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Dr.MD. Dilwar Alam Khan v/s State of Assam & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    WP(C) No. 4881 of 2016

    Decided On, 02 January 2017

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE UJJAL BHUYA

    For the Petitioner: K. Uddin, Advocate. For the Respondents: R. Choudhury, GA, R.A. Choudhury, Advocate.



Judgment Text

Ujjal Bhuya, J.

1. Heard Mr. K. Uddin, learned counsel for the petitioner, Ms. R. Choudhury, learned Standing Counsel, Higher Education Department, Govt. of Assam and Mr. R. A. Choudhury, learned counsel for respondent Nos. 3 & 4.

2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of letter dated 08.07.2016 issued by the Director of Higher Education, Govt. of Assam directing the Principal, Srikishan Sarada College, Hailakandi to re-initiate the selection process for the post of Assistant Professor of Chemistry in the said College from amongst those candidates who had already appeared before the selection committee on 23.05.2016 by observing necessary formalities.

3. As would be evident from the above, matter relates to selection and appointment to the post of Assistant Professor of Chemistry in the Srikishan Sarda College, Hailakandi.

4. Various facets of the lis were gone into by this Court in the previous hearing where after a detailed order was passed on 15.12.2016 which is extracted hereunder:-

"2. An advertisement was issued by the Principal-In-Charge of Srikishan Sarda College (College) on 22.11.2015, to fill up one post of Assistant Professor in Chemistry. As per the advertisement, the notified post was unreserved and it was mentioned that preference would be given to candidate having Organic Chemistry as Special Paper. A subsequent advertisement was again issued on 17.02.2016 for the said post. However, it was stated that those who had applied earlier, pursuant to advertisement dated 22.11.2015, need not apply.

3. Petitioner as well as respondent No. 5 had applied. It appears that as many as 30 (thirty) candidates had applied. Interview was held on 23.05.2016 in which, 15 (fifteen) candidates participated. In the selection held, petitioner was placed in the first position securing 60.77 marks, but it was remarked that he had Special Paper in Analytical Chemistry. Respondent No. 5 was placed in the second position securing 59.94 marks, but it was remarked that she had Special Paper in Organic Chemistry. Selection Committee in its meeting held on 23.05.2016 noted that requirement as per the advertisement was of Organic Chemistry. Therefore, though respondent No. 5 had secured the second highest marks, since she possessed Organic Chemistry specialization, she was selected. When the matter was placed before the Governing Body of the College on 04.06.2016, there was difference of opinion amongst the members and consequently, no resolution could be adopted; the matter was referred to the Director of Higher Education. Director, by his communication dated 18.06.2016 directed the Committee to adopt a unanimous resolution. Thereafter, Governing Body of the College adopted resolution dated 08.07.2016, recommending the petitioner for appointment as Assistant Professor in Chemistry. On the same date, i.e., on 08.07.2016, the Director directed the Principal of the College to re-initiate the selection process from amongst the candidates already in the fray.

4. At that stage, the present writ petition came to be filed.

5. This Court issued notice on 24.08.2016 and stayed the above order of the Director dated 08.07.2016. Having noticed the stage at which the writ petition came to be filed, Court directed that name of respondent No. 5 be struck off from the list of respondents.

6. Respondent Nos. 3 and 4 have filed a common affidavit. Stand taken in the affidavit is that in compliance to the direction of the Director of Higher Education dated 18.06.2016, Governing Body adopted unanimous resolution on 08.07.2016, recommending appointment of petitioner. It is stated that petitioner has secured the highest marks in the interview and, therefore, he was recommended for appointment, though initially there was no consensus amongst members of the Governing Body. It is stated that there is now no impediment to appoint the petitioner as Assistant Professor of Chemistry in the College.

7. State has not filed any affidavit.

8. It is not disputed at the Bar that the College in question is a provincialized College and is governed by the provisions of Assam College Employees' (Provincialization) Act, 2005, (Provincialization Act) and the Assam College Employees' (Provncialization) Rules, 2010 (Provincialization Rules).

9. Section 6 of the Provincialization Act provides that appointment of both teaching and non-teaching staff in the provincialized colleges shall be made by the Director of Higher Education on the basis of selection and recommendation of the Governing Body in accordance with the procedure prescribed under the Rules. The procedure is laid down under Rule 5 (2) of the Provincialization Rules. As per Rule 5 (7), a Governing Body is required to conduct selection process and make recommendation to the Director, who shall issue order(s) of appointment.

10. Prima facie, on a careful analysis of the aforesaid legal provision, it does not appear that the Director of Higher Education is vested with any power to direct the Governing Body to conduct its selection in a particular mode or manner. He has to act on the recommendation of the Governing Body. Neither the Provincialization Act nor the Provincialization Rules require that resolution of the Governing Body has to be unanimous. On the other hand, Governing Body is also bound by the advertisement that it has issued. Advertisement says that preference will be given to candidates having Organic Chemistry as Special Paper.

11. Question which arises for consideration is whether preference would come into play when other things are equal or would come into play even if the competing candidates are not at par.

12. On a query by the Court that since petitioner does not possess specialization in Organic Chemistry, would he still be entitled to recommendation for appointment as Assistant Professor in Chemistry notwithstanding his placing in the first position, learned counsel for the petitioner seeks time to make submission on the legal position governing the aspect of preference.

13. Learned Standing Counsel, Higher Education Department, may also make her submission on this aspect of the matter."

5. Today, when the matter is called upon, Mr. K. Uddin, learned counsel for the petitioner submits that the expression "preference" would come into play only when all the competing candidates are equally positioned. When the competing candidates are not at par on merit, question of "preference" would not arise and a lesser meritorious candidate cannot be selected by giving "preference" on account of higher or additional qualifications. In support of his submissions, learned counsel for the petitioner has placed reliance on the following decisions:-

(1996) 4 SCC 319 (Prem Singh v. Haryana State Electricity Board);

(2006) 6 SCC 474 (State of UP v. Om Prakash);

(2013) 7 SCC 150 (G. Jayalal v. Union of India);

Learned Standing Counsel agrees to the submission of learned counsel for the petitioner on the point of "preference".

6. Before proceeding further, it would be apposite to once again refer to the advertisement in question. As per the advertisement, applications were invited from eligible candidates for one post of Chemistry (unreserved) in the Srikishan Sarada College, Hailakandi. It was also mentioned that preference would be given to a candidate having Organic Chemistry as special paper. A careful analysis of the advertisement would reveal that there are two parts to the advertisement. The first and the essential part is notifying one post of Assistant Professor in Chemistry earmarked for the unreserved category. The second part, which is like a corollary to the first part, provides for granting "preference" to a candidate having Organic Chemistry as special paper.

7. In the order dated 15.12.2016, the following question was framed by the Court:-

"Question which arises for consideration is whether preference would come into play when other things are equal or would come into play even if the competing candidates are not at par?"

8. In the case of Prem Singh (supra), the Supreme Court held that ordinarily giving of "preference" for higher qualification(s) would imply that other things being equal the candidates with higher qualification(s) would be preferred. In AP Public Service Commission v. YVVR Srinivasulu reported in (2003) 5 SCC 341, the Supreme Court held that "preference" in the context of a competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. Following the above decision, the Supreme Court in G. Jayalal (supra) clarified that conceptually "preference" would fundamentally mean that all aspects, namely, merit, suitability, fitness etc. being equal, "preference" is given regard being had to some other higher qualifications or experience etc. This position was reiterated by the Supreme Court in the case of Om Prakash (supra) wherein it has been held that "preference" to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be preferred; It does not mean en block preference irrespective of inter se merit and suitability. It was held as follows:-

"19........... The word "preference" would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis--vis others in the merit list prepared by the Commission. But preference does not mean en bloc preference irrespective of inter se merit and suitability."

9. Reverting back to the present case, it is evident that petitioner was placed in the first position by securing 60.77 marks. The candidate who had Organic Chemistry as special paper had secured lesser marks than the petitioner. In such circumstances, question of giving preference to the candidate securing lesser marks did no

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t arise. Therefore, the Governing Body was right in adopting the resolution dated 08.07.2016 recommending the petitioner for appointment as Assistant Professor of Chemistry. As already noticed in the order dated 15.12.2016, under Section 6 of the Provincialization Act and Rule 5 of the Provincialization Rules, Governing Body is required to conduct the selection through a selection committee and thereafter to make recommendation to the Director of Higher Education. On receipt of such recommendation, the Director is required to issue the order of appointment. 10. That being the position and on due consideration, Court is of the view that impugned letter dated 08.07.2016 cannot be sustained and is accordingly set aside and quashed. 11. Director of Higher Education, Assam shall now take a decision on the resolution of the Governing Body of Srikishna Sarada College, Hailakandi dated 08.07.2016 as per Rule 5 (7) of the Provincialisation Rules within a period of 4 (four) weeks' from the date of receipt of a certified copy of this order. 12. Writ petition is accordingly allowed but without any order as to cost.
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