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IN THE HIGH COURT OF GAUHATI
UJJAL BHUYAN, J.
Dr. Mrinal Kumar Borah - Appellant
Vs.
The State of Assam & Ors. - Respondents
WP(C) No. 5441 & 5668 of 2015
Decided On : 24-01-2017
Assam College Employees (Provincialisation) Act, 2005 - Section 6 and 12(1) - Assam College Employees (Provincialisation) Rules, 2010 - Rule 5(1) , 5(2) , 5(7) , 7(c) and 10 - Appointment - Post of Principal -Selection Process - Affidavit - An advertisement was published in daily newspaper, “The Assam Tribune” on for post of Principal in Biswanath College (College) - Petitioner responded to said advertisement - However, for undisclosed reason interview was not held whereafter post was re-advertised in said newspaper - In re-advertisement, it was mentioned that candidates who had already applied for post of Principal pursuant to earlier advertisement need not apply again - Thereafter, interview was held - Altogether seven candidates, including petitioner and respondent No.6 appeared in interview - It is stated that in said interview, petitioner was treated as an overaged candidate and not selected - On contrary, Selection Committee undeservingly awarded 10 marks under head of “administrative experience” to respondent No.6 and thereby, selected him - Governing Body of the College thereafter adopted resolution on to appoint respondent No.6 as Principal of College and forwarded same to Director for approval - It is stated that respondent No.6 did not have any guideship from Gauhati University, which is parent University of College rather, he had guideship from a private University called, Himalayan University in state - It is stated that Himalayan University is not a recognized University under UGC and does not have jurisdiction over State - Petitioner has contended that he is only eligible candidate amongst all candidates who had appeared in interview and therefore Selection Committee made a manifest error in selecting respondent No.6 overlooking eligibility and better merit of petitioner – Held, Careful and conjoint analysis of provisions of Rule 5(1) and Rule 7 of the 2010 Rules, what logically emerges is that before according approval to recommendation of Governing Body and before issuing order of appointment, Director should satisfy himself that selection and recommendation was carried out in accordance with law - He should also satisfy himself that in respect of post like that of Principal for which UGC has laid down detailed eligibility norms, recommendation of selected candidate conforms to such norms - Power to appoint any person would include power to appoint ex-officio - Likewise, section 16 of said Act provides that when a power to make any appointment is conferred on any authority, than unless a different intention appears authority having and exercising that power to make appointment shall also have the power to suspend or dismiss any person so appointed - By extending rationale of above provision it can safely be inferred that power to accord approval would also include the power not to accord approval provided the Director is satisfied that recommendation is not as per law - 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 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 designated authority at first instance and if a legal challenge is made to such decision or finding writ court would then examine legality and validity of the same - Therefore, it would be in tune with the settled legal proposition to eschew any intervention by writ court at a stage prior to such decision being taken by the designated authority - Writ petitions are accordingly disposed of.
This order will dispose of both WP(C) Nos.5441 and 5668/2015, as subject matter of the two writ petitions are inter-related and identical.
2. Both the writ petitions were heard on 19.01.2017 and today is fixed for delivery of judgment. Accordingly judgment is dictated in the open Court.
3. Heard Mr. P Mahanta, learned counsel for the petitioner in WP(C) No.5441/2015, Mr. SK Talukdar, learned counsel for the petitioner in WP(C) No.5668/2015, Mr. B Kaushik, learned Standing Counsel, Higher Education Department, Govt. of Assam and Mr. SN Sarma, learned Senior Counsel appearing for the Governing Body of Biswanath College. Also heard Mr. A Chamuah, learned Standing Counsel, University Grants Commission (UGC) and Mr. R Saloi, learned counsel for respondent No.6 in WP(C) No.5441/2015 (who is respondent No.7 in WP(C) No.5668/2015).
4. Matter relates to selection and appointment of Principal in the Biswanath College in the district of Sonitpur.
5. In WP(C) No.5441/2015, it is stated that an advertisement was published in the daily newspaper, “The Assam Tribune” on 07.12.2014 for the post of Principal in Biswanath College (College). Petitioner responded to the said advertisement. However, for undisclosed reason, the interview was not held whereafter, the post was re-advertised in the said newspaper on 12.04.2015. In the re-advertisement, it was mentioned that candidates who had already applied for the post of Principal pursuant to the earlier advertisement need not apply again. Thereafter, interview was held on 27.05.2015. According to the petitioner, in this interview, he was selected and placed in the first position having fulfilled all eligibility criteria. Though recommendation was made by the Governing Body, Director of Higher Education, Assam (Director) cancelled the said selection on 10.07.2015 and directed re-initiation of the selection process. Following such directive, fresh interview was held on 25.08.2015. Altogether seven candidates, including petitioner and respondent No.6 appeared in the interview. It is stated that in the said interview, petitioner was treated as an overaged candidate and not selected. On the contrary, the Selection Committee undeservingly awarded 10 marks under the head of “administrative experience” to respondent No.6 and thereby, selected him. Governing Body of the College thereafter adopted resolution on 26.08.2015 to appoint respondent No.6 as Principal of the College and forwarded the same to the Director for approval.
6. Contention of the petitioner is that respondent No.6 did not have the eligibility for appointment as Principal. It is stated that respondent No.6 did not have any guideship from Gauhati University, which is the parent University of the College; rather, he had guideship from a private University called, Himalayan University in the state of Arunachal Pradesh. It is stated that Himalayan University is not a recognized University under the UGC and does not have jurisdiction over the State of Assam. Petitioner has contended that he is the only eligible candidate amongst all the candidates who had appeared in the interview and, therefore, the Selection Committee made a manifest error in selecting respondent No.6 overlooking the eligibility and better merit of the petitioner. It is however, contended that respondent No.6 is a teacher in the College in the Department of Zoology and possibly this had influenced the selection.
7. Aggrieved, the writ petition came to be filed.
8. On 09.09.2015, this Court passed an interim order to the effect that no appointment should be made to the post of Principal of the College. Thereafter, on 22.09.2015, this Court issued notice and passed an interim order directing the Director of Higher Education not to approve the recommendation of the Governing Body for the post of Principal without the leave of the Court.
9. Governing Body of the College (respondent Nos.3 & 4) in their affidavit has stated that the interview which was held on 25.08.2015 was a tr
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