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.
WA No. 227 /2009 Page 1 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 2 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 3 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 4 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 5 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 6 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 7 of 43 WP(C) No. 3080/2009 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,
WA No. 227 /2009 Page 8 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 9 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 10 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 11 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 12 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 13 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 14 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 15 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 16 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 17 of 43 WP(C) No. 3080/2009
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.
WA No. 227 /2009 Page 18 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 19 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 20 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 21 of 43 WP(C) No. 3080/2009 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”.
WA No. 227 /2009 Page 22 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 23 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 24 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 25 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 26 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 27 of 43 WP(C) No. 3080/2009 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,
WA No. 227 /2009 Page 28 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 29 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 30 of 43 WP(C) No. 3080/2009 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.
WA No. 227 /2009 Page 31 of 43 WP(C) No. 3080/2009 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.
WA No. 227 /2009 Page 32 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 33 of 43 WP(C) No. 3080/2009 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,
WA No. 227 /2009 Page 34 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 35 of 43 WP(C) No. 3080/2009 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”.
WA No. 227 /2009 Page 36 of 43 WP(C) No. 3080/2009
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
WA No. 227 /2009 Page 37 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 38 of 43 WP(C) No. 3080/2009 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,
WA No. 227 /2009 Page 39 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 40 of 43 WP(C) No. 3080/2009 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.
WA No. 227 /2009 Page 41 of 43 WP(C) No. 3080/2009 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,
WA No. 227 /2009 Page 42 of 43 WP(C) No. 3080/2009 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
WA No. 227 /2009 Page 43 of 43 WP(C) No. 3080/2009