Judgment & Order (Cav)
1. Heard Mr. N. Dhar and Mr. B. K. Sen, learned counsel for the petitioner and Mr. S. Das, learned Standing Counsel for the respondent Nos. 1 & 2. Also heard Mr. K. Phukan, learned Government Advocate, Assam, for the respondent Nos. 3, 4 & 5. None appeared for the respondent Nos. 6, 7 & 8.
2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the proceeding/report, dated 29.08.2023 (Annexure-22), of Pandit Deen Dayal Upadhaya Adarsha Mahavidyalaya, at Eraligool, Sribhumi, erstwhile Karimganj district; regarding selection of respondent No. 8, for appointment to the post of Assistant Professor of Bengali in the said college and also the Governing Body Resolution No. 13, dated 30.08.2023 (Annexure-23), in approving the selection of the respondent No. 8, for appointment to the post of Assistant Professor of Bengali in the said college; and also the impugned order, dated 02.11.2024 (Annexure-27), passed by the Director of Higher Education, Assam; and further, prayed for issuing direction to the respondent authorities, more particularly, to the Director of Higher Education, Assam, respondent No. 2, to confer appointment to the petitioner in the post of the Assistant Professor in the Bengali Department at Pandit Deen Dayal Upadhaya Adarsha Mahavidyalaya at Eraligool, Sribhumi, with all the service benefits within the time specified by this Court.
Background Facts:-
3. The background facts, leading to filing of the present petition, is briefly stated as under-
“The Principal of Pandit Deen Dayal Upadhaya Adarsha Mahavidyalaya at Eraligool, Sribhumi, erstwhile Karimganj district; had issued an advertisement, dated 20.07.2023, for appointment in the post of Assistant Professor of Bengali language of the said college, reserved for the ‘Persons with Disabilities’ (in short, PwD) candidates. Pursuant to the said advertisement, dated 20.07.2023, the petitioner had submitted her application and accordingly, an interview for the same was held on 29.08.2023; and pursuant to the call letter, dated 24.08.2023 (Annexure-10), received by the petitioner, she appeared in the said interview. Thereafter, the Selection Committee prepared the Consolidated Marking Statement, dated 29.08.2023, of the candidates and in the said statement, it is stated that the petitioner is not eligible for selection as the Ph.D. degree of the petitioner is allegedly not in the concerned subject, as per Directorate of Higher Education guidelines; even though, there is no such guideline that was allegedly issued by the Directorate of Higher Education, Assam (DHE, hereinafter); and the said resolution of the Selection Committee is also silent in respect of the candidature of Smti. Jayanti Choudhury, the respondent No. 8 herein, regarding her eligibility for selection to the said post.
Thereafter, the Selection Committee selected the respondent No. 8, who scored the lowest marks in the selection process, in spite of her being not qualified for appointment to the said post, in contravention to the Government Guidelines, dated 24.01.2022, in view of the violation of the Statutory Rules and in spite of being over-aged; as her date of birth is 14.08.1990, as per the Admit Card, dated 05.03.1996, issued to her by the Secondary Education Board of Assam.
It is also the contention of the petitioner that the respondent No. 8 had passed her HSLC Examination in 2nd Division; the Higher Secondary Examination in 3rd Division; the B.A., Part-II (Final) Examination in Bengali, during the year 2004 and placed in 2nd Class, as per the certificate, dated 23.06.2004; M.A. Degree Examination as an off-campus candidate from the Institute of Distance and Open Learning, Gauhati University, as per certificate, dated 22.07.2014, and obtained her Ph.D. Degree for her thesis, captioned ‘Culture, Ethnicity and the Nation’ from Rabindranath Tagore School of Indian Language and Cultural Studies, under the Assam University, Silchar; and her thesis was related to the life and culture of the people of Barak Valley, Assam and the teaching of Srimanta Sankardev in Assam, which had nothing to do with the concerned subject of Bengali language. In support of the same, in its meeting held on 30.08.2023, the Governing Body had adopted Resolution No. 13 and thereby, approved the selection of the respondent No. 8 for the post of Assistant Professor of Bengali language in the said college, without considering the academic record of the petitioner herein.
Being aggrieved, the petitioner had approached this Court, by filing a writ petition, being WP(C) No. 2191/2024, for setting aside the proceeding, dated 29.08.2023, of the Selection Committee of Pandit Deen Dayal Upadhaya Adarsha Mahavidyalaya, at Eraligool, Karimganj; the Resolution No. 13, dated 30.08.2023, of the Governing Body of the said college, regarding the selection and appointment of the respondent No. 8 to the post of Assistant Professor of Bengali language in the said college and also for issuing direction to the respondent authorities, more particularly, the Director of Higher Education, Assam, to appoint the petitioner to the post of Assistant Professor of the said college.
Thereafter, this Court, vide order, dated 29.04.2024, passed in WP(C) No. 2191/2024, was pleased to direct the petitioner to submit a detailed representation before the Director of Higher Education, Assam, with the materials regarding the inconsistency and/or irregularity in the selection, made by the Selection Committee of the said college, in selecting the candidate against the post of the Assistant Professor in the Department of Bengali, under PwD category and it was further directed that the Director of Higher Education, Assam, upon considering the contentions made by the petitioner in her representation and upon hearing the petitioner and others, shall proceed to dispose of the representation by issuing a speaking order, along with the reasons based on which, such decision was arrived at and the above exercise shall be completed within 3 (three) months from the date of receipt of certified copy of the said order.
Thereafter, the petitioner submitted a detailed representation, dated 08.05.2024, before the Director of Higher Education, Assam, with the materials and documents, regarding the inconsistency and/or irregularity in the selection made by the Selection Committee of the said college, in selecting the candidate against the post of the Assistant Professor in the Department of Bengali, under PwD category, in Pandit Deen Dayal Upadhaya Adarsha Mahavidyalaya, at Eraligool, Karimganj; pursuant to the order of this Court, dated 29.04.2024, passed in WP(C) No. 2191/2024.
However, the Director of Higher Education, Assam, did not dispose of the said representation, dated 08.05.2024, for which, the petitioner had instituted one contempt case, being Contempt Case (Civil) No. 463/2024, against the Director of Higher Education, Assam, for disobedience of the order, dated 29.04.2024.
Thereafter, during the pendency of the aforesaid contempt case, the Director of Higher Education, Assam, had passed the impugned order, dated 02.11.2024, whereby, it has disposed of the representation, dated 08.05.2024, filed by the petitioner and in the said impugned order, the Director of Higher Education, Assam, had stated that the Selection Committee had stated in the report that the Ph.D. degree of the petitioner is not in the concerned subject, as per the DHE guidelines; without taking into consideration the documents submitted by the petitioner and the material inconsistency and irregularity in the selection, made by the Selection Committee of the said college against the post of the Assistant Professor of Bengali in the said college.
In the impugned order, dated 02.11.2024, the Director of Higher Education, Assam, has also stated that the petitioner did not have NET/SLET at the time of interview and that, she could not pass the interview without taking considerations of the materials and documents submitted by the petitioner along with her representation, dated 08.05.2024 and thereafter, rejected the representation filed by the petitioner.
In the report of the Selection Committee, dated 29.08.2023, it is stated that the petitioner’s Ph.D. Degree is not in the subject concerned, as per the prescribed guidelines of the DHE; which is prima-facie illegal, arbitrary and without jurisdiction, in as much as, there is no such guidelines issued by the DHE and the Ph.D. degree was issued to the petitioner by Mahatma Gandhi University, Meghalaya, which was recognized by the University Grants Commission and the thesis, titled as ‘Cuisine of Sylhet:A Socio-Cultural Study on the Barak Valley of Assam’.”
In the aforementioned facts and circumstances, it is contended to allow this petition.
4. The respondent No. 2, the Director of Higher Education, has filed its affidavit-in-opposition, wherein, it has taken a stand that though, the Principal of the said college has submitted a proposal for appointment of the respondent No. 8 as Assistant Professor in the Department of Bengali under PwD category in the said college, the said proposal is yet to be given a final consideration by the Director of Higher Education, Assam. A conjoint reading of Rule 5(1) and Rule 7 of the Assam College Employees (Provincialisation) Rules, 2010, makes it clear that before according approval to the recommendation of the Governing Body and before issuing Order of Appointment, the Director is required to satisfy himself that the selection and recommendation was carried out in accordance with law and therefore, in view of the requirement, any selection by the Selection Committee or recommendation by the Governing Body per se, would not give rise to a cause of action for initiating a legal proceeding, because no finality is attached to such recommendation at a stage, prior to acceptance or non-acceptance by the Director and as such, the present writ petition is premature in nature and is liable to be dismissed.
4.1 It is also stated by the respondent No. 2 that the Selection Committee, which was constituted to select a candidate for the post of Assistant Professor, Department of Bengali, reserved for PwD (Roster Point-04), in Pandit Deen Dayal Upadhaya Adarsha Mahavidyalaya (PDUAM), Eraligool, Karimganj, found that although, the concerned department of the petitioner is Bengali, but she pursued her Ph.D. from Mahatma Gandhi University, Meghalaya, in the Department of Cultural Studies (Centre for Interdisciplinary Studies) and the title of her thesis is "Cuisine of Sylhet: A Socio-Cultural Study on Barak Valley of Assam". Hence, the Selection Committee, which is an expert committee, after examining every aspect of the candidate, opined that the Ph.D. of the petitioner is not in the concerned subject, as per DHE guidelines and as such, the candidature of the petitioner is not eligible to be considered and the Selection Committee is also an expert committee, consisting of persons (Professors) from the Department of Visual Arts, Department of Bengali, Department of Manipuri, along with Inspector of Schools and Principal of PDUAM, Eraligool, Karimganj.
4.2 It is further stated by respondent No. 2 that the petitioner did not qualify NET/SLET at the time of interview, whereas NET/SLET/Ph.D. (in concerned subject) is the mandatory requirement for the post of Assistant Professor in Colleges, as per the guidelines issued by the Government of Assam, Higher Education Department as well as UGC Regulations; and that the Selection Committee had selected the Respondent No. 8 for the post of Assistant Professor, in Bengali Department reserved for PwD of PDUAM, Eraligool, Karimganj; who had secured total score of 37.57 marks. Her date of birth is 14.08.1980 and her age, as on 01/01/2023 (i.ะต., advertised on 23/07/2023) is 42 years 4 months and 18 days. But, as per letter No.DHE/CE/Misc/49/2021/Pt./5, dated 09/02/2022, the age should be 38 years, as on first day of the year, on which, the advertisement was issued, with relaxation of 5 years for SC/ST candidates, 3 years for OBC candidates and 10 years for PwD candidates; and that, it is a settled proposition of law that a candidate who is ineligible to participate in the recruitment process is a stranger to such process and cannot challenge the appointments made therein and as such, it is contended by the respondent No. 2 to dismiss this petition.
5. The petitioner has filed her affidavit-in-reply, denying the statements and averments made by the respondent No. 2. It is stated that the respondent No. 2 did not specifically deal with each allegation of fact in the instant writ petition and evasively denied the same and as such, the fact mentioned in the writ petition is deemed to have been admitted by the respondent No. 2, in view of the law laid down by the Hon’ble Supreme Court in the case of Naseem Bano Vs. State of Uttar Pradesh & Ors., reported in (1993) Supp (4) SCC 46, at page 2592.
5.1 It is also stated by the petitioner that vide order, dated 29.04.2024, passed in WP(C) No. 2191/2024, this Court had directed the respondent No. 2 to take a decision. But, the respondent No. 2 had passed the impugned order, dated 02.11.2024, rejecting the representation filed by the petitioner; and that the website of the University Grants Commission, namely, ‘Shodhganga’, clearly shows that the petitioner persuaded her Ph.D. degree with title of her thesis “Cuisine of Sylhet: A Socio-Cultural Study on the Barak Valley of Assam” from the Mahatma Gandhi University, Meghalaya, in the Department of Bengali and without consulting the Mahatma Gandhi University, Meghalaya, or the University Grants Commission, which undermines the authority of the concerned university; the respondent No. 2 should not have taken such a decision, in view of the decision of the Hon’ble Supreme Court in the case of Bhupendra Nath Tripathi & Ors. Vs. State of Uttar Pradesh & Ors., reported in (2010) 13 SCC 203.
5.2 It is also stated that the petitioner had passed the National Eligibility Test (NET) on 18.01.2024, and the same was a subsequent event, and in view of the decision of the Hon’ble Supreme Court in the case of Kedar Nath Agarwal Vs. Dhanraji Devi, reported in (2004) 8 SCC 76, the respondent No. 2 ought to have considered the subsequent event; and that the respondent No. 8 has obtained her M.A. degree as ‘off-campus candidate’ by distance mode of learning and such a degree is not valid for being appointed to the post of college and school teachers, as per the Judgment and Order, dated 13.02.2019, passed in WP(C) No. 2983/2017 (Purnendu Sekhar Debnath Vs. State of Assam) and in view of the decision of the Hon’ble Supreme Court in the case of Prof. Yashpal & Another Vs. State of Chattishgarh & Ors., reported in (2005) 5 SCC 420; and that, the respondent No. 8 is over-aged and her academic record is also not satisfactory; and the impugned order, dated 02.11.2024, passed by the respondent No. 2; is cryptic and the Director has failed to take note of the aforementioned facts and circumstances and has failed to pass a reasoned order. Under such circumstances, it is contended by the petitioner to allow this petition.
6. It is to be noted here that the respondent No. 8, whose selection is being challenged in this petition, as well as the respondent Nos. 6 & 7, have failed to turn up, in spite of service of notice to them, for which, this petition was heard ex parte against them.
Submissions:-
7. Mr. Dhar, learned counsel for the petitioner submits that pursuant to the Advertisement, dated 20.07.2023 (Annexure-9), issued by the Principal of Pandit Deen Dayal Upadhaya Adarsha Mahavidyalaya, at Eraligool, Sribhumi, erstwhile Karimganj district, the petitioner had applied for being appointed to the post of Assistant Professor, Bengali, under PwD Category.
7.1 Mr. Dhar, also submits that the petitioner has obtained her M.A. degree in Bengali from Assam University, Silchar, but the respondent No. 8, who has been selected by the Selection Committee, had obtained her MA degree from Institute of Distance and Open Learning, Gauhati University, in an off-campus and distance mode, and the selection process is covered by the O.M., dated 24.01.2022 (Annexure-8). Also, the respondent No. 8 did not pass NET/SLET and failed to produce the PRC and was over-aged, and the same violates the Column No. 8 of Annexure-9. Moreover, the Comparative Marking Statement, Annexure-13, reveals that the petitioner has secured 43%, whereas the respondent No. 8 has secured 33%.
7.2 Mr. Dhar, further submits that the Speaking Order, dated 02.11.2024, Annexure-27, is a cryptic order and the Director of Higher Education has failed to apply its mind, while passing the said order and further, Mr. Dhar has pointed out that the averment made in the writ petition remained untraversed and as such, the same has to be admitted as ‘agreed’; in view of the decision of the Hon’ble Supreme Court in the case of Naseem Bano (Supra).
7.3 However, Mr. Dhar submits that the Director, before passing the impugned order, dated 02.11.2024, ought to have consulted with the Expert Committee and also the UGC, to ascertain as to whether the subject of thesis of the respondent No. 8 is on the subject of Bengali or not; and that, in view of the decision of the Hon’ble Supreme Court in the case of Puran Singh & Ors. Vs. State of Punjab, reported in (1996) 2 SCC 205, the provisions in CPC are also applicable in writ proceeding. Under such circumstances, Mr. Dhar has contended to set aside the impugned order, dated 02.11.2024, and to direct the respondent No. 2, to appoint the petitioner as the Assistant Professor in Bengali language.
8. Per contra, Mr. Das, learned Standing Counsel for the respondent Nos. 1 & 2 submits that this petition is premature and the Director of Higher Education has not yet given final consideration to the decision of the Selection Committee, which was forwarded by the Principal of the said college.
8.1. Mr. Das, referring to the Advertisement, Annexure-9, at page No. 124, submits that the said advertisement was published on 20.07.2023 and the last date of application was 15 days from the date of publishing of the said advertisement, i.e., 04.08.2023, and as per Clause 4 of the Annexure-9, candidates have to acquire qualifications as on the last date of submission of their application forms. But, the petitioner had acquired her NET subsequently, on 18.01.2024, which is after the last date of submission of their application forms.
8.2. Mr. Das, drawing the attention of this Court to Annexure-5, submits that the petitioner has obtained her Ph.D. degree from Mahatma Gandhi University, Meghalaya, in the Department of Cultural Studies, with the title “Cuisine of Sylhet: A Socio-Cultural Study on Barak Valley of Assam” and it is not in the subject of Bengali and as such, she has rightly been held to be in-eligible for being selected in the post of Assistant Professor in Bengali, by the Selection Committee and the Director of Higher Education, Assam, in the impugned order, dated 02.11.2024, has considered the same.
8.3. Further, Mr. Das, referring to Annexure-8, Clause 5.1.0 and 5.1.4, submits that the respondent No. 8 belongs to PwD category and as such, one Professor of Manipuri language is incorporated, who belongs to PwD category.
8.4. Referring to Annexure-22, page No. 146, Mr. Das submits that the Selection Committee has held that Ph.D. degree of the petitioner is not on the subject concerned, as per the prescribed guidelines of the Director of Higher Education, Assam and as such, the Director has rightly rejected the claim of the petitioner; and though, the respondent No. 8 is over-aged, yet, she belongs to PwD category and as per letter, dated 09.02.2022, issued by the Director of Higher Education, Assam to the Principal, PDUAM, the respondent No. 8 is entitled to relaxation of 10 years.
8.5. Referring to paragraph No. 5 of the counter-affidavit, Mr. Das submits that in the said paragraph, a specific stand has been taken that the final consideration has not yet been given to the proposal submitted by the Principal of the said college, for appointing the respondent No. 8 and as such, the present petition is premature.
8.6. Referring to paragraph No. 8 of the petition, Mr. Das submits that the respondent No. 2 had taken a specific stand that the petitioner is entitled to 10 years relaxation for belonging to PwD category and further, referring to the affidavit-in-reply filed by the petitioner, Mr. Das submits that ‘Shudhganga’ is a repository and the contents in the aforementioned website are entered by private persons and as such, the same cannot be relied upon. Under such circumstances, Mr. Das has contended to dismiss this petition.
8.7. In support of his contentions, Mr. Das has referred to three decisions of the Hon’ble Supreme Court, in the case of State of Bihar & Ors. Vs. Madhu Kant Ranjan & Anr., reported in (2021) 17 SCC 141; Dr. Rajbir Singh Dalal Vs. Chaudhari Devi Lal University, Sirsa & Anr., reported in (2008) 9 SCC 284 and Sajid Khan Vs. L. Rahmathullah & Others, reported in (2025) 0 AIR(SC) 1300. Mr. Das has also referred to one decision of this Court, in WP(C) No. 1130/2016 (Dr. Gitamoni Handhique Gogoi Vs. The State of Assam & 4 Others).
9. In reply to the aforementioned submissions of Mr. Das, Mr. Sen, learned counsel for the petitioner, submits that the petitioner is challenging the Speaking Order, dated 02.11.2024, passed by the Directorate of Higher Education, Assam, which is cryptic in nature and was passed without application of mind and in contravention of the direction issued by this Court, in WP(C) No. 2191/2024, dated 29.04.2024.
10. Mr. Sen, further pointed out that the Director had assigned no reason as to why the candidature of the petitioner was rejected and he did not apply his mind and that, the impugned order is in-fact not a Speaking Order and that, the respondent No. 2, i.e., the Director of Higher Education, Assam, has failed to take note of the subsequent event, that the petitioner has passed NET, after the publication of the said advertisement and in view of the decisions of the Hon’ble Supreme Court in the case of Lekh raj Vs. Muni Lal & 2 Ors., reported in (2001) 2 SCC 762, and also in the case of Pasupuleti Venkateswarlu v. Motor and General Traders, reported in (1975) 1 SCC 770, for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
10.1. Mr. Sen has also repeated the argument that the respondent authorities did not deny the averment made in the petition and that the Director had failed to comply with the order of this Court and the respondent No. 8 had obtained off-campus degree and in view of the decision of a Co-ordinate Bench of this Court, in WP(C) No. 2983/2017 (Purnendu Sekhar Debnath Vs. State of Assam), her Ph.D. degree and MA degree are also invalid and under such circumstances, it is contended to allow this petition, by setting aside the impugned order and by directing the respondent No. 2, to appoint the petitioner in the post of Assistant Professor of Bengali under PwD category. Mr. Sen, referring to a decisions in N.T. Devin Katti v. Karnataka Public Service Commission, reported in (1990) 3 SCC 157, submits that the petitioner has, by making application for a post pursuant to an advertisement and being eligible and qualified, does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. Referring to another decision of Hon’ble Supreme Court in Purushottam v. Chairman, M.SEB, reported in (1999) 6 SCC 49, Mr. Sen submits that the right of the petitioner to be appointed to the post cannot be denied illegally and the same is liable to be interfered with.
Analysis and Reasons:-
11. Having heard the submissions of the learned counsel for both the parties, I have carefully gone through the petition and the arguments placed on record and also the decisions, referred to by the learned counsel for both the parties.
12. It appears that the Director of Higher Education, Assam, had passed the impugned order, dated 02.11.2024, pursuant to the order of this Court, dated 29.04.2024, passed in WP(C) No. 2191/2024, after hearing both the parties. The Speaking order, dated 02.11.2024, reads as under –
“GOVERNMENT OF ASSAM OFFICE OF THE DIRECTOR OF HIGHER EDUCATION, ASSAM KAHILIPARA, GUWAHATI-19.
E.Comp.No.406287/2023/8
SPEAKING ORDER
As per Hon'ble Gauhati High Court order dated 29-04-2024 passed in WP(C) No.2191/2024, a hearing was held at the office of the Director of Higher Education, Assam on 27-05-2024.
Whereas, Dr. Anamya Roy, was heard, her grievance being that her Ph.D. Degree was not accepted by the Selection Committee for the post of Assistant Professor, Department of Bengali of Pandit Deendayal Upadhyaya Adarsha Mahavidyalaya, Eraligool, Karimganj. The Selection Committee had stated in its report "Ph.D. is not in concerned subject as per DHE guideline". As Dr. Anamya Roy did not have NET/SLET at the time of interview she could not pass the interview.
Hence, the petition of Dr. Anamya Roy has been rejected on the above ground and the order of the Hon'ble Gauhati High Court dated 29-04-2024 in Dr. Anamya Roy -Vs- State of Assam and others, has been complied with.
Signed by
Pomi Baruah
Directorate of Higher, Education, Assam, Kahilipara,
Guwahati-19
Memo E.Comp.No.406287/2023/8
Copy to:
1. The Secretary to the Govt. of Assam, Higher Education Department, Dispur, Guwahait-6.
2. The Senior Standing Counsel. Higher Education Department, Gauhati High Court, Guwahati-1
3. The Principal, Pandit Deendayal Upadhyaya Adarsha Mahavidyalaya, Eraligool, Karimganj.
4. Dr. Anamya Roy (Petitioner)
5. Smti Jayanti Choudhury (Respondent No.15)
(e-Signed)
Director of Higher Education, Assam Kahilipara, Guwahati-19”
12.1. A careful perusal of the impugned Speaking Order, dated 02.11.2024, indicates that the Selection Committee had stated in its report that the Ph.D. degree of the petitioner is not in the concerned subject, as per DHE guidelines and the grievance of the petitioner was that her Ph.D. degree was not accepted by the Selection Committee.
13. It is also stated that as the petitioner did not have NET/SLET at the time of interview, she could not pass the interview and as such, the petition of the petitioner was rejected on the aforementioned ground.
14. A careful perusal of the advertisement, dated 20.07.2023, Annexure-9, Clause-[4], indicates that candidates have to acquire qualifications as on the last date of submitting application forms. M.Phil./Ph.D./Publications, so acquired for eligibility, can be submitted on the date of interview and not beyond; and the O.M., dated 24.01.2022 (Annexure-8), prescribes the eligibility qualification; which is reproduced here-in-below:-
“ ELIGIBILITY QUALIFICATION:
Qualification for Direct Recruitment of Assistant Professor (Reference Clause 3.0.0/4.0.0/4.40/4.4.1 of the UGC Regulations 30th June 2010).
(i) Good Academic record as defined by the concerned University with at least 55% marks or an equivalent grade in a point scale at the Master Degree level in a relevant subject from an Indian University or an equivalent degree from an accredited foreign University.
(ii) Besides, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.
(iii) Notwithstanding, anything contained in sub clause (i) and (ii) to the clause 4.40.1, of the UGC Regulations 30th June, 2010 candidates who have a Ph.D Degree in accordance with the University Grant Commission (Minimum standards and procedure for award of Ph.D Degree Regulation, 2009) shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET.
(iv) NET/SLET/SET shall also not be required for such Master programmes in disciplines for which NET/SLET/SET is not conducted.
(v) A relaxation of 5% may be provided at the graduate and Masters level for the Scheduled caste/Scheduled Tribe/ Differently-abled (Physically and visually differentlyabled) categories for the purpose of eligibility. The 5% relaxation will not include any grace (clause-3.4.1)
(vi) The period of time taken by Candidates to acquire M.Phil and/or Ph.D Degree shall not be considered as Teaching/research experience for appointment to the positions (clause-3.9.0).”
15. Admittedly, on the last date of submission of application form, i.e., 04.08.2023, the petitioner did not possess the NET/SLET or SET and she had passed the UGC-NET on 18.01.2024, and the certificate was issued on 26.02.2024; as it appears from Annexure-2 of the affidavit-in-reply, filed by the petitioner.
16. Though, Mr. Sen, learned counsel for the petitioner, has argued that subsequent event has to be taken into consideration by the authority, as held in the case of Lekh raj (Supra), in paragraph No. 11; the same has left this Court unimpressed, in as much as the said proposition was laid in a dispute between a tenant and a landlord, wherein, the Hon’ble Supreme Court, in paragraph 11, has held that in case subsequent event or fact having bearing on the issues or relief in a suit or proceeding, to which any party seek to bring on record, the Court should not shut its door. All laws and procedures including functioning of courts are all in aid to confer justice to all who knocks its door. Courts should interpret the law not in derogation of justice but in its aid. Thus, bringing on record subsequent event, which is relevant, should be permitted to be brought on record to render justice to a party. But, the court in doing so, should be cautious not to permit it in a routine. It should refuse where a party is doing so to delay the proceedings, harass other party or doing so for any other ulterior motive. The courts even before admitting should examine, whether the alleged subsequent event has any material bearing on issues involved and which would materially affect the result.
17. But, in the case of Madhu Kant Ranjan (Supra), the Hon’ble Supreme Court, in paragraph No. 9, has held that a candidate/ applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cutoff date mentioned therein unless extended by the recruiting authority. Relevant paragraph is extracted herein below:-
“9. As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted along with the application form, which are required to be submitted as per the advertisement have to be considered. Therefore, when the respondent No.1 - original writ petitioner did not produce the photocopy of the NCC 'B' certificate along with the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC 'B' certificate. In these circumstances, the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No.1 - original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC 'B' certificate.”
18. Again, a three Judge Bench of Hon’ble Supreme Court in Ashok Kumar Sharma and Others vs. Chander Shekhar and Another, reported in (1997) 4 SCC 18, at para 6, has held as under:-
“… So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr.T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date, cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis…..”
19. In view of the aforementioned legal matrix, this Court afraid, the submission, so advanced by Mr. Sen, learned counsel for the petitioner, that subsequent events has to be taken into consideration, would not advance his case and the decision referred to by him in Lekh Raj (supra), and in Pasupuleti Venkateswarlu (supra) would not come into his assistance. Admittedly, before the cut-off date, so mentioned in the advertisement, the present petitioner did not fulfill the requisite criteria, as she did not pass NET/SLET at that point of time.
20. Further, from the advertisement, Annexure-9, it appears that the post advertised is of Assistant Professor in Bengali and Clause-5 of the Annexure-8, i.e., the O.M., dated 24.01.2022, indicates that Ph.D. degree of the candidate should be in the concerned subject from a UGC recognized university. Admittedly, the petitioner has obtained her Ph.D. degree on the subject of ‘Cuisine of Sylhet: A Socio-Cultural Study on Barak Valley of Assam’. Though, a contention is being made by the petitioner that her Ph.D. degree is on the subject of Bengali, yet, the Selection Committee, in the impugned resolution, dated 30.08.2023, Annexure-22, in Resolution No. 13, has categorically stated that the Ph.D. degree of the petitioner is not on the subject concerned, as per the prescribed guidelines of the DHE.
21. Further, it appears that the Selection Committee, so constituted by the authority comprising of the Chairperson/Nominee, the Inspector of Schools, Karimganj; the Member Secretary, Principal I/C, PDUAM, Eraligool; Professor (Dr.) Nirmal Kanti Roy, Department of Visual Arts, Assam University, Silchar, being the nominee of VC; Prof. (Dr.) Bela Das, Dept. of Bengali, Assam University, Silchar, being VC’s nominee cum Subject Expert; Dr. Munmun Bhattacharjee, Dept. of Bengali, GC College, Silchar, being the Subject Expert; Dr. Sumita Ghosh, Dept. of Bengali, Cachar College, Silchar, being the Subject Expert; Dr. Debjani Debnath, Dept. of Bengali, PDUAM, Eraligool, being the HoD and Ms. R. K. Nirmola Sana, Dept. of Manipuri, Assam University, Silchar, being the PWD representative. All the above mentioned members of the Selection Committee appear to be the experts in the subject and they had collectively and also consciously arrived at a finding that the Ph.D. degree of the petitioner is not on the subject concerned.
22. Though, Mr. Sen, learned counsel for the petitioner, has argued that the respondent No. 2, before passing the impugned Speaking Order dated 02.11.2024, ought to have consulted with the Expert Committee of UGC and with the Mahatma Gandhi University, yet, such submission of Mr. Sen has left this Court unimpressed. When as many as 8 numbers in the Selection Committee, comprising of 2 Subject Experts and 1 HoD of Bengali, had arrived at a finding that the Ph.D. degree, obtained by the petitioner is not on the concerned subject, this Court cannot sit in appeal over such a finding and thereafter, examine and substitute its own opinion with that of the expert opinion, in view of the decision of the Hon’ble Supreme Court in the case of Dr. Rajbir Singh Dalal (Supra), wherein, it has been held that when the academic experts have regarded Political Science and Public Administration to be one discipline, it is not right for this Court to sit in appeal over the opinion of the experts. Similar observation has also been made in the case of Sajid Khan (Supra).
23. This Court has also considered the other limb of argument advanced by Mr. Sen, learned counsel for the petitioner, that the respondent No. 8 is overaged, and that she does not have good academic record; yet, such arguments of Mr. Sen has failed to impress this Court, in as much as the respondent No. 8 belongs to PwD category and as such, she is entitled to relaxation of 10 years and the same is apparent from the letter, dated 09.02.2022, which was produced before the Court today, by Mr. S. Das, learned Standing Counsel for the respondent Nos. 1 & 2 and the same has also been mentioned in the advertisement.
24. In respect of the argument of Mr. Sen, learned counsel for the petitioner that the respondent No. 8 does not have good academic record; this Court is of the view that Selection Committee and the respondent No.2 are the best person to deal with the same and it appears that the Selection Committee has awarded marks for the academic record, as per the guidelines issued by the DHE, respondent No. 2 and found her fulfilling the requirement. As held in the case of Dr. Rajbir Singh Dalal (Supra), this Court cannot sit in appeal over the said finding and arrived at its own conclusion, while it is no body’s case that she fails to fulfill the minimum requirement of eligibility criteria as per the advertisement and as per guidelines issued by the DHE.
25. This Court has gone through the other decisions referred by Mr. Dhar and Sen, the learned counsel for the petitioner. There is no quarrel about the proposition of law laid down in the said cases. But, this Court afraid those decisions would not come into his assistance. In the case of Naseem Bano (supra) Hon’ble Supreme Court has held that when the averments made in the petition has not been controverted, the High Court should have proceeded on the basis that the said averments had been admitted by respondents. And in the case of N.T. Devin Katti(supra) Hon’ble Supreme Court has held that a candidate does not acquire any vested right of selection, but, if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. But, the petitioner herein had failed to fulfill the requisite criteria of having Ph.D. degree on the concerned subject and she had acquired the qualification of NET/SLET, subsequent to the last of date of application, as fixed in the advertisement. Those decisions would have advanced her case if would have been otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement. In that view of the matter the decision referred by Mr. Sen in the case of Purushottam (supra) would also not come into assistance of the petitioner. The petitioner has no right to be appointed since she had failed to fulfill the required criteria for applying the post on the last date fixed for receiving the application in the advertisement. If the petitioner had failed to satisfy the requisite criteria, so laid down in the advertisement and as per the guidelines issued by the respondent authority, merely because some of the averments in her petition are not controverted and that the private respondent had not contested the petition, would not mandate acceptance her case while she has not even fulfilled the requisite criteria in the advertisement.
Conclusion:-
26. Under the given facts and circumstances, this Court is of the view that the impugned Speaking Order, dated 02.11.2024, suffers from no infirmity or illegality, requiring any interference of this Court.
27. In the result, this Court finds this petition devoid of merit, and accordingly, the same stands dismissed, leaving the parties to bear their own costs.
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