UTPAL CHOUDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) Can a candidate, who in a competitive examination or interview held by an educational institute to select a member of teaching staff, stands lower, in order, in the merit list, be arbitrarily refused to be given appointment if the person or persons, whose name figured higher in the merit list, decline to accept offer of Appointment? Can the principles of "approbate or reprobate" be applied against statutory rights or constitutional remedies? What is the period of validity of a select list prepared in respect of the posts of lecturer of Govt. aided Colleges in Assam and at what point of time, validity of such a list commences? These are some significant questions, which the present writ petition has raised.

(2.) The case of the petitioner may, in brief, be stated as follows - The petitioner is an educated unemployed youth. He passed HSLC examination in the year 1990 and was placed under first division, He passed the HSSLC examination in science stream in the year 1992 and was placed under second division. He passed B.Sc. examination with major in Botany from Gauhati University by obtaining 1 st class and was placed first in the order of merit. Thereeafter, the petitioner obtained his M.Sc. degree in Botany from Gauhati University in 1997-98 and was placed in 1 st class. The petitioner, being from Kuch Rajbongshi community, belongs to the category of Other Backward Class. By the office order, dated 02.11.98 (Annexure 4 to the writ petition) issued by the Principal, B. Baruah College, Guwahati, the petitioner was appointed as a tutor in the department of Botany on an allowance of Rs. 200/- PM and, for the purpose of gaining experience, the petitioner accepted the appointment and joined the College as tutor. By a subsequent order, dated 05.04.99 (Annexure 5 to the writ petition) issued by the Principal of the College, the appointment of the petitioner as tutor was terminated. The governing body of the College issued an advertisement, dated 19.03.99 (Annexure 6 to the writ petition) inviting applications from the candidates having UGC norms for the post of whole- tima lecturer in B. Baruah College. One of the posts so advertised was the post of lecturer in the department of Botany with special paper in Cytogenetics, In the advertisement so published, it was assured that due consideration will be given to SC/ ST/OBC candidates as per roster system. The petitioner applied for the said post of lecturer in the department of Botany and in course of time, appeared for interview before the Selection Committee held on 31.05.99. The Selection Committee, having interviewed, out of 20,16 candidates, prepared a panel (Annexure 7 to the writ petition) of selected candidates, in the following order, namely, (i) Sri Someswar Rao, (ii) Sri Utpal Choudhury (i.e., the petitioner) and (iii) Smt. Neelanjana Baruah. Subsequently, as per suggestion of the Special Body, the Selection Committee checked the application of the candidates for evaluating their teaching experience inasmuch as the same had not been considered earlier, while selecting the candidates. As per the revised list so prepared, the inter se merit performance of the three candidates remained the same. The petitioner, being an OBC candidate, deserved to be given preference as per the roster system as had been promised by the advertisement aforementioned. This apart, since the petitioner, as per the advertisement, had a special paper of Cytogenetics in his master degree, the petitioner deserved to be appointed on merit. As per his performance, the petitioner ought to have been placed at S1 No. 1 in the merit list. Be that as it may, the Special Body of the College, vide its resolution No.1, adopted, on 21.08.99, resolved to offer the appointment to Sri Someswar Rao aforementioned against the vacancy caused by the death of Sumit Rao Kakati. The resolution was accordingly sent to the respondent No.2, namely, Director of Higher Education: Assam, seeking his approval. While sending the resolution, dated 08.10.99 (Annexure 8 to the writ petition), it was clearly mentioned that the panel of the three candidates aforementioned, namely, (i) Sri Someswar Rao, (ii) Sri Utpal Choudhury (the petitioner) and (iii) Srimati Neelanjana Baruah stood approved by Special Body in its meeting held on 21.08.99. The merit list, which included the three candidates aforementioned, was provisionally approved by the Respondent No.2 vide his letter contained in Memo, dated 02.08.2000 (Annexure 8 to the writ petition). On the basis of the provisional approval so received, the respondent No. 4, namely, Principal, B. Baruah College vide office order, dated 07.08.2000 (Annexure 9 to the writ petition) appointed Sri Someswar Rao as full-time lecturer in the Botany department of the College directing him to join the post within 15 days from the date of receipt of the appointment letter. Sri Rao aforementioned, however, did not join. On his declining to accept the offer, the offer of appointment ought to have been made to the petitioner inasmuch as he had been placed at Serial No. 2 of the merit list. However, the Special Body in its meeting held, on 29.09.2000, resolved to readvertise the said post of lecturer of Botany and nullify thereby the merit list aforementioned. Thus, the Special Body acted arbitrarily, unreasonably, illegally and with some other motive and it decided to readvertise the post despite the fact that the list had remained valid, notwithstanding the pretext of the College authorities that the validity of the list stood expired by efflux of time.

(3.) With the help of the present application made under Article 226 of the Constitution of India, the petitioner has approached this Court seeking issuance of appropriate writ(s) setting aside and quashing, the impugned resolution, dated 29.09.2000, aforementioned, whereby the Special Body decided to readvertise the post of lecturer of Botany in B. Baruah College nullifying and canceling the merit list, which stood approved not only by the Special Body, but also by the Director of Higher Education, and commanding the respondents to make offer of appointment to the petitioner as lecturer in Botany in B. Baruah College.