Gauhati High Court
WP(C)/4693/2018 on 19 January, 2024
GAHC010152492018
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WP(C) No.4693 of 2018
Sri Samiran Neog,
Son of Late Sashidhar Neog,
Village: Gayan Gaon, PO: Kalugaon,
District: Sivasagar, Assam, PIN-785666.
........Petitioner
-Versus-
1. The State of Assam, through the
Commissioner & Secretary to the
Government of Assam, Education (Higher)
Department, Dispur, Guwahati-781006.
2. The Director of Higher Education, Assam,
Kahilipara, Guwahati-781019.
3. The Governing Body, Sibsagar College,
Joysagar, PO: Joysagar, District: Sivasagar,
Assam, PIN-785665.
4. The Principal cum Secretary, Sibsagar
College, Joysagar, PO: Joysagar, District:
Sivasagar, Assam, PIN-785665.
5. Sri Priyanku Jyoti Sarmah,
Son of Late Niraza Prasad Sarma,
Resident of P.D. Chaliha Path, Amolapatty,
Ward No.9, PO & PS: Sivasagar, District:
Sivasagar, Assam, PIN-785640.
........Respondents
WP(C) No.4693/2018 Page 1 of 12
-BEFORE-
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
For the Petitioner : Mr. P.J. Phukan, Advocate.
For the Respondents : Mr. K. Gogoi, Standing Counsel,
Education (Higher) Department for
respondent Nos.1 & 2.
: Mr. S. Borthakur, Advocate for
respondent nos.3 & 4.
Date of Judgment : 19th January, 2024.
JUDGMENT & ORDER (ORAL)
Heard Mr. P.J. Phukan, learned counsel for the
petitioner. Also heard Mr. K. Gogoi, learned standing
counsel, Education (Higher) Department, representing the
respondent Nos.1 & 2 and Mr. S. Borthakur, learned
counsel representing the respondent Nos.3 & 4. None
appears for the respondent No.5.
2. The petitioner has raised a grievance in the
present proceeding with regard to the manner and method
in which the selection was conducted by the authorities of
Sibsagar College, Joysagar for recruitment against the post
of Assistant Librarian in pursuance to an advertisement
dated 28.02.2018.
3. The petitioner, in pursuance to the said
advertisement dated 28.02.2018, had submitted his
application for recruitment against the post of Assistant
Librarian. The petitioner being found to have satisfied the
eligibility criteria prescribed, was required to appear in the
written as well as the computer tests on 24.05.2018. The
petitioner appeared in the said selection process.
Thereafter, the petitioner had instituted the present
proceeding on 17.07., inter alia, alleging that the said
advertisement was not so issued by following the criteria as
mandated by the Director of Higher Education, Assam in
his communication dated 31.10.2017 issued towards
according permission to the College Authorities for
advertising the post in question. The petitioner has also
questioned the constitution of the Selection Committee and
has contended that the same was so constituted with
9(nine) members, which is in violation of the provisions
contained in this connection in the Assam College
Employees (Provincialization) Rules, 2010 (for short, "Rules
of 2010"). In view of the said contentions, the petitioner
has prayed that the selection process carried out in
pursuance to the advertisement dated 28.02.2018 be
interfered with.
4. During pendency of the present writ proceeding,
one Priyanku Jyoti Sarmah having been selected for the
post of Assistant Librarian, the petitioner had impleaded
him as respondent No.5 in the present proceeding.
5. The College Authorities have entered appearance
in the matter and have also filed their affidavit-in-
opposition. Today during the course of hearing, Mr. S.
Borthakur, learned counsel representing the College
Authorities has submitted at the bar that the respondent
No.5 has not been appointed till date in the College as
Assistant Librarian. Mr. Borthakur has also contended that
the Selection Committee had consisted of only 3(three)
persons and the same was so done in strict compliance of
the provisions of the said Rules of 2010.
6. What is to be noticed here is that the College
Authorities have forwarded the selection minutes along
with the resolution adopted towards recommending the
name of the respondent No.5 for appointment against the
post of Assistant Librarian to the Director of Higher
Education, Assam and the same is pending disposal before
the said authority.
7. It is stated at the bar that the recommendations
made by the Governing Body of the Sibsagar College,
Joysagar, for the post in question, in pursuance of the
selection held, has not been considered by the Director of
Higher Education under the provisions of the Assam
College Employees (Provincialization) Act, 2005 (for short,
"2005 Act"), and the Rules of 2010, on account of
pendency of the present proceeding. The relevant
provisions of the Rules of 2010, are quoted herein below:
"5. Method of Recruitment. Recruitment shall be made in
the manner prescribed hereinafter.
(1) Appointment to the post of Principal shall be by direct
selection. For this the Governing Body shall constitute a
Selection Committee, which shall select a person on the
basis of an interview from amongst eligible candidates
who apply in response to an open advertisement in
newspapers. The Governing Body shall recommend this
candidate to the Director, who shall issue orders of
appointment.
(2) For the post of Lecturer/Librarian appointment shall
be made by direct recruitment with prescribed
qualifications though open advertisement in two leading
dailies at least in two consecutive issues. In respect of
Grade III and Grade IV posts the list of eligible
candidates shall be collected from the local employment
exchange/Advertisement in newspaper.
(3) Appointment to Head Assistant shall be made by
promotion from the cadre of Upper Division Assistants
on the basis of seniority cum merit.
(4) The post of Lower Division Assistant, Laboratory
Assistant, Library Assistant shall be filled up by direct
recruitment and from Laboratory Bearers/Library
Bearers/Grade IV having qualification as prescribed in
ratio of 75:25.
(5) Placement of Lecutures/Librarians in Selection
Grade/Senior Grade Scale of pay shall be done by the
Governing Body as per Rules prescribed by the UGC
and the State Government from time to time on the
recommendations of the Departmental Promotion
Committee.
(6) In all these cases, the Governing Body shall conduct
the selection process and recommend to the Director,
who shall issue orders of appointment.
7. Direct Recruitment.-
(a) All appointment either by direct recruitment or by
promotion shall be made by the Director on the basis
of recommendations of the Governing Body based on
the recommendations of the Selection Committee/
Departmental Promotion Committee duly constituted;
(b) The Director shall communicate his orders within
thirty days;
(c) The Selection Committee may hold such test of
interview for all posts as may be considered
necessary. For posts for which UGC has prescribed
norms, no candidate shall be recruited without having
the required norms;
(d) All fresh appointments shall be made on receipt of
police verification report."
8. There is no dispute at the Bar that the College is
a provincialised college and is governed by the provisions
of the 2005 Act and the Rules of 2010. As per Section 6 of
the 2005 Act, appointment of both teaching and non-
teaching staff in the college shall be made by the Director
of Higher Education on the basis of selection and
recommendation of the Governing Body of the college in
accordance with rules and procedure of the Government in
force. The Rules of 2010 have been framed under Section
12(1) of the 2005 Act. The post involved in the present
proceeding is to be filled up on direct recruitment basis.
For this purpose, Governing Body shall constitute a
Selection Committee, which shall select a person on the
basis of an interview from amongst eligible candidates who
apply in response to an open advertisement in newspapers.
The Governing Body shall recommend the selected
candidate to the Director who shall issue order of
appointment. As per Rule 7(c) of the Rules of 2010, for
posts in which University Grants Commission has
prescribed norms, no candidate shall be recruited without
having the requisite norms.
9. Having noticed the scheme of selection for the
post of Principal in a provincialised college, what is
admitted in the present case is that the selection process
has not yet attained finality. It is only when the Director
accords approval to the recommendation of the Governing
Body that the selection would attain finality. This aspect of
the matter was gone into by this Court in the case of
Sonali Bora Saharia -Vs- State of Assam & Ors. ,
reported in 2016 (5) GLT 263, and it was held that until
the Director grants approval to the selection process, no
final decision can be said to have been taken in respect of
the selection. No definitive cause of action can be said to
have accrued at such a stage to clothe an un-
recommended candidate as aggrieved party thereby
enabling him to initiate a legal action. Selection by the
Selection Committee or recommendation by the Governing
Body per se, would not give rise to a cause of action for
initiating a legal proceeding because no finality is attached
to such recommendation at a stage prior to acceptance or
non-acceptance by the Director. The relevant paragraphs
of the decision of this Court in the case of Sonali Bora
Saharia (supra) are extracted herein below:-
"The post of Lecturer in colleges has been re-designated
as Assistant Professor following notification issued by
the UGC. Recruitment of Assistant Professor in colleges
is governed by a set of statutory rules called Assam
College Employees (Provincialisation) Rules, 2010 which
has been framed in exercise of powers conferred under
Section 12(1) of the Assam College Employees
(Provincialisation) Act, 2005. Rule 5 lays down the
method of recruitment. As per Rule 5(2), for the post of
Lecturer, re-designated as Assistant Professor,
appointment shall be made by direct recruitment with
prescribed qualifications through open advertisement in
two leading dailies atleast in two consecutive issues. As
per Sub-Rule (7) of Rule 5 the Governing Body shall
conduct the selection process and make
recommendation to the Director who shall issue order of
appointment. Rule 7 lays down the detailed procedure
while making such direct recruitment. From a perusal of
Rule 7, it is seen that the recommendation of the
Governing Body would be based on the recommendation
of the Selection Committee duly constituted for the
purpose whereafter the Director shall pass appropriate
order and communicate the same within 30 days.
Implicit in this is that the Director has to examine the
recommendation and approve the same whereafter
consequential appointment order is to be issued. For
posts for which UGC has prescribed norms, no
candidate shall be recruited without having the required
norms.
Constitution of Selection Committee is laid down
in Rule 10.
Having gone through the scheme of selection provided
under the Rules, it is quite apparent that the matter
relating to selection for appointment to the post of
Lecturer/Assistant Professor, Education in Sipajhar
College has not yet attained finality. The Director who is
the appointing authority is yet to consider the
recommendation made by the Governing Body. In his
affidavit, the Director has stated that he has not yet
received the entire set of documents relating to the
selection. In so far contention of the petitioner is
concerned regarding allocation of marks to respondent
No.7 under the heads of M.Phil. and teaching
experience, it is evident that the same is yet to be
examined by the appointing authority. In the opinion of
the Court, at the stage when the writ petition has been
filed, no definitive cause of action can be said to have
accrued enabling the petitioner to move the Court. No
final decision has been taken by the appointing
authority under Rules 5 (7) and 7 of the Rules.
Intervention by the Court at this stage would amount to
preempting a decision by the designated authority. It is
only when a decision is taken as provided under the
Rules an unsuccessful candidate can be said to be an
aggrieved party and such order of the Director either
granting approval or not granting approval to the
recommendation of the Governing Body would give rise
to a cause of action enabling the aggrieved person to
initiate a legal proceeding. Recommendation of the
Selection Committee or recommendation of the
Governing Body per se would not give rise to a cause of
action for initiating a legal proceeding because no
finality is attached to such recommendation at a stage
prior to acceptance or non-acceptance of the same by the
Director. Viewed in that context, the writ petition
appears to be pre-mature as the appropriate authority is
yet to take a decision one way or the other."
10. This Court in the case of Mrinal Kumara Borah
(Dr.) -Vs- State of Assam & Ors., reported in 2017 (1)
GLT 737, had also considered the issue and after noticing
the decision in Sonali Bora Saharia (supra), concluded
as follows:
"At this stage, one may ponder over the role of the
Director in the scheme of selection. Though the language
of Rule 5(1) of the 2010 Rules is couched in mandatory
language by use of the word shall twice, a deeper
examination of the same would show that the Director is
not to act like a rubber stamp according his approval to
the recommendation of the Governing Body in a
mechanical manner. The last sentence of Rule 5(1) reads
as under:-
'The Governing Body shall recommend this
candidate to the Director who shall issue orders of
appointment.'
At first blush, it would appear that once
recommendation is made by the Governing Body, the
Director has no discretion, but to issue order of
appointment. Rule 7(a) provides that all appointments
either by direct recruitment or by promotion shall be
made by the Director on the basis of recommendation of
the Governing Body based on the recommendation of the
Selection Committee. As per clause (b), the Director is
required to communicate his order within 30 days. As
per clause (c) of Rule 7 in respect of posts for which UGC
has prescribed norms, no candidate shall be recruited
without having the required norms.
Therefore, from a careful and conjoint analysis of
the provisions of Rule 5(1) and Rule 7 of the 2010 Rules,
what logically emerges is that before according approval
to the recommendation of the Governing Body and
before issuing order of appointment, the Director should
satisfy himself that the selection and recommendation
was carried out in accordance with law. He should also
satisfy himself that in respect of post like that of the
Principal for which UGC has laid down detailed
eligibility norms, recommendation of the selected
candidate conforms to such norms. This Court in the
case of Dr. Akhil Ch. Kalita Vs. State of Assam, WP(C)
No.6538/2016, disposed of on 04.11.2016, has held
that issuance of appointment order by the Director is not
an empty formality; the Director of Higher Education
before passing such order is required to scrutinize the
selection record and only after being satisfied, he is to
issue the consequent appointment order.
Section 15 of the General Clauses Act, 1897
provides that power to appoint any person would
include power to appoint ex-officio. Likewise, section 16
of the said Act provides that when a power to make any
appointment is conferred on any authority, than unless
a different intention appears, the authority having and
exercising that power to make appointment shall also
have the power to suspend or dismiss any person so
appointed. By extending the rationale of the above
provision, it can safely be inferred that the power to
accord approval would also include the power not to
accord approval provided the Director is satisfied that
the recommendation is not as per law.
But this is a decision which has to be taken by the
Director. Any intervention by the writ court prior to such
decision being taken by the competent authority would
amount to pre-empting the decision of the designated
authority. It is trite that the writ court is not the primary
authority to arrive at a finding based on evaluation of
facts. That decision has to be taken or such finding has
to be reached by the designated authority at the first
instance and if a legal challenge is made to such
decision or finding, the writ court would then examine
the legality and validity of the same. Therefore, it would
be in tune with the settled legal proposition to eschew
any intervention by the writ court at a stage prior to
such decision being taken by the designated authority."
11. Applying the ratio as available in the cases of
Sonali Bora Saharia (supra) and Mrinal Kumar Borah
(supra) to the facts of the present case, it is seen that
Director of Higher Education Department, Assam, having
not considered the matter as required under the provisions
of the Rules of 2010, and come to a conclusion one way or
the other, it can be safely construed that the writ petition
is, therefore, premature.
12. Accordingly, the writ petition is hereby disposed
of, requiring the Director of Higher Education, Assam to
examine the proposal with regard to the appointment to
the post of Assistant Librarian in Sibsagar College, Joysagar
and thereafter, come to a decision thereon, in accordance
with the provisions of the Rules of 2010. The Director of
Higher Education, before arriving at his decision with
regard to the proposal pertaining to the post of Assistant
Librarian in Sibsagar College, Joysagar, shall afford an
opportunity of hearing to both the petitioner and the
respondent No.5 as well as the college authorities of the
Sibsagar College, Joysagar, to place their respective cases
before him.
13. To facilitate such hearing, the petitioner and the
respondent No.5 are permitted to submit their written
submissions before the Director of Higher Education
highlighting their respective grievances, if any, and the
Director upon consideration of the matter and taking into
account the grievances as may be placed before him, by
the parties involved; shall pass a speaking order containing
the decision as may be arrived at by him along with the
reasons basing on which the decision was so arrived at.
The speaking order so passed, shall be furnished to the
petitioner as well as the respondent No.5. Further
processing in the mater shall be as per the decision that
would be arrived at in the matter by the Director of Higher
Education Department, Assam.
14. The petitioner is to serve a certified copy of this
order to the Director of Higher Education, Assam along
with his representation and the Director of Higher
Education thereafter, shall fix a date for hearing and issue
notices thereof, to the petitioner and the respondent No.5
as well as the College authorities and thereafter, proceed
with the consideration that is required to be made. The
above exercise shall be completed within a period of
2(two) months from the date of receipt of a certified copy
of this order.
15. With the above observations and directions, the
writ petition stands disposed of.
J U D G E
Comparing Assistant
