Page No.# 1/15 vs The State Of Assam And 5 Ors
2024 Latest Caselaw 4798 Gua

Gauhati High Court

Page No.# 1/15 vs The State Of Assam And 5 Ors on 2 July, 2024

                                                        Page No.# 1/15

GAHC010114082023




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


                          WP(C)/2286/2023

         NIKHIL SAIKIA AND 12 ORS
         S/O- NARENDRA SAIKIA
         VILL.- BARAPUJIA
         P.O. ALIKUCHI
         P.S. RAHA
         DIST. NAGAON
         ASSAM

         2: HAFIZUR RAHMAN
         S/O- ABDUL HAMID
          P.O. MANDIA
          P.S. BAGHBAR
          BARPETA
          PIN- 781308.

         3: BUBUMANI KALITA
         S/O- JYOTISH KALITA
         VILL.- BARBANG
         P.O. BARBANG
         KALITAPARA
         BARPETA
         PIN-781325.

         4: SHOMA BARBHUIYA
         S/O- SALAM AHMED BARBHUIYA
         ATALBASTI SHIV BARI ROAD
         P.O. SMC
         GHUNGOR
         SILCHAR CACHAR
         ASSAM
         PIN- 788005.
                               Page No.# 2/15

5: BITOPAN KAKATI
S/O- NAGEN KAKATI
KHARJARA
GOPALBAZAR
NALBARI
P.O. GOPALBAZAR
ASSAM
PIN- 781353

6: ABINASH DAS
S/O- LATE JATINDRA NATH DAS
BHAWANIPUR
BARPETA
PIN- BHAWABIPUR PIN- 781352

7: ARUNAV KAR
S/O- ASHIM KR KAR
R/O- KP ROAD
P.O. AND PS. DIBRUGARH

8: PARISHMITA GOGOI
D/O- DEEPAK GOGOI
ADISRIPUR VILLAGE
TINGKHONG P.O. TINGKHONG
DIBRUGARH
PIN- 786612

9: ANGSHU PRATIM BHUYAN
S/O- PRANAY PRAKASH BHUYAN
S/O- PRANAY PRAKASH BHUYAN
ITI ROAD
LALMATI TEZPUR
PIN- 784001

10: DIPASHREE BARMAN
D/O- AMBIKA CHARAN BARMAN
BIDYAPUR NALBARI
P.O. NALBARI
ASSAM

11: KABITA RAY
D/O- UTTAM RAY
BHAKARIVITA CHOUDHURIPARA
W./N 17
H/NO. 106
P.O. BONGAIGAON
                                                     Page No.# 3/15

12: PARTHANA BARUAH
D/O- SURESH CH. BARUAH
KOPOHUA GAON
P.O. NAZIRA
SIVASAGAR
ASSAM

13: ARNABJYOTI SUTRADHAR
S/O- NARENDRA SAIKIA
VILL.- BARAPUJIA
P.O. ALIKUCHI
P..S RAHA
DIST. NAGAON
ASSAM

VERSUS

THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM
DISPUR
GHY-6.

2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPARTMENT
 DISPUR
 GHY-06.

3:DIRECTOR OF TECHNICAL EDUCATION
ASSAM
DIRECTORATE OF TECHNICAL EDUCATION
KAHILIPARA
GUWAHATI
ASSAM
PIN- 781019.

4:ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REP. BY ITS CHAIRMAN
HAVING ITS HEAD OFFICE AT NELSON MANDALA MARG
VASANT KUNJ
NEW DELHI-110070.

5:ASSAM ENGINEERING SERVICE
RECRUITMENT BOARD
ASSAM TEXTILE INSTITUTE CAMPUS
AMBARI
GHY01
------------

Advocate for : MR. D DAS SR. ADV Page No.# 4/15

Advocate for : SC EDU appearing for THE STATE OF ASSAM AND 5 ORS

BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR

For the petitioners:

Mr. D. Das, Senior Advocate, Mr. P. Chutia, Advocate, Mr. K. Mohammad, Advocate, Mr. S. Chutia, Advocate.

For the respondents:

Mrs. D. D. Barman, Government Advocate, Mr. K. Gogoi, SC, Higher Education (Technical), Mr. S.C. Keyal, SC, AICTE, Ms. R. Deka, Advocate.

          Dates of hearing        : 01-02-2024 & 09.02.2024


          Date of Judgment        : 02.07.2024



                   J U D G M E N T AND O R D E R

The petitioners in the present writ petition are part-time Lecturers of different Polytechnics in nine districts of Assam. Pursuant to Notice No.AESRB/034/2022/250 dated 21.02.2023, issued by the Assam Engineering Services Recruitment Board inviting online applications from the permanent residents of Assam and having requisite qualifications for recruitment to 80 Page No.# 5/15

vacant posts of Lecturer (Technical) in the Polytechnics under the Higher Education (Technical) Department, Government of Assam, the petitioners submitted their applications. They are aggrieved with the inclusion of the teaching proficiency test in the process of recruitment as prescribed in the Notice dated 21.02.2023 and the Recruitment Notice dated 23.04.2023, wherein, it is provided that the teaching/skill proficiency test is to be treated as an integral part of the test to be conducted for selection and the final merit/selection list will be based on the gross performance in the two tests, namely, OMR-MCQ based written test and teaching/skill proficiency test and all the aspiring candidates will have to appear in both the tests.

2. Heard Mr. D. Das, learned Senior counsel, assisted by Ms. P. Chutia, learned counsel for the petitioners. Also heard Ms. D.D. Barman, learned Government Advocate, Assam; Mr. K. Gogoi, learned Standing Counsel, Higher Education Department, Government of Assam and Ms. R. Deka, learned Standing Counsel, AICTE.

3. The present writ petition has been filed with the following prayers:

"A. A writ in the nature of Certiorari should not be issued setting aside/quashing recruitment Notice issued under issue No. AESRB/014/2022/344 dated 23.04.2023 by the Assam Engineering Service Recruitment Board clarifying/ mentioning the points regarding Teaching /skill Proficiency Test and/or; B. A writ in the nature of mandamus should not be issued directing the respondents not to proceed further with the recruitment process of the Lecturer (Technical) in Polytechnic of Assam under Higher Education (Tech) Department, Assam in pursuant to the advertisement dated 21.02.2023.and/or; C. a writ in the nature of Certiorari should not be issued setting aside/quashing the impugned advertisement dated 21.02.2023 as it is in violation of AICTE Acts as well as the Assam Technical Education, Act, 1981 and/or;

Page No.# 6/15

D. a writ in the nature of Mandamus should not be issued directing the respondents to recall/rescind/forbear from giving effect to the impugned advertisement dated 21.02.2023 as well as the subsequent recruitment process conducted by APSC."

4. Mr. D. Das, learned Senior counsel for the petitioners, submits that the process of recruitment as reflected in the Notice, dated 21.02.2023 comprise of written examination for 75 marks and teaching proficiency test for 25 marks. It is further provided in the Notice, dated 21.02.2023, that only the shortlisted candidates will be called for teaching proficiency test. Learned Senior counsel for the petitioners submits that the teaching proficiency test is required to be obtained by a candidate only after the selection and upon being, put for training in the National Institute of Technical Teachers Training and Research, Kolkata. He, therefore, submits that as the recruitment process is for the post of Lecturers of Technical Education Service of Assam, the question of having skills or training without having any exposure either by way of specific training or by long term experience is totally contrary to the norms and parameters set by the AICTE, which are bound to be followed in the recruitment process in the Technical Colleges. Learned Senior counsel for the petitioners also submits that the petitioners are further aggrieved by the fact that the past services of the candidates, which are required to be counted in terms of the AICTE norms has not been given in the recruitment process in the Notice, dated 21.02.203 as well as in the recruitment Notice, dated 23.04.2023.

5. Learned Senior counsel for the petitioners submits that the Government of Assam framed the Assam Engineering Services Recruitment Board Page No.# 7/15

Regulations, 2021 (Regulations of 2021, in short), which was notified in the official gazette on 09.07.2021. Under the Regulations of 2021, the Assam Engineering Services Recruitment Board has been constituted and henceforth, all recruitments for all categories in technical posts under the Higher Education (Technical) Department including the post of Lecturers will be conducted by the Assam Engineering Services Recruitment Board (the Board, in short) and not by the Assam Public Service Commission (Commission, in short).

6. Upon coming into force of the Regulations of 2021, the Board issued a Notice dated 21.02.2023, inviting applications for recruitment to 80 vacant posts of Lecturer (Technical) in the Government Polytechnics of Assam. The petitioners being qualified, applied for the post of Lecturer (Technical) and also appeared in the OMR-MCQ based written examination. However, while they were awaiting their results, the Board issued a Recruitment Notice dated 23.04.2023 providing that teaching/skill proficiency test, is to be treated as an integral part of the Advertisement dated 21.02.2023 would be an innovative written teaching/skill proficiency test with no marks on interview. The issuance of the Recruitment Notice dated 23.04.2023 is contrary to the Notice dated 21.02.2023 inasmuch as in the Notice dated 21.02.2023, it was specifically provided that the recruitment process will comprise of OMR-MCQ based written examination for 75 marks followed by a teaching proficiency test of 25 marks. In the said Notices, it was projected that the teaching proficiency test carrying 25 marks would be given to those who have teaching experience in their respective field. However, with the publication of the Recruitment Notice dated 23.04.2023, it is revealed that teaching proficiency test would be an Page No.# 8/15

innovative written teaching/skill proficiency test and the said Recruitment Notice also prescribes the syllabus for the innovative written test.

7. Learned Senior counsel for the petitioners submits that the Notice dated 21.02.2023 and the recruitment Notice, dated 23.04.2023, is inconsistent with the AICTE Measures for Maintenance of Standards in Technical Education (Diploma Regulation), 2019 (Diploma Regulation, 2019, in short), which is followed in the instant recruitment process. He also submits that under Regulation No.2.22 of the Diploma Regulation, 2019, past services of Assistant Professors/Lecturers shall be counted for direct recruitment and promotion as an Assistant Professor/Associate Professor/Lecturer subject to fulfillment of certain conditions. However, the Notice dated 21.02.2023 and the Recruitment Notice, dated 23.04.2023, does not provide for counting of past services and, in fact, the Recruitment Notice, dated 23.04.2023, provides for participation in a written test after being qualified in the OMR based written test without any provision for interview or marks in teaching experience. He, therefore, submits that the Notice dated 21.02.2023 and the Recruitment Notice, dated 23.04.2023 is arbitrary, illegal and unconstitutional as the same is contrary to the mandates of the Diploma Regulation, 2019. He, therefore, submits that the Notice dated 21.02.2023 and the Recruitment Notice dated 23.04.2023 should be set aside and quashed.

8. Learned Senior counsel further submits that the respondents have introduced the innovative written test for the first time on their own to access the relative skill/proficiency of all the candidates by using higher order questioning and probing techniques on the attributes of the candidates as the ability to deliver the domain knowledge effectively to target group of students particularly the beginners which is not prescribed by the All India Council for Page No.# 9/15

Technical Education Act, 1987 or the Assam Technical Education Service Rules, 1981.

9. Mr. K. Gogoi, learned Standing Counsel, Higher Education Department, Government of Assam, submits that the Recruitment Notice, dated 23.04.2023, was issued in terms of the Notice dated 21.02.2023 providing the teaching/skill proficiency test syllabus for recruitment to the post of Assistant Professor, Lecturer and Senior Instructor under the Higher Education (Technical) Department, Government of Assam. He submits that the recruitment process in connection with the Advertisement dated 21.02.2023 is governed by the Assam Technical Education Service Rules, 1981, Assam Engineering Services Recruitment Board Regulations, 2021 and the AICTE Diploma Regulation, 2019. It is submitted that Regulation 2.1 of the AICTE Diploma Regulation, 2019 provides for revised designations and mode of appointment prescribes that there shall be only three designations in respect of teachers in the diploma level institutes/Polytechnics, namely, Lecturer, Head of the Department and Principal and the mode of appointment for Lecturer with Entry Pay of Rs.56,100 of level 9A is direct recruitment and for Lecturer with Entry Pay of Rs.57,700 at Level 10 is promotion/direct recruitment. He, therefore, submits that the advertised posts in terms of the Advertisement dated 21.01.2023 for the Polytechnics, up to the level of 9A and level 10 is as per the AICTE Diploma Regulation, 2019. He also submits that counting of past service for direct recruitment and promotion in terms of Regulation 2.22 of the AICTE Diploma Regulation, 2019 will be application from Level 11 inasmuch as experience is a required qualification from Level 11 subject to the condition that the incumbent was appointed under recommendation of a duly constituted Selection Committee to a permanent post in continuation Page No.# 10/15

with the ad hoc or temporary service. As the petitioners has applied for Level 9A and Level 10 posts, they are not entitled for counting of past service in terms of the AICTE Diploma Regulation, 2019. It is also submitted that Rule 8 of the Assam Technical Education Service Rules, 1981 provides that the minimum academic qualification and experience for a candidate for direct recruitment shall be prescribed by the AICTE from time to time as adopted by the Government of Assam. Therefore, the qualifications prescribed in the Advertisement dated 21.02.2023, is in terms of the AICTE Diploma Regulation, 2019. Therefore, no violation of the AICTE Regulation has been done by the respondents while issuing the Advertisement dated 21.02.2023. It is further submitted that the AICTE Diploma Regulation, 2019 does not bar the State authorities to formulate the procedure and the modalities for selection of best of the best candidates in the interest of the student community and in the interest of the institution.

10. It is also submitted that the basic syllabus of innovative written/teaching/skill proficiency test prescribed in the recruitment notice, dated 23.04.2023, is not a new concept but it relates to the day-to-day activities/life of the teaching professionals for upward movement/benefit of the student community. The essential requirement for recruitment to a post are for the employers to decide and not by the candidates, who participate in the selection process. It is the employer, who is best suited to decide a requirement a candidate should possess according to the needs of the employer and the nature of the work. He, therefore, submits that the writ petitions have no merit and the same deserves to be dismissed. He has placed reliance in the cases of Ramesh Kumar Vs. High Court of Delhi and another, reported in (2010) 3 SCC 104, Maharashtra Public Page No.# 11/15

Service Commission Vs. Sandeep Shriram Warade and others, reported in (2019) 6 SCC 362, Indresh Kumar Mishra Vs. State of Jharkhand and others, AIR 2022 SC 1854, Anand Yadav and others Vs. State of Uttar Pradesh and others, AIR 2020, Unnikrishnan CV and others Vs. Union of India, AIR 2023 SC 1934, State of Tamil Nadu and another Vs. S.V. Brathey (Minor) and others, (2004) 4 SCC 513 and APJ Abdul Kalam Technological University and another Vs. Jai Bharath College of Management and Engineering Technology and others, reported in (2021) 2 SCC 564.

11. I have considered the submissions advanced by the learned counsel for the parties.

12. This Court has considered the Notice, dated 21.02.2023, issued by the Assam Engineering Service Recruitment Board for filling up of 80 posts of Lecturer (Technical) in the Government Polytechnics of Assam. In the Notice, dated 21.02.2023, the process of recruitment is specified as under:

"Process of recruitment.

   Recruitment will comprise of

   (i)              OMR-MCQ based written examination - 75 marks

   (ii)             Teaching proficiency test - 25 marks.

The OMR-MCQ based question paper/Booklets shall contain 75 questions carrying one mark for each correct answer. There will be negative marking of 0.25 (one-fourth) marks for wrong answer against each question. Only shortlisted candidate will be called for Teaching Proficiency Test.

The necessary guidelines/instructions relating to OMR-MCQ based written Page No.# 12/15

examination and Teaching Proficiency Test will be notified in due course of time in the official website of AESRB."

13. Thereafter, the petitioners applied for the post as advertised in the Notice dated 21.02.2023 and they had also participated in the OMR-MCQ based written examination. It was thereafter that the recruitment Notice dated 23.04.2023 was issued by the Assam Engineering Service Recruitment Board prescribing that teaching/skill proficiency test is to be treated as an integral part of the test to be conducted for selection and the final merit/selection list will be based on the gross performance in the two tests. It is also provided that all the aspiring candidates will have to appear in both the tests and the aspiring candidates appearing in OMR- MCQ based written test will be shortlisted to appear in an innovative written teaching/skill proficiency test in a level playing field with no marks for interview. The recruitment Notice further provides that the innovative written test is designed to assess the relevant teaching/skill proficiency of all the candidates by using high order questioning and probing techniques on the attributes of the candidates as the creative ability to deliver the domain knowledge effectively to target group of students, particularly, the beginners. Further, the recruitment notice prescribes the basic syllabus of the innovative written/skill proficiency test. The petitioners are aggrieved by the Notice dated 21.02.2023 which prescribes for teaching proficiency test and the Recruitment Notice dated 23.04.2023 on the ground that inclusion of the teaching proficiency test is totally contrary to the norms and parameters set by the AICTE.

14. This Court has also considered the submission of learned Senior Page No.# 13/15

counsel for the petitioners that no provision for counting of past service in terms of Regulation 2.22 of the AICTE Diploma Regulation, 2019 has been prescribed in the Notice dated 21.02.2023 and the Recruitment Notice, dated 23.04.2023. The further contention of the learned Senior counsel for the petitioners that the respondents on their own has introduced the innovative written test to assess the relevant teaching/skill proficiency of all the candidates by using high order questioning and probing techniques on the following attributes of the candidates as the creative ability to deliver the domain knowledge effectively to target group of students, particularly, the beginners has also been considered.

15. Regulation 4.1 and 4.2 of the AICTE Diploma Regulation, 2019 prescribes the minimum educational qualification for Level 9A Entry Pay 56,100 and Level 10 Entry Pay 57,700 respectively. A reading of the Notice dated 21.02.2023 would indicate that the pay scale prescribed is Rs. 56,000/- and Rs.57,700/- in Level 9A and 10.

16. Regulation 2.22 (f) (1)(2) and (3) of the AICTE Diploma Regulation, 2019 provides that ad hoc or temporary services can be counted provided that the service was more than one year duration, the incumbent was appointed on recommendation of duly constituted Selection Committee and the incumbent was selected for the permanent post in continuation to ad hoc or temporary service. The petitioners were, admittedly, appointed on temporary service after going through a selection process duly constituted and against permanent post and have been serving continuously till date. Therefore, in the considered opinion of this Court, the past service of the petitioners should be counted. However, considering the fact that the petitioners have already participated in the Page No.# 14/15

OMR-MCQ based written examinations without any protest, the petitioners are precluded to take the stands that counting of past experience has not been included in Notice dated 21.02.2023 and therefore this Court is not inclined to interfere with the Notice dated 21.02.2023.

17. The other submission of the learned Senior counsel for the petitioners that the inclusion of skill proficiency test for the recruitment process in the Notice dated 21.02.2023 as well as in the Recruitment Notice dated 23.04.2023 is contrary to the norms and parameters set by the AICTE has also been considered. This Court is of the opinion that the petitioners were well aware of the inclusion of the skill proficiency test in the Notice dated 21.02.2023. However, they made their applications against the post advertised and have also participated in the OMR-MCQ based written examination. Therefore, at this stage, the petitioners cannot turn around and challenge the Notice dated 21.02.2023 on the ground that inclusion of the skill proficiency test is contrary to the norms and parameters set by the AICTE. In that view of the matter, the ground taken by the learned Senior counsel for the petitioners is rejected.

18. Coming back to the Notice dated 21.02.2023, it is seen that the recruitment process would comprise only on OMR-MCQ based written examination and teaching proficiency test. Further, only the shortlisted candidates will be called for teaching proficiency test. However, a contrary stand has been taken in the recruitment Notice dated 23.04.2023 wherein it is stated that all the aspiring candidates will have to appear in both the tests, i.e., OMR-MCQ based written test and teaching/skill proficiency test. It is also to be noted that the petitioners had already participated in the recruitment process up to the stage of OMR-MCQ and when they were Page No.# 15/15

waiting for their results, the Recruitment Notice, dated 23.04.2023, was issued. In the considered opinion of this Court, the Recruitment Notice is not in terms of the Notice dated 21.02.2023, to which the petitioners had already participated. The same would amount to changing the rules of the game after the game has started. Further with the introduction of the Recruitment Notice dated 29.04.2023 it is seen that many aspiring candidates would be disqualified to participate in the selection process.

In that view of the matter, this Court is of the considered opinion that the recruitment Notice, dated 23.04.2023, stands vitiated.

19. Accordingly, the recruitment Notice, dated 23.04.2023, is set aside and quashed. The respondents are directed to proceed with the recruitment process strictly in terms of the conditions laid down in the Notice, dated 21.02.2023 for recruitment to 80 posts of Lecturer (Technical) in the Government Polytechnics of Assam.

20. The writ petition is partially allowed. No costs.

JUDGE

Comparing Assistant