/2017 did not arise.

7. The Respondent no. 4 had also filed an affidavit in opposition adopting a similar stand to the stand taken by the Respondent No. 2. It is also relevant to take note of that in the said affidavit in opposition filed by the Respondent No. 4, it was mentioned that on 9/3/2017, an advertisement was issued for filling up of two posts of Junior Assistant and one Library Assistant. It has also been mentioned that the Respondent No. 4 has more than 4 years of experience i.e. from 2/9/2013 to 31/10/2017 at Dibru College, Dibrugarh in the capacity of Assistant Librarian and the said experience certificate was issued by the Principal of Dibru College, Dibrugarh on 23.3.2017. On the basis thereof, it is the case of the Respondent No. 4 that even if experience is taken into account on the basis statement being made by the Petitioner in his writ petition, his work experience is between 2 to 3 years for which, the Petitioner would at best be entitled for 3 marks whereas the Respondent No. 4 would be entitled to 4 marks. If the said marks are added then also the Petitioner and the Respondent No. 4's position would remain the same and as such there arises no question of interference.

8. On the basis of such assessment, it was mentioned that the Selection Committee prepared a comparative list of the candidates, wherein the Respondent No. 4 secured a grand total of 76.5 and the Petitioner secured 72.5 marks. In Paragraph No. 8 of the said affidavit in opposition, it has been mentioned that the guideline/notification dated 2/2/2017 on the basis of which the Petitioner has claimed his right in the writ petition, has already been Page No.# 5/10

superseded by a subsequent guideline/notification dated 29/4/2017 issued by the Office of the Directorate of Higher Education, Assam vide No. DHE/CE/Misc/341/2016/12. In terms with the said guideline dated 29/4/2017, the Office of the Director of Higher Education had omitted the 5 marks meant for experience for selection to Grade-III post and as such it was stated therein that the writ petition was misconceived and not maintainable. At this stage, it is relevant to mention that as perusal of the Guidelines dated 29/4/2017 would show that the guidelines dated 9/2/2017 was amended.

9. Mr. B. K. Das, the learned counsel appearing on behalf of the Petitioner submitted that as per the judgment of the Supreme Court rendered in the case of Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1 the authorities were required to consider and give weightage for the experience and in the instant case the Petitioner had experience in respect to the said post for 2 to 3 years. Relying upon the judgment of the Supreme Court rendered in K.Manjusree Vs. State of Andhra Pradesh and Anr. reported in (2008) 3 SCC 512, the learned counsel further submitted that the Rules of the game, meaning thereby that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. In that regard, he also relied upon another judgment of the Supreme Court rendered in the case of Maharashtra State Road Transport Corporation and Ors. Vs. Rajendra Bhim Rao Mandve and Ors. reported in (2001) 10 SCC 51. On the basis of the said judgment, the learned counsel for the Petitioner submits that in terms with the Notification dated 2/2/2017, 5 marks were stipulated to be awarded towards experience (1 mark for one year experience) and the Petitioner had the experience in respect to the same for 2 to 3 years and accordingly he was entitled to the said 3 marks. The said aspect Page No.# 6/10

of the matter having not been taken into consideration by the Selection Committee while recommending the Respondent No. 4, the entire selection proceedings is liable to be interfered with.

10. Mr. Sarma, the learned counsel for the Respondent No.4 draws attention of this Court to Annexure-6 of the writ petition which is the tabulation of the marks of the candidates for the post of Library Assistant. He submits that in the written test the Respondent No. 4 had secured 47.5 marks whereas the Petitioner secured 45.5 marks. In the computer typing test the Respondent No. 4 obtained 15 marks whereas the Petitioner obtained 12 marks and as such submits that even if the guideline dated 9/2/2017 is adopted then also the Respondent No. 4 's marks would be in excess to that of the Petitioner.

11. I have also heard Mr. K. Gogoi, the learned counsel for the Respondent Nos. 1 and 2 who submits that the Petitioner's case is totally misconceived in as much as, the petitioner did not have a right to be considered in terms with the Notification dated 2/2/2017 which stood superseded by the Notification dated 24/9/2017. Drawing the attention of this Court to the judgment of the Supreme Court rendered in the case of State of Tripura and Ors. Vs. Nikhil Ranjan Chakraborty and Ors. reported in (2017) 3 SCC 646 as well as the judgment rendered in the case of Deepak Agarwal and Anr. Vs. State of Uttar Pradesh and Ors. reported in (2011) 6 SCC 725, the learned counsel submitted that it is now a settled position of law that a candidate has a right to be considered in the light of the existing Rules, which implies the Rules in force on the date when the consideration took place. He further submitted that even otherwise, if in the instant case, the Petitioner is granted the 3 marks on the basis of his experience then also the Petitioner's marks would have been 75.5 i.e. 72.5 marks awarded by the Selection Committee and additional 3 marks Page No.# 7/10

being awarded to the Petitioner on the basis of his experience, then also the Petitioner's marks so secured is much less than what the Respondent Nos. 4 had secured i.e. 76.5 and 72.5 respectively. He additionally submits that the Respondent No. 4 had four years of experience for which his marks would be 80.5 i.e. (76.5 + 4=80.5). Under such circumstances, the writ petition filed by the Petitioner is totally misconceived.

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

13. From the contention so made by the learned counsel for the parties, it transpires that the entire case of the Petitioner rests on the Guideline/Notification dated 2/2/2017 issued by the Director of Higher Education. I have also perused the advertisement issued on 9/3/2017 relevant to the instant case which stipulates that the applications were invited from Graduate in Arts/Science/Commerce for the posts of Junior Assistant and Library Assistant and the candidates must have Diploma in Computer Operation and working knowledge of Assamese and English Typing in Word and Excel. It was further mentioned that the age of the candidates should not exceed 43 years as on 1/1/2017(relaxable as per Government Rules) and the in-service candidates must apply through proper channel. There is no mention in the said advertisement as regards the criteria which shall be adopted for awarding the marks. It is not in dispute that on 9/2/2017 prior to the issuance of the advertisement, a guideline bearing No. DHE/CE/Misc./341/2016/49 was issued. A perusal of the said guideline dated 9/2/2017 stipulates that the matter was examined and fresh guidelines were issued for holding selection to various post including Library Assistant in supersession of the Circular issued so far by the Director of Higher Education, Assam which included the guidelines issued vide Page No.# 8/10

the Communication dated 2/2/2017. It was further mentioned, that Colleges, which by the time had held selection should re-advertise the post again, those already applied and participated need not apply again and the stipulation should be inserted in the advertisement. From a perusal of the said guidelines, it further appears that the total marks for selection to Grade-III posts shall be 100 marks. Out of the said 100 marks, 60 marks would be the total marks in the written test; only one paper of 1½ hrs. duration; 20 marks would be under the head of "marks in Computer Test, English and Assamese Typing (10 marks each). 5 marks was kept for marks for experience of work in similar capacity in Provincialised College/Government Departments/ Provincialised Secondary Schools and 1 mark for 1 completed year in regular capacity. The remaining 5 marks was under the head of interview. It further appears that on 29/4/2017, the Director of Higher Education, Assam intimated all Principals that pursuant to the Government Letter No. AHE.348/2017/1 dated 28/4/2017, the 5 marks meant for interview for selection of Grade-III post issued vide its Office Guideline No. VHE/CE/Misc/341/2016/49 dated 9/2/2016 (sic 9/2/2017) was to be omitted. It was further mentioned that 5 marks for experience of the work in similar capacity in Provincialised College/Government Departments/Provincialised Secondary Schools are also withdrawn and the total marks for selection of Grade-III posts shall be 100 and the details were--

1. Total Marks in written test, only one paper of one and half hours duration 60 marks

2. Marks in Computer test, English and Assamese typing (10 marks each) --20 marks

3. Academic

a. H.S.L.C. (1st Division --- 5/2nd Division-4/3rd division-3) Maximum - marks

b. H.S.S.L.C.(1st Division - 5/2nd division -4/3rd division-3 - 5 marks

c. Degree (1st class- 10/2nd class-7/Simple Pass -5) Maximum - 10 marks

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Total :: 100 marks

14. Thus, from the above, it would be seen that the guideline dated 2/2/2017 stood superseded vide the guideline dated 9/2/2017, The guideline dated 9/2/2017 was in force at the time of the advertisement dated 9/3/2017. From a perusal of the guideline dated 9/2/2017 5 marks could have been awarded for experience of work in similar capacity in Provincialised College/Government Departments/ Provincialised Secondary Schools. Noteworthy to mention that these 5 marks were to be awarded on the basis of 1 mark for one completed year in regular capacity. The difference between the guidelines dated 2/2/2017 and 9/2/2017 as regards marks for experience is that while the guideline dated 2/2/2017 only stipulated that 5 marks would be given for experience i.e. one mark for one year experience, the guideline dated 9/2/2017 stipulates that marks for experience of work can be given only for work in similar capacity in Provincialised Secondary Schools or Colleges and one mark for one completed year in regular capacity. Admittedly the Petitioner was not working in a regular capacity and as such the Petitioner was not entitled to any marks on the basis of his experience.

15. It is further relevant to take note of that the entire case of the Petitioner is based upon the guideline dated 2/2/2017 whereas the said guideline dated 2/2/2017 stood superceded by the guideline dated 9/2/2017 and as such the entire case of the Petitioner based upon the guideline dated 2/2/2017 is totally misconceived.

16. For the purpose of the adjudication of the instant dispute, this Court is of the opinion that the contentions as to whether the guideline dated 2/2/2017 or 29/4/2017 would be applicable on the basis of the judgments placed need not be gone into in as much as on 9/2/2017, the said guideline was in operation at Page No.# 10/10

the time when the advertisement dated 9/3/2017 was published. In terms with the said guideline 1 mark for each year of completion in regular capacity would be given. Admittedly the Petitioner had worked in the said D.H. S.K. Commerce College, Dibrugarh on temporary basis and as such the question of granting marks on the ground of experience does not arise to the case of the Petitioner.

17. For the aforementioned reasons, therefore, this Court is of the opinion that the instant writ petition is meritless and accordingly stands dismissed.

JUDGE

Comparing Assistant