GOVERNING BODY OF BURHINAGAR JUNIOR COLLEGE vs THE STATE OF ASSAM AND ORS

Heard Ms. N Saikia, learned counsel for the petitioner. Also heard Mr. N Sarma, learned Standing counsel, Secondary Education Department

and Mr. DK Sarmah, learned counsel for the respondent No.4 as well as Mr. KN Choudhury, learned Senior counsel for the respondent No.5.

An advertisement dated 19.06.2014 was issued by the Governing Body of Burhinagar Junior College, Mahaliapara, in the district of Darrang

inviting applications from candidates having 10 years of teaching experience in a Junior College or a Provincialised College for the post of Principal

of the College. In the said advertisement, it was stated that local qualified candidates will get preference in the appointment. Pursuant to the

advertisement, both the respondent Nos.4 and 5 submitted their candidature. Prior to that the respondent No.4 had preferred a writ petition being

WP(C)No.3183/2014 with the grievance that the authorities are not proceeding with the regular selection process for appointment to the post of

Principal of the Junior College. The said writ petition was disposed of by the order dated 25.06.2014 by providing that the respondent authorities

may expedite the process of selection. Accordingly a selection process was held and the statement of marks of the selection committee finds place

at page 29 of the writ petition. From the statement of marks, it is noticed that the respondent No.5, Diganta Rajbonshi was awarded a total marks

of 211.3 and was placed in the first position, whereas the respondent No.4 was awarded 203.8 marks and was placed in the second position. The

statement of marks also indicates that in the selection, the authorities had taken into consideration, the marks obtained by the respective candidates

in the qualifying examination i.e. HSLC, PU/HS, Degree and in the MA examination. Marks were also allotted for other qualifications, where the

respondent No.4 was given 10 marks and the respondent No.5 was not given any mark for the said category. Marks were also allotted for

administrative experience, where the respondent No.4 was given 0.1 marks where the respondent No.5 was not given any mark.

Apart from the aforesaid consideration, the Selection Committee had not taken into consideration any other aspect for the purpose of the

selection. Based upon such statement of marks, the Selection Committee had taken a resolution that in the interview, 8 numbers of candidates have

taken part and in order of merit, the respondent No.5 is at Sl. No.1, whereas the respondent No.4 is at Sl.2.

The said resolution of the Selection Committee of the Governing Body, as well as the statement of marks were assailed by the respondent No.4

in a writ petition being WP(C)No.3629/2014, wherein it was also brought to the notice of the Court that in respect thereof, the respondent No.4

had also submitted a representation. The said writ petition, without expressing any opinion on the merit of the claim of the petitioner was disposed

of by providing that the Director of Secondary Education while acting on the resolution of the Selection Committee of the Governing Body shall

also take into consideration the representation submitted by the respondent No.4.

Consequent thereof, the Director of Secondary Education, Assam had passed the order dated 09.10.2014. In the said order dated

09.10.2014, the Director had refused to approve the merit recommendation of the Selection Committee of the Governing Body on two grounds

i.e., firstly the advertisement restricting to only the local candidates was unjust and secondly, the College authorities should have waited for the

Rules to be framed or for the Office Memorandum or an order from the Government or from the Director providing the guidelines for selection of

the Principal. It is stated that for the purpose of selection of a Principal of a provincialised Higher Secondary School/ Junior Colleges, no such

Rules or guidelines is presently available. The said order of the Director of Secondary Education, Assam of 09.10.2014 has been assailed by the

petitioner being the Governing Body of the Burhinagar Junior College, Darrang. In the aforesaid premises, the question for determination is as to

whether the two reasons given by the Director in not approving the merit recommendation of the Selection Committee is sustainable in facts and

under the existing law.

Regarding the first reason that the advertisement restricting only to the local candidates was unjust, it has already been alluded hereinabove that

the advertisement provided preference to the local candidates and the same apparently does not restrict the participation to only amongst the local

candidates. Under the law, preference means ''if on merit, two candidates are of equal merit, in such event, the local candidate would be preferred.

Therefore, giving preference to a local candidate, ipso facto, does not mean that the selection would be confined only to the local candidates.

Secondly, when the marks awarded by the Selection Committee is examined, it is noticed that no such weightage was given to the local candidates

and nor any marks was allotted to a candidate only on the basis of being a local candidate. From the procedure adopted by the Selection

Committee in allocation of marks, it is apparent that the factor of local candidate was not taken into consideration in the evaluation process.

Accordingly, the aforesaid conclusion of the Director that the advertisement restricting to only the local candidate was unjust is found to be

incorrect and inconsistent with the facts of the case.

In respect of the other ground that the College authorities should wait for the Rules to be framed or for the Office Memorandum or an order

from the Government or from the Director providing the guidelines for selection of the Principal, a query was made to the learned Standing

counsel, Higher Education Department as to whether there was a conscious decision by the respondent authorities not to proceed with any

selection process in the Junior Colleges for the post of Principal till any such service Rules are framed or any guidelines are made. A statement has

been made by the learned Standing counsel, Education Department that there is no such conscious decision available on record.

The law in this regard has been settled by the Hon''ble Supreme Court rendered in Dr. K. Ramulu and Another Versus Dr. S. Suryaprakash

Rao and others, reported in (1997) 3 SCC 59, wherein a proposition of law has been laid down that in the event, the authorities intend to amend

the service Rules a conscious decision can be taken not to further proceed with any selection process till such Rules are framed. But in order to

make the said proposition of law applicable there must be a conscious decision on the part of the State respondent authorities not to proceed with

any selection till such Rules are framed. But, in the instant case as indicated above, as there is no such conscious decision, the proposition of law

rendered in Dr. K. Ramulu''s case is not applicable.

A law has also been settled by the Hon''ble Supreme Court in (2011) 9 SCC 645 rendered in Chandigarh Administration through the Director

Public Instructions (Colleges), Chandigarh Vs. Usha Kheterpal Waie & Ors., wherein in paragraph 19, it has been held that even in the absence of

valid Rules, it cannot be said that the advertisement was invalid and that in exercise of its executive power the authorities can issue an administrative

instruction from time to time with regard to such matters which are not governed by any statutes or rules made under the Constitution.

In view of the above propositions of law, the conclusion of the Director that the College authorities should wait for the Rules to be framed or

for the Office Memorandum or an order from the Government or from the Director providing the guidelines for selection of the Principal cannot be

accepted in the facts and circumstances in which it was stated by the Director in the present case.

For both the reasons as indicated hereinabove, the conclusion of the Director for not approving the merit recommendation of the Selection

Committee of the Governing Body of Burhinagar Junior College in its order dated 09.10.2016 is found to be unacceptable. Accordingly, the

Director of Secondary Education, Assam is directed to revisit the said order and pass appropriate orders as per Rules, and any such order to be

passed shall have precedence over any other order.

Mr. DK Sarmah, learned counsel for the respondent No.4 seeks to justify the order of the Director by stating that the selected candidates are

not duly qualified on some other ground or the other. The respondent No.4 being a respondent in the present writ petition cannot raise such other

ground assailing the order of the Director and in the event, the petitioner is aggrieved in any such manner, the petitioner may file an appropriate

application for such purpose and liberty is accordingly, granted.

In terms of the above, this writ petition stands disposed of.