Sankar Ranjan Paul vs The State Of Assam & Ors.

Heard Mr. M.P. Sarma, learned counsel for the petitioner. Also heard Mr. P.P. Dutta, learned standing counsel, Secondary Education Department, for the respondent Nos. 1 to 4; and Mr. D. Nandi, learned counsel for the respondent No. 5.

In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the letter of the Joint Secretary, dated 08.05.2019 (Annexure-4) and the consequential letter issued by the Member Secretary, School Selection Committee, dated 15.06.2019 (Annexure 5) initiating fresh interview for the post of Principal in National Higher Secondary School, Lumding; and has also prayed for issuing direction for appointing the petitioner as regular Principal of National Higher Secondary School, Lumding on the strength of his merit position and the recommendations made by the School Selection Committee and State Selection Board, Assam, vide speaking order dated 18.12.2018 (Annexure-3).

The background facts, leading to filing of the present petition, are briefly stated as under:

The respondent No. 5 has filed affidavit-in-opposition, wherein it is stated that the present writ petition has been filed on all false, baseless, contradictory, misleading statements and allegations with an ulterior motive and to make wrongful gain, and as such, the same is liable to be dismissed. It is also stated that all the allegations, levelled by the petitioner, are in violation of the principles of law and Rules, and that there is no infringement of the fundamental rights or any other legal rights of the petitioner, guaranteed under the Constitution of India and also there is no violation of the principles of natural justice, equity, good conscience and administrative fair play, and that the result of the selection process held for appointment of regular Principal in respect of National Higher Secondary School, Lumding, in pursuance to advertisement dated 21.06.2016, was never declared nor published till date, and as such, the allegation that the petitioner stood first in terms of overall merit, does not arise.

It is also stated that the Joint Secretary of the Education Department has not committed any error while issuing the letter dated 08.05.2019, to conduct a fresh interview for the selection and appointment of a regular Principal in respect of National Higher Secondary School, Lumding with the same candidates who had applied and appeared before the School Selection Committee, in the interview, held on 14.12.2016, as the School Selection Committee was not constituted as per the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003 (‘Rules of 2003’ for short), and as such, the alleged recommendation of the said School Selection Committee was in total violation of the Rules of 2003, and it does not create any right upon the petitioner, and as such, the earlier School Selection Committee had been turned down by this Court, vide judgment and order dated 14.03.2018, in WP(C) No. 1296/2017.

It is further stated that the earlier recommendation made by the School Selection Committee is illegal as because before any recommendation, the Inspector of Schools, NDC, Nagaon ought to have verified the Rules of 2003 and was required to ascertain that the School Selection Committee was validly and legally constituted as per the Rules of 2003, as amended, but the Inspector of Schools, without any application of mind, had mechanically recommended the alleged Selection.

It is also stated that the statement of the petitioner that he stood first among all the candidates, securing 11 out of 15 marks or the allegation that the State Selection Board recommended him, vide speaking order dated 18.12.2018, are totally baseless and misleading, as because the basic fact is that the very constitution/formation of the School Selection Committee for selection of regular Principal of National Higher Secondary School, was illegal and the letter (Annexure-3) itself shows that no reason or explanation was given by the Members of said School Selection Committee as they did not possess the requisite qualifications to act as Members of the School Selection Committee, and the State Selection Board also ignored the basic vital fact that Member Teacher of the said School Selection Committee was one Graduate Teacher and another was an Under Graduate Teacher and his educational qualification was "P.U." pass, whereas the Rules of 2003, requires that the Member Teacher must be a Post Graduate Teacher, and as such, the alleged recommendation or alleged speaking order dated 18.12.2018, of the State Selection Board is illegal and it has no force in the eyes of law and as such, arbitrary and illogical recommendation, vide speaking order dated 18.12.2018, has no force in the eyes of law and was rightly and legally turned down by the competent authority i.e. the Joint Secretary, vide order dated 08.05.2019.

It is further stated that the constitution of the earlier School Selection Committee was also illegal and in total violation of the mandatory Rules of 2003, as because there was no guardian representative in the said School Selection Committee. The alleged Acting Vice-Principal, namely, Sambhu Nath Dey, was not the Guardian representative. Further, Sambhu Nath Dey was not father of Swety Paul, Class-X student, as because if Swety Paul had been the daughter of Sambhu Nath Dey, in that case Swety Paul would have written "Swety Dey" and not "Swety Paul", as because both are Hindus by faith and the daughter/son in a Hindu family always adopts the "Surname" of her/his father since after birth. But, the Inspector of Schools as well as State Selection Board have ignored these vital facts, and as such, the earlier School Selection Committee was illegally constituted and same was rightly negated by the Joint Secretary of the Education Department of Government of Assam, Dispur, Guwahati.

It is also stated that the legitimate expectation of the petitioner for being appointed as regular Principal of National Higher Secondary School, Lumding, on being recommended by both the School Selection Committee and State Selection Board, and the allegation of alleged fulfilment of all the eligibility criteria in conformity with Rules 12 and 13 of the Rules of 2003, as amended, and Office Memorandum dated 23.06.2016, are totally baseless and misleading. It is further stated that the Chairman-cum-Joint Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati, in pursuance of the judgment and order dated 14.03.2018, passed the reasonable and logical speaking order dated 08.05.2019, and pointed out that this Court came to the finding that constitution of the School Selection Committee was not in conformity with the Rules of 2003. Further, the said authority categorically highlighted that in the said School Selection Committee, instead of Vice-Principal or P.G. Teacher, one Assistant Graduate Teacher was appointed as the Teacher Representative and such deviation in respect of the constitution of School Selection Committee vitiates the entire process of selection, and that in spite of the said specific findings of the Chairman-cum-Joint Secretary of Secondary Education Department, the instant writ petition is not maintainable.

It is further stated that in the speaking order dated 18.12.2018, nowhere it is held that the School Selection Committee was constituted legally and there was deviation from the mandatory Rules, and that the School Selection Committee was constituted without the participation of any Post Graduate Teacher, although there were as many as six Post Graduate Teachers and in view of the judgment and order, dated 14.03.2018, passed by this Court, in WP(C) No. 1296/2017, the present writ petition is devoid of merit and accordingly, it is contended to dismiss the same.

The respondent No. 3/Director of Secondary Education, Assam has also filed affidavit-in-opposition, wherein it is stated that the post of regular Principal of National Higher Secondary School, Lumding was advertised on 21.06.2016 and subsequently, the School Selection Committee conducted the interview on 14.12.2016 and recommended the following candidates in panel list: st

Sri Sankar Ranjan Paul 1 -11 marks nd

Sri Sudip Dutta 2 -10 marks rd

(a) Smti. Ratna Dutta 3 -7 marks rd

Thereafter, Smti. Ratna Dutta filed a writ petition, being No. WP(C) No. 1296/2017, before this Court, challenging the selection process on the ground that the School Selection Committee was not properly constituted. Thereafter, this Court, vide order dated 14.03.2018, had directed as under:-

Thereafter, a hearing was held at the Government level and the Government, vide letter dated 08.05.2019, directed the Inspector of Schools, NDC Nagaon to constitute a new Selection Committee as per guidelines and to go for fresh selection for the post of regular Principal of National Higher Secondary School, Lumding, amongst those candidates, who had applied and participated earlier, in complete compliance with the provisions of the Rules, criteria/norms laid down through Office Memorandum dated 06.06.2014 and order of the Director of Secondary Education, Assam, dated 23.06.2016. Thereafter, the then Inspector of Schools, NDC, Nagaon constituted a School Selection Committee for selection of regular Principal of National Higher Secondary School, Lumding with a direction to follow the Government Office Memorandum dated 06.06.2014 and order of the Director of Secondary Education, Assam, dated 23.06.2016. Thereafter, the School Selection Committee, National Higher Secondary School, Lumding fixed the date of interview on 23.06.2019 and asked the petitioner to appear in the interview at 11 a.m., in the chamber of the Principal.

It is also stated that being aggrieved, the petitioner filed the instant writ petition, and accordingly, this Court, vide order dated 21.06.2019, observed that the respondent No. 5/School Selection Committee of National Higher Secondary School, Lumding, shall keep the records of selection for the post of regular Principal of the said school, to be held on 23.06.2019, in a sealed cover and the said selection shall be subject to outcome of this writ petition. Subsequently, the petitioner appeared in the interview on 23.06.2019, for the post of regular Principal of National Higher Secondary School, Lumding. Thereafter, in compliance with the order dated 21.06.2019, passed in the instant writ petition, after the interview, the School Selection Committee of National Higher Secondary School, Lumding, submitted the panel list in the Office of the Inspector of Schools, NDC, Nagaon in a sealed cover.

It is further stated that thereafter, on 24.09.2024, this Court was pleased to direct to produce the records of the selection of the Principal of National Higher Secondary School, Lumding, in a sealed cover and accordingly, on 04.12.2024, the records of the selection of the Principal of National Higher Secondary School, Lumding were produced before this Court in a sealed cover, and after perusal of the records, this Court directed to file a comprehensive affidavit enclosing all the documents furnished and also other facts material to the case, and accordingly, the relevant documents were submitted.

It is further stated that selection of regular Principal of National Higher Secondary School, Lumding, was made by following the Assam Secondary Education (Provincialised) Service Rules, 2003 as amended 2012. However, prior to finalizing the selection procedure, new Rules i.e. The Assam Secondary Education (Provincialised Schools) Service Rules, 2018 came into force, and moreover, the process of selection of regular Principal in other Provincialised Higher secondary Schools has been initiated as per the new set of Rules i.e. The Assam Secondary Education (Provincialised Schools) Service Rules, 2018, as amended in 2021, and, therefore, it is prayed to allow him to withdraw the earlier selection process for the post of regular Principal of National Higher Secondary School, Lumding, vide advertisement No. 21.06.2016 and to initiate fresh process to appoint regular Principal in National Higher Secondary School, Lumding as per the existing service rules.

The petitioner has filed an affidavit-in-reply to the affidavit-in-opposition filed by the respondent No. 3, denying the statements and averments made in the same. It is stated that the selection and appointment of Principal of National Higher Secondary School was considered by the Government from amongst those candidates, who had applied and participated earlier in the communication dated 08.05.2019, and thereafter, the process that was undertaken was as per the provisions referred to in the said communication and need not be interfered with.

It is also stated that the petitioner has a reasonable expectation to get selected and appointed as Principal prior to his retirement, and that the other two candidates namely, Mr. Sudip Dutta (In-charge Principal) and Mrs. Ratna Dutta retired from service on 30.04.2023 and 31.01.2024, respectively, and under the said circumstances, withdrawal of earlier selection process and initiation of fresh selection process just prior to petitioner's retirement would greatly prejudice him.

It is further stated that the selection process may be completed by forwarding the panel of three candidates as appearing in the statement prepared by School Selection Committee, dated 14.12.2016 or 23.06.2019, to the State Selection Board in conformity with Rule 13(3) of the Rules of 2003, and that the State Selection Board may thereafter prepare a select list and submit it to the Government and the same may be accorded approval for appointment in conformity with Rule 13(4) of the Rules of 2003.

Mr. Sarma, learned counsel for the petitioner submits that though in the prayer portion of the writ petition, as many as three prayers are being made; yet, the petitioner is not interested in pursuing the prayer Nos. (i) and (ii), and he has abandoned the same. However, the petitioner is harping on the prayer No. (iii) only, and that being so he has contended to direct the respondent authorities to complete the earlier selection process and forward the name of the candidates selected by the School Selection Committee, pursuant to the interview, dated 23.06.2019. Mr. Sarma also submits that though in the meantime, a new set of Rules has come into force, yet the selection process was initiated while the earlier Rules were prevailing and as such, the selection process has to be taken to its logical conclusion under the earlier set of Rules, and that the new set of Rules will not apply herein this case as there is no retrospective application of the said Rules.

In support of his submission, Mr. Sarma has referred to the following decisions:

Per contra, Mr. Dutta, learned standing counsel, Secondary Education Department, for the respondent Nos. 1 to 4 submits that during the pendency of the present writ petition, the State respondents have already enacted a new set of Rules and the State respondents have already initiated the process for filling up of regular Principal of Higher Secondary Schools and as such, the respondent authorities may be allowed to proceed with the process of filling up the post of regular Principal of National Higher Secondary School, Lumding also under the new set of Rules. He also submits that a candidate, who had appeared in and passed the written examination under the earlier advertisement had no accrued or vested right to appointment or to consideration under the old rules though he has legitimate expectation.

In support of his submission, Mr. Dutta has referred to following decision of Hon’ble Supreme Court:-

Mr. Nandi, learned counsel for the respondent No. 5 submits that the first selection process was initiated by the School Selection Committee, which was not constituted in accordance with the Rules, for which one of the candidates had challenged the said selection process, and thereafter, as per direction of this Court in WP(C) No. 1296/2017, new committee was constituted by the Inspector of Schools, NDC, Nagaon and after constitution of the new committee, fresh interview was held and the result of the same was not declared formally. Mr. Nandi also submits that the stand taken by the petitioner is self-contradictory and the selection process has to be carried out in accordance with the statutory Rules, and the Rules must prevail, and that the present petition is not maintainable, and therefore. He also submits that there is no merit in this petition and therefore, he has contended to dismiss this petition.

Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record, and also gone through the decisions, so referred by learned counsel for both the parties.

The basic facts, herein this case, are not in dispute. The earlier selection process for appointment to the post of regular Principal in National Higher Secondary School, Lumding, was initiated on 21.06.2016, by publishing an advertisement and the interview for the same was held on 14.12.2016, in accordance as per the Office Memorandum dated 23.06.2016. In the said selection process, a merit list was prepared, wherein the name of the petitioner found mention at serial No. 1 of the list of empanelled candidates.

But, the said selection process was challenged in WP(C) No. 1296/2017, by one unsuccessful candidate, namely, Ratna Dutta, whose name appeared in the third position, and the said writ petition was dismissed, vide order dated 14.03.2018, with the observation and direction, as quoted in paragraph No.5.1., herein above.

It also appears that subsequently, a new Selection Committee was constituted and a fresh interview was held on 23.06.2019, and the present petitioner also participated in the same. Thereafter, the School Selection Committee had prepared the statement of interview for the post of Principal, which is annexed as Annexure-1 with the affidavit-in-opposition filed by the respondent No. 3.

A perusal of the said document indicates that the name of the petitioner finds mention at serial No. 4 and he has got 7 marks and he secured third position in the merit list prepared after the interview. It also appears that one Sri Sudip Dutta has been empanelled at serial No. 1 of the said list, who secured 12 marks; and one Smti. Ratna Dutta has been empanelled at serial No. 2, who secured 9 marks.

Further, it appears form the additional affidavit filed by the petitioner that Sri st nd Sudip Dutta and Smti. Ratna Dutta, who had secured 1 and 2 position in the interview, have already retired from service. And in view of superannuation of first two candidates, now the position of the petitioner stands upgraded to serial No.1.

And under the given factual scenario, Mr. Sarma, learned counsel for the petitioner, has contended to issue direction to the respondent authorities to take the aforementioned selection process to a logical conclusion by directing the respondent No. 5 to forward the aforementioned statement of interview to the State Selection Board for approval and thereafter, to direct the State Selection Board to forward the proposal to the Government for appointment of the petitioner, who will be retiring in the month of November of this year.

This Court has carefully gone through the decisions of Hon’ble Supreme Court so referred to by Mr. Sharma, learned counsel for the petitioner. In the case of Renuka Singla (supra) it has been held that judicial power under Article 226 cannot be used to override statutory limits on intake capacity or the prescribed admission procedure for professional courses; admissions must strictly conform to the rules and merit. Further, in the case of Partha Das (supra) Hon’ble Supreme Court has reinforced the primacy of statutory rules over executive policy in public employment recruitment and protected candidates against arbitrary disruption of processes that have already advanced under the governing statute and rules. Thus, this Court afraid, the ratio laid down in the aforesaid cases would not advance the argument of Mr. Sharma, learned counsel for the petitioner.

There appears to be substance in the submission of Mr. Sarma, learned counsel for the petitioner. Since after retirement of the persons, whose names appeared at serial Nos. 1 and 2, the name of the petitioner stands upgraded to the serial No.1. Now, the respondent authority has to take the selection process to a logical conclusion. The School Selection Committee has to forward the statement of interview to the State Selection Board for its approval, as per Rule 13(3) of the Rules of 2003, and after approval of the State Selection Board, under Rule 13(4) of the said Rules, the same has to be forwarded to the State respondents, for being appointed the candidate as regular Principal.

Though, a contention is being made by Mr. Dutta, learned standing counsel, Secondary Education Department, for the respondent Nos. 1 to 4, that since new set of Rules has already been enacted, the respondent authorities may be allowed to initiate a fresh selection process under the new set of Rules, yet, the said submission left this Court unimpressed.

It is not in dispute that the selection process was initiated while the earlier set of Rules was in force and further, the new set of Rules has no retrospective application, and accordingly, the said contention, in the considered opinion of this Court, cannot be accepted. This Court has carefully gone through the decision of Hon’ble Supreme Court in Raghuveer Singh Yadav (supra), referred to by Mr. Dutta, learned counsel for the respondent Nos. 1 to 4, wherein it has been held that candidates who had appeared in and passed the written examination under the earlier advertisement had no accrued or vested right to appointment or to consideration under the old rules. They had only a legitimate expectation to be considered according to the rules then in force.

A Constitution Bench of Hon’ble Supreme Court in the case of Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 47, has held as under:-

This principle has subsequently been affirmed by another Constitution Bench decision in the case of Tej Prakash Pathak vs. Rajasthan High Court reported in (2024 INSC 847). It has been held that placement in the select list gives no indefeasible right to appointment. The State may, for bona fide reasons, choose not to fill vacancies. However, if vacancies exist, it cannot arbitrarily deny appointment to a person within the zone of consideration.

Thus, it is well settled that a candidate does have a legitimate expectation that the selection process itself will be fair, transparent, and non-arbitrary as required by Articles 14 and 16. Changing the “rules of the game” midway (e.g., eligibility criteria or cut-offs after the process has begun) can violate this expectation and be struck down. Reference can be made to a decision of Hon’ble Supreme Court in the case of K. Manjusree v. State of A.P. and Anr., reported in (2008) 3 SCC 512, and also to decision of Constitution Bench in the case of Tej Prakash Pathak(supra). However, this expectation does not extend to a guaranteed right of appointment once selected.

In the result, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. By a mandamus of this Court, the respondent No. 5 is directed to forward the statement of interview, available at Annexure-1 to the affidavit-in-opposition, filed by the respondent No. 3, to the State Selection Board, which shall process and consider the same in accordance with law, and thereafter, shall forward the same to the State respondents for appointing the petitioner as the regular Principal of National Higher Secondary School, Lumding.

Let the aforesaid exercise be carried out within a period of 6 weeks from the date of receipt of certified copy of this judgment. The petitioner shall obtain a certified copy of this order and place the same before the respondent authority within a period of one week from today.

In terms of above, this writ petition stands disposed of, leaving the parties to bear their own costs.