Ujjal Bhuyan, J.@mdashAll the three cases being inter-related were heard together and are being disposed of by this common judgment and order. Matter relates to selection and appointment to the post of Principal of a College called Jorhat Kendriya Mahavidyalaya, which was earlier under the deficit system of grants-in-aid but subsequently provincialised.
2. In the writ petition as well as in the two writ appeals, the petitioner/appellant is Dr. Ajit Kumar Baruah (hereinafter referred to as the appellant for the sake of convenience). He is presently serving as Assistant Professor Stage II (Senior Grade) in the Department of History in the Jorhat Kendriya Mahavidyalaya, having joined regular service on 11.01.1996. He is also functioning as in-charge Principal of the said Jorhat Kendriya Mahavidyalaya.
3. Writ Petition (C) No. 6288/2011 has been filed by the petitioner Dr. Ajit Kumar Baruah questioning the constitutional validity of Rule 8 of the Assam College Employees (Provincialisation) Rules, 2010 in so far it adopts Rule 7(iia) of the Assam Education Service Rules, 1982, as amended by the Assam Education Service (Amendment) Rules, 2009, fixing the maximum age limit for filling up the post of Principal in provincialised colleges of Assam at 50 years. Consequential challenge has also been made to the advertisement issued by the Governing Body of Jorhat Kendriya Mahavidyalaya (College hereafter) which was published in the newspaper on 30.11.2011 inviting applications from eligible candidates for the post of Principal of the College whereby the upper age limit for the said post was fixed at 50 years. Petitioner further seeks a direction to the respondents to consider his selection for the said post as per qualifications prescribed in the University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000 in terms of which he is eligible.
4. Writ Appeal No. 40/2014 has been filed by the appellant Dr. Ajit Kumar Baruah against the order dated 27.01.2014 passed by the learned Single Judge in WP(C) No. 6432/2013. The said writ petition was filed by respondent Nos. 4 and 5 as the petitioners seeking a direction to the Governing Body of the College to initiate selection process for filling up the vacant post of Principal of the College on regular basis. Learned Single Judge by the order dated 27.01.2014 took note of the submission made at the bar that during the pendency of the writ petition an advertisement had been issued on 20.01.2014 by the Governing Body of the College inviting applications for the said post and disposed of the writ petition by directing the respondents to finalize the selection process as early as possible.
5. Writ Appeal No. 41/2014 has been filed by the appellant Dr. Ajit Kumar Baruah against the order dated 31.01.2014 passed by the learned Single Judge in WP(C) No. 454/2014 filed by the appellant as the petitioner. The said writ petition was filed by the appellant challenging the legality and validity of the advertisement dated 20.01.2014 issued by the Governing Body of the College for the post of Principal. The said challenge was made primarily on the ground that the selection was being conducted as per the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (UGC Regulations, 2010 hereinafter) which was issued in super-session of the Universities Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000 (UGC Regulations, 2000 hereinafter) though the vacancy was notified in the year 2007 and the selection process was initiated in the year 2007 itself when the UGC Regulations, 2000 was holding the field.
6. To appreciate the controversy in question as highlighted in the writ petition and in the writ appeals, it would be essential to briefly narrate the background facts.
BACKGROUND FACTS
7. The post of Principal of the College fell vacant on 11.01.1996. For various reasons, the said vacancy could not be filled up, which reasons it may not be necessary to be gone into at this stage. Ultimately, the State Selection Board, Assam issued an advertisement dated 02.03.2003 for selection of candidates for the posts of Principal in deficit grants-in-aid Colleges in Assam but without specifying the number of posts. Following a selection held, a selection list was published on 22.02.2004. The validity of the said selection list was put to challenge in a writ petition filed before this Court by one Dr. Maniram Kalita which was however dismissed by a Single Bench of this Court with the direction that the selection list would remain operative for a further period of 4 (four) months
8. In terms of the aforesaid judgment, State Selection Board, Assam issued an advertisement which was published in the newspaper on 07.07.2007 inviting applications for selection of candidates for appointment as Principal of provincialised Colleges of Assam. [The Assam College Employees (Provincialisation) Act, 2005 came into force in the meanwhile w.e.f. 01.12.2005 provincialising a number of colleges which were in receipt of deficit grants-in-aid including the College in question]. The vacancy position in the post of Principal of provincialised Colleges was shown as on 01.01.2007. The College i.e. Jorhat Kendriya Mahavidyalaya was also included in the list of Colleges at Sl. No. 25 covered by the said advertisement. The maximum age limit prescribed was 55 years of age as on 01.01.2007. The required qualifications and experience stipulated in the said advertisement were as under:-
(1) Master''s degree having 55% marks or its equivalent grade;
(2) Ph.D or equivalent qualification (Unanimously declared equivalent to Ph.D by a three member expert Committee duly approved by BOG/Senate/Syndicate/Academic Council of the affiliating University);
(3) Ten years teaching experience/Research in University/Colleges and other Institutions of higher education."
Though a corrigendum was issued subsequently by the State Selection Board partially modifying the requisite qualification, experience etc., the same did not materially affect in so far qualification and experience of the appellant is concerned. The qualifications and experience stipulated in the said advertisement was in terms of the UGC Regulations, 2000.
9. Appellant had applied for the post of Principal of the College pursuant to the said advertisement and he received call letter dated 07.05.2008 issued by the Member Secretary, State Selection Board to appear in the interview for selection of candidates for the post of Principal in provincialised Colleges of Assam.
10. An Office Memorandum dated 24.02.2009 was issued by the Principal Secretary to the Government of Assam, Education (Higher) Department declaring that in view of the coming into force of the Assam Fiscal Responsibility and Budget Management Act, 2005, Rule 10(1) of the Assam Education Department Selection Rules, 1981 would stand amended. Earlier it provided for preparation of a selection list numbering at least three times the existing vacancies i.e., by maintaining the ratio of 1:3, which after the office memorandum would be equal to the number of vacancies notified in the advertisement i.e., in the ratio of 1:1.
11. State Selection Board thereafter conducted the interview and published a selection list dated 13.07.2009 of 51 candidates. The said selection list was challenged by the appellant and others before this Court (Writ Appeal No. 227/2009). The primary ground of challenge was restricting the selection list to candidates equal to the number of notified vacancies and not three times the number of notified vacancies as was the case earlier and as per direction of this Court in the judgment rendered in Dr. Maniram Kalita. Since the vacancies were 51 in number, the selection list should have contained 153 candidates in the ratio of 1:3, it was contended. By restricting the selection list to 51, a large number of eligible candidates were excluded from consideration.
12. A Division Bench of this Court by the judgment and order dated 23.09.2011 quashed the selection list dated 13.07.2009 and directed the respondents to hold fresh selection as per law as expeditiously as possible. It was further directed that till a regular selection was made and Principals appointed on that basis, status-quo as on the date of judgment in respect of holding of the post of Principal in the respective Colleges should be maintained. While passing the said judgment, this Court held that the Education Department could not have deviated from the ratio of 1:3 by treating the empanelled list to be the list of selected candidates, thereby eliminating other eligible candidates who would have come within the zone of empanelled candidates i.e. 153 by applying the 1:3 ratio.
13. Since the appellant was officiating as in-charge Principal of the College, he continued as such in terms of the aforesaid direction of the Division Bench.
14. Governing Body of the College published an advertisement in the newspaper on 30.11.2011 inviting applications for the post of Principal of the College. The qualifications prescribed as per the said advertisement were as under:-
"(a) Master Degree with at least 55% marks (or an equivalent grade in a point scale whenever grading system is followed) from a recognized university. Relaxation of 5% to the Ph.D holders who obtained master degree prior to September 1991,
(b) A Ph.D degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance,
(c) Associate Professor/Professor with at least 13 years teaching experience in the college/university,
(d) a minimum score in the Academic Performance Indicator,
(e) The Upper age limit is 50 years as prescribed in Rules."
15. According to the appellant, the qualifications prescribed were as per UGC Regulations, 2010 and not as per UGC Regulations, 2000 which made him ineligible. Fixation of the upper age limit at 50 years also made him ineligible. Aggrieved by the aforesaid, appellant has challenged the said advertisement by filing a writ petition before this Court which has been registered and numbered as WP(C) No. 6288/2011, which has already been noticed at the very outset.
16. During the pendency of the above writ petition, a writ petition was filed by two College lecturers before this Court seeking a direction to the respondents, more particularly the Governing Body of the College, to initiate selection process for filling up the post of Principal of the College. The said writ petition was registered and numbered as WP(C) No. 6432/2013 (Dr. Sumbit Chaliha & Anr. vs. State of Assam & Ors.). During the hearing of the said case, it was brought to the notice of the Court that an advertisement had been issued on 20.01.2014 by the Governing Body of the College inviting applications for the said post. A Single Bench of this Court taking note of the aforesaid development, disposed of the said writ petition vide order dated 27.01.2014 by directing the respondents to finalize the selection process as early as possible. It is against this order that the appellant has filed Writ Appeal No. 40/2014, which is being disposed of by this common judgment.
17. On the other hand, aggrieved by issuance of the aforesaid advertisement dated 20.01.2014 in which the qualifications prescribed were as per the UGC Regulations, 2010 and making various grievances, appellant filed a writ petition before this Court, being WP(C) No. 454/2014, challenging the legality and validity of the aforesaid advertisement. A Single Bench of this Court vide the order dated 31.01.2014 disposed of the said writ petition by directing the respondents to continue with the selection process. Aggrieved, appellant has filed Writ Appeal No. 41/2014 challenging the legality and correctness of the aforesaid order.
Grievance of the Appellant
18. Having briefly noticed the background facts, we may now summarize the grievance of the appellant which has found manifestation in the writ petition and in the two writ appeals, all filed by the appellant. Appellant is an aspirant for the post of Principal of the College. The vacancy as on 01.01.2007 was advertised on 07.10.2007. The qualifications prescribed were as per the UGC Regulations, 2000. The selection was finalized by publication of a selection list dated 13.07.2009. The selection process was however interfered with by a Division Bench of this Court vide judgment dated 23.09.2011 passed in Writ Appeal No. 227/2009 by quashing the selection list and directing fresh selection. In the advertisement issued thereafter in the year 2011 (30.11.2011) by the Governing Body of the College, the upper age limit was fixed at 50 years and the qualifications prescribed were as per UGC Regulations, 2010 which had meanwhile come into force in supersession of the UGC Regulations, 2000. However, it appears that no selection was held pursuant to the said advertisement The said eligibility requirements barring the age prescription have been retained in the impugned advertisement dated 20.01.2014. Grievance of the appellant is therefore two fold - firstly, fixation of upper age limit for recruitment at 50 years, and secondly, by making the qualifications prescribed in the UGC Regulations, 2010 and not those prescribed in the UGC Regulations, 2000 applicable to the selection. On both counts, appellant would become ineligible for selection.
Relevant Legal Provisions
19. Government of Assam had framed a set of Executive Rules called the Assam Education Department Selection Rules, 1981 to regulate the method of selection of Principals and teachers of aided Colleges of Assam. The said Rules have undergone amendment from time to time. As per Rule 2(iii), Board has been defined to mean Selection Board. As per Rule 2(iv), appointing authority has been defined to mean Governing Body in respect of vacancies of posts of Lecturers and Principals of aided Colleges, which in turn has been defined to mean a College which is in receipt of deficit grants-in-aid from the State Government. Rule 3 provides for constitution of a Selection Board for selection of Lecturers and Principals of aided Colleges. The Rules provide that at the commencement of an academic year, the Director of Higher Education after ascertaining the number of existing and probable vacancies for the posts of Lecturer and Principal, will notify the vacancies to the State Selection Board specifying the required qualification, experience, age etc. The State Selection Board shall thereafter advertise the vacancies in the manner prescribed in Rule 7. Normally, the State Selection Board holds interview of the candidates for the purpose of selection but there is no bar in holding written test, if it is considered necessary. Rule 10 provides for publication of selection list. The State Selection Board shall prepare selection list for Lecturer and Principal subject-wise numbering atleast three times the number of existing vacancies i.e. in the ratio of 1:3. The selection list so prepared shall be forwarded to the Government for approval. After approval is granted, the same is required to be forwarded to the Governing Bodies of the aided Colleges. The selection list so prepared shall remain valid for one year which may be extended for a further period not exceeding one year.
20. Government of Assam has also framed a set of Executive Rules called the Assam Non-Government College Management Rules, 2001 as amended, making it applicable to provincialised Colleges and Non-Government Colleges in the State of Assam in receipt of deficit grants-in-aid or ad hoc grants-in-aid from the State Government. The said Rules basically relates to management of aforesaid category of Colleges through the Governing Body. Rule 18 of the said Rules deals with duties of the Governing Body. As per Rule 18(iv), it would be one of the duties of the Governing Body to appoint persons in connection with the affairs of the College against the post or posts so sanctioned by the State Government with scrupulous compliance of the University Grants Commission (UGC) guidelines and the State Government instructions and policies.
21. State of Assam has enacted the Assam College Employees (Provincialisation) Act, 2005, which had come into force w.e.f. 01.12.2005. The said Act has been enacted to provide for provincialisation of the services of the employees of Non-Government Colleges in the State of Assam which are in receipt of deficit grants-in-aid. Those Colleges which are provincialised in terms of the Assam College Employees (Provincialisation) Act, 2005 would be known as provincialised Colleges as distinct from Government Colleges. Section 6 of the Act provides for selection and appointment of employees. It provides that appointments to both teaching and non-teaching posts in the Colleges shall be made by the Director of Higher Education, Assam on the basis of selection and recommendation of the Governing Body of the respective Colleges constituted as per the provisions of the Assam Non-Government College Management Rules, 2001, in accordance with the rules and procedures of the Government in force. Section 12 is the rule making provision.
22. After considerable delay, the Assam College Employees (Provincialisation) Rules, 2010 has been made in exercise of powers conferred under Sub-section (1) of Section 12 of the Assam College Employees (Provincialisation) Act, 2005. Rule 2(d) defines Board to mean the State Selection Board. Rule 5 provides for method of recruitment. As per Rule 5(1), appointment to the post of Principal shall be by direct selection. For this purpose, the Governing Body shall constitute a Selection Committee which shall select a person on the basis of an interview from amongst eligible candidates who apply in response to an open advertisement in newspapers. The Governing Body shall recommend the selected candidates to the Director of Higher Education, who shall issue orders of appointment. As per Rule 8, the minimum and maximum age limit, academic qualification etc. for direct recruitment shall be the same as in Government Colleges in the corresponding grades.
23. The Assam Education Service Rules, 1982 has been framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India The objective of the aforesaid Rules is to regulate the recruitment and conditions of service of persons appointed to the Assam Education Service, which includes Principal of Government Degree Colleges. As per Rule 7(iia), the maximum age limit for direct recruitment to the post of Principal, Government Degree College was fixed at 50 years.
24. Thus in terms of Rule 8 of the Assam College Employees (Provincialisation) Rules, 2010 read with Rule 7(iia) of the Assam Education Service Rules, 1982, the maximum upper age limit fixed for recruitment to the post of Principal of a provincialized College was 50 years.
25. The University Grants Commission (UGC) Act, 1956 is a central legislation making provision for coordination and determination of standards in Universities, Colleges and institutions of higher education and for that purpose to establish a body by the name of UGC. Section 26 of the Act empowers the UGC to make regulations, amongst others, to define the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the Universities, Colleges and institutions of higher education as well as regulating the maintenance of standards and the coordination of work or facilities in such Universities, Colleges and institutions.
26. In exercise of the aforesaid powers, the UGC framed the University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000 (already referred to as UGC Regulations, 2000). Minimum qualifications required for the post of Principal as per the UGC Regulations, 2000 were as under:-
"1.1.0 Principal (Professor''s Grade)
1.A Master''s Degree with at least 55% of the marks or its equivalent grade of B in the 7 point scale with latter grades O, A, B, C, D, E and F.
2. Ph.D or equivalent published work.
3. Total experience of 15 years of teaching/research in Universities/colleges and other institutions of higher education.
1.2.0 Principal Reader''s Grade)
1.A Master''s Degree with at least 55% of the marks or its equivalent grade of B in the 7 point scale with latter grades O, A, B, C, D, E and F.
2 Ph.D or equivalent published work.
3. Total experience of 10 years of teaching/research in Universities/colleges and other institutions of higher education".
27. The UGC Regulations, 2000 were superceded by the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (already referred to as UGC Regulations, 2010). As per UGC Regulations, 2010, the following are the qualifications required for the post of College Principal:-
"i. A Master''s Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University.
ii. A Ph.D Degree in concerned/allied/relevant discipline(s) in the institution
concerned with evidence of published work and research guidance.
iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education.
iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges."
Thus, as can be seen from the above, there is substantial difference in the qualifications prescribed for the post of Principal in the UGC Regulations, 2000 and in the UGC
Regulations, 2010.
Intervening Developments
28. During the hearing, it was brought to the notice of the Court that in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Assam Education Service (Amendment) Rules, 2013 has been framed to amend the Assam Education Service Rules, 1982. The amendment was notified vide the notification dated 26.12.2013 issued by the Commissioner and Secretary to the Government of Assam, Higher Education Department. By the amendment rules, Rule 7(iia) of the Assam Education Service Rules, 1982 has been amended by substituting the maximum age limit of 50 years for recruitment to the post of Principal, Government Degree Colleges by 55 years. In other words, the maximum upper age limit for appointment to the post of Principal, Government Degree Colleges has now become 55 years. As a corollary to this, the upper age limit for appointment to the post of Principal of provincialised Colleges also became 55 years by virtue of the provisions contained in Rule 8 of the Assam College Employees (Provincialisation) Rules, 2010 as already noticed supra. As a matter of fact, in the impugned advertisement dated 20.01.2014 issued by the Governing Body of the College, the upper age limit prescribed for appointment to the post of Principal of the College has been fixed at 55 years as on 01.01.2014 as per "recent cabinet decision".
29. Thus in view of above, the grievance of the appellant regarding fixation of 50 years as the upper age limit for appointment to the post of Principal no longer survives as it has now been raised to 55 years.
30. Appellant had also filed an additional affidavit on 24.02.2014 in Writ Appeal No. 40/2014 to place on record the report of the Screening Committee dated 25.01.2014 constituted by the College for the purpose of placement of the appellant in the grade of Associate Professor. Departmental Promotion Committee (Screening Committee) considered the case of the appellant and found that the appellant, presently serving in the grade of Assistant Professor Stage-II (Senior Scale) in the Department of History of the College and also holding charge of the office of the Principal, fulfills the required norms for placement in the grade Assistant Professor Stage-III (Selection Grade) w.e.f. 11.01.2007. The Screening Committee therefore recommended upgradation of the appellant to the grade Assistant Professor Stage-III (Selection Grade) w.e.f. 11.01.2007. The Committee further recommended placement of the appellant in the grade Associate Professor w.e.f. 10.01.2010 as he also fulfills the eligibility requirement for such placement. It is therefore contended on behalf of the appellant that only the formal consequential notification has to be issued now placing the appellant in the Selection Grade of Assistant Professor w.e.f. 11.07.2007 and Associate Professor w.e.f. 11.01.2010, which will make the appellant eligible for the post of Principal even as per the qualifications prescribed in the UGC Regulations, 2010, which are the qualifications prescribed in the impugned advertisement dated 20.01.2014.
Submissions
31. Heard Mr. Parthiv Goswami, learned Counsel for the appellant and Mr. D. Saikia, learned Additional Advocate General, Assam for the respondents. Also heard Ms. D. Borgohain, learned Counsel for respondent Nos. 4 and 5 in Writ Appeal No. 40/2014.
32. Learned Counsel for the appellant first submits that the impugned advertisement is not in accordance with the Division Bench judgment of this Court dated 23.09.2011 passed in Writ Appeal No. 227/2009 filed by the appellant and two others. He submits that a reading of the said judgment would make it abundantly clear that the direction of the Division Bench was to hold a fresh selection for appointment of regular Principal of the Colleges. This Court had clearly directed publication of an empanelled list containing the names of eligible candidates three times the number of notified vacancies i.e. by applying the ratio of 1:3. It is on the basis of such empanelled list as distinct from select list that the Governing Bodies of the respective Colleges are to hold the selection limiting the eligible candidates to those who are included in the empanelled list. By holding direct selection through the advertisement dated 20.01.2014 without publication of the empanelled list in the first instance is in clear violation of the direction of the Division Bench, he submits.
33. Mr. Goswami also argued that the post of Principal of the College was shown vacant as on 01.01.2007 which was covered by the advertisement published by the State Selection Board on 07.10.2007 in terms of the earlier Division Bench judgment dated 15.02.2007 passed in Writ Appeal No. 261/2006 (Dr. Maniram Kalita vs. State of Assam & Ors.). Therefore, the rules and procedures governing appointment to the post of Principal would be those which were in force when the vacancy was notified, on the basis of which a selection process was conducted, though subsequently interfered with by this Court. The present selection is an ongoing process which commenced on the issuance of the advertisement on 07.10.2007. Therefore, learned Counsel for the appellant submits that the UGC Regulations, 2000 which were then holding the field would govern the selection.
34. Lastly and without prejudice to the aforesaid submissions, Mr. Goswami advanced an alternative argument by referring to the additional affidavit filed by the appellant on 24.02.2014 in Writ Appeal No. 40/2014 to contend that even as per the impugned advertisement which is based on the UGC Regulations, 2010, appellant would be eligible to appear in the selection and therefore, a direction may be issued to the respondents to consider his case by treating him as an eligible candidate. In support of these submissions, Mr. Goswami has placed reliance on a number of decisions.
35. On the other hand, Mr. Saikia, learned Additional Advocate General, Assam appearing for the respondents submits that there is no infirmity in the issuance of the impugned advertisement dated 20.01.2014 by the Governing Body of the College. The procedure adopted is in conformity with the Assam College Employees (Provincialisation) Act, 2005 and the Assam College Employees (Provincialisation) Rules, 2010, which are now holding the field. Selection will have to be made by the Governing Body and on the basis of such selection, Director of Higher Education, Assam shall make the appointment. He further submits that the qualifications and experience prescribed in the impugned advertisement conform to the requirement of UGC Regulations, 2010 which has come into force superseding the UGC Regulations, 2000. Mr. Saikia vehemently argued that all Universities, Colleges and Institutions of Higher Education are bound to comply with the standards prescribed by the UGC and there can be no deviation from the qualifications and experience prescribed by the UGC. Referring to the Division Bench judgment of this Court dated 23.09.2011, he submits that the direction was to hold fresh selection in accordance with law. Therefore, the advertisement issued on 20.01.2014 cannot be termed as continuation of the earlier selection. In the above background, Mr. Saikia submits that the respondents are entitled to conduct the selection and to make the recruitment on the basis of the UGC Regulations, 2010, which prescribes certain additional qualifications which were not there in the UGC Regulations, 2000 for improving the standard of higher education. In support of his submissions, Mr. Saikia has placed reliance on the following decisions.
(1)
(2)
(3)
36. Ms. Borgohain, learned counsel for respondent Nos. 4 and 5 in Writ Appeal No. 40/2014 submits that the College is without a regular Principal for a long time and therefore selection should be held without any delay so that a regular Principal can be appointed at the earliest.
Point for consideration
37. Having heard learned Counsel for the parties and upon perusal of the materials on record and after considering the relevant legal provisions, question which arises for consideration is whether the advertisement dated 20.01.2014 issued by the Governing Body of the College is in conformity with the judgment of this Court dated 23.09.2011 passed in Writ Appeal No. 227/2009? Further question which arises is whether the UGC Regulations, 2000 or the UGC Regulations, 2010 would govern the selection in question in so far qualifications and experience are concerned?
Discussion
38. From the above narration, we have two sets of Colleges with which we are concerned in the present litigation-Colleges which are under the deficit system of grants-in-aid (commonly known as deficit or aided Colleges) and provincialised Colleges. In so far the College in question is concerned, it was earlier under the deficit system, meaning thereby it used to receive deficit grants-in-aid from the State Government. After coming into force of the Assam College Employees (Provincialisation) Act, 2005, the College has been provincialised.
39. As already mentioned above, in this litigation we are concerned with the selection and appointment of Principal of the College which was earlier under the deficit system but subsequently provincialised w.e.f. 01.12.2005.
40. In so far selection and appointment of Principal in deficit Colleges is concerned, the position has crystallized having been made clear by the two Division Bench judgments of this Court, one dated 15.02.2007 passed in Writ Appeal No. 261/2006 (Dr. Maniram Kalita vs. State of Assam & Ors.) and the other dated 23.09.2011 passed in Writ Appeal No. 227/2009 (Dr. Ajit Kumar Baruah & Ors. vs. State of Assam & Ors.), which has since been reported in (2013) 1 GLR 345 and a number of other decisions of this Court referred to in the later judgment. In respect of deficit Colleges, it is the provisions of the Assam Education Department Selection Rules, 1981 and Assam Non-Government College Management Rules, 2001, both non-statutory Rules, which will govern the selection and appointment of Principals. A State Selection Board is constituted which will hold selection for preparation of an empanelled list of eligible candidates three times the number of notified vacancies i.e. in the ratio of 1:3. The vacancies will be notified by the Director of Higher Education, Assam. The empanelled list is forwarded to the Government for approval. Once approval is granted, it remains valid for one year which may be extended for a further period not exceeding one year. This is not a select list but an empanelled list. Based on the empanelled list, the respective Governing Bodies of the deficit Colleges shall make the selection. To be eligible for selection before the Governing Body, one must be an empanelled candidate whose name must find place in the valid empanelled list. Once the selection is made, the proposal for appointment is sent by the Governing Body to the Director of Higher Education and only on obtaining approval of the Director, appointment is made.
41. When in the earlier round of litigation, the State curtailed the empanelled list by reducing the number of empanelled candidates from three times the number of vacancies to equal to the number of vacancies i.e. from the ratio of 1:3 to the ratio of 1:1 by placing reliance on the provisions of the Fiscal Responsibility and Budget Management Act, 2005, which mandates restricting the select list to equal the number of vacancies, this Court in the judgment dated 23.09.2011 in Writ Appeal No. 227/2009 clearly disapproved the same, firstly, by holding that it was not a select list as such but an empanelled list. No selection can be made directly on the basis of such empanelled list. Secondly, being an empanelled list, this Court held that the authority could not have restricted the right of eligible candidates to consideration for empanelment and from eventual selection, thus eliminating eligible candidates who otherwise would have come within the zone of empanelled candidates.
42. The coming into force of the Assam College Employees (Provincialisation) Act, 2005, in our view, has not fundamentally altered the situation in so far selection and appointment of Principal in provincialised Colleges is concerned. As already noticed above, Section 6 of the Act deals with the selection and appointment to teaching and non-teaching posts in the provincialised Colleges. Section 6, which is relevant for the present lis, reads as under:-
"6. Selection and appointment of employees-Appointments of both teaching and non-teaching posts in the Colleges shall be made by the Director of Higher Education, Assam on the basis of selection and recommendation of the Governing Body of the respective College in accordance with the Rules and Procedure of the Government in force:
Provided that some of the powers of the Appointing Authority may, however, be delegated to the Governing Body of the colleges as may be provided in the rules."
43. A reading of Section 6 makes the position clear that appointments to teaching posts in the provincialised Colleges, which includes Principal, shall be made by the Director of Higher Education, Assam on the basis of selection and recommendation of the Governing Body of the respective Colleges in accordance with the rules and procedure of the Government in force. The rules and procedure of the Government in force would include the selection procedure contemplated by the Assam Education Department Selection Rules, 1981 and the Assam Non-Government College Management Rules, 2001. This position has been statutorily recognized as noticed above and has been made clear by the Division Bench judgment of this Court dated 23.09.2011 passed in Writ Appeal No. 227/2009. The relevant portion of the aforesaid Division Bench judgment reads as under:-
"48. From the above discussion what had transpired is that although the selection was conducted pursuant to the aforesaid judgment and order dated 15.02.2007 passed in WA No. 261/2006, but while conducting the same there was deviation not only from the directions contained therein but also from the guidelines framed under Section 6 of 2005 Act. When all along it has been the practice and procedure of empanelling the eligible candidates by the State Selection Board for the purpose of making selection by the respective colleges from the said empanelled list, the authority in the Education Department could not have made a deviation altogether so as to project the empanelled list to be the list of selected candidates for appointment of Principal in different colleges and that too, deviating from the ratio of 1:3 and thereby eliminating other eligible candidates who otherwise would have come within the zone of empanelled candidates, i.e. 153, applying the ratio of 1:3.
49. For all the aforesaid reasons, we are inclined to accept the appeal and the writ petition setting aside and quashing the impugned judgment and order dated 30-06-2010 passed in WP(C) No. 1657/2009 and all consequential action thereunder including the select list dated 13-07-2009 (Annexure-17). The respondents shall now hold a fresh selection as per law as expeditiously as possible, in the interest of the colleges which are running without regular Principals on adhocism. Till a regular selection is made and regular Principals are appointed on that basis status quo as on today in respect of holding of the post of Principal in the respective colleges, shall be maintained subject, however, to the condition that in case of any deviation is to be made same will have to be for valid and good reasons to be recorded in writing".
44. Therefore, it is quite clear that the purport and intent of the Division Bench judgment was that for the purpose of selection and appointment of Principal in the provincialised Colleges, firstly an empanelled list is to be prepared by the State Selection Board. The empanelled list (as distinct from select list) should comprise of candidates three times the number of notified vacancies. On the basis of the empanelled list, the Governing Bodies of the respective Colleges shall make the Selection which shall thereafter be recommended to the Director of Higher Education, who shall make the appointment on the basis of such selection and recommendation. This is the mandate of Section 6 of the Assam College Employees (Provincialisation) Act, 2005 as explained by the Division Bench.
45. It is thus obvious that the procedure followed by the respondents in issuing the impugned advertisement dated 20.01.2014 is clearly not in accordance with the Division Bench judgment of this Court, which has vitiated the same.
46. Coming to the next question as to whether the qualifications prescribed in the UGC Regulations, 2000 or in the UGC Regulations, 2010 would govern the selection, it is not disputed that the vacancy was first advertised on 07.10.2007, notifying the vacancy as on 01.01.2007. A selection was held to fill up the said vacancy on the basis of the qualifications prescribed in the UGC Regulations, 2000. As has already been noticed and discussed above, the said selection was interfered with by this Court on the ground that it was not in conformity with the earlier Division Bench judgment of this Court dated 15.02.2007. Now in the impugned advertisement dated 20.01.2014, certain additional qualifications have been prescribed which are in tune with the UGC Regulations, 2010 but which may make the appellant ineligible.
47. In
48. In the present case, the selection commenced with the publication of the advertisement on 07.10.2007 when the UGC Regulations, 2000 were in force. The qualifications prescribed in the advertisement were in tune with the qualifications stipulated in the UGC Regulations, 2000. The said selection process was interfered with by this Court following which the impugned advertisement dated 20.01.2014 was issued. Therefore, the impugned advertisement for all intent and purport amounts to continuation of the selection process. Thus, keeping in mind the decision of the Hon''ble Supreme Court in Md. Raisul Islam (supra), we are of the view that the qualifications prescribed in the UGC Regulations, 2000, which were in force when the selection process commenced, would govern the present selection to the post of Principal of the College.
49. We have considered the decisions cited by Mr. Saikia but we are afraid in the facts and circumstances of the case, those are quite distinguishable.
50. Thus, having regard to the discussions made above, we are of the view that the impugned advertisement cannot be sustained. Accordingly, the impugned advertisement dated 20.01.2014 is set aside and quashed. Respondents are directed to hold selection to fill up the post of Principal of the College in terms of the directions contained in paragraph 49 of the judgment dated 23.09.2011 passed in Writ Appeal No. 227/2009 (Dr. Ajit Kumar Baruah & Ors. vs. State of Assam & Ors.) by following the procedure mentioned above. This shall be done within a period of 6 (six) months from today.
51. Writ petition and writ appeals are allowed to the extent indicated above. No cost.
