6. Mr. Mondal, learned counsel for the petitioner submits that the
petitioner was appointed in the year 2005, as per Assam Aided College
Management Rules, 1976 under Rule 18 and 19 and also under the
Assam Aided College Employees Rules, 1960 under Rule 4(iii) and that
the petitioner has rendered 20 years of continuous service and he is
entitled to be regularized. Mr. Mondal further submits that the
impugned resolution dated 17.11.2011, is arbitrary and illegal for being
passed in contravention of the Article 14 of the Constitution of India.
Further submission of Mr. Mondal is that one Baneshwar Rabha, who is
also similarly situated like the petitioner, has been appointed in the
college by maintaining all formalities. Mr. Mondal also submits that the
impugned order, dated 18.07.2022, is also arbitrary and illegal for
being passed without giving an opportunity of being heard to the
petitioner and as such, the same requires interference of this Court.
7. Per contra, Mr. Gogoi, learned standing counsel for the Higher
Education Department, has vehemently opposed the petition. Mr.
Gogoi submits that the petitioner was appointed as Tutor on temporary
basis and that the Rules referred by Mr. Mondal is not applicable in the
present case and Section 4 of the Assam Aided College Management
Rules, 1976 provides for method of recruitment and all temporary
appointment of Lecturers and Professors have to be approved by the
Director of Public Instruction (DPI) and that the Assam College
Employees (Provincialization) Act, 2005 and the Assam College
Employees (Provincialization) Rules, 2010 are applicable in the case of
the petitioner and that he was appointed against a non-sanctioned post
without there being approval from the DPI and that the interview was
rightly cancelled by the Governing Body, and the post has been re-
advertised reserving it for the candidates of OBC/MOBC category, and
there is no merit in this petition and therefore, Mr. Gogoi has
contended to dismiss this petition.
8. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the petition and the documents
placed on record and also carefully gone through the decisions referred
by learned Advocates of both the parties.
9. The basic facts herein this petition are not in dispute. The
petitioner was initially appointed as Tutor in English department in
Habraghat Mahavidyalaya, as per resolution No.9, dated 18.05.2005, of
the Governing Body of the said college. And having been appointed on
15.07.2005, he joined on 20.07.2005 and he worked in the said
capacity till 25.03.2006, on which he was appointed as part-time
Lecturer, by the Governing Body of the said college and also he has
been working till date, on payment of lump sum amount Rs.5,200/- per
month. He has also been working as invigilator w.e.f. 2006, till date.
10. It also appears that the petitioner has applied for the post of
Lecturer in English department, which was advertised on 05.07.2011,
by the Principal, Habraghat Mahavidyalaya vide Annexure-7, and he
also appeared in the interview board on 18.09.2011, and he was
placed at 3rd position as per selection list, dated 18.09.2011,
(Annexure-11) at page No. 41. It is being contended by the petitioner
that two persons who had secured position Nos.1 and 2 in the
selection process, joined in some other colleges, and as such he ought
to have been considered for being appointed against the said post.
But, the Governing Body of the said college, vide resolution dated
17.11.2011, (Annexure-15) had cancelled the interview held on
18.09.2011 and thereafter, vide letter dated 04.12.2015, the Principal
of the said college sought permission for advertisement of the post of
Assistant Professor (English) reserved for OBC/MOBC, and the same
was granted by the Director, Higher Education Department.
11. However, the said post was advertised on 05.07.2011, as
unreserved post but, the advertisement dated 10.01.2016, was
published by the Principal, indicates that the post is reserved for
OBC/MOBC candidate. The said advertisement (Annexure 17) was
challenged in the WP(C) No.437/2016, and vide interim order dated
01.02.2016, the interview process was suspended and the said writ
petition was disposed of vide order dated 25.02.2022, in view of the
order passed on 06.10.2021 in WP(C) No.5304/2021.
12. Notably, whatever statements and averments made in the
petition by the petitioner, remained un-traversed, as no affidavit in-
opposition was filed by any of the respondents. Under such
circumstances, the doctrine of non-traversal can be invoked herein this
case, which provides that failure to traverse a pertinent plea allows the
Courts to infer its admission, as provided in the Order VIII Rule 5 CPC,
and the statement and averment made in the petition have to be
accepted as admission by the respondent authorities. Reliance on the
judgment to apply the doctrine of non-traversal is made to the case of
(1) Controller of Court of Ward, Kolhapur & Anr. V. G.N.
Gharpade, reported in AIR 1973 SC 627, and also on a decision
passed by (2) Gobinda Chandra Das v. State of West
Bengal, reported in 1989 (2) CAL LT (HC) 63. Again in the case
of Sushil Kumar v. Rakesh Kumar, reported in (2003) 8 SCC
673, Hon'ble Supreme has highlighted the obligations under Order
VIII Rule 3 and 5 of CPC, regarding admissions and denials, holding
that vague denials could constitute admissions.
13. Thus, the factum that the petitioner had applied for the post
of Lecturer in the Department of English, which was advertised on
05.07.2011, by the Principal, Habraghat Mahavidyalaya vide
Annexure-7, and that he had appeared in the interview board on
18.09.2011, and that he was placed at 3rd position, as per performance
sheet dated 18.09.2011, Annexure-11 at page No. 41, having not
been traversed, have to be accepted as admission on the part of the
respondent authority. Further, contention of the petitioner that the two
persons, who had secured position Nos.1 and 2 in the selection
process, got appointment in somewhere else, has also to be accepted
as admission. And that being so, the petitioner ought to have been
considered for being appointed in the said post. But, the petitioner was
not considered for being appointed and the Governing Body of the said
college, i.e. respondent No. 6, vide resolution dated 17.11.2011,
(Annexure-15) had cancelled the interview held on 18.09.2011.
14. Now, what left to be seen is whether cancellation of the
selection process by the respondent No.6 is justified or not. As stated
herein above, the respondent No.6 had not filed any affidavit-in-
opposition. But, perusal of the impugned resolution, Annexure- 15, at
page No. 53 of the petition, indicates that one subject expert, namely
Aparna Bhattacharyee had not given any mark to one candidate and
shown him absent and that the master sheet prepared on the basis of
interview was defective. However, there is no allegation of any
malpractice in the process and nothing serious is mentioned there to
show that the entire process was vitiated.
15. Now, the issue to be looked into is whether the respondent
No.6 is justified in cancelling the entire selection process because of
the aforesaid anomalies. It is to be noted here that the impugned
resolution, Annexure- 15, is challenged in this petition on both the
count i.e. being discriminatory and also arbitrary, under Article 14 of
the Constitution of India. And in view of above, the impugned
resolution, dated 17.11.2011 (Annexure-15) has to be tested by
applying the principle of proportionality and also by applying the
Wednesbury principle, in view of the decision of Hon'ble Supreme
Court in the case of Om Kumar v. Union of India, reported in
(2001) 2 SCC 386, as under:-
"68. Thus, when administrative action is attacked
as discriminatory under Article 14, the principle
of primary review is for the courts by applying
proportionality. However, where administrative
action is questioned as "arbitrary" under Article
14, the principle of secondary review based
on Wednesbury principles applies."
16. In dealing with similarly situated matters, Hon'ble Supreme
Court in the case of Union of India v. Rajesh P.U., reported in
(2003) 7 SCC 285, held as under:-
6. On a careful consideration of the contentions
on either side in the light of the materials
brought on record, including the relevant portions
of the report said to have been submitted by the
Special Committee constituted for the purpose of
inquiring into the irregularities, if any, in the
selection of candidates, filed on our directions --
which report itself seems to have been also
produced for the perusal of the High Court -- there
appears to be no scope for any legitimate
grievance against the decision rendered by the
High Court. There seems to be no serious grievance
of any malpractices as such in the process of the
written examination -- either by the candidates or
by those who actually conducted them. If the Board
itself decided to dictate the questions on a
loudspeaker in English and Hindi and none of the
participants had any grievance in understanding
them or answering them, there is no justification
to surmise at a later stage that the time lapse in
dictating them in different languages left any
room or scope for the candidates to discuss among
them the possible answers. The posting of
invigilators for every ten candidates would belie
any such assumptions. Even that apart, the Special
Committee constituted does not appear to have
condemned that part of the selection process
relating to conduct of the written examination
itself, except noticing only certain infirmities
only in the matter of evaluation of answer-sheets
with reference to correct answers and allotment of
marks to answers of some of the questions. In
addition thereto, it appears that the Special
Committee has extensively scrutinized and reviewed
the situation by re-evaluating the answer-sheets
of all the 134 successful as well as the 184
unsuccessful candidates and ultimately found that
except 31 candidates found to have been declared
successful though they were not really entitled to
be so declared successful and selected for
appointment there was no infirmity whatsoever in
the selection of the other successful candidates
than the 31 identified by the Special Committee.
In the light of the above and in the absence of
any specific or categorical finding supported by
any concrete and relevant material that widespread
infirmities of an all-pervasive nature, which
could be really said to have undermined the very
process itself in its entirety or as a whole and
it was impossible to weed out the beneficiaries of
one or the other irregularities, or illegalities,
if any, there was hardly any justification in law
to deny appointment to the other selected
candidates whose selections were not found to be,
in any manner, vitiated for any one or the other
reasons. Applying a unilaterally rigid and
arbitrary standard to cancel the entirety of the
selections despite the firm and positive
information that except 31 of such selected
candidates, no infirmity could be found with
reference to others, is nothing but total
disregard of relevancies and allowing to be
carried away by irrelevancies, giving a complete
go-by to contextual considerations throwing to the
winds the principle of proportionality in going
further than what was strictly and reasonably to
meet the situation. In short, the competent
authority completely misdirected itself in taking
such an extreme and unreasonable decision of
cancelling the entire selections, wholly
unwarranted and unnecessary even on the factual
situation found too, and totally in excess of the
nature and gravity of what was at stake, thereby
virtually rendering such decision to be
irrational.
17. In the instant case, also as already discussed herein above,
vide impugned resolution, Annexure- 15, the selection process was
cancelled only on the ground that one subject expert, namely, Aparna
Bhattacharyee had not given any mark to one candidate and shown
him absent and that the master sheet prepared on the basis of
interview was defective. Except this, no other ground was assigned.
Even the candidate, who had not been given marks by subject expert
Aparna Bhattacharyee, had also not lodged any complaint against the
said process. There is also no allegation of adopting any malpractice in
the process and nothing serious is mentioned in the resolution to show
that the entire process was vitiated. Without there being any complaint
and without there being any serious infirmities, being pointed out by
any candidate, the respondent No.6 had, on its own whim and caprice,
had unilaterally and arbitrarily cancelled the entire selection process.
Thereafter, it had not notified that the selection process was cancelled.
18. Under the given facts and circumstances, the action of
respondent No.6 in cancelling the entire selection process, to the
considered opinion of this Court has failed to withstand the test of
proportionality and also the principle of secondary review, based on
Wednesbury principle. Such action of the respondent No.6 had caused
undue hardship to the petitioner, who has been serving in the college
since 20.07.2005, on contractual basis.
19. To recapitulate, on the following counts the impugned
resolution, Annexure- 15, at page No. 53 of the petition, is liable to be
interfered with:-
(i) The statement and averment made by the petitioner in his petition
remained un-traversed. And on such count, by invoking the
Doctrine of Non-traversal, the statement and averment made
in the petition has to be considered as admission on the part
of the respondent authorities;
(ii) The ground of cancellation, that one subject expert, namely,
Aparna Bhattacharyee had not given any mark to one
candidate and shown him absent and that the master sheet
prepared on the basis of interview was defective and except
this, no other ground was assigned in the impugned
resolution.
(iii) Even the candidate, who had not been given marks by subject
expert Aparna Bhattacharyee, had also not lodged any
complaint against the said selection process.
(iv) There was also no allegation of any malpractice in the
selection process and nothing serious is mentioned there to
show that the entire process was vitiated.
(v) Without there being any complaint and without there being
any serious infirmities being pointed out by any candidate,
the respondent No.6 had unilaterally, on its own whim and
caprice, had cancelled the entire selection process.
(vi) The respondent No.6 having cancelled the process had not
notified the same and after more than 1 year and 9 months,
informed the petitioner when he had filed RTI application.
(vii) Behind, this undue delay in notifying the cancellation and re-
advertising the post for reserve category of candidates speaks
otherwise.
(viii) The impugned resolution, Annexure- 15, has failed to
withstand the test of proportionality and also the principle of
secondary review, based on Wednesbury principle.
20. In the result, I find sufficient merit in this petition and
accordingly, the same stands allowed. The impugned resolution,
Annexure- 15, at page No. 53 of the petition, stands set aside and
quashed. It also appears that the respondent authority had produced a
letter of the Director of Higher Education Department, (respondent
No.4) dated 11.04.2023, addressed to the Standing Counsel, Higher
Education Department, and the letter of the respondent No.5, the
Principal, Habraghat Mahavidyalaya, Krishnai indicates that one post of
Assistant Professor in English Department is still lying vacant.
21. Under the given facts and circumstances, the respondent
authorities, by a mandamus of this Court, was directed to complete the
earlier selection process pursuant to the advertisement, dated
05.07.2011, and take the same to its logical conclusion and if the
petitioner is otherwise found suitable, he shall be appointed against the
said vacant post.
22. The exercise mentioned above, has to be carried out within a
period of three months from the date of receipt of certified copy of this
judgment and order. The petitioner shall obtain a certified copy of this
judgment and order and place the same before the respondent
authority within a week from today.
23. The parties have to bear their own cost.
JUDGE
Comparing Assistant
