Prem Chandra Lal (Dr.) vs State of Assam and Others

P.G. Agarwal, J.—Heard Mr. A. Roy, learned Senior Counsel for the Petitioner and Mr. A.K. Fhukan, learned Senior Counsel for the Respondents.

The Petitioner Dr. Prem Chandra Lal joined as lecturer in the Department of Chemistry of Madhab Choudhury College, Barpeta which later on came under deficit system of Grant-in-aid and as such governed by the Assam Aided College Management Rules, 1976, for short ''the Rules". The Petitioner joined the said college in the year 1965 and he became the Head of the Department of Chemistry in 1973. The Respondent No. 7, on the other hand, joined as lecturer in Chemistry in the year 1971 and as such he was jimior to the Petitioner in the seniority list of the teachers of the college. Both the Petitioner and the Respondent No. 7 were selected by the State Selection Board in the panel for Principal in deficit system of Grand-in-aid colleges.

On 17.8.1997, applications were invited for selection and appomtment to the post of Principal of Madhab Choudhury College, Barpeta and the Petitioner, Respondent No. 7 and Ors. offered their candidature. After the selection process, the Respondent No. 7 was recommended for the post at serial No. 1. In this writ petition, the Petitioner has challenged the above selection and also the relevant rules which do not provide any benefit regarding seniority. The competent authority had issued guidelines on 17th June, 1972 laying down the procedure to be followed for selection of candidates for appointment to the post of Principal, lecturer etc. in the Govt, aided colleges under the Deficit-system of grand-in-aid. In the case, the composition of the Selection Committee has not been seriously challenged as the said Selection Committee was constituted as per the Govt, guidelines. The first grievance of the Petitioner is that the Selection Committee had no jurisdiction or power to add or supplement the guidelines and in case any contingency is not provided for in the said guidelines, the Selection Committee was not empowered to-depart from the norms. As per the circular dated 17.6.1992, the markings are to be made as under:

Academic Teaching qualification experience (above 10 years) Administrative Extra Inter- Experience Total Curricular activities Total View

Maxm Maxml0 (l pt in each year Maxm5 (l pt in each year Maxm5 Maxm15 100

Marking for academic qualification:

HSLC HSSLC Degree PG M.Phil PhD Research

lstDivision 10 10 10 10:5 5 10 5

(for Gold Medal)

2nd Divn. or Class 5 - 5 5 7(55-60%)

Distinction 6

- - 5 (50-55%)

3rd Division 3

3 3 3 (45-50%)

The Petitioner had passed HSLG and HSSLC and accordingly as per the division obtained by him, marics were attributed to him. However, in the case of the Respondent No. 7, a peculiar situation arose. At the relevant time a new scheme was introduced on experimental basis whereby after Class-VIII, the students are required to opt for Arts, Science etc. and they are to appear in HSSLC examination after three years that is at Class-XI stage only instead of two examinations, one at Class-X and Anr. at Class-XII. Thus whereas the Petitioner has passed both HSLC and HSSLC, the Respondent No. 7 had appeared only in one examination. The Selection Committee under the circumstances, calculated the mean marks for one examination and added same to their total.

The learned Counsel for the Petitioner has in his usual fair manner submitted that no fault can be found with the Respondent No. 7 for not appearing in two examinations. As per the relevant requirement at the material time, he was to appear only in one examination. However, the guidelines do not provide for any such contingency and as such the Selection Committee had no authority to add the mean marks to the total of the Respondent No. 7. The guidelines are made to make just and proper assessment and not to affect a candidate adversely. If no marks were added in the case of the Respondent No. 7, he would have been affected adversely. One way was to find out the mean marks and add to the total of Respondent No. 7, which in my opinion was just and proper method to fill up the gap or lacuna in the guidelines. The learned Counsel has relied upon the decision of the Apex Court in the case of Dr. Krushna Chandra Sahu and others Vs. State of Orissa and others, wherein it was held that the selection criteria cannot be laid by the Selection Board or Selection Committee unless specifically authorised. In the case of Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, the Apex Court held that the decision of the Selection Committee can be interfered with only on limited grounds, namely, that there was illegality or material irregularity in the constitution of the Committee or in its procedure deciding the selection or proved malafide affecting the selection etc. As stated above, in the present case there is no dispute regarding the constitution of the Selection Committee and no malafide on the part of the Selection Committee has been alleged. The only submission is that the Selection Committee had no inherent jurisdiction to lay down different norms that is adding of marks obtained due to process of mean numbers as Government did not issue any administrative instruction or deligate any power to them to do so. Where rules are silent on any subject or point in issue, the omission can be supplied by executive instructions only and not otherwise. On perusal of Annexure-8(A), it is seen these are not the rules framed by the State Government, but merely guidelines for procedure to be followed for selection of candidates for appointment of Principal/ Lecturer etc. in deficit colleges. Thus they have no force of statutory rules and mere guidelines only.

In the case of J.R. Raghupathy and Others Vs. State of A.P. and Others, the Apex Court held that no mandamus should be issued to enforce the guidelines which are nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ Petitioner. At this stage, it will be interesting to note that the Petitioner on the one hand has challenged the selection for non-compliance of the 1992 circular whereby mean marks for Class- examination was added in favour of the Respondent, but on the other hand, the Petitioner has also pleaded that the 1992 circular should have been modified in view of the 1995 instructions whereby departmental experience was raised from 10 years to 18 years. Under the 1992 circular 10 marks were provided for experience on completion of 10 years of service that is one mark for each year of service after 10 years, but the requirement of experience later on increased to 18 years without any corresponding change in the guidelines and as such it is submitted that the guidelines gone counter to the 1995 amendment. It is seen that no such plea was raised in the writ petition and as such tiie matter needs no consideration. The learned Counsel for the Respondents has fiirther submitted that as the Petitioner had participated in the selection process knowing that 1992 circular will be considered and followed, he now cannot challenge the said process in view of the decision of the Apex Court in the case of Madan Lal.

As regards the comperative merit of the two candidates, it is seen that the Selection Committee interviewed eight candidates and'' as per the guidelines gave marks and it is seen that the Respondent Shri Kiran Chandra Bayan obtained 524 marks and he was placed at serial No. 1 whereas the Petitioner Dr. Prem Chandra Lai obtained 417 marks only and placed at serial No. 2. Hence even if the eight marks given on the basis of mean marks are deducted, the Respondent remains at serial No. 1.

On perusal of the materials made available before me, it is seen that the selection was fair enough and the Respondent was placed at serial No. 1 on the basis of his merit and achievement. The basic justice has been done and this is not a case where the Petitioner was deprived of his right due to any arbitrary action on the part of the Selection Committee or other competent authority. I, therefore, find no merit in this writ petition and accordingly, the writ petition is dismissed.