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IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM

AND ARUNACHAL PRADESH)

1) WRIT APPEAL NO. 227 of 2009

1) Dr. Ajit Kr. Baruah S/o. Late Bubai Baruah R/o. Bormoinaparia, P.O. Borkhelia, Dist. Jorthat, Assam 2) Dr. Uptal Ch. Sarma S/o. Shri Gopal Ch. Sarmah, R/o. Golai Nagar-2, P.O. Digboi Dist. Tinsukia 3) Dr. Parimal Ch. Acharjee S/o. Late Surendra Bijay Acharjee Presently working in the Lumding College, P.O. Lumding, Dist. Nagaon … Appellants Versus

1) The State of Assam Represented by the Commissioner And Secretary to the Govt. of Assam, Education Department, Dispur, Assam 2) The Director of Higher Education Assam, Kahilipara, Ghy- 19 3) The Governing Body of Lakhimpur Kendriya Mahavidyalaya, Lakhimpur Represented by its Presidnet. 4) Shri Suresh Ch. Goswami, Principal (Retd.) Lakhimpur Kendriya Mahavidyalaya, Lakhimpur.

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5) Smti Neelima Gogoi (Konwar), Head of the Deptt. of Economics, Lakhimpur Kendriya Mahavidayalaya, Lakhimpur, Assam 6) Shri Durgeswar Hazarika, S/o. Shri Beben Hazarika, R/s. Charaimaria, P.S. North Lakhimpur, Dist. Lakhimpur, Assam 7) Dr. Jogesh Kakoti, S/o. Late Sarat kakoti R/o. 4-B, Shakti Enclave, Manik Nagar, Rajdhani Nursery, Zoo Road, Guwahati-05 8) Dr. Ranjan Kr. Borah, S/o. Shri Nirmal Ch. Borah, R/o. Vill & P.O. Alengmuria, P.S. Hokirakhat, Dergaon, Golaghat- 22 9) Dr. Ram Ch. Deka, S/o Shri Dhireswar Deka, R/o. Bhuktabari, P.O. Sipajhar, Darrang- 784145 10) Dr. Ganga Dhar Das, S/o. Late Dina Nath Das, R/o. Vill- Kaljar, P.O. Barbala Barpeta- 781316 11) Dr. Suranjan Sarma, S/o. Shri Panchanan Sarma R/o. Forensic Sc. Lab., Qtr. No. 5 Kahilipara, Ghy- 19 12) Dr. (Mrs.) Sarafima Ahmed, D/o. Late Lamaluddin Ahmed, R/o. Ward No. 6, P.O. North Lakhimpur, Lakhimpur- 1

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13) Dr. Prasen Daimari, S/o. Late Takhoria Daimari R/o. Vill- Pub-Nalbari, P.O. Tangla, Udalguri (BTAD) Pin- 784521 14) Dr. Kukil Kr. Baruah, S/o. Late Hari Kanta Baruah, R/o. North Guwahati, Silsakoo, P.O. Guwahati-30 15) Dr. Kishore Kr. Talukdar, S/o. Late Hem Ch. Talukdar, R/o. Ward No. 1, Tihu Town, Nalbari- 781371 16) Dr. Bhaskar Kalita, S/o. Santo Ram Kalita Vill & P.O. Karchantola, Jamugurihat, Sonitpur-784189 17) Dr. Khagendra Kr. Nath, S/o. Sangarnagar, Ward No. 8 P.O.- Mangaldoi, Darrang-784125 18) Dr. Ghana Gogoi, S/o. Late Padmadhar Gogoi, R/o. Vill- Ramu Gaon, Amguri Sibsagar 19) Dinamani Bhagawati S/o. Late Nabin Ch. Bhagawati, R/o. Lane-4, Ward No. 3, Bidyapur, Nalbari 20) Girish Ch. Deka, S/o. Late Pilinga Deka, R/o. Bidyapur, Ward No. 3 Nalbari 21) Upama Barman Deka, D/o. Late Chandi Charan Barman, R/o. Bidyapur, Ward No. 3, P.O. & Dist. Nalbari- 781335

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22) Parul Saikia, D/o. Late Madhan Saikia, R/o. Six Mile, Juripar, House NO. 2, Ghy-781037 23) Indira Saikia Borah, D/o. Late Kolai Saikia, HOD Sanskrit Deptt., Pragjyotish College, Ghy-9 24) Nripendra Nath Talukdar, S/o. Late Chana Ram Talukdar, HOD Chemistry Deptt., Pub-Kamrup College, P.O. Baihata Chariali, Kamrup, Ghy-81 25) Dr. Dhiren Shrutikar, S/o. Late Upendra Nath Shrutikar, R/o. Qtr. No. B1-002, Game Village, Borsajai, Ghy-781029 26) Dr. Bibhas Deb, S/o. Late Birendra Kr. Deb, R/o. Basoata Niloy, Adhor Chand School Road, Dist. Silchar- 788004 27) Dr. Umen Dutta, S/o. Late Debeswar Dutta, R/o. K.N. Path, Na-Ali, Bongal Pukhuri, K.N. Path, Jorhat- 1 28) Dr. Bimal Borah, S/o. Shri Ganesh Borah, C/o. Haresh Baruah, H.B. Path, Katoky Gaon, Dist. Jorhat 29) Dr. Buddhindra Nath Saikia, S/o. Late Dharmeswar Saikia, R/o. Vill & P.O. Chakial, Dist. Jorhat- 785632

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30) Dr. Babul Chandra Sarma, S/o. Late Dhireswar Sarma R/o. P.O. Gopal Bazar, Vill- Kharjar, Dist. Nalbari-781365 31) Dr. Beda Kumar Chaliha, S/o. Late Hemaprasad Chaliha, R/o. Vill- Bhogpuriya, P.S. Phulbari Boka Nadi, Dist. Lakhimpur 32) Dr. Lohit Saikia, S/o. Shri Tankeswar Saikia, R/o. Jahajram Das Road, Graham Bazar, P.O.- Dibrugarh Dist. Dibrugarh 33) Dr. Dip Saikia, S/o. Shri Bisweswar Saikia R/o. MBP Road, Amolapatty, Nagaon, Dist. Nagaon 34) Dr. Bharati Dutta, S/o. Late Ram Raja Sinha, C/o. Prof. K. Dutta, Deptt. of Statistics Dibrugarh University, Dibrugarh 35) Dr. Debabrata Khanikar, S/o. Tuaram Khanikar, R/o. P.O. & Vill- Chakial, Dist. Jorhat-785614 36) Dr. Muhudhar Puzari, S/o. Shri Kamal Chandra Puzari, R/o. Ward No. 8, Sashi Phukan Path, North Lakhimpur, Lakhimpur- 787001 37) Dr. Manindra Singha S/o. Late Thambanjaw Singha, R/o. Vill & P.O. Amala, Dist. Hailakandi Pin- 788164 38) Dr. Ashok Kumar Das, S/o. Shri Akash Chandra Das, R/o. Tilok Chand Road, P.O. & Dist. Karimganj- 788710

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39) Dr. Suresh Dutta, S/o. Late Indra Nath Dutta, R/o. College Road Khelmati North Lakhimpur, Dist- Lakhimpur Pin- 787031 40) Dr. Sarat Barkataki, S/o. Late Nilkanta Barkataki, R/o. Panigaon, Chayali, Politechnique Road, Dist. Nagaon- 782001 41) Dr. Gajendra Adhikary, S/o. Late Kamala Kanta Adhikary, R/o. P.O. Mirza, Kamrup- 781125 42) Dr. Parul Choudhury, W/o. Shri Kandarpa Talukdar R/o. Shantipur Main Road, Ashram Road, Guwahati, Dist. Kamrup- 781009 43) Dr. Golapi Devi D/o. Late Girish Ch. Sarma, R/o. Rajabahar, P.O- Dergaon, Dist. Golaghat 44) Dr. Joy Krishna Mahanta, S/o. Late Hemchandra Mahanta, R/o. Naliapul, P.O. Dibrugarh Dist. Dibrugarh 45) Dr. Bipul Kumar Baruah, Dibrugarh College, Dist. Dibrugarh 46) Dr. Narayan Ch. Sarma S/o. Late Hariprasad Sarma P.O. Makalabari Dist. Jorhat

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47) Dr. Amelendu Chakraborty, Selection Grade Lecturer, Deptt. of Physics, Cachar College, Silchar, 48) Dr. Sankar Prasad Bhattacharyya, Selection Grade Lecturer, Deptt. of Zoology, G.C. College, Silchar 49) Dr. K. Nayan Chand Singha, Selection Grade Lecturer, HOD, Deptt. of Manipuri, G.C. College, Silchar 50) Dr. P. Raj Bihari Singh, Selection Grade Lecturer & HOD Deptt. of Economics, Nehru College, Pilapool Cachar 51) Dr. Debashish Roy, Senior Lecturer, Deptt. of History, Radhamadhab College, Silchar- 6 52) Dr. Chandan Dey, Head Department of Commerce, Cachar College, Silchar-1 53) Dr. Pran Krishna Das, Senior Lecturer, Nalbari College, Nalbari, 54) Dr. Leena Kumari Deka, Sr. Lecturer, M.N.C. Balika Mahavidyalaya, Nalbari 55) Dr. Dalimi Devi Sr. Lecturer, M.N.C. Balika Mahavidyalaya, Nalbari 56) Dr. Umesh Talukdar, Sr. Lecturer, Nalbari Commerce College, Nalbari

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57) Dr. Atul Ch. Haloi, Sr. Lecturer, Nalbari Commerce College, Nalbari, 58) Dr Dipti Choudhury, Sr. Lecturer M.N.C. Balika Mahavidyalaya, Nalbari 59) Dr. Biren Kr. Chakravorty, Sr. Lecturer, Nalbari College, Nalbari, 60) Dr. Prabodh Sarmah, Sr. Lecturer, Nalbari College, Nalbari 61) Dr. Mrinal Kumar Das, Sr. Lecturer, Guwahati College, Guwahati-21 62) Dr. Lakhaneswar Ghatowar, Sr. Lecturer, Guwahati College, Guwahati-21 63) Dr. Dhiren Kalita, Sr. Lecturer, Kakojan College, Jorhat, 64) Dr. (Mrs.) Shanti Borah, Sr. Lecturer, Dibru College, Dibrugarh 65) Dr. Bipul Gogoi, Sr. Lecturer, Demow College, Sivasagar 66) Dr. (Mrs.) Ashfir Sultana Sr. Lecturer, Sibsagar College, Joysagar, Sibsagar, 67) Dr. Gunin Gogoi Sr. Lecturer, Tengakhat College, Dist. Dibrugarh,

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68) Dr. Shahjahan Ali Ahmed, Sr. Lecturer, Kamar Gaon College, Kamargaon, Dist. Golaghat

69) Dr. Purushottam Bhandari, Selection Grade Lecturer, Jagiroad College, 70) Dr. Bijoya Baruah, Sr. Lecturer, Dimoria College, Dist. Kamrup 71) Dr. (Mrs.) Babita Choudhury, Selection Grade Lecturer, Deppt. Of Education, Radha Govinda Baruah College, Fatasil Ambari, Guwahati-25 72) Dr. Mahananda Borah, Sr. Lecturer, Deptt. of Geology, Demoria College, Khetri, Kamrup 73) Dr. Rajib Barthakur, Sl. Grade Lecturer, HOD, Botany, D.K.D. College, Dergaon, 74) Dr. Porag Kumar Thakur, Sl. Grade Lecturer, HOD of Zoology D.K.D. College, Dergaon 75) Dr. Monoj Joyti Hazarika Sl. Grade Lecturer, Deptt. of Chemistry, D.K.D. College, Dergaon, 76) Dr. Pranab Kumar Sarma Sr. Lecturer, Mangaldoi College, Dist. Mangaldoi 77) Dr. Mrinal Bhuyan, Sr. Lecturer, DHSK College, Dibrugarh, Dibrugarh

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78) Dr. Rajee Konwar Sr. Lecturer,

Demow College, Demow, Sibsagar

79) Dr. Pratha Ganguli Sr. Lecturer, DHSK College, Dibrugarh 80) Dr. Madhumita Purkayastha Sr. Lecturer,

DHSK College, Dibrugarh, Dibrugarh 81) Dr. Priya Dev Goswami Sr. Lecturer, DHSK College, Dibrugarh, Dibrugarh 82) Dr. Poresh Baruah, Sr. Lecturer, DHSK College, Dibrugarh, Dibrugarh 83) Dr. Ritupon Sarmah Sr. Lecturer DHSK College, Dibrugarh, Dibrugarh 84) Dr. Atikuddin Ahmed, Sr. Lecturer, DHSK College, Dibrugarh, Dibrugarh 85) Dr. (Ms.) Junu Mahanta Sr. Lecturer, DDR College, Chabua, Dibrugarh

86) Dr. Omar Saaduddin Ahmed, Sr. Lecturer, Bahana College, Jorhat 87) Dr. Minal Kr. Borah, Sr. Lecturer, Soigaon College, Kamrup

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88) Dr. Nayen Kalita, Sr. Lecturer, Soigaon College, Kamrup 89) Dr. Nazibur Rahman, Sr. Lecturer, West Goalpara College, Goalpara 90) Dr. Dibakar Sarma Sr. Lecturer, M.K. College, Cherga, Barpeta 91) Prabin Das, Sr. Lecturer, Deptt. of Maths, Arya Vidayapeeth College Guwhati-16 92) Shri Ganesh Choudhury, Sr. Lecturer, Deptt. of Chemistry, Arya Vidayapeeth College Guwhati-16 93) Shri Jnanashree Borah, Sr. Lecturer, Deptt. of Geography, Arya Vidayapeeth College Guwhati-16 94) Shri Naba Kr. Talukdar, Sr. Lecturer, M.C. College, Barpeta 95) Dr. Kailash Ch. Sarma Selection Grade Lecturer, & HOD of Botany, Tihu College, Tihu, Nalbari 96) Dr. Jyotish Bhagabati, Selection Grade Lecturer, & HOD of Assamse, Tihu College, Tihu, Nalbari

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97) Dr. Probodh Ch. Goswami, Sr. Lecturer, N.H. College, Patacharkuchi, Barpeta, 98) Dr. Bhupendra Talukdar, Selection Grade Lecturer, Deptt. of Geography, Bajali College, Pathsala, Barpeta 99) Dr. Bhagaban Sarma Selection Grade Lecturer, Deptt. of Zoology, Bajali College, Pathsala, Barpeta 100) Dr. Chandana Sarma Selection Grade Lecturer, Deptt. of Chemistry, Bajali College, Pathsala, Barpeta 101) Shri Balin Hazarika Sr. Lecturer, Kaliabor College, Nagaon 102) Shri Bipul Kr. Sharma Sr. Lecturer, Kaliabor College, Nagaon 103) Dr. Hitesh Deka, S/o. P.C. Deka Secretary, Governing Body, K.C. Das Commerce College, Chatribari, Ghy- 8 104) Shri Balendra Kr. Das, S/o. Hari Ch. Das, Secretary Governing Body, Pachim Guwahati Mahavidyalaya Guwahati-33 …Respondents

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2) WRIT PETITION NO. 3080 OF 2009

1) Dr. Ajit Kr. Baruah S/o. Late Bubai Baruah R/o. Bormoinaparia, P.O. Borkhelia, Dist. Jorthat, Assam 2) Dr. Uptal Ch. Sarma S/o. Shri Gopal Ch. Sarmah, R/o. Golai Nagar-2, P.O. Digboi Dist. Tinsukia 3) Dr. Parimal Ch. Acharjee S/o. Late Surendra Bijay Acharjee Presently working in the Lumding College, P.O. Lumding, Dist. Nagaon … Petitioners Versus 1) The State of Assam Represented by the Commissioner And Secretary to the Govt. of Assam, Education Department, Dispur, Assam 2) The University Grants Commission Represented by its Secretary Bahadurshah Zafar Marg, New Delhi 3) The State Selection Board, Khahilipara Road, Jatia Bye Lane No. 3, Dispur Guwhati-6 4) The Director of Higher Education Assam, Kahilipara, Ghy- 19 5) Dr. Kukil Kr. Baruah, North Gauhati College, Guwahati

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6) Dr. Umen Dutta, CKB Commerce College, Jorhat 7) Dr. Indira Saikia Borah, Pragjyotish College, Guwahati 8) Dr. Upama Barman Deka Nalbari College, Nalbari 9) Dr. Gajendra Adhikary DK Girls College, Mirza Kamrup 10) Dr. Bhaskar Kalita, T.H.B. College, Jamugurihat, Sonitpur 11) Dr. Suranjan Sarma Dimoria College, Khetri Kamrup 12) Dr. (Mrs.) Manju Goswami Arya Vidyapith College, Guwahati 13) Dr. Haladhar Dev Goswami M.C. College, Barpeta 14) Dr. Nripendra Nath Talukdar, Pub Kamrup College, Baihata Chariali 15) Dr. Ganga Dhar Das, B.H. College, Howly, Barpeta 16) Dr. Ranjan Kr. Borah, Pragjyotish College, Guwahati 17) Dr. Parul Choudhury, K.R.B. Girls College, Guwahati 18) Dr. Binita Bora Dev Choudhury, Bajali College, Pathsala, Barpeta

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19) Dr. Siddhi Nath Sarma, Goalpara College, Goalpara 20) Dr. Parul Saikia R.G. Baruah College, Guwahati 21) Dr. Lohit Saikia M.K.D.G. College, Dibrugarh 22) Dr. Debendra Kr. Bezbaruah, Dimoria College, Khetri, Kamrup 23) Dr. Dhritikesh Chakraborty, Handique Girls College, Guwahati 24) Dr. Khagendra Kr. Nath, Mangaldoi College, Mangaldoi Darrang 25) Dr. Dhiren Shrutikar, K.R.B. Girls College, Guwahati 26) Dr. Bibhash Dev, G.C. College, Silchar, Cachar 27) Dr. Muhidhar Puzari, North Lakhimpur College, Lakhimpur 28) Dr. (Mrs.) Sarafima Ahmed, Nabajyoti College, Kalgachia, Barpeta, 29) Dr. Prasen Daimari, Tangla College, Tangla Udalguri 30) Dr. Bimal Borah, J.B. College, Jorhat

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31) Dr. Dinamoni Bhagwati, Nalbari College, Nagari 32) Dr. Munindra Singha, Lala Rural College, Lala, Hailakandi 33) Dr. Suresh Dutta, North Lakhimpur College, Lakhimpur 34) Dr. Bharati Dutta, D.H.S.K. College, Dibrugarh 35) Dr. (Mrs.) Golapi Devi D.K.D. College, Dergaon, Golaghat 36) Dr. Beda Kr. Chaliha Rangachahi College, Majuli, Jorhat 37) Dr. Ghana Gogoi, Abhayapuri College Bongaigaon 38) Dr. Hema Ch. Deka, Dimoria College, Khetri, Kamrup 39) Dr. Dip Saikia, Duliajan College, Duliajan, Dibrugarh 40) Dr. Devabrata Khanikar, D.K.D. College, Dergaon, Golaghat, 41) Dr. Sarat Borkataki, Nowgaon College, Nagaon 42) Dr. Ashok Kr. Das, Karimganj College, Karimganj

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43) Dr. Budhindra Nath Saikia, N.N.S. College, Titabor, Jorhat 44) Dr. Ashok Dr. Sarma, Nalbari College, Nalbari 45) Dr. Ram Ch. Deka, Sipajhar College, Sipajhar, Darrang 46) Dr. Bhanu Prova Saikia Moran College, Moranhat, Sivasagar 47) Dr. Girish Ch. Deka, Kamrup College, Chamata, Nalblari 48) Dr. Bibhuti Bhushan Panda, B.P.C. College, Nagarbora, Kamrup 49) Dr. Babul Ch. Sarma, Abhayapuri College, Bongaigaon 50) Dr. Minu Buragohain, D.H.S.K. College, Dibrugarh 51) Dr. Manik Ch. Barman, Nalbari Commerce College, Nalbari 52) Dr. Khanindra Kr. Sarma, Birjhora Mahavidyalaya, Bongaigaon 53) Dr. Karabi Dutta Choudhury, G.C. College, Silchar, Cachar 54) Dr. Kishore Kr. Talukdar, Tihu College, Tihu, Nalbari

… Respondents

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P R E S E N T

HON’BLE MR. JUSTICE B.K. SHARMA HON’BLE MR. JUSTICE C.R. SARMA

For the petitioner s : Mr. S.S. Goswami, Ms. L. Devi, Avocates For the respondents : Mr. D. Saikia, SC, Mr. A. Deka, SC Mr. U.K. Nair, Mr. T.J. Mahanta, Mr. A. Choudhury, Mr. D. Baurah, Mr. P.J. Phukan, Advocates Date of hearing : 23.08.2011 Date of judgment : 23.09.2011

JUDGMENT & ORDER

(B.K. Sharma, J)

1. The writ appeal and the writ petition raising the same issue

have been heard together and are being disposed of by this common

judgment and order.

2. While in the writ appeal the challenge is to the judgment and

order dated 30.06.09 passed in W.P.(C) No. 1657/2009 filed by the

respondent No. 6, in the writ petition the challenge is to the

consequential action of publishing the select list for appointment of

Principal in 51 provincialised colleges. Be it stated here that the

present appellants/ petitioners were not party to the said

proceeding.

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3. The writ petition being W.P.(C) No. 1657/2009 from which the

present proceeding has arisen, was filed by one Shri Durgeswar

Hazarika (respondent No. 6 in the appeal) in respect of the dispute

relating to the charge of Principal of the college called Lakhimpur

Kendriya Mahabidyalaya. The challenge in the writ petition was the

Annexure-15 order dated 31.03.2009 and Annexure-17 order dated

18.03.2009 (annexed to the writ petition) passed by the Principal of

the Mahabidyalaya and the Director of Higher Education, Assam

respectively. By Annexure-15 order dated 31.03.2009, the resolution

of the Governing Body of the college and consequential handing

over of charge to the respondent No. 5 therein was conveyed. The

said resolution and action of the Principal of the college was

approved by the Director of Higher Education Assam by the

aforesaid Anenxure-17 order dated 18.03.2009.

4. According to the writ petitioner, i.e. respondent No. 6, because

of non-sanctioning of the post of Vice-Principal in which capacity he

had been discharging duties and functions, he had been deprived of

being the In-charge Principal.

5. While adjudicating the said issue involved in the writ petition,

learned Single Judge took up the larger issue of appointment of

Principals in colleges on regular basis and on the basis of the

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submission made by the learned Standing counsel, Education

Department that interview, selection and other process for selecting

the candidates were already over, held that the select list should be

published. Accordingly, direction was issued to publish the select list

and thereafter to make appointments on that basis as per the

provision of law.

6. As regards the issue raised in the writ petition it was held that

in absence of any provision in the Rules that the Vice-Principal

should be allowed to hold the charge of the Principal, the petitioner

involved in the writ petition was not entitled to any superior claim

over the respondent No. 5 therein. Accordingly, direction was issued

for continuation of the respondent No. 5 as In-Charge Principal for a

period of three months and thereafter to take action for appointment

of regular Principal on the basis of the select list that was directed

to be published.

7. In the present proceeding, we are not concerned with the

dispute between the respondent No. 5 and the writ petitioner

involved in the writ petition from which the present writ appeal and

the writ petition have arisen. The issue involved is as to whether the

selection for appointments of Principal had been conducted in

accordance with rules and if not, whether the learned Single Judge

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could have issued the direction for publication of the select list and

thereafter to make appointments of Principal on that basis.

8. The appellants/ writ petitioners are working in provincialised

colleges in Assam. They claim to be qualified for empanelment

pursuant to the selection to be conducted by the State Selection

Board, Assam for the post of Principal. Referring to the Assam

Education Department Selection Rules, 1981, the appellants/

writ petitioners have contended that under Rule 10 (1), the number

of the selected candidates to be empanelled should be at least 3

times of the existing vacancies. They have also stated about the

Assam College Employees Provincialisation Act, 2005

providing for provincialisation of the services of the employees of the

Non-government colleges. Emphasizing on Section-6 of the said Act,

it has been stated that the appointments against both teaching and

non-teaching posts in the colleges should be made by the Director of

Higher Education, Assam on the basis of the selection and

recommendation of the Governing Body of the respective colleges in

accordance with the rules and procedure being followed.

9. The above stand of the appellants/petitioners has a vital

bearing in the instant proceeding inasmuch as the impugned select

list has been prepared by Govt. of Assam in the Higher Education on

the basis of the selection conducted by the State Selection Board

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and in the process there is no association of Governing Body of the

respective colleges.

10. Since in the present proceeding we are concerned with the

issue as to whether the select list was prepared in accordance with

law or not, the basic fact related to the said issue are briefly

indicated. The selection in question was conducted pursuant to the

judgment and order dated 15.02.2007 passed in the writ appeal

being WA No. 261/2006. The appeal was preferred against the

judgment and order dated 19.06.2006 in W.P.(C) No. 819/2006

whereby it was provided that the particular select list published on

21.06.2004 was valid till 21.06.2006. It was also provided that the

select list would continue to operate for further period of 4 months

upto 18.10.2006.

11. In the said judgment and order the significant observation

made is in paragraph-6 dealing with the contention about the

number of posts for which the particular advertisement was issued.

The said observation is “moreover, this is not a case of

selection for appointment; it is a case of selection for

empanelment of teachers for the post of Principal. Rule

provides that persons who are empanelled in the select list

are eligible for appointment to the post of Principal and the

concerned college is required to make selection from the

said list only”.

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12. In the said writ appeal the following direction was issued.

“We, therefore, direct the respondent authority, the Selection Board to issue fresh advertisement in accordance with Rule and regulations governing the matter, clearly indicating therein the number of vacancies for which advertisement is issued. The entire process of selection shall be completed and selection panel list be published within a period of four months”.

13. After the aforesaid judgment and order, the State Selection

Board, Assam issued an advertisement inviting candidatures for

selection of candidates for appointment of Principals in provincialised

colleges of Assam. In response to the said advertisement,

candidatures were offered including the candidatures of the

appellants/ writ petitioners. In acceptance of the candidatures, call

letters had been issued for interview. After the interview etc., the

Member Secretary of the Selection Board by its letter dated

13.02.2009 submitted the select list of the candidates for

appointment of Principals in provincialised colleges to the Principal

Secretary to the Govt. of Assam in the Higher Education. The select

list was prepared in order of preference with the ratio of 1:3.

Keeping the said ratio against 51 vacant posts, 153 candidates were

selected. It is the stand of the writ petitioners that the select list

could not have been prepared in order of preference as according to

them, in fact it was not a select list but an empanelled list of eligible

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candidates for selection as Principal to be conducted by the

respective colleges.

14. By letter dated 13.02.2009 (Annexure-9 to the writ petition),

the Govt. of Assam in the Education (Higher) Department informed

the Principal Secretary of the State Selection Board that the earlier

direction for selection of Principal against the vacancies at the ratio

of 1:3 be restricted to the number of vacancies only as per the

provision of Fiscal Responsibility and Budget Management

Act, 2005 (hereinafter referred to FRBM Act, 2005). Thereafter

the Principal Secretary, Govt. of Assam in the Education (Higher)

Department issued office memorandum dated 24.02.2009 notifying

that in view of coming into force of the FRBM Act, 2005, the first

sentence in Rule 10 (1) of the Assam Education Department

Selection Rules, 1981 stood amended. The amendment of Rule

10 was indicated as follows:

“Rule 10: Publication of selection list of Lecturers and Principals (I) The Selection Board shall prepare lists of candidates for Lecturers and Principals numbering equal to the number of vacancies notified in the advertisement and shall forward the list as prepared to the Government”.

15. It was at that stage the writ petitioners came to know about

the impugned judgment and order issuing direction for publication of

the select list within three months. It was their stand that they were

expecting publication of the select list/empanelled list containing the

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names of 153 candidates at the ratio of 1:3 on the basis of which

the further selection was to be made by the respective colleges.

16. When the writ petitioners/appellants came to know about the

impugned judgment and order, they made queries about the

proceeding therein and could come to know about the writ petition,

facts stated therein with eventual impugned judgment and order.

Thereafter by impugned office memorandum dated 13.07.2009 the

select list containing the names of 51 candidates had been

published. While challenging the select list, the petitioners have also

contended that the ratio of 1:3 as envisaged in the Rules of 1981

could not have been set at naught by a stroke of pen taking

recourse to FRBM Act.

17. We have heard Mr. S.S. Goswami alongwith Ms. L. Devi,

learned counsel for the appellants/ petitioners as well as Mr. D.

Saikia, learned Addl. Advocate General, Assam alongwith Mr. A.

Deka, learned Standing counsel, Education Department representing

the official respondents. We have also heard Mr. U.K. Nair, learned

counsel representing the respondent Nos. 7 to 43; Mr. T.J. Mahanta,

learned counsel representing the respondent No. 5; Mr. A.

Choudhury, learned counsel representing the respondent Nos. 13,

16, 17: Mr. D. Baruah, learned counsel representing the

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respondent No. 47 to 101 and Mr. P.J. Phukan, learned counsel

representing the respondent Nos. 103 and 104.

18. While Mr. A. Choudhury, learned counsel for the respondent

No. 13, 14 and 17 in course of argument supported the case of the

respondent Nos. 7 to 43 represented by Mr. U.K. Nair, Mr. D.

Baruah, learned counsel representing the respondent Nos. 47 to 101

supported the case of the appellants /writ petitioners. On the other

hand Mr. T.J. Mahanta, learned counsel representing the respondent

No. 5 submitted that in the event of the appeal/petition being

allowed with direction to hold a regular selection in accordance with

Rules, the interest of the respondent No. 5 as In-charge Principal of

the particular college should be protected till finalisation of the said

selection.

19. In his elaborate and detailed argument, Mr. Goswami, learned

counsel appearing for the appellants/ petitioners, submitted that all

through out the history of the Education Department, in every

selection of Principal a list of empanelled candidates was prepared

making the empanelled candidates eligible for selection to be

conducted by the respective colleges. According to him a deviation

was made in making the impugned selection. In this connection, he

has exclusively referred to the aforementioned judgment and order

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dated 15.02.2007 passed by the Division Bench of this Court in WA

No. 261/2006 in which the above quoted directions had been issued.

20. In addition to above, Mr. Goswami, learned counsel for the

appellants/petitioners has also placed reliance on certain other

decisions which are as follows:

i) 1993 (2) GLJ 242 (Shri Bhupender Singh vs. Director of Public Instruction (Higher Education) Govt. of Assam & ors.)

ii) (1998) 9 SCC 223 (B.L. Gupta & ors. vs. M.C.D.) iii) (2010) 7 SCC 560 (Md. Raisul Islam & anr. Vs. Gakul Mohan Hazarika and ors.) iv) Unreported judgment dated 10.06.2009 passed in WA No. 308/2006 alongwith W.P.(C) No. 1546/2007 (Dr. Ramen Talukdar vs. State of Assam & ors.) v) Unreported Judgment dated 02.12.2009 passed in

WA No. 167/2007 (The Governing Body of Dibru College vs. State of Assam and ors.)

vi) Unreported judgment dated 23.09.2008 passed in WP(C) No. 6131/2006 (Bhabeswar Deka vs. State of Assam and ors.)

21. Mr. D. Saikia, learned Addl. Advocate General during the

course of argument submitted that since in the meantime the

Assam College Employees’ (Provincialisation) Rules, 2010

has come into force, the procedure envisaged in the said rules

should be applied towards consideration of the selection. He has also

referred to the provision of the Assam College Employees’

(Provincialisation) Act, 2005 to emphasize the point. Referring

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to the decision reported in 2011 (1) GLT (SC) 52 (Ranu

Hazarika vs. State of Assam) , he submitted that he the High

Court will not perpetuate an illegality that was committed while

preparing the select list.

22. Mr. P.J. Phukan, learned counsel representing the respondent

Nos. 103 and 104 referring to the provision of the Act of 2005,

submitted that the entire selection was vitiated due to non-

compliance of the provisions of the said Act and consequently the

learned Single Judge could not have issued the direction for

publication of the select list that was prepared in violation of the

provisions of the said Act. In support of his submission he has

placed reliance on the decision of the Apex Court reported in AIR

1975 SC 984 (Dr. Amarjit Singh Ahluwalia vs. State of

Punjab and others) .

23. Mr. U.K. Nair, learned counsel for the respondent Nos. 7 to 43

strenuously argued towards defending the impugned judgment and

order. He submitted that the appellants/ petitioners having

participated in the selection process cannot turn around the same so

as to contend that the selection was not as per the Rules. Referring

to the provisions of the Assam Education Department Selection

Rules, 1981, he submitted that the entire selection process was

strictly in accordance with the provisions of the said Rules and thus,

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there was no infirmity in the impugned judgment and order by which

direction was issued for publication of the select list and to make

appointment on that basis. As regards the contention of the

appellants/ petitioners that as per the provision of Section 6 of the

2005 Act requiring appointment of the Principal on the basis of the

selection to be conducted by the respective colleges, he submitted

that in absence of any Rules laying down the procedure thereof, the

authority rightly followed the procedure envisaged in the Rules of

1981.

24. We have carefully considered the submissions made by the

learned counsel for the parties. We have also scrutinised the entire

materials on record. After giving our anxious consideration to the

same, our findings and conclusions are as follows:

25. The writ petition from which the impugned judgment and

order has arisen was not involved with the question of publication of

the select list for appointment of Principals in proviscialised colleges

of Assam. As to what was the issue involved in the writ petition, has

been noted above. The controversy raised in the writ petition was

relating to charge of the post of Principal. It was only during the

course of hearing of the writ petition, the learned Standing counsel

for the Education Department had apprised the Court about the

particular process and selection for appointment to the vacant posts

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of Principal in different colleges and selection of 51 candidates.

However, no reasons could be furnished as to why the select list was

not published. It was submitted that the Rules envisaged under

Section 12 of the Assam College Employees’

(Provincialisation) Act, 2005 had been framed leading to

difficulties in making appointment to the vacant posts of Principal.

26. Learned Single Judge had noticed that there was objection

regarding number of candidates selected in comparison to 51

number of posts. As per the requirement of Rule 10 of the Assam

Education Department Selection Rules, 1981, the Selection

Board was required to select candidates at the ratio of 1:3. However,

falling back on the provision of FRBM Act, 2005, the learned Single

Judge conceded that the select list prepared for fresh appointment

to sanctioned posts of Principal was equal to the number of

vacancies. However, in the process it was not brought to the notice

of the learned Single Judge that as per the provision of the Act of

2005 (Section 6) which provides that the Governing Body of the

respective colleges is the authority for selection and

recommendation of candidates for the post of Principal.

27. While it is true that by office memorandum dated 24.02.2009,

the Principal Secretary to the Govt. of Assam in the Education

(Higher) Department notified amendment of Rule 10 (1) of the

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Assam Education Department Selection Rules, 1981 providing

for preparation of select list of candidates equal to the number of

vacancies, but in the process the said authority completely

overlooked as what would be the position in view of the clear cut

provision under Section 6 of the 2005 Act empowering the

Governing Bodies of the colleges to make the final selection. It was

also not brought to the notice of the learned Single Judge that as

per the provision of the Assam Non-Government College

Management Rules, 2001 being followed at that relevant point of

time, the Governing Body of the college was to take prior approval

of the Director of Higher Education, Assam in the matter of

appointment of both teaching and non-teaching staff including

Principal.

28. Apart from the above, it was also not brought to the notice of

the learned Single Judge that the selection in question was pursuant

to the Division Bench judgment of this Court in WA No. 261/2006 in

which it was clearly held that the selection by the State Selection

Board was not a selection for appointment, but a selection for

empanelment of candidates for the post of Principal and that such

empanelled candidates are required to undergo another selection to

be conducted by the respective colleges. As to what was the

direction in the said case has been noted above.

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29. It was pursuant to the said direction, the impugned selection

was conducted. It is on record (Annexure-6 to the writ petition)

that the Director of Higher Education, Assam by his letter dated

01.02.2006 addressed to all Principals and Secretaries of the

Provincialised colleges circulated the Guidelines to be followed by

the provincialised colleges in respect of selection of Principals as per

the provision of Section 6 of 2005 Act. As per the said

Guidelines, the college authority is to constitute a selection

committee for selection of candidates for vacant sanctioned posts of

Principal/ Lecturer /Librarian etc. Detailed procedure was laid down

in the said guidelines. The same was followed by Annexure-7 letter

dated 12.09.2007 addressed to the Principal Secretary, State

Selection Board by the Secretary to the Govt. of Assam in the

Education (Higher) Department interalia stating that there had been

no change regarding selection of Principal either for provincialised or

Govt. college since 2000. A copy of the said letter was marked to the

learned Sr. Standing counsel, Education Department with the

endorsement that the letter had been issued in reference to the

aforesaid judgment and order dated 15.02.2007 in WA No.

261/2006 in terms of which the selection conducted by the

Selection Board was to be only for empanelment of candidates, but

instead the select list was prepared by the Board itself for

appointment without referring the empanelled list to the respective

colleges for further selection.

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30. The aforesaid communications were followed by Annexure 8

dated 18.02.2009 addressed to the Principal Secretary, Education

(Higher) Department by the Principal Secretary, State Selection

Board intimating selection of candidates applying the ratio of 1:3

against 51 vacant posts. However, on 24.02.2009 the aforesaid

office memorandum was issued purportedly amending Rule 10 (1)

of the Rules of 1981 so as to provide equal number of selected

candidates for equal number of vacant posts as against 1:3 ratio

provided in Rule 10 (1) of the said Rules.

31. Learned counsel for the appellants/petitioners has placed

reliance on the decisions in Shri Bhupendra Singh, Dr. Ramen

Talukdar, Governing Body of Dibru College and Bhabeswar

Deka (supra) to emphasize that it has been the practice and

procedure being followed in the matter of selection and appointment

of Principal in colleges with first the State Selection Board takes a

task of empanelling all eligible candidates applying the ratio of 1:3

and thereafter the final selection is made by the respective colleges

from the said list of empanelled candidates.

32. In the aforesaid decision the above practice and procedure has

been recognised. Irrespective of the said judgments when the very

selection was conducted on the basis of the direction contained in

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the aforementioned judgment and order dated 15.02.2007

passed in WA No. 261/2006, the respondents ought to have held

the selection in tune with the said direction.

33. It was in that context Mr. D. Saikia, learned Addl. Advocate

General, referring to the decision of the Apex Court in Ranju

Hazarika (supra), submitted that if the direction of the learned

Single Judge in the impugned judgment and order is to be

implemented, and this Court issues directions to that effect, the

same will amount to perpetuate an illegality.

34. Mr. Goswami, learned counsel for the appellants/petitioners

placed reliance on the decision of the Apex Court in Md. Raisul

Islam and B.L. Gupta (supra), to emphasise that when the

statutory rules are there the vacancy will have to be filled up only

according to the said rules without taking recourse to RFBM Act.

35. Mr. Phukan, learned counsel for the respondents No. 103 and

104 has placed reliance on Dr. Amarjit Singh (supra) so as to

emphasize that the Rules of 1981 are not statutory rules having

force of law and are mere administrative instructions issued by the

State Govt. exercising its executive power. He further submitted that

in view of the provision of Section 6 of 2005 Act mandatorily

requiring the selection to be conducted by the respective colleges,

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the respondents could not have taken recourse to non statutory

Rules of 1981 so as to frustrate the said provision of the Act.

36 Mr. Nair, learned counsel for the respondent Nos. 7 to 43 in his

painstaking argument submitted that the selection having been

conducted as per the provisions of 1981 Rules and there being no

objection from any corner even to the extent of participation of the

appellants/ petitioners, learned Single Judge was right in issuing the

direction for appointment from the select list prepared on that basis.

When it was pointed out to him that as per the provision of Section

6 of 2005 Act, it is mandatory to make the selection by the

respective Governing Body of the colleges, it was his submission that

in absence of the rules framed thereunder, the competent authority

was within its right and jurisdiction to take recourse to 1981 Rules.

37. The above submission of the learned counsel will have to be

appreciated in the context of the direction of the Division Bench

referred to above. In the said judgment and on all earlier occasions

this court proceeded in the matter of selection of Principal following

the long stand practice and procedure referred to above. It is in such

circumstances, in the judgment referred to above by the Division

Bench in WA No. 261/2006 direction was issued to the Selection

Board for issuing fresh advertisement in accordance with rules and

regulations governing the matter. While doing so, it was observed

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that the select list is not in the sense of selection of candidates for

appointment but for a mere empanelment for the post of Principal.

In Dr. Romen Talukdar (supra) while stating the relevant facts,

the Division Bench recorded thus :

”A list of empanelled candidates eligible for further selection and appointment as Principal of Aided Colleges (now Provincialised) was published on 22.06.2004. The life of the aforesaid panel was for one year, i.e. upto 22.06.2005. From the aforesaid penal, individual colleges were required to make further selection for appointment as Principal on the basis of advertisement issued.”

38. Similarly in Governing Body of Dibru College (supra) also,

the fact of the case was stated thus:

“Appointment of Principals in the erstwhile deficit colleges of Assam (subsequently known as non-Government Colleges most of whom have not been provincialised) was regulated by the provisions of the Assam Education Department Selection Rules, 1981 (as mentioned) as well as the provisions of the Assam Non-Government College Management Rules, 2001. A select list of persons eligible for appointment as Principal of such Colleges was required to be prepared by the State Selection Board constituted under the provisions of the 1981 Rules. The validity of the select list prepared under Rule 10(3) of the 1981 Rules was for a period of one year. Individual colleges were required to issue advertisements for filling up the post of Principal on such vacancies occurring. Candidates included in the select list prepared by the State Selection Board are eligible to apply. Thereafter each college is required to have its own selection process at the end of which the select list of successful candidates is to be prepared. If the same is approved by the Governing Body of the college the proposal for appointment of the approved name is required to be sent to the Director of Higher Education and only on obtaining the prior approval of the Director appointments could be made”.

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39. In Bhabeswar Deka (supra) also similar fact was stated and

while doing so the judgment and order of this Court in WA No.

261/2006 was also referred to.

40. Above being the position, there was no escape from the

responsibility of the State Selection Board to prepare the list of

empanelled candidates from which the respective colleges had

conduct selection for appointment of Principal. Under no

circumstances, Rules of 1981 which has no statutory force could

have been given preference to the provision of 2005 Act.

41. During the course of hearing it was brought to our notice that

the State Govt. in the Education (H) Department has already framed

rules called Assam College Employees’ (Provincialisation)

Rules, 2010 in exercise of power conferred under Sub-section 1

of Section 12 of the Assam College Employees’

(Provincialisation) Act, 2005. In tune with the practice and

procedure being followed all throughout, Rule 5 of the said Rules

prescribing the method of recruitment has provided that

appointment to the post of Principal shall be by direct selection and

for the purpose the Governing Body of the respective colleges shall

constitute a selection committee which shall select the candidates on

the basis of interview from amongst the eligible candidates who

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apply in response to open advertisement. It has also been provided

that the Governing Body of the college will recommend the names of

the candidates to the Director of Higher Education who in turn shall

issue the appointment order.

42. The argument that in absence of any rules/ guidelines to

implement the provision of Section 6 of 2005 Act, there was

nothing wrong to fall back on Rules of 1981, will have to

understood in the context of Annexure-6 Guidelines dated

01.02.2006 circulated by the Director of Higher Education, Assam

with copy to the Commissioner and Secretary, Education (Higher)

Department. As per the said guidelines also, the selection of

Principal is to be conducted by the college authority. The said

guidelines was followed by Anenxure-7 communication dated

12.09.2007 addressed to the State Selection Board by the

Secretary, Education (Higher) Department stating that there had

been no change regarding selection of Principal either in

provincialised or Govt. colleges since 2000. A copy of the letter was

also addressed to the learned Sr. Standing counsel, Education

Department in reference to paragraph-7 of the judgment dated

15.02.2007 passed in WA No. 261/2006 quoted above.

43. As regards the applicability of FRBM Act, 2005 on the basis

of which the select list had been restricted to candidates equal to the

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number of vacancies, suffice it to say that provision of the said Act

cannot be applied beyond the object sought to be achieved by the

Act. The Act was promulgated as a measure of financial discipline.

Applying the provision of the said Act, the authority could not have

restricted the right of consideration for empanelment with eventual

selection for the post of Principal of college. Moreover, while doing

so the authority could not have overlooked the provision of

Section-6 of 2005 Act. As per the said provision, respective

colleges are the selecting and recommending authority for

appointment to the post of Principal.

44. As regards the submission made that the appellants/

petitioners having participated in the selection cannot now turn

around the same so as to the question the validity of the process of

selection itself, the same will have to be understood in the context of

the grievance raised in the writ appeal/ writ petition.

45. The appellants/petitioners participated in the selection process

keeping in mind the provision of Rule 10 of 1981 Rules and

Section-6 of 2005 Act. It was a shocker to them when they found

that no empanelled list was published and instead the select list was

published directly without any reference to college authorities and

that too, confining the same to 51 candidates. Thus in the process of

selection in which the appellants/ petitioners had participated,

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subsequent thereto, if any illegality was committed, the appellants/

petitioners were within their right to assail the legality of the

selection process. In such a situation, the plea of estopel in our

considered view will not be applicable. In this connection, we may

gainfully refer to the decision of the Apex Court reported in (1997)

9 SCC 527 (Raj Kumar & ors. vs. Shakti Raj & ors.) in which

the Apex Court noticing the infraction of statutory rules in

conducting the selection in which the party concerned had

participated, held that the plea of estopel will not be applicable. In

paragraph 16 of the judgment, it has been observed thus:

“… It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J & K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law”.

46. From the above discussions and on the basis of the material on

record, there is no escape from the conclusion that the respondents

while conducting the impugned selection deviated from the past

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practice and procedure being followed even to the extent of ignoring

its own guidelines circulated by Annexure-6 circular letter dated

01.02.2006 in terms of which selection for the post of Principal is

to be conducted by respective Governing Body of the provincialised

colleges. Possibly because of such infirmities the State Government

was not inclined to publish the select list.

47. It was submitted that the impugned selection was conducted

complying with the provisions of the Act of 2005 and Rules. It was

also submitted that no rules having been framed under the provision

of the Act and that the same being at the draft stage, Rules of

1981 had to be followed. Even if the Rules of 1981 was to be

applied, in case of any conflict with the provision of the said non

statutory rules and the provision of Act of 2005, needless to say

that the provision of the Act would prevail. It is the draft rule framed

under 2005 Act which has been finally published vide Gazette

notification dated 15.11.2010 and the said Rules is known as Assam

College Employees’ (Provincialisation) Rules, 2010. The

mandate therein, is in tune with the provision of Section-6 of

2005 Act.

48. From the above discussion what has transpired is that

although the selection was conducted pursuant to the aforesaid

judgment and order dated 15.02.2007 passed in WA No.

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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 W.P.(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,

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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.

50. The appeal and the writ petition are answered in the above

manner leaving the parties to bear their own costs.

JUDGE JUDGE

Kborah