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1993 Supreme(Gau) 228
GAUHATI HIGH COURT
S.K.Homchaudhuri, J.
Monmohan Das ; Munindra Nath Borgohain -Appellant
Versus
State of Assam and Ors. -Respondent
Civil Rule Nos. 298 and 808 of 1993
Decided On : 10-09-1993
D.N.Choudhary, R.Das, M.Z.Ahmed, B.P.Kataki, B.Banerjee, A.K.Phukan, A.C.Buragohain, P.Prasad
The DPI's power to accord prior approval for the appointment of the Principal is not an empty formality. The DPI is required to apply his mind to the entire materials on grounds and that for resolving the stalemate, power to accord prior approval, may extend to pass order for appointment of the Principal of the Aided College.
Headnote:
EDUCATION - APPOINTMENT OF PRINCIPAL - ASSAM AIDED COLLEGE MANAGEMENT RULES, 1981 - RULE 18 - APPROVAL OF DIRECTOR OF PUBLIC INSTRUCTION (DPI) - PRIOR APPROVAL - SELECTION BY GOVERNING BODY OR SPECIAL BODY - RECOMMENDATION - POWER OF DPI TO ACCORD APPROVAL - SCOPE.
Fact of the Case:
The Governing Body of DHSK Commerce College, Dibrugarh, after considering the Select List submitted by the Selection Board, passed a resolution requesting the Director of Public Instruction (DPI) of Assam to decide on the appointment of the Principal. The DPI, after examining the matter, approved the appointment of the petitioner, Sri MM Das, as the Principal of the college. However, the Special Body of the college, constituted after the resignation of the President and 4 members of the Governing Body, resolved to select the Principal afresh. The petitioner challenged the advertisement issued by the Special Body for fresh selection, while another petitioner, Dr. MN Borgohain, challenged the DPI's approval of Sri Das's appointment.
Finding of the Court:
The court held that the DPI's approval of Sri Das's appointment was valid and that the Special Body could not proceed with the fresh selection process. The court found that the Governing Body had considered the Select List and 8 out of 10 members were in favor of appointing Sri Das as the Principal. The court also noted that Sri Das had been selected by the State Selection Board for appointment as Principal under different Aided Colleges of Assam.
Issues: 1. Whether the DPI's approval of the petitioner's appointment as Principal was valid without a formal recommendation from the Governing Body? 2. Whether the Special Body could proceed with the fresh selection process after the DPI's approval?
Ratio Decidendi: The court held that the DPI's power to accord prior approval for the appointment of the Principal is not an empty formality. The DPI is required to apply his mind to the entire materials on grounds and that for resolving the stalemate, power to accord prior approval, may extend to pass order for appointment of the Principal of the Aided College. In the instant case, Selection Board constituted by the Governing Body of the college having given first preference to the petitioner of Civil Rule No. 298 of 1993 for appointment and 8 out of 10 members of the Governing Body having been in favour of appointing him to the pest of Principal, the impugned order dated 29.3.93 passed by the DPI approving the appointment the petitioner of Civil Rule No. 298 of 1993 to the post of Principal of the college, has caused no failure of justice.
Final Decision: The court allowed the petition challenging the advertisement for fresh selection and dismissed the petition challenging the DPI's approval of Sri Das's appointment. The court directed the Special Body not to proceed with the fresh selection process and to give full effect to the DPI's order.
2. The petitioner of Civil Rule No. 298 of 1993, Sri Monmohan Das has been working as the Vice Principal of the DHSK Commerce College, Dibrugarh since 1.4.89 while the petitioner in Civil Rule No. 808 of 1993, Dr. MN Borgohain is the Head of the Department of Political Science of Sibsagar Girls College. The petitioners of both the writ petitions have been selected by the State Selection Board constituted under the provisions of Assam Education Selection Rules, 1981, for appointment to the post of Principal of any of the Aided Colleges in Assam. The post of Principal of the DHSK Commerce College hereinafter mentioned as 'the College' having fallen vacant, the Governing Body of the college with a view to filling up the post of Principal advertised for the post inviting applications from the eligible candidates. Petitioners of both the petitions as well as others offered their candidature in response to the advertisement. The Governing Body of the college constituted Selection Board to select the Principal from amongst the applicants. The Selection Board after consideration of the relative merit and experiences etc of the candidates, made selection and submitted a Select List in order of merit and in that list petitioner of Civil Rule No.298 of 1993, Sri MM Das, got first preference and petitioner in Civil Rule No.898 of 1993, Dr.MN Borgohain got second preference. The Governing Body of the college, thereafter in its meeting dated 5.6.92 considered the appointment of the Principal of the college as per the Select List submitted by the Selection Board and pass the following resolution :
"The Governing body read and discussed the report threadbare. There was want of unanimity among the members in view of dissent recorded by two members (Teachers Representative).
In the circumstances, resolved that the Director of Public Instruction of Assam be requested to decide on the appointment of the Principal in reference to the recommendations of the Selection Board and intimate prior approval for the appointment of the incumbent at early convenience, so that the appointed Principal may take over charge on 30th June, 1992 from Dr. GD Misra, Principal Incharge and Secretary who is due to retire on 30th June, 1992."
The Governing Body forwarded aforesaid resolution to the Director of Public Instruction, Assam with other materials for consideration. The President as well as 4 members of the Governing Body of the college having resigned from the Governing Body, in the meantime, Govt. of Assam in the exercise of power under Rule 3 of the Aided College Management Rules by order dated 9.9.92 constituted a Special Body of the college for management of the college. The Special Body of the college in its meeting dated 17.12.92, resolved to select the Principal of the college afresh as per guide lines issued by the Director of Public Instructions and in pursuance to the said resolution, the President of the Special Board of the college invited applications from eligible candidates by making advertisement in 'Dainik Janambhumi' a focal daily paper in its issue dated 21.12.92. But the Director of Public Instruction (in short DPI), Assam by letter dated 19.12.92 intimated the Special Body of the college that the question of approval for appointment of the Principal of the college conveyed as per resolution of the then Governing Body dated 6.6 92, was under examination and requested Special Body not to make fresh advertisement for the post of Principal of the college. In response to the advertisement dated 21.12.92 the petitioners of both the writ petitions offered their candidature. The Special Body of the college, in its meeting dated 21.1.93, decided to go ahead with the selection of Principal from amongst the candidates who applied for the post in pursuanc
