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2015 Supreme(Gau) 60
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
N. CHAUDHURY, J.
DR. KSHIRESWAR BORAH – Appellant
VS
THE STATE OF ASSAM AND 3 ORS – Respondents
Case No: WP(C) 4225/2014
Decided on: 16.02.2015
For the Petitioners:Mr. N Dutta, Sr. Adv, Mr. TC Chutia, Mr. DK Roy, Mr. M Chutia Advocates
For the Respondents: Mr. AM Buzarbaruah Sr. Adv., Mr. UK Nair, Mr. LP Sharma, SC, Gauhati University, Mr. UK Goswami, SC, Higher Education
Headnote:
Code of Civil Procedure, 1908 - Order V Rule 5 – Employment and Service matter - Post of Principal of College - Advertisement – Selection process - Petitioner and thirteen (13) others appeared before the interview board and thereupon a comparative statement was prepared by Selection Committee under Chairmanship of President of Governing Body - One Ganesh Choudhury was selected in process and his name was recommended to Directorate of Higher Education for appointment as Principal of College - Present writ petitioner had immediately thereafter instituted a writ petition being WP(C) challenging resolution - Writ petition was disposed of by this Court on basis of submissions made by learned Standing Counsel of Education Department that Director of Higher Education had already issued direction for re-advertisement of post and that selection process under challenge did no longer exist - Held, It is admitted even by learned counsel for respondent No. 4 that Dr. H.C. Das as included by Director in Selection Committee by modifying composition of Selection Committee and replacing Dr. Bhagadatta Kr. Das is contrary to U.G.C. guidelines referred to above - It is also apparent that under Rule 5 of 2010 Rules, Director has no role to play in constitution of Selection Committee - Such person, namely, Higher Education Expert has to be from the panel approved by the concerned Statutory Body of University. Obviously, it is apparent from annexure that Gauhati University did not nominate Dr. H.C. Das and so his inclusion in Selection Committee and that too, by Director and not by Governing Body is illegal - It is settled position of law that in the absence of a denial by way of filing affidavit in opposition, averments made in writ petition and deemed to have been admitted - This logic also follows from provision of Order V Rule 5 of Code - Impugned order issued by Director cannot be sustained - Writ petition allowed.
Whether wrong constitution of Selection Body contrary to rules holding the field would vitiate selection process is the only question to be answered in the present case.
2. Brief facts involved in the writ petition are required to be stated first. Writ petitioner who is an Associate Professor of Philosophy in Arya Vidyapeeth College at Guwahati submitted his candidature for selection to the post of Principal of the College pursuant to advertisement on 26.01.2014 in the Assam Tribune and on 21.01.2014 in the Sentinel. Petitioner and thirteen (13) others appeared before the interview board on 02.03.2014 and thereupon a comparative statement was prepared by the Selection Committee under the Chairmanship of the President of the Governing Body. One Ganesh Choudhury was selected in the process and his name was recommended to the Directorate of Higher Education for appointment as Principal of the College. Present writ petitioner had immediately thereafter instituted a writ petition being WP(C) No. 2684/2014 challenging the resolution. The writ petition was disposed of on 30.05.2014 by this Court on the basis of submissions made by learned Standing Counsel of Education Department that Director of Higher Education had already issued direction for re-advertisement of the post and that the selection process under challenge did no longer exist. Submission was also made that the post would be filled up by fresh selection to be conducted in accordance with law. It appears that prior to that on 26.05.2014, the Director of Higher Education had addressed a letter to the President of the Governing Body of Arya Vidyapeeth College intimating that appointment of Principal in the college could not be considered as the procedure of the Selection Committee was not in order. The Director instructed the Principal to initiate fresh selection from among the candidates who had applied earlier pursuant to the advertisement, referred to above and also to reconstitute a new committee with due approval from the Directorate of Higher Education, Assam (for short ‘DHE’). Accordingly, the Governing Body reconstituted the committee as follows:
Chair Person : Dr. G.C. Sarma, President, GB, Arya Vidyapeeth College
Higher Education expert : Dr. Bhagadutta Kr. Das,
Retired Joint Director,
Higher Education, Assam
Educationist : Dr. Arupjyoti Choudhury Dean, Study Centre, Academic, K.K. Handique Open University, Guwahati.
Principal : Dr. Niroda Devi Cotton College, Guwahati- 781001
Professor : Dr. Pranabjyoti Das Dept. Of Chemistry, GU
Academician from SC/ST/OBC etc. : Dr. Nanda Ram Das,
Dept. Of Chemistry, GU
Member from the GB : (a) Anusuya Paul Basu
(b) Dr. Robin Bhuyan
The Governing Body by letter dated 04.07.2014 forwarded its resolution as to reconstitution of Selection Committee for approval of the Director and the Director in turn by letter dated 04.08.2014 modified the composition of the Committee by replacing Higher Education expert Dr. Bhagadatta Kr. Das by one Dr. H.C. Das, retired Director of Secondary Education, Assam. Thereafter, on 30.08.2014 the writ petitioner submitted a representation before the President of the Governing Body of Arya Vidyapeeth College praying for postponing of proposed interview and also to reconstitute the Selection Committee in accordance with the provisions of the rules and thereafter to rearrange a fresh date of interview. The writ petitioner objected to constitution of Governing Body by Director on the ground that under Rule 5(1) of the Assam College Employees (Provincialisation) Rules, 2010 (hereinafter referred to as ‘the Rules’), it is the Governing Body which is empowered to constitute Selection Committee. The manner of selection of experts/ members in the constitution of Selection Committee was also objected to. As the representation did not receive any consideration and the Governing Body proceeded to hold the interview, the writ petitioner approached this Court by filing the present writ petition praying for se
