WP(C) 1302/2003 BEFORE HON’BLE MR JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (C.A.V.) This writ petition filed in the year 2003 is directed against the selection and appointment of the Respondent No.5 as a Lecturer in Economics in the particular college (Chaiduar College), for which the petitioner was also a candidate. 2. The petitioner is an M.A. in Economics and at the time of filing the wr it petition, he was pursuing his Ph.D degree He was also pursuing studies for M aster of Science degree in Ecology & Environment through correspondence course under Sikkim Manipal University. The petitioner worked as a Lecturer in Economic s in the college called Ascent Academy Junior College, Guwahati from August, 199 8 to August, 1999. Thereafter, he worked against lien vacancy as Lecturer in Eco nomics at Sankardeva Mahavidyalaya, Pathalipahar for the period from 22.8.1999 t o 13.5.2000. At the time of filing the writ petition, the petitioner was workin g against a non-sanctioned post at St. Anthony’s College, Shillong. The petitio ner is a N.E.T. (National Eligibility Test) qualified candidate, which was condu cted by the University Grants Commission (U.G.C.) on 29.6.1997. 3. The college authority of Chaiduar College, Gohpur issued the Annexure-21 advertisement dated 6.8.2002 inviting applications from the candidates having U GC norms for a sanctioned post of Lecturer in Economics (open), in response to which the petitioner, along with others, offered his candidature. Altogether 44 candidates had applied for the post and in the selection conducted on 25.9.200 2, 32 (thirty two) candidates appeared. The selection committee recommended 3 ( three) names in order of preference for appointment. They are - 1) Shri Mahendr a Hazarika (Respondent No.5), 2) Shri Bedabrat Saikia and 3) Shri Rabindranath Hazarika. 4. The process of appointment of the Respondent No.5 was undertaken by the college authority and the Director of Higher Education accorded the required pr ior approval to the appointment of the Respondent No.5 by order dated 21.1.20 03. The Respondent No.5 joined the post on 22.1.2003. Thereafter, formal app roval of the Respondent No.5 followed on 29.1.2003. 5. In paragraph 11 of the writ petition, the pet4itioner has contended that none of the 3 candidates recommended in order of preference for appointment, po ssessed the NET qualification and that it was the petitioner who alone was the candidate having that qualification. Further stand in the writ petition is tha t the selection committee was not constituted in accordance with rules and proce dure. In this connection, the petitioner has referred to the notification dated 17.6.1992 issued by the Government of Assam in the Education (Higher) Departmen t in terms of which the Governing Body is to constitute the selection committ ee for a term of two years. According to the petitioner, the selection committ ee was constituted by the Principal of the college i.e. the Respondent No.4 all by himself, who was also an Ex-officio Secretary of the Governing Body and in th e committee, the Head of the Department of Economics was not included as a membe r. 6. Thus, the challenge made against the selection and appointment of the Re spondent No.5 are on two grounds. They are - 1) the Respondent No.5 lacked the qualification prescribed by the UGC inasmuch as he did not have the NET qualifi cation at the time of selection and 2) the selection committee was not properly constituted in absence of the Head of the Department of Economics. 7. The Respondents have filed their counter affidavits. In the counter aff idavit filed by the Respondent No.5, the contentions raised in the writ petition have been denied. It has been asserted that the Respondent No.5 has better acad emic distinction that the petitioner. While the petitioner passed the High Scho ol Leaving Certificate Examination, Higher Secondary School Leaving Certificate Examination, B.A. Examination and M.A. Examination securing 59.5%, 64.4%, 57.7% and 61.8% marks respectively, the Respondent No.5 secured 61.6%, 62.4%, 62.2% a nd 62.6% marks in the said examinations. 8. The Respondent No.5 in his affidavit has also stated that he has obtain ed the M.Phil degree pursuant to the course undertaken in the year 2006-07. As regards the claim of the petitioner that he has been working against a non-sanc tioned post, the Respondent No.5 has asserted, that, as per information gathered by him, the petitioner has been working as against a regular sanctioned post. Certain other statements have been made in the counter affidavit relating to wor k experience etc. He asserts that in the advertisement dated 5.8.2002, it was never indicated that the candidates must have NET qualification. According to t he Respondent No.5, he having fulfilled the UGC norms to offer candidature for the post, he was rightly invited for the selection, in which he eventually go t selected. 9. The counter affidavit filed by the Respondent No.4 is also in the same l ine. It has been stated that merely because the petitioner passed the NET qual ification that by itself cannot be the ground for selection of the petitioner. Referring to the advertisement, it has been stated that the NET Qualification wa s not prescribed in the same. As regards the constitution of the selection commi ttee, it has been stated that the same was duly constituted. The absence of t he Head of the Department of Economics has been justified pointing out that at t hat relevant point of time, there was no Head of the Department of Economics as the incumbent had already retired from service on attaining the age of superannu ation. In such a situation, the Governing Body of the college took a decision o n 23.2.2002 that in absence of the Head of the Department, the Vice-Principal of the college would be the 5th member of the selection committee. 10. In the additional affidavit filed by the Respondent No.5, the notificat ion issued by the Government of Assam on 3.8.2006 has been referred to by which the candidates having M. Phil degree have been exempted from NET qualification . The Respondent No.5 has cleared M. Phil examination securing 1st division. It has also been brought on record that the petitioner, although was appointed a s Lecturer pursuant to his selection, he was not given the UGC scale of pay, but the same has been allowed only with effect from 14.2.2008 upon obtaining the M . Phil degree. 11. I have heard Dr. Y.K. Phukan, learned Sr. counsel assisted by Mrs. S. Bo ra, learned counsel for the petitioner as well as Mr. B.D. Goswami, learned cou nsel representing the Respondent No.5. I have also heard Mr. S.K. Das, learned S tanding Counsel, Education Department as well as Mr. R.K. Borah, learned counse l representing the college authority i.e. the Respondents No.3 and 4. 12. Dr. Phukan, learned counsel for the petitioner in his forceful and elab orate argument, referring to the UGC norms and the guidelines relating to cons titution of the selection committee, submitted that the Respondent No.5 having b een illegally selected and appointed, same is liable to be inteferred with. He has placed reliance on two decisions of the Apex Court which are as reported in 1988 (supp) SCC 562 (State of Andhra Pradesh & anr. V. Dr. Mohanjit Singh & Anr. ) and AIR 1990 SC 1233 (N.T. Bevin Katti v. Karnatake Public Service Commission & Ors). 13. As against the aforesaid submission made by Dr. Phukan, learned counsel for the petitioner, the learned counsel for the respondents submitted that the petitioner having been found to be suitable for appointment by the selection com mittee, the writ Court will be reluctant to sit on appeal over the finding arriv ed at by the selection committee, an expert body. They submitted that the qual ification of NET was not mandatory requirement and that the advertisement havi ng not specified the same, the candidatures offered by the candidates without t he said qualification were also considered by the selection committee. Mr. Das, learned Standing Counsel, Education Department has produced the records and I ha ve gone through the same. 14. The Respondent No.5 upon his selection as the first nominee, was appoint ed in January, 2003 and the prior approval to that effect was accorded by the Di rector of Higher Education by his letter dated 21.1.2003. While granting such ap proval, two conditions were imposed, which are - 1) the appointment of the Respo ndent No.5 would be subject to securing of NET/SLET qualification and he would be on probation till such time the said qualification was obtained and 2) he w ould get the salary in the minimum of the scale of Rs.8,000/- during the probati on. Thus, the authority was not oblivious of the fact that the Respondent No.5 was lacking the NET/SLET qualification. In this context, Mr. Goswami, learned counsel for the Respondent No.5, referred to the office memorandum dated 17.7.20 04 by which certain guidelines have been issued by the Government of Assam in th e Education Department towards regularization of services of the Lecturers worki ng against non-sanctioned post. In that circular, the qualification of NET/SLET has been exempted for certain period with further provision that they would rec eive only minimum of the pay scale from the date of approval of their appointmen ts. 15. There is no dispute that in the meantime, the UGC has relaxed the norm s relating to NET qualification in respect of those candidates, who have obtaine d the M. Phil decree in the concerned subject. In this connection, Mr. Goswami , learned counsel for the Respondent No.5 has drawn my attention to the notifica tion dated 3.8.2006 issued by the Government of Assam in the Education (Higher) Department. The notification has been issued in reference to the UGC’s guidelin es in terms of which the NET shall remain compulsory requirement subject, howev er, to the exemption to those candidates having M. Phil degree in the concerned subject. In the instant case, the approval was accorded to the appointment of t he Respondent No.5 on the aforesaid two conditions. As per the said condition, the Respondent No.5 would remain on probation at a fixed pay of Rs.8,000/-. In the meantime, he having obtained the M. Phil degree, he has been provided with the regular pay scale with effect from 14.2.2008. The order to that effect has been issued by the Director of Higher Education, Assam on 8.8.2008. 16. During the course of hearing, it was submitted by the learned counsel f or the respondents that the regular examinations relating to NET/SLET qualificat ion are not being held which denied the opportunity to the candidates desirous o f obtaining the said qualification. The appointment of the Respondent No.5 was not approved on wholesome basis, but the same was subject to the aforesaid co nditions. The Respondent No.5 continued on probation on a fixed pay of Rs.8,000 /-, which is the minimum of the time scale of pay admissible to a college Lectur er. If a college lecturer working against non-sanctioned post without having th e NET/SLET qualification, can be regularized in terms of the aforesaid notifica tion dated 17.7.2004, it cannot be said to be an arbitrary decision to appoint t he Respondent No.5, as he was found to be more meritorious candidate amongst th e candidates who appeared in the selection. 17. There is another aspect of the matter. The selection committee recommen ded altogether 3 (three) candidates in order of preference. The petitioner was not recommended by the selection committee. Thus, he was not enpanelled. There i s no gainsaying that merely because the petitioner is a NET qualified, he canno t claim invariable selection by the selection committee. Even if the selection of the Respondent No.5 is set aside and quashed, same will spring up the right of the other two candidates, who were placed at Sl. No.2 and 3 and not to the pe titioner. The said two candidates are not the party respondents in this proceed ing. Although a statement has been made in the writ petition that none of the s elected candidates is having NET/SLET qualification, in absence of the said two selected candidates in this proceeding, no definite finding in that regard in r espect of those two candidates can be returned. 18. In Dr. Mohanjit (supra), the Apex Court found that the absence of the pa rticular member, which was the condition precedent for completing the corum, vi tiated the selection. Same is not the case in hand. Admittedly, the Head of th e Department of Economics was not available at the time of selection. It was in that kind of situation the Governing Body took the resolution to induct the Vic e-Principal of the college as the 5th member. This aspect of the matter will al so have to be considered taking into account the plea of the petitioner that th e selection committee was constituted by the Principal all by himself and not b y the Governing Body. The very fact that it was the Governing Body of the colle ge, which decided to induct the Vice-Principal of the college as the 5th member of the selection committee in absence of the Head of the Department of the subj ect concerned will go to show that the Governing Body had the approval towards constitution of the selection committee. 19. In N.T. Bevin Katti (supra), it was observed that a Government order i ssued in exercise of statutory powers acquires statutory force. The facts and c ircumstances involved in the instant case have been noticed above. During the pe ndency of the proceeding, the Respondent No.5 has acquired M. Phil degree by virtue of which he is exempted from obtaining NET/SLET qualification, which wa s made the condition precedent towards permanency in the post. The petitioner w as kept on probation and he was not provided with regular time scale of pay. Sa me has been effected only with effect from 14.2.2008, upon his obtaining M. Phil degree and the notification to that effect, has been issued on 8.8.2008, which is also not under challenge. 20. By now, the Respondent No.5 has rendered more than 6 (six) years of serv ice as Lecturer of the college in the particular department. In the meantime, he has not only gathered experience but has also obtained the required M. Phil d egree, which is exempted from the required NET/SLET qualification as per the UGC norms. The Respondent No.5 having acquired the qualification and his appointme nt to the post all throughout till then, being on probation at fixed pay of Rs .8,000/-, which is the minimum of the time scale of pay, and even otherwise, it would not be prudent and appropriate to set aside his selection and appointment , more so, when the other two selected candidates in order of preference are no t party respondents to this proceeding. 21. For all the aforesaid reasons, no relief can be granted to the petition er and accordingly, the writ petition is dismissed, without, however, any order as to costs.