KISHORE BARMAN Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) Aggrieved by the refusal of the State -respondents to regularize the service of the petitioner against the converted sanctioned post of Lecturer in the Department of Philosophy of Kamrup College ("the college") and against their action to initiate the process for appointing the respondent No. 5 against the same post, he is filing this writ petition for appropriate relief. According to the petitioner, he was appointed as the Lecturer of the college on 25.7.2000 against a non -sanctioned post in the Department of Philosophy, but he has since then been discharging the duties of Lecturer like other Lecturers appointed against the sanctioned posts. He was not selected in the selection process conducted by the Governing Body of the college in the year 2000. The Governing Body thereafter adopted the resolution dated 21.2.2002 to conduct another selection process for all eligible candidates. Fresh advertisement was issued on 1.2.2006. The petitioner applied for the post, appeared in the interview and claimed to have stood first in the selection process. The Governing Body then converted one sanctioned post of Lecturer from the Department of Sanskrit to the Department of Philosophy in terms of the Office Memorandum dated 17.7.2004 in order to adjust the petitioner against the said post, and the proposal was approved by the respondent No. 2. The Governing Body then submitted before the respondent No. 2 the proposal for regularization of the service of the petitioner, but the same was returned by the latter through his letter dated 12.10.2004. The petitioner was not informed about such return though he approached the authorities many times. Much to his surprise, another advertisement for the converted sanctioned post of Lecturer in the Department of Philosophy was issued on 30.4.2008. When he approached the college authorities about this, he was informed that his appointment would be regularized as per his earlier selection and a new post had again been converted into the Department of Philosophy, for which he neither applied for nor made his objection. He was at the same time no longer allowed to take classes after the Puja Vacation of 2008 as the proposal for his adjustment against the post of Lecturer in the Department of Philosophy had been returned by the respondent No. 2. His request to the Principal of the college for supplying him copies pertaining to his service was also turned down. Subsequently, he came to know that the post advertised on 30.4.2008 was none other than the post converted for his adjustment. He has now come to learn that a proposal for the appointment of the respondent No. 5 was submitted to the respondent No. 2 for his approval. Aggrieved by this, he is approaching this Court by this writ petition for quashing the letter dated 15.2.2008 of the respondent No. 2 returning the proposal for approval of his appointment, to restrain the respondent No. 2 from approving the appointment of the respondent No. 5 and quash the selection of the respondent No. 5 for the post of Lecturer in the Department of Philosophy, Kamrup College.

(2.) No affidavit -in -opposition is filed by the State -respondents, but Mr. K. Saikia, the learned standing counsel for Higher Education Department, Government of Assam, defends the impugned decision of the State -respondents by making oral submissions. The respondent No. 5, however, files her affidavit -in -opposition wherein she asserts that the appointment of the petitioner by the Principal of Kamrup College is un -authorised and illegal as the same was done without following the procedure laid down in the Assam Aided College Management Rules, 1976 as well as the Assam Aided College Employees Rules, 1960. Possession of the essential qualification by the petitioner does not entitle him to selection to the post claimed by him inasmuch as his selection is to be done by the Selection Committee on the basis of merit. No advertisement was issued or interview conducted by the Governing Body of the school prior to his appointment as a Lecturer, which is illegal and unauthorised. The State -respondents by the Office Memorandum dated 12.10.2004 prescribe that no College under deficit grants -in -aid shall engage any lecturer against non -sanctioned post and further that filling up of any vacant sanctioned post can be done only with the approval of the competent authority. In the instant case, the Principal of the college without following the guidelines laid down in the said Office Memorandum issued the advertisement on 1.2.2006 for filling up the non -sanctioned post, conducted the interview and appointed the petitioner as lecturer of the college, which is contrary to the said Office memorandum and is, therefore, illegal. According to the answering respondent, the petitioner did not even complete five years of service against regular service inasmuch as his original appointment itself was illegal as there was neither advertisement of the post nor was interview held at that time. The resolution taken by the Governing Body of the College on 11.3.2007 to regularize the service of the petitioner has no validity as no advertisement for the post was issued and no interview held. The answering respondent admits that the post of Sanskrit was converted into Philosophy, but that does not mean that he was entitled to have his service regularised. The respondent authorities have rightly returned the proposal for regularisation of the service of the petitioner as his original appointment on 25.7.2000 was itself wrong. He was also rightly prevented from putting his signature in the attendance register by the College authority as the approval for his appointment was refused by the State -respondents on 15.2.2008. She applied for the instant post after resigning from the post of subject teacher in Logic and Philosophy of Karimganj Government Higher Secondary School and after obtaining no objection certificate from the respondent No. 2.

(3.) The answering respondent also points out that she has a brilliant academic career, passed B A (Philosophy) final examination in First Class in 1999, obtained Master degree in Philosophy in 2001 in the 1st Class, passed B.Ed., examination with Second Class and qualified in the State Level Eligibility Test in 2005. She was duly selected for the post by the Interview Board after the post was duly advertised on 30.4.2008 and was first amongst the candidates appearing in that interview. She was appointed to the post by the Principal -cum -Secretary of the College by the letter dated 16.10.2008 and joined her post on 18.10.2008 It is asserted by the answering respondent that the petitioner stopped attending the college from 7.11.2006; he was appointed against a non -sanctioned post and against the extant Office Memorandum. The Principal of the College by his letter dated 8.12.2006 directed him to reply within 7 days as to whether he would like to attend the class or not. The petitioner sent his reply on 14.12.2006 by stating that he was not interested to be lecturer of the college and had, accordingly, resigned from the said post. As the petitioner did not apply for the post nor did he appear before the Interview Board, he has no locus standi to file this writ petition. These are the principal contentions of the answering respondents in resisting the writ petition.