Page No.# 1/9 GAHC010106402024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2776/2024 DR. MADHAB SUTRADHAR S/O- JITEN SUTRADHAR, R/O- VILLAGE AND P.O- SALBARI, DIST- BAKSA, ASSAM VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, HIGHER EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6 ASSAM. 2:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GUWAHATI-19 ASSAM. 3:THE DIRECTOR OF EDUCATION BODOLAND TERRITORIAL COUNCIL KOKRAJHAR ASSAM PIN-783370 4:THE SECRETARY BODOLAND TERRITORIAL COUNCIL KOKRAJHAR ASSAM PIN-783370 5:THE PRINCIPAL AND SECRETARY Page No.# 2/9 BARAMA COLLEGE P.O.- BARAMA DISTRICT- BAKSA BTAD PIN- 781346. 6:THE SELECTION COMMITTEE CONSTITUTED BY THE BARAMA COLLEGE FOR INTERVIEW HELD ON 6-6-22 FOR SELECTION OF ASSISTANT PROFESSOR OF ASSAMESE (ROSTER POINT NO-40) IN BARAMA COLLEGE REPRESENTED BY ITS PRINCIPAL BARAMA COLLEGE BAKSA-781346 7:KARABI DAS R/O- VILLAGE- BARBELBARI P.O- ZARKHONA DIST- TAMULPUR PIN-78136 Advocate for the Petitioner : MR. N HAQUE, MR. S R BARBHUIYA,MR M HUSSAIN,MR. A K AZAD,MR K UDDIN Advocate for the Respondent : SC, HIGHER EDU, SC, BTC Linked Case : WP(C)/3058/2024 DHANASHREE KALITA D/O- JOY CHARAN KALITA RESIDENT OF VILLAGE- BARJAR P.O. BARAMA DISTRICT- NALBARI (ASSAM) PIN- 781346 VERSUS THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HIGHER EDUCATION DEPARTMENT DISPUR Page No.# 3/9 GUWAHATI-6 2:DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:SECRETARY TO THE BODOLAND COUNCIL BODOFA NWGWR KOKRRAJHAR 4:DIRECTOR OF EDUCATION BODOLAND TERRITORIAL COUNCIL KOKRAJHAR PIN- 5:PRINCIPAL AND SECRETARY BARAMA COLLEGE BARAMA DIST.- BAKSA (BTR) ASSAM PIN- 781346 6:SELECTION COMMITTEE CONSTITUTED BY THE BARAMA COLLEGE FOR INTERVIEW HELD ON 6-6-22 FOR SELECTION OF ASSISTNT PROFESSOR OF ASSAMESE (ROSTER POINT NO-40) IN BARAMA COLLEGE REPRESENTED BY ITS PRINCIPAL BARAMA COLLEGE BAKSA- 781346 7:UNIVERSITY GRANTS COMMISSION REPRESENTED BY ITS CHAIRMAN BAHADUR SHAH ZAFAR MARG NEW DELHI- 110002 8:SMT. KARABI DAS RESIDENT OF VILLAGE- BARBELBARI P.O. ZARKHONA DISTRICT- TAMULPUR PIN- 78136 ------------ Advocate for : MR D MAHANTA Advocate for : SC HIGHER EDU appearing for THE STATE OF ASSAM AND 7 ORS Page No.# 4/9 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER Date : 22.01.2025 1. Heard Mr.T.J.Mahanta, learned Senior Counsel assisted by Mr. D.Mahanta, learned counsel for the petitioner in WP (C) /3058/2024 and Mr. N.Hoque, learned counsel for the petitioner in WP(C) /2776/2024. Mr. S.Bora, learned counsel appears for the respondent BTC and Dr.P.Agarwal, learned counsel appears for the respondent No.7. Ms. I Das, learned counsel appears on behalf of Mr. D.Upamanyu, learned Standing Counsel for the Higher Education Department, Government of Assam. 2. The two writ petitions are being disposed of by this common order, inasmuch as, the two writ petitioners have made a challenge to the selection of Smti Karabi Das who is the respondent No.8 in WP (C) /3058/2024 and respondent No. 7 in WP(C) /2776/2024, as Assistant Professor, Assamese in Barama College, Barama pursuant to the advertisement dated 07.04.2022. No one appears for Smti Karabi Das, though she is deemed to have been served notice as per the order of the Lawazima Court on 05.08.2024 in WP (C) / 3058/2024. 3. The facts of the case in brief is that pursuant to an advertisement dated 07.04.2022 for filling up the post of Lecturer/ Assistant Professor in the department of Assamese in Barama College, the two writ petitioners herein and Smti Karabi Das took part in the selection process, amongst others. The marks obtained by the various candidates were tabulated by the Selection Committee, Page No.# 5/9 wherein the petitioner in WP (C) /3058/2024 had secured the highest marks, i.e. 67%. The petitioner in WP(C) /2776/2024 secured 55% of marks, while Smti Karabi Das secured 54.57% marks, though in the tabulation sheet, the marks of Smti Karabi Das has erroneously been shown to be 64.14%. 4. The Advertisement dated 07.04.2022, for filling up the post of Assistant Professor, Assamese provided that the required eligibility qualifications of the candidates would be as provided in the Office Memorandum No. AHE.239/2021/68 dated 24.01.2022 (Page 31, WP(C)/3058/2024). The Office Memorandum dated 24.01.2022 amongst others provided the educational qualification as follows: (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 differently-abled) 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). 5. The above being said, the Selection Committee selected and Page No.# 6/9 recommended the appointment of the petitioner in WP(C) /2776/2024 as Assistant Professor in the Department of Assamese on the ground that he was a qualified Ph.D Degree holder and that the college needed a Ph.D Degree holder, though he had secured lesser marks than the petitioner in WP(C)/3058/2024. 6. The petitioner in WP(C)/3058/2024 being aggrieved by the selection of the petitioner in WP(C) /2776/2024, put the selection under challenge in WP (C) No. 6333/2022. 7. This court while disposing the WP (C) No. 6333/2022, observed that there was nothing provided in the eligibility conditions / educational qualification that candidates having a Ph.D Degree would be considered over and above other candidates, even if the other candidates got higher marks than the candidates who had a Ph.D. Degree. This court accordingly held that the petitioner in WP(C)/3058/2024 having secured higher marks than the petitioner in WP(C)/2776/2024, the selection and recommendation of the petitioner in WP(C) /2776/2024 as Assistant Professor (Assamese) was arbitrary. The selection and recommendation of the petitioner in WP(C)/2776/2024 was accordingly set aside and the authorities were directed to make a fresh selection, on the basis of the marks secured by the candidates. 8. In pursuance to the order dated 13.12.2013 passed in WP(C) 6333/2022, the Selection Committee considered the cases of the candidates again and selected Smti Karabi Das for appointment to the post of Assistant Professor, Department of Assamese, only on the ground that she belonged to the BTC area, even though Smti Karabi Das had secured lesser marks than both the petitioners herein. Page No.# 7/9 9. The petitioners herein have thus put to challenge the selection and re- commendation of Smti Karabi Das for appointment to the post of Assistant Teacher, Department of Assamese. 10. The counsels for both the petitioners herein submit that there is nothing provided in the eligibility criteria of candidates for selecting a person belonging to BTC area, over and above other candidates who have secured higher marks and who do not belong to the BTC area. 11. The counsel for the petitioner in WP(C) /2776/2024 has a further argument, which is to the effect that the petitioner in WP(C) /2776/2024 also belongs to the BTC area and as he secured more marks than Smti Karabi Das, the Selection Committee could not have overlooked the case of the petitioner in WP(C) /2776/2024. 12. Mr. S.Bora, learned counsel for the BTC submits that BTC will not be filing any affidavit and will abide by the decision of this court. He also submits that there is an error in the tabulation of marks in relation to Smti Karabi Das, inasmuch as, the actual marks of Smti Karabi Das should be 54.57 % ( total marks 382) instead of the marks provided in the tabulation sheet, i.e.(435) 62.14%. 13. Dr. P.Agarwal, learned counsel for the UGC submits as has been clearly stated in the paragraph 9 of the affidavit filed by the UGC, the decision of the concerned respondent authorities on 26.04.2024, to select the candidate, residing in the BTC area, by ignoring the candidates who secured higher marks, is arbitrary and malafide. 14. I have heard the learned counsels for the parties. 15. The advertisement does not provide for giving preference to a candidate Page No.# 8/9 who has a Ph.D.Degree though preference can be given to a candidate belonging to the BTC area. However, the same would be subject to the condition that candidates belonging to the BTC area had secured equal marks as other candidates, who do not belong to the BTC area. In this respect, it would be profitable to refer to the decision of the Hon’ble Supreme Court in the case of Chairman, Tangedco & Ors –vs- Priyadarshini, Civil Appeal No. 6470/2021, reported in 2021 (4) SCT 426 (SC), wherein it has referred to another decision in the case of Secretary, A.P. Public Service Commission vs- Y.V.V.R.Srinivasulu & Ors reported in (2003) 5 SCC 341 and held that preference in the context of all such competitive scheme of selection would only mean that the other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. 16. The petitioner in WP(C)/3058/2024 having secured higher marks than the petitioner in WP No.2776/2024 and Smti Karabi Das, there was no occasion to apply the preference clause in the advertisement, in terms of the Judgment of the Supreme Court quoted above. Consequently, the selection and re- commendation of Smti Karabi Das by the Selection Committee as Assistant Professor, Department of Assamese is hit by Article 14 of the Constitution of India. The selection and recommendation of Smti Karabi Das as Assistant Professor (Assamese Department) is accordingly set aside. It is also seen that the writ petitioner in WP(C)/3058/2024 has secured the highest marks in the selection process. The Selection Committee/ State respondents are directed to make the selection and recommendation of the successful candidate, solely on the basis of the marks secured by the candidates, inasmuch as, there is nothing to show that the candidates that are mentioned in the tabulation sheet do not have the other eligibility criteria to be appointed to the said post. The said Page No.# 9/9 exercise should be concluded within a period of 3 weeks from the date of receipt of a copy of this order. Consequently, the order dated 26.04.2024 issued by the Secretary, BTC is hereby set aside. 17. The writ petitions are accordingly disposed of. JUDGE Comparing Assistant