Judgment · High Court · 2012

(A.K.Goel, CJ) This appeal has been preferred against order of learned Single Judge all 1. owing the writ petition filed by respondent No.1, after recalling the earlier or der dated 25.07.2006 dismissing the writ petition. Case of the respondent-writ petitioner is that he applied for the post o 2. f Lecturer in Mangaldoi College in the year 2000. He was given temporary appoint ment and the post was advertised on 7.2.2001. His name was recommended but inste ad of appointing him a fresh advertisement was issued on 30.5.2001. He approache d this Court by way of a writ petition and a direction dated 13.6.2001 was issue d that the second advertisement may not be acted upon. The Governing Body, vide resolution dated 2.4.2005, decided to convert the post to the post of Lecturer i n Arabic. The appellant who was working as Lecturer in Arabic since 1999 was ap proved on the said post by the Department of Higher Education on 4.5.2005. In an other writ petition filed by a third party, appointment of the appellant was set aside vide order of this Court dated 26.4.2005 on the ground that claim of the said writ petitioner had not been considered but since the said writ petitioner got another appointment, the appellant was allowed to continue. As this affected the writ petitioner, he challenged this decision also. The writ petition was in itially dismissed mainly on the ground that mere selection did not confer any ri ght to appointment. It was observed : (cid:28)It is no longer resintegra that a candidate on his/her selection does not acqui re an unassailable right to be appointed on the basis thereof. It is upto the au thorities concerned to take the process to its logical end culminating in the ap pointment of the candidate selected. True it is that in case a process once init iated is decided to be abandoned, cogent and convincing reasons must exist. In t he case in hand, the Governing Body of the college in its understanding of the i nstructions contained in the letter dated 12.03.2001, decided to re-advertise th e posts without finalizing the earlier process. The decision taken, considering the reasons thereof, can not be condemned to be illogical or absurd. The view ta ken by the Governing Body in the prevailing facts and circumstances was a plausi ble one and therefore, cannot be dubbed and denounced as arbitrary, capricious o r whimsical. In the above premise, the impugned advertisement neither without an y authority or law nor is an yield or irrelevant or extraneous considerations. T he challenge thereto, therefor fails. Apparently, the petitioner has not questioned the decision of the Special Govern ing Body of the college to accommodate the respondent No.5 against the advertise d post of lecturer in Political Science in terms of the office memorandum dated 17.07.2004, in spite of the disclosure to the said effect in the affidavits of t he respondents. On a reading of the office memorandum dated 17.07.2004 and the c ommunication dated 20.07.2004 of the Director of Higher Education, Assam, direct ing the Principals of the Deficit Grant-in-Aids Colleges of the State to take ne cessary follow up action in terms thereof, decision to adjust the respondent No. 5 against the post of lecturer in Political Science of the college cannot be imp eached as unwarranted or lacking in bonafide. This is more so, the office memora ndum dated 17.07.2004, disclosed the possibility of withdrawal of vacant posts f rom a Deficit-in-Aid college, if continuance thereof, was not justified. The res olution dated 02.04.2005 of the Governing Body of the College resolving, inter a lia, to accommodate the respondent No.5 against the vacant sanctioned post of le cturer in Political Science, in the above conspectus of the facts cannot be jett isoned as illegal and flawed. (cid:29)

#3. The writ petitioner, thereafter, filed a review application on the grou nd that even if he had no right to appointment in pursuance to the selection, th e Governing Body was not justified in abandoning the process of appointment to t he post of Lecturer in Political Science and converting the same to the post of Lecturer in Arabic. This plea was upheld as follows : The debate centering around the alleged non compliance of the directive (cid:28)14. of the Office Memorandum dated 17.7.2004 vis a vis the respondent No.5 need not detain this Court in the face of the judgment and order dated 26.4.2005 passed b y this Court in WP(C) No.920/2000 setting aside his appointment as lecturer of A rabic in the College. Not only the respondents have rightly refrained from conte sting the facts relatable thereto, the orders placed on record unequivocally dem onstrate the correctness thereof and the finality of the adjudication in this re gard. The fact remains that as on date, the respondent No.5 has ceased to be lec turer in Arabic in the College a fact, admitted by his learned counsel in course of the arguments. Even assuming therefore, that the resolution dated 2.4.2005 i n his favour was not opposed to the letter and spirit of the interim order dated 13.6.2001 passed in the writ proceeding as well as the Office Memorandum dated 17.7,2004 in the teeth of the above, same pales into insignificance. What is irr econcilably distressing is that no disclosure of these facts to the court was ma de by the College authorities during the pendency of the writ proceeding. Obviou sly the same if not withheld, the judgment and order dated 25.7.2006 would not h ave omitted to deal with the same. The order dated 19.10.2006 of the Director ap proving the resolution for appointment of the respondent No.5 in the post of lec turer in the department of Arabic in the College is inexplicably intriguing as w ell. Either there is a communication gap between the College authorities and the aforementioned state authority or the favour bestowed on him is on collateral c onsiderations. The respondent No.5 not being in the service of the College on th at date, the said order is otherwise inconceivable. This Court by judgment and o rder dated 25.7.2006 though had repulsed the assailment of the resolution dated 2.4.2005 deciding to accommodate the respondent No.5 against the vacant sanction ed post of lecturer in Political Science, being unaware of the annulment of his appointment in the interregnum, the same by no means could have been construed t o be a mandate to act in terms thereof ignoring the progressions of events. (cid:29) The review application in the above view of the matter is allowe (cid:28)16.A d. The judgment and order aforementioned is hereby recalled and the matter stand s remitted to the Director, Higher Education, Assam for his scrutiny of the Proc eeding Book(s) and other records of the Governing Body of the College to ascerta in as to whether the appointment of Ms Kunjalata Baruah had been against the pos t of Lecturer in Mathematics pursuant to the first advertisement and if so, the reason for excluding the petitioner from a similar benefit. If no reason is fort hcoming therefor, the College authorities would take an appropriate decision in this regard more particularly in view of termination of the services of the resp ondent No.5 in the meantime. The Director would also take immediate steps to rec all his approval dated 4.5.2005 and 19.10.2006 qua the respondent No.5 on the is sue of his regularization in the post of lecturer in Arabic in the College. (cid:29)

#4. Aggrieved by the above, this appeal has been preferred. Since direction of learned Single Judge for consideration of the matter by the Director, Higher Education, was stayed vide order dated 01.07.2009, the appellant has continued t o work.

#5. We have heard learned counsel for the parties and perused the record.

#6. Learned counsel for the appellant points out that the appellant has been continuing in the post of Lecturer in Arabic ever since 22.12.1999 which was th e reason for conversion of the post from Political Science to Arabic. He submits that the learned Single Judge has set aside the order of approval of appointmen t of the appellant on the ground that all the facts were not duly placed before the approving authority. If the matter is to be reconsidered, no purpose will be served by removing the appellant pending such consideration. Learned counsel for the respondents are not able to show any objection t 7. o the course suggested by learned counsel for the appellant that continuation of appellant may be made subject to consideration by the concerned authority and p ending consideration, he may continue as an interim arrangement.

#8. Accordingly, we modify the impugned order to the effect that the status quo as to the appointment of the appellant be continued till decision is taken b y the Director of Higher Education in terms of order of learned Single Judge. Su ch decision may be taken within three months from the date of receipt of a copy of this order. The Director, Higher Education, may give hearing to the affected parties.

#9. The appeal stands disposed of accordingly.