THE GAUHATI HIGH COURT AT (The High Court of , Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI

Writ Petition (C) No.2751/2012

DR. ABDUL KHALIQUE LASKAR S/O LT. BASIR UDDIN LASKAR, R/O VILL. NORTH NARAINPUR PT.II, DIST. HAILAKANDI, ASSAM, PIN-788001. -PETITIONER. Versus 1. THE STATE OF ASSAM, REP. BY THE SECY. TO THE GOVT. OF ASSAM, EDUCATION [HIGHER] DEPTT, , GHY-6. 2. THE DIRECTOR OF HIGHER EDUCATION, ASSAM, KAHILIPARA, GHY-19. 3. THE GOVERNING BODY, GURUCHARAN COLLEGE, , PO. SILCHAR, DIST. CACHAR, ASSAM, PIN-788004, REP. BY ITS PRINCIPAL CUM SECRETARY. 4. THE SELECTION COMMITTEE, GURUCHARAN COLLEGE, SILCHAR, PO. SILCHAR, DIST. CACHAR, ASSAM, PIN-788004 [REP. BY THE PRINCIPAL CUM SECRETARY OF GURUCHARAN COLLEGE, SILCHAR]. 5. SHAHIN AHMED BARBHUIYA, S/O MUSHAHID ALI BARBHUIYA, R/O VILL. MOHONPUR PT.II, PO. ALGAPUR PT.V, DIST. HAILAKANDI, ASSAM, PIN-788150. -RESPONDENTS.

BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY

Advocate for the Petitioner: Dr. B. Ahmed, Mr. I.H. Barbhuiyan, Ms. R. Rajkhowa.

Advocate the Respondent Nos.1&2: Mr. B. Kaushik, Standing Counsel, Higher Education Department.

Advocate the Respondent No.5: Mr. F.K.R. Ahmed, Mr. B.U. Laskar.

Date of hearing & judgment: 31-08-2017.

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JUDGEMENT AND ORDER (ORAL)

Heard Dr. B. Ahmed, the learned counsel for the petitioner. The learned standing counsel for the Department of Higher Education, Mr. B. Kaushik represents the respondent Nos.1 & 2. The contesting respondent Shahin Ahmed Barbhuiya

(respondent No.5) is represented by Mr. F.K.R. Ahmed, the learned counsel.

2. The matter pertains to selection and appointment of Assistant Professor in

Persian subject in the Gurucharan College, Silchar. The petitioner as the unsuccessful candidate, challenges the appointment of Dr. Shahin Ahmed Barbhuiya

(respondent No.5) under the selection process, started with the advertisement issued on 20.7.2011 (Annexure-4).

3. The Selection Committee was headed by the President of the Governing

Body (GB) of the Gurucharan College and they evaluated the candidature of six applicants, who participated in the selection exercise. The Committee prepared a panel of single candidate and recommended the respondent No.5, which was approved by the resolution of the college GB, adopted on 28.12.2011.

EARLIER LITIGATION

4. Even before the appointment, the petitioner felt that he was overlooked for an inferior and undeserving applicant and accordingly he filed the W.P. (C) No.

57/2012, where returnable notice was issued by the Court on 10.1.2012 (Annexure-

16), with the following order:

“The petitioner offered his candidature for the post of Assistant Professor in 'Persian ' in the Gurucharan College, Silchar by responding to the advertisement dated 20.7.2011 (Annexure-4) issued by the Principal. He challenges the purported recommendation of the Selection Committee, made in favour of the respondent No.5. Dr. B Ahmed, the learned counsel points out that in HSLC, HSSLC, BA and MA examinations respectively, the petitioner has secured 54%, 57%, 66% and 68% as compared to 40%, 43%, 41% (without honours) and 60% of the respondent No.5.

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Therefore he contends that the respondent No.5 does not have a good academic record as specified in the fresh UGC Guidelines, 2010 which were notified by the Director of Higher Education, Assam on 13.12.2011 (Annexure-8). The learned counsel further submits that the respondent No.5 unlike the petitioner has no NET qualification and the Ph.D. Degree secured by the respondent No.5 was not in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009 and therefore such a Ph.D. Degree does not entitle the respondent No.5, to be exempted from the NET qualification requirement, for being appointed as an Asstt. Professor. Considering the nature of the submission, let a notice returnable on 27.2.2012 be issued.

Mr. Neogi, the learned standing counsel for the Education Department accepts notice for the respondent Nos.1 & 2. Extra copies of the writ petition be furnished to the him. Petitioner to ensure service on the remaining respondents by Regd. Post. In the interim, status quo on the process of approval by the Director of Higher Education, Assam on the recommendation made in favour of the respondent No.5, shall be maintained”. 5. The above case was finally decided on 20.3.2012, but by that time, the

Director of Higher Education (DHE), notwithstanding the Court’s status quo order, accorded his approval on 1.2.2012, for appointment of the recommended candidate.

As the approval was projected to have been granted, without taking into consideration on whether the marks awarded by the Selection Committee were as deserved and whether the selection guidelines have been followed, the learned

Judge on 20.3.2012 (Annexure-20), ordered for reconsideration by the DHE, with the following order:-

“………………………………….. Having regard to the aforesaid submissions made by the learned counsel for the parties and since admittedly all the materials were not placed before the Director before according approval, the writ petition is disposed of directing the Director, Higher Education to reconsider the matter relating to the grant of approval to the recommendation of the governing body of the college seeking appointment of respondent No. 5. While considering the same the Director shall also consider as to whether the guidelines issued by the authority in the matter of selection has been followed and whether the marks were allotted in terms of such guidelines or not. The Director shall thereafter pass a speaking order. The said exercise is directed to be completed within a period of one month from today.

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It is needless to say that all concerned including the petitioners and the respondent No. 5 shall be heard …………………………………..” 6. During the fresh exercise by the DHE, the petitioner perceived that the guidelines and the relevant materials were not being evaluated appropriately and accordingly the 2nd case i.e. WP(C) No.2471/2012, was filed. The Court considered this to be a pre-mature challenge and accordingly disposed of the case on

23.5.2012 (Annexure-22), by ordering the DHE, to strictly follow the earlier direction given by the Court on 20.3.2012, in the WP(C) No.57/2012.

MERIT OF SELECTION

7. Following the above direction of the Court, the impugned speaking order was passed on 30.5.2012 (Annexure-23), in a cryptic fashion whereby, the DHE approved the recommendation made by the Selection Committee, for appointment of Dr. Shahin Ahmed Barbhuiya (respondent No.5). However no discussion was made on the points highlighted by the Court. Curiously, the only remark made by the DHE, in support of the recommended candidate is that he was the 1st class 1st position holder in the M.A. examination. But in the process, it was overlooked that the respondent No.5 failed to pass his MA examination with his batch mates and could pass only in his 3rd attempt. As a failed student, he appeared along with two others of the same category and amongst the three, he secured 60% marks and on that basis, the DHE in in-explicably considered the respondent to be the 1st class 1st position holder, in the MA examination, where only 3 failed students appeared.

8. For the evaluation made on 22.12.2011, the Selection Committee followed the guidelines, issued on 20.2.2003 (Annexure-6), which stipulated that for appointment of Lecturer, a good academic record with at least 55% marks at the

Master degree level, besides the NET/SLET are the essential qualification. The

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petitioner was NET qualified but the recommended candidate (respondent No.5) did not have NET/SLET qualification. But because of the exemption granted for the

Ph.D. degree holder under the UGC’s circular, issued on 1.6.2009 (Annexure-10), the respondent was considered to be eligible, even without NET/SLET qualification, as he secured Ph.D. degree on 21.1.2011.

9. The selection guideline, notified on 20.2.2003, indicated that marks are to be awarded to the candidates on their respective performance at the matriculation, higher secondary, graduation and post graduate level and the records shows that in these four segments, the recommended candidate Dr. Shahin Ahmed Barbhuiya

(respondent No.5), could score only 24.4 marks. However, 10 additional marks were awarded for his Ph.D. degree. Accordingly, the aggregate score in the academic segment for the petitioner was 39.5 and for the respondent No.5, it was 34.4. But the question is whether double credit for the Ph.D. degree, for the respondent could be allowed since the respondent’s Ph.D. degree was used as an eligibility qualification (in absence of the NET/SLET) and thus, additional credit of 10 marks for the Ph.D. degree, could not have been awarded to the aspirant, with poor results in his academic career.

10. The respondent No.5 was given 4 out of the maximum 5 marks for teaching experience, on the basis of his service in the A.L. Choudhury College, Algapur, during 2004—09, when the college was not-provincialised. But it was stipulated in the guideline itself that the teaching experience should be from either a Govt.

College or a deficit grants-in-aid college. Therefore, since the A.L. Choudhury

College, Algapur was provincialised only on 20.1.2014, the respondent No.5 despite being disentitled to any credit for his service in the venture college was given 4 points in the experience segment.

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COMPARISION OF BOTH APPLICANTS

11. One of the essential pre-requisite for appointment of Lecturer is a good

academic record. The following chart, prepared from the Selection Committee

records will demonstrate that the appointee can hardly be categorized as a person,

with good academic record:-

G.C. COLLEGE, SILCHAR, ASSAM CONSOLIDATED STATEMENT OF PARTICULARS OF CANDIDATES : SUBJECT: PERSIAN

Sl. Name of the Academic qualification Teaching Knowledge Interview Grand No. candidates experienc of the sub. marks (Max Total e (Max 5) (Max 15 5 average) HSLC H.S. Degree PG Ph.D Researc Total average) h paper & Article 1 2 3 4 5 6 7 8 9 10 11 12 13 1 Dr. Abdul 5.4 5.8 6.7 6.9+5.0 10 39.7 3 (8+5+5)/3 (8+9+5)/3 56.03 Khalique Laskar (64%) (57%) (66%) (68%) = 6 = 7.33 (with NET) (Writ Petitioner)

2 Dr.Shahin 4.0 4.3 4.1 6.0+5.0 10 1 34.4 4 (14+13+13)/ (12+10+12)/ 63.06 Ahmed (40%) (43%) (41%) (60%) 3 = 3 = Barbhiya 13.33 11.33 (No NET) (Respondent 5)

Sd/- S.K. Roychoudhury Sd/- Dr.Bibhash Das Sd/- Dr. S. Dutta Sd/ - Prof. A.U. Mazumder Sd/- Dr. M. Asif Sd/- Prof. A. Rahman Chairperson Director, CDC, AUS Principal I/C G.C. Subject Expert G.U. Subject Expert Retd. HOD, Persian Selection Committee VC's Nominee College, Silchar VC's Nominee GB's Nominee Subject Expert GB's Nominee

12. The recommended candidate fared poorly in his HSLC examination with 40%

and he could clear this barrier in two attempts, as a compartmental candidate. His

result at the higher secondary and B.A. level too were pathetic, as he secured only

43% and 41%, respectively. Moreover, he was not an honours graduate. The

respondent No.5 failed to clear his MA examination along with the regular batch but

subsequently passed MA with back papers scoring 60% marks, at the MA level.

13. However, in comparison, the petitioner in every segment of those qualifying

examinations, had far better performance and in fact he was not only an honours

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graduate in Parsian but was also the gold medalist with 68% marks of his batch, in the MA examination.

14. The total aggregate score of the recommended candidate was 63.06, as compared to the petitioner’s score of 56.03, as per the evaluation made by the

Selection Committee. But the record shows that the respondent No.5 was given double credit for his Ph.D. degree, firstly, by treating it as an eligibility qualification

(in the absence of the NET/SLET) and 2ndly, by awarding him 10 additional marks for the Ph.D. degree. This could not have been done, as it was clarified by the DHE himself under his circular of 13.12.2011 (Annexure-13), that no mark for the Ph.D. degree will be allotted if the degree is used as the eligibility criteria, in lieu of

NET/SLET qualification.

15. On the teaching experience segment also, the Selection Committee had awarded 4 marks to the recommended candidate but this was not at all justified, as the certificate produced by the respondent on 18.6.2011, shows that the teaching experience related to the period when the A.L. Choudhury College, Algapur was still at a venture stage. It may also be appropriate to mention that the 166 days service, rendered by the respondent No.5 in the Gurucharan College, Silchar will not earn any credit, as the stipulated requirement is completion of one complete year of teaching in Government / deficit college, to score one point, under the experience segment.

16. If the undeserved 10 marks for Ph.D. degree and the 4 marks for the teaching experience is excluded from the aggregate score of the respondent No.5, his tally will be much lower than the petitioner. But unfortunately, the DHE, while considering the recommendation made by the Selection Committee, notwithstanding the categorical direction issued by the High Court in the earlier two cases, filed by

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the petitioner, glaringly ignored the poor academic record of the recommended candidate and overlooked the fact that undeserved 14 marks were granted to the respondent No.5, for the Ph.D. degree and teaching experience.

DISCUSSION

17. This case was admitted on 8.6.2012 but surprisingly, counter affidavit has not been filed by the DHE to either justify the selection or his own speaking order dated 30.5.2012 (Annexure-23). However, the records of the selection and approval have been produced by Mr. B. Kaushik, the learned standing counsel for the

Department of Higher Education. The marks awarded by the Selection Committee for the knowledge of the subject for which maximum 15 marks is available, the respondent No.5 is awarded 13.33 marks, notwithstanding his poor academic results in all relevant examinations. On the other hand, the petitioner was awarded 6 marks under the same head, despite his much better academic career, than the recommended candidate.

18. The Assam College Employees (Provincialisation) Rules, 2010 (hereinafter referred to as ‘the College Rules’), provides for the method of recruitment of

Lecturer (now Assistant Professor). The recruitment process, according to Sub-Rule

(2) of Rule 5 of the College Rules, should start with an advertisement and the G.B. of the college G.B. is to conduct the selection, under Sub-Rule (7) and make recommendation to the DHE, who is the appointing authority. Under the College

Rules, the DHE has to consider the recommendation of the G.B., based on the recommendation of the Selection Committee and then decide on the appointment.

The Selection Committee is required to evaluate the candidates on the basis of the guidelines, governing the appointment of Lecturer, issued by the DHE and also by the UGC.

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19. The candidate recommended by the Selection Committee had extremely poor academic record and did not satisfy the essential eligibility requirement of

NET/SLET. But he claimed eligibility on the basis of his Ph.D. degree, obtained on

20.1.2011. The guideline, issued by the DHE on 13.12.2011, stipulated categorically that when Ph.D. degree is used as the eligibility criteria in the absence of NET/SLET qualification, additional marks cannot be awarded for the Ph.D. degree. But here 10 marks was undeservingly awarded for the Ph.D. degree, to the recommended candidate, although he used the Ph.D. degree to satisfy the eligibility criteria.

20. The double standard in awarding such mark by the Selection Committee can be seen from the fact that the same person while acting as the subject expert, evaluated differently, when selection was made of Assistant Professor of Persian on

12.3.2008, in the M.C. Das College, Sonai. On that occasion, the Ph.D. degree of the candidate Dr. Tazul Hoque Choudhury, when used to meet the eligibility requirement, did not earn additional marks in the selection. In fact, the other selection process reflects that even before the clerificatory guideline was issued on

13.12.2011 by the DHE, the members of the Selection Committees were conscious and had not given double credit for the Ph.D. qualification, when the same is used to satisfy the eligibility norms, in lieu of NET/SLET qualification.

21. But what is glaring here is that despite being the most responsible authority under the College Rules, the DHE abdicated his role and failed to take into account the above deficiencies in the selection and recommendation of Dr. Shahin Ahmed

Barbhuiya (respondent No.5). The specific direction issued by the Court in the

WP(C) No.57/2012 and reiterated in the WP(C) No.2471/2012, to consider whether the selection was in accordance with the guideline and whether marks were allotted in terms of the prescribed parameters, were conspicuously ignored by the DHE and

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a cryptic speaking order was passed, without any discussion on the merit of the selection.

22. The above indicates that the DHE acted irresponsibly and failed to abide by the Court’s direction. No application of mind is seen in the process of approval, since even a cursory examination would have revealed, the unmerited selection of a inferior candidate. This is a clear case of abdication of responsibility by the DHE.

23. For the foregoing discussion, the speaking order passed by the DHE on

30.5.2012, cannot be sustained and the same is thus quashed. The DHE had abjectly failed to discharge his responsibility as the approving/appointing authority on the previous occasions and therefore, the Court expects that similar perfunctory exercise, will not be repeated by the officer.

24. The matter is thus remitted back and the DHE must re-determine whether:

(i) The recommended candidate was entitled to any marks for his Ph.D. degree, as the same was used as an eligibility qualification to overcome the

NET/SLET deficiency;

(ii) The DHE must also examine whether awarding of marks towards teaching experience for Dr. Shahin Ahmed Barbhuiya was justified, when the respondent No.5 served in the A.L. Choudhury College, Algapur, which was provincialised only on 20.1.2014;

(iii) The result of the respondent No.5 in the matriculation, higher secondary and degree examinations should be examined, to specifically decide whether he satisfied the criteria of good academic record;

(iv) As the DHE had described the respondent No.5 to be the 1st Class 1st position holder, in the impugned speaking order dated 30.5.2012, the authority must verify whether the petitioner was the best amongst a batch of 3 failed

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students, who re-appeared in the MA examination or whether he was the 1st Class

1st amongst a regular batch of MA students.

25. Each of those highlighted issues must be addressed pointwise and then fresh decision should be taken by the DHE, on the merit of the appointment of respondent No.5 as a Lecturer, in the Gurucharan College, Silchar. The ordered exercise should be carried out within eight weeks from today and the recommendation and appointment of the private respondent Dr. Shahin Ahmed

Barbhuiya, will be abide by the final decision of the DHE. It is ordered accordingly.

The case is allowed with this direction. No cost.

26. To avoid delay in consideration, a copy of this order be furnished to Mr. B.

Kaushik, the learned standing counsel for the Department of Higher Education, along with the records produced by him.

JUDGE

Barman

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