Monuj Dowerah vs The State Of Assam And 4 Ors
2022 Latest Caselaw 1610 Gua

                                                         Page No.# 1/9

GAHC010308422019




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

                              WP(C)/9333/2019

         MONUJ DOWERAH
         S/O- BHADRESWAR DOWERAH
         R/O- JAMIRAH KOPOW GAON
         P.O- DHAMAL GAON
         DIST- DIBRUGARH
         ASSAM
         PIN- 785670


          VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY ITS COMMISSIONER AND SECRETARY
         DEPTT OF HIGHER EDUCATION
         ASSAM
         JANATA BHAWAN
         DISPUR
         GUWAHATI
         PIN- 781006

         2:DIRECTOR OF HIGHER EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI
          PIN- 781017
          3:PRINCIPAL OF DHSK COMMERCE COLLEGE
         DIBRUGARH
          P.O- DIBRUGARH
          ASSAM
          4:SOURAV DEY
         JR ASSTT
          DHSK COMMERCE COLLEGE
          DIBRUGARH
          P.O AND DIST- DIBRUGARH
                                                                        Page No.# 2/9

           ASSAM
           PIN- 786001
           5:BEAUTY GOGOI
           DHSK COMMERCE COLLEGE
           DIBRUGARH
           P.O AND DIST- DIBRUGARH
           ASSAM
           PIN- 786001
           ------------

Advocate for : MR. B K DAS Advocate for : SC HIGHER EDU appearing for THE STATE OF ASSAM AND 4 ORS

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 and 5.

2. The instant writ petition has been filed challenging the appointments of the Respondent Nos. 4 & 5 to the post of Junior Assistant in D.H.S.K. Commerce College, Dibrugarh and also for a direction to the Respondents to grant marks to the Petitioner towards experience and to prepare a fresh select list for appointment to the post of Junior Assistant in the said college.

3. The facts of the instant case is that the Petitioner is a member of the other Backward Classes and has passed out the H.S.L.C. Examination in the year 1994. Thereafter in the year 1996 the Petitioner passed his H.S. (Arts) and finally completed his B.A. in the year 2000. The Petitioner also claims to have completed the E-Office Computer Course in the year 2008 and Diploma in Office Page No.# 3/9

Management(DOMC) Course in the year 2009. On 7/11/2007, the Petitioner joined as L.D. Assistant on temporary basis at a fixed pay of Rs.2,000/- per month on the basis of an appointment letter dated 5/11/2007 issued by the then Principal of D.H.S.K. Commerce College, Dibrugarh.

4. The Respondent No. 3 had issued an advertisement dated 9/3/2017 for filling up two posts of Junior Assistant in D.H.S.K. Commerce College, Dibrugarh. The Petitioner applied for the said post pursuant to the said advertisement. It is the Petitioner' s case that on 2/2/2017, the Directorate of Higher Education had formulated certain guidelines for selection to the Grade - III posts. As per the said guidelines, 5 marks were earmarked for experience of work in similar capacities in Provincialised College/Government Department/Provincia-lised Secondary School, and the Selection Committee was to be constituted as per Rule 10 (B) of the Assam College Employees Provincialisation Rules, 2010. On the basis of the petitioner applying for the said post, he was issued a call letter dated 30/10/2017 asking him to appear in the written test to be held on 19/11/2017 with Roll No. JA-68. The Petitioner accordingly appeared. The Respondent No. 3 thereafter issued a letter dated 6/2/2019 asking him to appear for the computer test to be held on 3/3/2019. However, the Petitioner was not selected and the Respondent Nos. 4 and 5 were selected and appointed against the two posts of Junior Assistant. The Petitioner being aggrieved has filed the instant writ petition under Article 226 of the Constitution.

5. The Respondent No. 2 filed an affidavit in opposition. In Paragraph 6 of the said affidavit in opposition, it was mentioned that the final selection to the post of Junior Assistant in D.H.S.K. Commerce College was mainly assessed under three heads, namely- (a) marks on academic qualification, (b) marks Page No.# 4/9

obtained in written test and (c) marks obtained in computer typing test by the candidates. On the basis of such assessment, it was mentioned that the Selection Committee prepared a comparative list of candidates, wherein the Respondent No. 4 secured a grand total of 73.5 as the highest marks amongst

the candidates and the Respondent No. 5 secured 2 nd position with a grand total of 72.5 marks. However, the Petitioner failed to get any place in the said selection list and it is on that basis the Selection Committee recommended the name of the Respondent Nos. 4 and 5 for the post of Junior Assistant. 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 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 Directorate of Higher Education had omitted the 5 marks meant for work experience to selection of Grade-III post and as such it was stated therein that the writ petition was misconceived and not maintainable.

6. The Respondent Nos. 4 and 5 had also filed a joint affidavit in opposition wherein it was mentioned that the entire case of the Petitioner was based upon a guideline which was not existent at the time of consideration for selection to Grade-III post in as much as, vide the Notification dated 29/4/2017; the guidelines dated 2/2/2017 had already been superseded. It was further mentioned that in the advertisement dated 9/3/2017, the obligatory requirement to apply in the above mentioned post were categorically mentioned and no stress was given on any working experience. A further perusal of the affidavit in opposition filed by the Respondent Nos.4 and 5 shows a stand similar to the Page No.# 5/9

stand taken by the Respondent No.2.

7. 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 from the year 2007. 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 was stipulated to be awarded towards experience (1 mark for one year experience) and the Petitioner had the experience in respect to the same post since 2007 and accordingly he was entitled to the said 5 marks. The said aspect of the matter having not been taken into consideration by the Selection Committee while recommending the Respondent Nos. 4 and 5, the entire selection proceedings is liable to be interfered with.

8. 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 guidelines dated 2/2/2017 which stood superseded by the Notification dated Page No.# 6/9

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 5 marks on the basis of the experience then also the Petitioner's marks would have been 54 i.e. 49 marks awarded by the Selection Committee and additional 5 marks 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 and 5 had secured i.e. 73.5 and 72.5 respectively. Under such circumstances, the writ petition filed by the Petitioner is totally misconceived.

9. Mr. A. Sarma, the learned counsel for the Respondent Nos. 4 and 5 had adopted a similar line of argument as was made by Mr. K. Gogoi, the learned counsel for the Respondent Nos. 1 and 2.

10. I have heard the learned counsel for the parties and given my anxious consideration to the matter. 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 22/2/2017 issued by the Directorate of Higher Education. I have also perused the advertisement issued on 9/3/2017 which stipulates that the applications were invited from Graduate in Arts/Science/Commerce and the candidates must have Diploma in Computer Operation and working knowledge of Assamese and English Typing in Words Page No.# 7/9

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.

11. It is not in dispute that on 9/2/2017 prior to the issuance of the advertisement, a guidelines bearing No. DHE/CE/Misc./341/2016/49, was issued. A perusal of the said guidelines dated 9/2/2017 stipulates that the matter was examined and fresh guidelines were issued for holding selection to the post of Lower Division Assistants/Junior Assistants/Lab Assistants/Library Assistants in supersession of the Circular issued so far by the Directorate of Higher Education, Assam which included the guidelines issued vide the Communication dated 2/2/2017. It was further mentioned that Colleges which, by the time had held selection should re-advertise the post, 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 should be 90 marks. Out of the said 90 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 Simple Excel" and further 5 marks were kept 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.

12. It further appears that on 29/4/2017, the Director of Higher Education, Assam intimated all Principals that pursuant to the Government Letter No. Page No.# 8/9

AHE.348/2017/1 dated 28/4/2017, the 5 marks meant for interview for selection to Grade-III post issued vide its Office Guidelines 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 is also withdrawn and the total marks for selection to 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

----------------------

Total :: 100 marks

13. Thus, from the above, it would be seen that the guideline dated 2/2/2017 stood already superseded vide the guidelines dated 9/2/2017 and the guidelines dated 9/2/2017 was in force at the time of the advertisement dated 9/3/2017. In terms with the guidelines 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. It is 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 Page No.# 9/9

stipulates that marks for experience of work can be given only in 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.

14. 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 superseded by the guidelines dated 9/2/2017 and as such the entire case of the Petitioner based upon the guidelines dated 2/2/2017 is totally misconceived.

15. Another aspect of the matter which is also relevant to note that the Respondent Nos. 4 and 5 had obtained 73.5 and 72.5 marks in the selection and the Petitioner had only obtained 49 marks and as such even if the Petitioner is granted 5 marks then also the Petitioner would not be in a position to equate with the Respondent Nos. 4 and 5.

16. For the aforementioned reasons, therefore, this Court is of the opinion that the instant writ petition is meritless and accordingly liable to be dismissed.

JUDGE

Comparing Assistant