Gauhati High Court
WA/130/2022 on 19 September, 2022
Page No.# 1/22
GAHC010068212022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WRIT APPEAL No.130/2022
SHRI DILIP KUMAR SARMA,
S/O SRI NAGENDRA NATH SARMA,
RESIDENT OF VILLAGE LAILURI,
DISTRICT- NAGAON, ASSAM.
......Appellant
-VERSUS-
1. THE STATE OF ASSAM,
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM, EDUCATION (SECONDARY) DEPARTMENT,
DISPUR, GUWAHATI-781006.
2:THE DIRECTOR,
SECONDARY EDUCATION, ASSAM,
KAHILIPARA, GUWAHATI-781019.
3:THE INSPECTOR OF SCHOOLS,
NAGAON DISTRICT CIRCLE,
NAGAON, DISTRICT- NAGAON,
ASSAM, PIN- 782001.
4:THE SCHOOL SELECTION COMMITTEE,
REPRESENTED BY THE MEMBER SECRETARY,
SINGIMARI MD. ALI HIGHER SECONDARY SCHOOL,
P.O.: SINGIMARI, DISTRICT : NAGAON
ASSAM, PIN- 782125.
5:THE STATE SELECTION BOARD,
HEADED BY THE CHAIRMAN OF THE STATE SELECTION BOARD,
KAHILIPARA, GUWAHATI-781019.
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6:MD. IBRAHIM ALI,
SON OF LATE WAHID,
RESIDENT OF VILLAGE : KASOKHAITY
P.O.: MAGURMARI, P.S.: RUPAHIHAT,
DISTRICT : NAGAON, ASSAM, PIN: 782140.
......Respondents.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE NANI TAGIA
For the Appellant : Mr. K.N. Choudhury, Sr. Advocate,
Mr. R.M. Deka, Adv.
......Advocates.
For the Respondent Nos.1 to 5 : Mr. U. Sarma,
SC, Education (Secondary) Dept.
For the Respondent No.6 : Mr. D.K. Das, Adv.
......Advocate.
Date of Hearing : 20.04.2022
Date of Judgment : 19.09.2022.04.020
JUDGMENT AND ORDER
[N. Kotiswar Singh, J.]
Heard Mr. K.N. Choudhury, learned Senior counsel assisted by Mr. R.M. Deka,
learned counsel for the appellant. Also heard Mr. U. Sarma, learned Standing Counsel,
Education (Secondary) Department appearing for the State respondents and Mr. D.K.
Das, learned counsel appearing for respondent No.6.
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2. The present appeal has been preferred against the order dated 23.03.2022
passed by the learned Single Judge in WP(C) No.5717/2017 directing the State
respondents to consider the case of the present respondent No.6, who was the writ
petitioner in the said writ petition for appointment to the post of Principal of Singimari
Md. Ali Higher Secondary School by holding that the present appellant did not fulfill
the eligibility criteria for appointment to the said post of Principal.
3. Before we proceed to examine the rival contentions of the parties, it may be
apposite to refer to the background facts of the case briefly.
4. An advertisement was issued on 22.06.2016 by the School Selection Committee
of Singimari Md. Ali Higher Secondary School inviting applications from the eligible
candidates for filing up the post of Principal of the said School on regular basis.
As per the said advertisement, a candidate must have 15 (fifteen) years of
teaching experience as a Post Graduate Teacher or 17 (seventeen) years as a
Graduate Teacher in a provincialised Higher Secondary School. Other conditions may
not be relevant for our purpose inasmuch as the issue involved in this proceeding is
about the eligibility criteria of the candidates on which basis the writ petition, WP(C)
No.5717/2017 was allowed and the present appeal, WA No.130/2022 has been
preferred.
5. Pursuant to the said advertisement dated 22.06.2016, the present appellant, the
respondent No.6 (Md. Ibrahim Ali), another candidate, namely, Md. Zakir Hussain
[Writ petitioner in WP(C) 4004/2017] and others had applied for the said post of
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Principal. On the basis of the recommendation made by the competent Selection
Committee and as approved by the State Government, the present appellant, Dilip Kr.
Sarma being the most meritorious candidate was appointed as the Principal of the said
School on regular basis vide order dated 22.06.2017. The appellant, accordingly,
joined the post of Principal on 27.06.2017. It may be noted that Md. Zakir Hussain and
Md. Ibrahim Ali (the writ petitioner) were placed at the second and third positions
respectively, in order of merit, after the appellant Dilip Kumar Sarma.
6. Before the present respondent No.6 filed the writ petition, WP(C) No.5715/2017,
the appointment order of the appellant was challenged by another candidate Md. Zakir
Hussain, now deceased, by filing a writ petition, being WP(C) No.4004/2017 on the
ground, amongst others, that the present appellant did not possess the requisite 17
(seventeen) years of teaching experience as a Graduate Teacher as on the last date of
submission of application forms and as such, was not eligible for appointment as the
Principal of the Higher Secondary School.
7. Learned Single Judge, in the aforesaid writ petition, WP(C) No.4004/2017 filed by
Md. Zakir Hussain, passed an order on 30.06.2017 directing maintenance of status-
quo.
8. According to the appellant, the said order of status-quo passed by the learned
Single Judge in the aforesaid writ petition, WP(C) No.4004/2017, was misinterpreted
by the respondent No.2 and kept the order of appointment of the appellant in
abeyance vide order dated 17.07.2017 and allowed the writ petitioner in WP(C)
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No.4004/2017, Md. Zakir Hussain to continue as in-charge Principal of the said School.
9. Being aggrieved by the aforesaid order dated 17.07.2017 passed by the
respondent No.2, the appellant challenged the said order dated 17.07.2017 by filing a
writ petition, being WP(C) No.4437/2017.
10. In aforesaid writ petition, WP(C) No.4437/2017, the learned Single Judge vide
order dated 28.07.2017 stayed the operation of the said order dated 17.07.2017
issued by the respondent No.2, Director of Secondary Education allowing Zakir
Hussain to continue to act as an in-charge Principal of the said School.
11. As the aforesaid order was stayed by the learned Single Judge, the respondent
No.2, in compliance thereof, passed an order on 01.08.2017 allowing the present
appellant to discharge the duties of the post of regular Principal of the said School.
12. Naturally, the said stay order dated 28.07.2017 passed by the learned Single
Judge in WP(C) No.4437/2017 was challenged by said Zakir Hussain by filing a writ
appeal, being WA No.225/2017. However, the said writ appeal was dismissed on
16.08.2017. Thereafter, the first petition filed by Zakir Hussain, WP(C) No.4004/2017
was also dismissed on withdrawal vide order dated 11.09.2017.
13. It is after dismissal of the said writ appeal, WA 225/2017 and writ petition,
WP(C) No.4004/2017, the present respondent No.6 (Md. Ibrahim Ali) filed a writ
petition, being WP(C) No.5717/2017 challenging the initial order dated 22.06.2017
issued by the respondent No.2 appointing the present appellant as the Principal of the
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said School on similar grounds as taken by aforesaid Zakir Hussain in the aforesaid
writ petition, WP(C) No.4004/2017 and writ appeal, WA 225/2017.
Thus, a writ petition was filed for the second time by the present respondent
No.6 challenging the same appointment order dated 22.06.2017 of the appellant,
which was allowed by the learned Single Judge.
14. As we proceed to examine the rival contentions of the contesting parties, we
may examine what was pleaded in the writ petition and the response thereto by the
present appellant.
15. In the writ petition, WP(C) No.5717/2017 filed by Ibrahim Ali, the present
respondent No.6, it was contended, inter-alia, that the writ petitioner, Ibrahim Ali
fulfilled all the requisite qualifications as prescribed under Rule 12(2) of the Assam
Secondary Education (Provincialisation) Service Rule, 2003 (as amended in 2012) for
appointment to the post of regular Principal of the Higher Secondary School and he
being eligible, was allowed to hold the post of Principal of the aforesaid Singimari Md.
Ali Higher Secondary School on in-charge basis.
Upon an advertisement issued for regular appointment to the post of Principal as
mentioned above, the respondent No.6 (Ibrahim Ali) applied for the said post so also
the appellant.
16. According to the writ petitioner in WP(C) 5717/2017, the appellant did not fulfill
the requisite eligibility criteria of 17 years of service as he had merely completed only
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16 years 7 months and 7 days as on the last date of application. A representation was,
accordingly, made against the candidature of the appellant before the competent
authority which, however, was rejected. According to the writ petitioner, the State
Government wrongly approved the recommendation of the appellant for appointment
to the post of Principal.
17. The writ petitioner, Md. Ibrahim Ali [respondent No.6 herein] contended that the
appointment of the present appellant was challenged before this Court by one Md.
Zakir Hussain by filing a writ petition, being WP(C) No.4004/2017. According to the
petitioner, after suffering certain reversals, the said Md. Zakir Hussain was no more
interested in challenging the selection of the appellant as the Principal of the said
School and accordingly, the said Zakir Hussain withdrew the writ petition [WP(C)
No.4004/2017] and connected proceedings.
18. It was contended by the writ petitioner, Ibrahim Ali that he was the next
meritorious candidate after the said Zakir Hussain, and after Zakir Hussain showed his
disinclination to pursue his challenge to the appointment of the appellant and as the
appellant did not fulfill the eligibility criteria, he, the writ petitioner was entitled to be
appointed as a regular Principal of the said Higher Secondary School in terms of merit.
Accordingly, he filed the second writ petition challenging the appointment of the
appellant.
19. The said writ petition, WP(C) No.5717/2017 was contested by the appellant by
filing his affidavit-in-opposition.
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In the affidavit-in-opposition, the appellant [who was impleaded as respondent
No.6 in WP(C) 5717/2017] raised the plea that since Zakir Hussain had unsuccessfully
challenged the appointment of the appellant as the Principal of the said Higher
Secondary School in WP(C) No.4004/2017 which was ultimately dismissed as
withdrawn by the writ petitioner, Zakir Hussain, the subsequent writ petition filed by
Ibrahim Ali [WP(C) No.5717/2017] would be barred by the principle of constructive
res-judicata.
The appellant [respondent No.6 in WP(C) 5717/2017] had contended that he
was eligible on the date of interview as he had completed 17 years of service before
the date of interview and as such, it cannot be said that he (the appellant) was not
eligible.
It was also contended by the appellant that the issue was examined by the
School Selection Committee on a representation submitted by other candidates
including the writ petitioner, Ibrahim Ali and the same was found to be devoid of merit
and the State Government approved the recommendation of the School Selection
Committee for appointment of the appellant as the Principal of the Higher Secondary
School. It was accordingly, contended that, as such, there was proper application of
mind by the competent authority before the appellant was recommended and
appointed as the Principal of the aforesaid Higher Secondary School.
It was stated that the appellant was the most meritorious candidate whereas
the writ petitioner was placed at the third position below the other candidate, Zakir
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Hussain. Thus, in any event, by ignoring the claim of the better meritorious candidate,
namely, Zakir Hussain [the writ petitioner in WP(C) 4004/2017], Ibrahim Ali could not
make a claim for appointment as a regular Principal.
20. The learned Single Judge after considering the aforesaid pleadings and rival
submissions advanced, passed the impugned judgment and order dated 23.03.2022
challenged in this appeal.
21. In assailing the correctness of the impugned order dated 23.03.2022 passed by
the learned Single Judge in WP(C) No.5717/2017, the appellant has taken five-fold
pleas. However, before considering these pleas, we will examine what the learned
Single Judge had observed and found.
22. A perusal of the impugned judgment and order dated 23.03.2022 would reveal
that the learned Single Judge had considered the relevant Rules laying down the
eligibility criteria for appointment to the post of Principal of Higher Secondary School,
i.e. Assam Secondary Education (Provincialisation) Service Rule, 2003 as amended in
2012 and it was provided under Rule 12(2) that the candidate must have rendered at
least 15 years of service as a Post Graduate Teacher or Vice Principal or both in any of
the Provincialised Higher Secondary School or 17 years of teaching experience as a
Graduate Teacher in any Higher Secondary/Higher Secondary & Multipurpose School.
The same was reiterated in the Office Memorandum dated 06.06.2014 issued by
the Government of Assam, Secondary Education Department which also provided that
the candidate must have rendered at least 15 years of service as a Post Graduate
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Teacher or Vice Principal or both in any of the provincialised Higher Secondary School
or must have 17 years of teaching experience as a Graduate Teacher in any Higher
Secondary School.
23. The learned Single Judge took into consideration the submission of the writ
petitioner and decisions in Rekha Chaturvedi Vs. University of Rajasthan and
Ors., 1993 Supp (3) SCC 168 as well as Ashok Kumar Sharma and Ors. Vs.
Chander Shekhar and Anr. (1997) 4 SCC 18, which laid down the law that
wherever the date for determining the eligibility criteria has not been specifically
mentioned in the advertisement, the last date for submission of application would be
treated as the date for determining the eligibility criteria for the post in issue. Thus,
unless the candidate fulfills the eligibility criteria on the last date of submission of
application forms, such a candidate cannot be considered to be eligible.
24. Learned Single Judge after considering the aforesaid decisions took the view that
it is necessary that a candidate who applies for a public post must fulfill the eligibility
criteria and if he does not fulfill the eligibility criteria as on the last date of
advertisement, he cannot be considered to be eligible.
25. In the writ petition, WP(C) No.5717/2017, the appellant herein as the
respondent No.6 therein had stated that he became eligible on the date of interview
which is after the last date of submission of application forms as per the
advertisement, thus indirectly acknowledged that he was not eligible on the last day of
submission of application form.
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26. The learned Single Judge also considered the contention advanced by learned
counsel for the present appellant [respondent No.6 in WP(C) No.5717/2017] based on
the decisions rendered by the Hon'ble Supreme Court in Ramesh Chandra Shah
and Ors. Vs. Anil Joshi and Ors., (2013) 11 SCC 309 wherein it was held that a
candidate having participated in the process of selection with the full knowledge that
the recruitment was being made under General Rules, had waived his right to question
the advertisement or methodology. Learned Single Judge also considered the decision
in D. Saroj Kumari Vs. R. Helen Thilakom and Ors., (2017) 9 SCC 478 wherein
it has been held that a candidate having participated in a selection process and
coming out unsuccessful is estopped from challenging the same and as such, writ
petition is not maintainable.
The Learned Single Judge, however, held that the principle of estoppel or waiver
will not be attracted in the instant case as the challenge is on a ground which came to
light after the recruitment process was over and in any case, violation of a statutory
requirement cannot be an estoppel in law.
27. Under the circumstances, the learned Single Judge held that since the appellant,
the respondent No.6 in the writ petition, did not complete 17 years teaching
experience as a Graduate Teacher or 15 years teaching experience as a Post Graduate
Teacher on the last date of submission of application forms, he was not eligible for
appointment to the post of Principal of the said School and accordingly, the
appointment order dated 22.06.2017 issued in favour of the appellant by the authority
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was set aside as illegal.
28. Consequently, the learned Single Judge directed that the post of Principal of the
said Singimari Md. Ali Higher Secondary School requires to be filled up by the next
eligible candidate from the panel and since at that time, the other candidate, namely,
Zakir Hussain [respondent No.7 in WP(C) No.5717/2017] who was placed above the
writ petitioner (Ibrahim Ali) had expired, the case of the writ petitioner (Ibrahim Ali)
would be required to be considered for appointment to the post of Principal.
29. The said judgment and order dated 23.03.2022 has been challenged before us
by the appellant on the following grounds.
Firstly, that the said writ petition, WP(C) No.5717/2017 is hit by constructive res
judicata inasmuch as the matter regarding the appointment of the present appellant
had been already considered by this Court in the writ petition, WP(C) No.4004/2017
as well in the writ appeal, WA No.225/2017 and those were dismissed on withdrawal
and accordingly, the issue regarding the appointment of the appellant has been closed
and settled, which could not be re-opened by the petitioner (Ibrahim Ali) by filing a
second writ petition.
Secondly, it was also contended that the writ petitioner, Ibrahim Ali, the present
respondent No.6, had remained silent and did not take part in the proceeding initiated
by Zakir Hussain and as such, any challenge to the appointment of the appellant can
be said to have been waived by the petitioner, Ibrahim Ali.
Page No.# 13/22
It has been also submitted that the petitioner Ibrahim Ali is estopped from
challenging the recruitment process after having taken part in the selection process in
terms of the decisions in Ramesh Chandra Shah (supra) and D. Saroj Kumari
(supra).
Thirdly, it has been submitted that the writ petitioner, Ibrahim Ali had
approached the Court belatedly after more than a year of appointment of the present
appellant as the Principal of the said Singimari Md. Ali Higher Secondary School on
22.06.2017 without explaining the delay in the said writ petition and as such, the
challenge to the appointment of the appellant is barred by delay and latches.
Fourthly, the appellant has taken a new plea at this appellate stage, contending
that the writ petitioner, Ibrahim Ali, is not eligible to be appointed as the Principal of
the said School inasmuch as he himself does not possess the requisite qualification of
15 years of service as a Post Graduate Teacher.
It has been contended that the writ petitioner, Ibrahim Ali had entered service
through back door and he was regularly appointed without going through the normal
process of appointment and as such, his alleged 15 years of service cannot be
considered to be regular service within the meaning of the rules.
In this regard, the learned Senior counsel for the appellant has relied on the
following decisions,
(i) R.N. Nanjundappa Vs. T. Thimmiah and Anr., (1972) 1
SCC 409.
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(ii) State of UP Vs. Rafiquddin and Ors., 1987 (Supp) SCC
(iii) B.N. Nagarajan and Ors. Vs. State of Karnataka and
Ors., (1979) 4 SCC 507.
(iv) Hemanta Bhattacharjee and Ors. Vs. State of Assam
and Ors., 2008(4) GLT 7.
(v) State of Orissa Vs.Mamata Mahanty, (2011) 3 SCC
436.
Lastly, the appellant has taken a plea that the respondent No.6, Ibrahim Ali is
not eligible for appointment to the post of Principal on another count, as being age
barred in view of the Office Memorandum issued by the Government of Assam in the
Secondary Education Department, dated 23.02.2021 whereby it has been laid down
that the age of the candidate must not be more than 57 years on the first January of
the year of recruitment for direct recruitment.
It has been submitted that the age of the respondent No.6 is about 59 years
now and as such, in view of the aforesaid condition laid down in the Office
Memorandum dated 23.02.2021, the writ petitioner (respondent No.6) cannot be
appointed to the post of Principal of the said School.
30. As regards the first contention of the appellant that the writ petition, WP(C)
5717/2017 is barred by constructive res judicata, we are not impressed with the
submission advanced inasmuch as, first of all, the present respondent No.6, writ
petitioner in WP(C) No.5717/2017 was not a party in the proceeding in WP(C)
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No.4004/2017 which was filed by Zakir Hussain. So was in the writ appeal, WA
No.225/2017.
In the subsequent writ petition, WP(C) No.4437/2017 filed by the appellant
himself, the present respondent No.6, Ibrahim Ali was also not a party. To invoke the
principle of res judicata, the issue must have been decided on merit amongst the
same parties. However, from the record, it does not appear that any of the issues
raised in the earlier writ petitions in WP(C) No.4004/2017 as well as WP(C)
No.4437/2017 was decided on merit. In fact, the writ petition, WP(C) 4004/2017 filed
by Zakir Hussain was closed on withdrawal and as such, it cannot be said that any
issue raised in the writ petition was decided on merit. Further, the present respondent
No.6, Ibrahim Ali was not a party in the earlier proceedings in WP(C) No.4004/2017
and WP(C) No.4437/2017. Hence, the principle of res-judicata will not be attracted.
31. As regards the delay in filing the writ petition, WP(C) No.5717/2017, by Ibrahim
Ali, out of which the present appeal has arisen, though there appears to be a delay of
about a year, the contention of Ibrahim Ali cannot be ignored. He had categorically
stated in the writ petition [WP(C) No.5717/2017] that the said Zakir Hussain appeared
to have not pursued the matter seriously as mentioned in para No.18 of the writ
petition [WP(C) 5717/2017] where he had categorically stated that the said Md. Zakir
Hussain was no longer interested in challenging the selection of the present appellant
as the Principal of the said School. The fact that the said writ petition, WP(C)
No.4004/2017 filed by Zakir Hussain was dismissed on withdrawal, perhaps, indicates
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the disinclination of the said Zakir Hussain to pursue his writ petition in challenging
the appointment of the appellant.
32. Under the circumstances, though there has been a delay of about a year, it
cannot be said that there was a deliberate or inordinate delay, inasmuch as, if Zakir
Hussain had pursued the writ petition, he would have been naturally more entitled
than the present respondent No.6, Ibrahim Ali to claim for appointment to the post of
Principal of the said School, Zakir Hussain being placed above Ibrahim Ali in order of
merit.
Accordingly, we are not impressed with this contention advanced by the learned
Senior counsel for the appellant.
33. As regards the third plea that the petitioner Ibrahim Ali is estopped from
challenging the recruitment process and also hit by waiver, after having taken part in
the selection process in terms of the decisions in Ramesh Chandra Shah (supra)
and D. Saroj Kumari (supra), we are also of the view that the aforesaid decisions
are not applicable in the present case and we would agree with the conclusion so
arrived by the learned Single Judge.
In this regard, one may also note the decision in Mukul Kumar Tyagi v. State
of U.P., (2020) 4 SCC 86 wherein a similar issue was considered. The Hon'ble
Supreme Court in the aforesaid case, held that the cause of action can be said to have
arisen only when persons who do not fulfil the essential qualifications were included in
the select list. In the present case also, it was not within the knowledge of the writ
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petitioner that the appellant was not eligible when the selection process was initiated.
However, it has been pointed that after the case of the appellant was considered,
there was a representation against him which was however, rejected by the Selection
Committee, which was approved by the State Government. Thus, in our view, the writ
petitioner cannot be estopped from challenging the selection and appointment of the
appellant on the ground that the appellant did not have the requisite qualifications.
There cannot be any question of waiver by the writ petitioner also. Waiver
involves a conscious, voluntary and intentional relinquishment or abandonment of a
known, existing legal right, advantage, benefit, claim or privilege, which except for
such a waiver, the party would have enjoyed. [See Sikkim Subba Associates Vs.
State of Sikkim, (2001) 5 SCC 629].
A waiver is an intentional relinquishment of a known right. There can be no
waiver unless the person against whom waiver is claimed had full knowledge of his
rights and facts enabling him to take effectual action for enforcement of such rights.
[See Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh, AIR 1968
SC 933].
In the present case, the contention of the appellant is that the right to challenge
the eligibility of the appellant can be said to have been waived before the writ
petitioner belatedly filed the writ petition.
The principles of estoppel and waiver may not be the same, though these may
have similar consequences to debar initiating any action, yet, these principles
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presuppose prior knowledge of the offending act or deficiency which would give rise to
a cause of action.
The question of estoppels or waiver does not arise in the present case inasmuch
as the writ petitioner did not have any prior knowledge of non-fulfilment of eligibility
criteria of the appellant.
In the present case, there is nothing to show that the writ petitioner had prior
knowledge before the selection process that the appellant did not possess the
eligibility criteria to apply for the post of Principal of the aforesaid School.
34. As regards the contention raised before us, that the writ petitioner, Ibrahim Ali,
(the respondent No.6 herein) himself does not have the requisite qualification for
applying to the post of Principal of the said School, since on the last date of
submission of the application, he did not fulfill the required 15 years of experience as
a Post Graduate Teacher as the documents annexed by him in the writ petition reveal
that the service of the petitioner was regularized on 23.03.2003, thus, on the last date
of submission of the application form, the writ petitioner had completed only 13 years
of service, we are not impressed with the said plea. Further, the said regularization
was not by following the due process and rules.
35. We have noted the contention of the learned counsel for the writ petitioner
[respondent No.6 herein] that the said plea has been raised for the first time before
this Court. We have examined the records. We have also observed that this issue was
never raised by the appellant who was the respondent No.6 in the aforesaid writ
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petition, WP(C) No.5717/2017 and as such, we doubt whether such a plea based on
disputed facts could be raised at the appellate stage.
36. The basis for such a plea is that the writ petitioner, Ibrahim Ali had entered into
service through backdoor and his service was not regularized in terms of the relevant
Rules and as such, his past service cannot be counted and as such he did not have 15
years of teaching experience as a Post Graduate Teacher.
37. However, a perusal of the relevant Rules does not indicate that the person has to
have service experience on a regular basis only. What the Rules provide is that the
candidate must have teaching experience without mentioning whether such
experience should be regular teaching experience or not.
The relevant Rule 12(2)(ii) & (iii) of the Assam Secondary Education
(Provincialisation) Service Rules, 2003 reads as follows,
..............................
(ii) The candidate must have rendered at least 15 years of service as Post Graduate
Teachers or Vice Principal or both in any of the provincialized Higher Secondary School; or
(iii) The candidate must have 17 years of teaching experience as Graduate Teacher in
any Higher Secondary/Higher Secondary & Multipurpose School;
The advertisement also mentions that,
"2. The candidate must have 15 years of teaching experience as Post Graduate
Teacher or 17 years of Graduate Teacher in provincialised Higher Secondary School."
Nowhere it is mentioned that only experience gained after regular appointment
shall be considered and experience gained while on ad-hoc or such nature cannot be
Page No.# 20/22
considered.
Under the circumstances, we do not find any merit in this plea. For the reasons
above, we are of the view that the decisions relied upon by the learned Senior Counsel
for the appellant are not applicable in the present case.
R.N. Nanjundappa (supra) which deals with effect of regularization dehors the
rules is not applicable in the present case. So is the case of Rafiquiddin (supra)
which deals with counting of seniority of service rendered on regular basis. In B.N.
Nagarajan (supra) it was held that regularization cannot be made in violation of rules
framed under Article 309 of the Constitution. In Hemanta Bhattacharjee (supra), it
was held that irregular appointees cannot claim seniority over regular appointee. In
Mamata Mahanty (supra) it was held that if an order is bad in its inception, it does
not get sanctified at a later stage.
It was sought to be urged before us that since the regularization of the writ
petitioner, Ibrahim Ali was dehors the rules, his experience cannot be counted while
computing his eligibility.
We are of the opinion that since the experience required under the rules in the
present case, does not pertain to the nature of appointment, the above cited decisions
are not applicable.
38. As regards the plea taken by the appellant that the petitioner Ibrahim Ali is not
eligible for appointment to the post of Principal in view of the Office Memorandum
Page No.# 21/22
issued by the Government of Assam in the Secondary Education Department, dated
23.02.2021 whereby it has been laid down that the age of the candidate must not be
more than 57 years on the first January of the year of recruitment, we have noted
that this issue as contended by the learned Senior counsel for the appellant has been
raised for the first time in this appeal and was not part of the pleading before the
learned Single Judge. We have also noted that the aforesaid Office Memorandum was
issued on 23.02.2021 after the selection process was over in which the appellant was
wrongly given appointment vide order dated 22.06.2017, contrary to the law as
mentioned above. If the authorities had correctly applied the law, the appellant could
not have been given the appointment, in which event, either the respondent No.6,
Ibrahim Ali or Zakir Hussain could have been given the appointment when the said
Office Memorandum was not in existence.
39. We have also noted that though the aforesaid Office Memorandum was already
in existence when the impugned judgment and order was passed on 23.03.2022, the
said Office Memorandum was never brought to the notice of the learned Single Judge.
Moreover, whether, such an Office Memorandum which came into existence after the
entire recruitment process is over can be applied or not, is also an issue which is
required to be examined. However, in absence of any such pleading before the learned
Single Judge, we are not inclined to enter into the aforesaid issue at this appellant
stage as it also involves disputed questions of facts. However, the appellant is at
liberty to raise this issue before the appropriate forum, if permissible under the law.
Page No.# 22/22
However, in this appeal we do not find this ground to be good enough to
interfere with the decision of the learned Single Judge dated 23.03.2022 for the
reasons discussed above.
40. Under the circumstances, we hold that there is no infirmity in the impugned
judgment and order dated 23.03.2022 passed by the learned Single Judge in WP(C)
No.5717/2017 directing consideration of respondent No.6, Ibrahim Ali for appointment
to the post of Principal of Singimari Md. Ali Higher Secondary School and accordingly,
we are not inclined to interfere with it.
41. Accordingly, for the reasons discussed above, the present appeal stands
dismissed.
JUDGE JUDGE
Comparing Assistant
