Gauhati High Court
WA/249/2025 on 20 August, 2025
GAHC010157032025
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEAL NO.249 OF 2025
Albeen Josebh Ahmed,
Son of Jahur Uddin Ahmed,
Resident of Village: No.1 Mandia Bardalani
NC, PO: Mandia, PS: Baghbar, District:
Barpeta, Assam.
.....Appellant
-Versus-
1. Badal Khan,
Son of Samad Khan,
Village: Kadhua, PO: Bahari Hat,
PS: Tarabari, District: Barpeta, Assam,
PIN - 781302.
2. The State of Assam, represented by the
Secretary to the Government of Assam,
Higher Education Department, Dispur,
Guwahati - 781006.
3. The University Grant Commission,
represented by its Chairman, Bahadur Shah
Zafar Marg, New Delhi - 110002.
4. The Director, Higher Education
Department, Assam, Kahilipara, Guwahati -
781019.
5. The Governing Body, Mandia Anchalik
College, Mandia, represented by its
Secretary, PO: Mandia, District: Barpeta,
Assam, PIN - 781308.
Writ Appeal No.249/2025 Page 1
6. The Selection Committee in respect of
appointment to the post of Assistant
Professor in English in Mandia Anchalik
College, Mandia, represented by its
Chairperson, PO: Mandia, District: Barpeta,
Assam, PIN - 781308.
7. The Principal, Mandia Anchalik College,
Mandia, PO: Mandia, District: Barpeta,
Assam.
.....Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Appellant(s) : Mr. K.N. Choudhury, Sr. Advocate,
assisted by Mr. R. Ali, Advocate.
For the Respondent(s) : Mr. H.R.A. Choudhury, Sr. Advocate,
assisted by Mr. M. Alam Geer, Advocate
for respondent No.1.
: Mr. K. Gogoi, Standing Counsel,
Education (Higher) Department for
respondent Nos.2 & 4.
Date of Hearing : 20.08.2025.
Date of judgment : 20.08.2025.
JUDGMENT & ORDER (ORAL)
(Ashutosh Kumar, CJ)
We have heard Mr. K.N. Choudhury, learned
Senior Advocate, assisted by Mr. R. Ali, learned Advocate
for the appellant; Mr. H.R.A. Choudhury, learned Senior
Advocate, assisted by Mr. M. Alam Geer, learned Advocate
for the respondent No.1 and Mr. K. Gogoi, learned
Writ Appeal No.249/2025 Page 2
Standing Counsel, Education (Higher) Department for the
respondent Nos.2 & 4.
2. The present appeal is directed against the
judgment dated 05.05.2025 passed by a learned Single
Judge of this Court in WP(C) No.5757/2024, whereby the
respondents therein have been directed to proceed with
the selection process for the post of Assistant Professor in
the Mandia Anchalik College, Mandia in terms of the Office
Memorandum dated 24.01.2022, holding that the Office
Memorandum dated 22.10.2024 modifying the earlier
Office Memorandum, cannot be applied in the selection
process when the latter Office Memorandum was to be
made effective prospectively.
3. On 02.07.2024, the Principal of Mandia Anchalik
College issued an advertisement inviting applications for
1(one) post of Assistant Professor in English and 1(one)
post of Librarian. The advertisement clearly stated that the
educational qualifications and the selection procedure
would be governed by the Government Office
Memorandum (OM No.AHE.239/2021/68) dated 24.01.2022.
4. It would be necessary to refer to the process of
awarding marks for academic records provided in the Office
Memorandum of 24.01.2022, referred to above, as the
controversy has arisen because of the change in the
marking pattern with respect to Post-Graduation marks of
candidates. The marking pattern under the Office
Memorandum of 24.01.2022 is as follows:-
Writ Appeal No.249/2025 Page 3
Sl. Candidates Score in qualifying examination
No.
Column-1 Column-2 Column-3 Column-4 Column-5
1. 10th 85% and 75% to less 65% to less 50% to less Less than
above=9 than 85% than 75% than 65% 50% = 2
=8 =7 =5
2. 12th 85% and 75% to less 65% to less 50% to less Less than
above=9 than 85% than 75% than 65% 50% = 2
=8 =7 =5
3. Graduation 90% and 80% to less 65% to less 50% to less Less than
above=24 than 90% than 80% than 65% 50% = 7
=22 =17 =12
4. Post 90% and 80% to less 65% to less 55% (50% in case of SC/
Graduation above=30 than 90% than 80% ST/OBC (non-creamy
=27 =22 layer)/(PWD) to less
than 65% = 17
5. While the recruitment process was underway, the
Government of Assam, Higher Education Department
issued another Office Memorandum on 22.10.2024. This
new Office Memorandum partially modified the earlier
Office Memorandum dated 24.01.2022, particularly, the
guidelines in respect of the calculation of marks for Post-
Graduation. All other terms and conditions of the earlier
Office Memorandum remained unchanged.
6. The revision of calculation of marks of Post-
Graduation in the latter Office Memorandum is also being
extracted herein-below for ready reference:-
Post Graduation Candidates' Score in qualifying examination
Column-1 Column-2 Column-3
More than 80% = 60-80% = 27 55% (50% in case of SC/
30 Marks Marks ST/OBC (non-creamy layer)
/(PWD) to less than 60%
= 24 Marks
7. The respondent No.1, a candidate, who had
secured 90 marks in Post-Graduation and who would have
Writ Appeal No.249/2025 Page 4
been awarded 30 marks for such percentage in his Post-
Graduation as per the earlier Office Memorandum, felt
aggrieved with the new Office Memorandum, which was
applied in the selection process, which made 30 marks
awardable to even persons who had obtained lesser than
90% in Post-Graduation. Under the new Scheme, any
candidate having obtained more than 80% marks in his
Post-Graduation was entitled for 30 marks. This had
brought the respondent No.1 in the category in which
others also with lesser marks in Post-Graduation would be
under consideration. He, therefore, challenged the
applicability of the Office Memorandum dated 22.10.2024
to the ongoing selection on the ground that applying the
new marking Scheme to the ongoing recruitment is
impermissible. It changes the rule of the game midway;
and would be prejudicial to his chances of coming out
successful.
8. The learned Single Judge, relying exclusively on
the decision of the Hon'ble Supreme Court in Tej Prakash
Pathak & Ors. -Vs- Rajasthan High Court & Ors.,
(2025) 2 SCC 1, concluded that the Office Memorandum
22.10.2024 which modified the earlier Office Memorandum
regarding calculation of marks of Post-Graduation could not
have been made applicable to the ongoing process of
selection, which process commenced from issuance of the
advertisement, calling for applications from desirous
candidates. Any change in even the marking pattern would
amount to changing the rules of the game midway.
Writ Appeal No.249/2025 Page 5
9. While saying so, the learned Single Judge also
reckoned that the new Office Memorandum never tinkered
with the qualification and eligibility criteria of the
candidates, but changing the marking pattern also would
have its disadvantages, particularly, an apprehension of
lack of probity and fairness and this perhaps could be
misunderstood that such change in the marking has been
done to accommodate some other candidates with lesser
marks in Post-Graduation.
10. The issues, therefore, which require consideration
in this appeal are: whether the Office Memorandum dated
22.10.2024, partially modifying the marking pattern for
Post-Graduation could be applied to a recruitment process
that had already commenced pursuant to an advertisement
dated 02.07.2024; and whether altering the selection
criteria after the issuance of the recruitment advertisement
would amount to change in the rules of the game.
11. The other aspect, which would be required to be
considered is whether the candidates in general would
have a legitimate expectation that the recruitment process
would be conducted strictly in accordance with the terms
and conditions mentioned in the advertisement and the
Office Memorandum in force on the date of its issuance
and, in that context, whether the Government would be
justified in applying the modified Office Memorandum
retrospectively to an ongoing process, in the absence of
Writ Appeal No.249/2025 Page 6
any express provision in the advertisement, or any
statutory mandate for doing so.
12. The law is well settled that after the
commencement of the recruitment process, the eligibility
criteria is not to be altered because candidates even if
eligible under the altered criteria, might not apply for the
post under the belief that they are not eligible as per the
advertised criteria. Thus, any alteration/change deprives a
person of the guarantee of equal opportunity in matters of
public employment provided by Article 16 of the
Constitution of India. The rules of the game cannot be
changed after the commencement of the recruitment
process insofar as the eligibility criteria is concerned.
13. The question, which arose for consideration in Tej
Prakash Pathak (supra), was whether the same rule
would apply with respect to the procedure for selection.
14. It would be apposite to note here that the process
of recruitment begins with the issuance of advertisement
and ends with filling up of notified vacancies. The process
would consists of various steps, like, inviting applications;
scrutiny of applications; conducting examination; taking
interviews; preparation of the select list, etc. The principle
behind preventing any change of rules midway either when
the game is being played, or after the game is played, is to
guard against arbitrariness.
Writ Appeal No.249/2025 Page 7
15. A brief detour in the past precedence would make
the decision-making in this case easy.
16. In K. Manjusree -Vs- State of Andhra Pradesh
& Anr. :: (2008) 3 SCC 512, the vacancies for the
position of District & Sessions Judge (Grade-II) was
notified by the State Government. According to the
advertisement for selection, a written examination was to
be held followed by an interview. It was decided by the
Administrative Committee of the High Court that the
written examination would be for 100 marks and the
interview would be for 25 marks and the minimum
qualifying marks for Unreserved; Backward Class;
Scheduled Caste and Scheduled Tribe Categories were also
prescribed. However, after the examination process was
over and merit list was prepared, a decision was taken to
convert the marks from 100 to 75 for written examination
and 25 for interview with minimum pass percentage in
written examination to determine the eligibility of the
candidates for appearing in the interview and minimum
marks in the interview as mandatory.
17. The introduction of this requirement for minimum
marks for interview after the selection process (consisting
of written examination and interview was completed)
amounted to changing the rules of the game after the
game was played, which was found to be clearly
impermissible.
Writ Appeal No.249/2025 Page 8
18. The decision in K. Manjusree (supra) was that
the criterion for selection cannot be changed after the
completion of the selection process. However, in the
absence of rules to the contrary, the Selection Committee
could have fixed minimum marks either for written
examination or for interview for the purpose of selection
but that could be done only before commencement of the
selection process.
19. This view was followed in Ramesh Kumar -Vs-
High Court of Delhi & Anr. :: (2010) 3 SCC 104.
20. To clarify, since the minimum marks for interview
was fixed after the interviews were over, it was held that
the rules of the game were changed midway.
21. However, this view was not unanimously
accepted.
22. Two strong arguments against the afore-noted
view were that if the principle in K. Manjusree (supra) is
applied strictly than perhaps there would be a compromise
on the intake of best possible performers and that the
decision in K. Manjusree (supra) overlooked the judgment
in State of Haryana -Vs- Subash Chander Marwaha ::
(1974) 3 SCC 220.
23. In Subash Chander Marwaha (supra), which
related to examination for filling up of vacancies in Haryana
Civil Service (Judicial Branch), 40(forty) candidates found
Writ Appeal No.249/2025 Page 9
their names in the merit list which was prepared against
15(fifteen) vacancies. The State Government, however,
only appointed 7(seven) persons from amongst the top
7(seven) in the select list. The candidates lower in the list
than the top 7(seven) candidates but who could have been
appointed against 15(fifteen) vacancies, preferred writ
petitions before the High Court of Punjab, seeking a
direction to the State Government to fill up the remaining
vacancies as per the order of merit in the select list. This
was contested by the State by claiming that it was done to
maintain high standard of competence in judicial service
and anybody getting less than 55% marks in the
examination, even though was in the select list, would not
be suitable to be appointed as Judges.
24. The High Court was of the view that the State
could not have fixed a new standard for appointment as
the pass marks/benchmark was 45%. However, the
Supreme Court opined that the mere fact that a candidate's
name appears in the list will not entitle him/her to a
mandamus that he/she be appointed and that there would
be any constraint that the Government has to make an
appointment of a subordinate Judge either because there
are vacancies or because a list of candidates has been
prepared and is in existence.
25. Because of the judgments in these 2(two) cases,
the matter was referred to a larger Bench in Tej Prakash
Writ Appeal No.249/2025 Page 10
Pathak (supra), wherein the terms of reference was as
follows:-
"1. A three-Judge Bench of this Court while
accepting the salutary principle that once the recruitment
process commences the State or its instrumentality
cannot tinker with the 'rules of the game' insofar as the
prescription of eligibility criteria is concurred, wondered
whether that should apply also to the procedure for
selection. In that context, doubting the correctness of a
coordinate Bench decision in K. Manjusree v. State of A.P.
:: (2008) 3 SCC 512 for not having noticed an earlier
decision in State of Haryana v. Subash Chander
Marwaha :: (1974) 2 SCC 220, vide order dated 20-3-
2013, it was directed that the matter be placed before
the Chief Justice for constituting a larger Bench for an
authoritative pronouncement on the subject."
26. After examining the case laws on the issue, the
Supreme Court concluded as follows:-
"Conclusions
65. We, therefore, answer the reference in the
following terms:
65.1 Recruitment process commences from the
issuance of the advertisement calling for applications and
ends with filling up of vacancies;
65.2 Eligibility criteria for being placed in the select
list, notified at the commencement of the
recruitment process, cannot be changed midway through
the recruitment process unless the extant Rules so permit,
or the advertisement, which is not contrary to the extant
Rules, so permit. Even if such change is permissible
under the extant Rules or the advertisement, the change
would have to meet the requirement of Article 14 of the
Constitution and satisfy the test of non-arbitrariness;
65.3 The decision in K. Manjusree (supra) lays down
good law and is not in conflict with the decision
in Subash Chander Marwaha (supra). Subash Chander
Marwaha (supra) deals with the right to be appointed
from the select list whereas K. Manjusree (supra) deals
with the right to be placed in the select list. The two
cases therefore deal with altogether different issues;
Writ Appeal No.249/2025 Page 11
65.4 Recruiting bodies, subject to the extant Rules,
may devise appropriate procedure for bringing the
recruitment process to its logical end provided the
procedure so adopted is transparent, non-discriminatory/
non-arbitrary and has a rational nexus to the object
sought to be achieved.
65.5 Extant Rules having statutory force are binding
on the recruiting body both in terms of procedure and
eligibility. However, where the Rules are non-existent, or
silent, administrative instructions may fill in the gaps;
65.6 Placement in the select list gives no indefeasible
right to appointment. The State or its instrumentality
for bona fide reasons may choose not to fill up the
vacancies. However, if vacancies exist, the State or its
instrumentality cannot arbitrarily deny appointment to a
person within the zone of consideration in the select list."
27. Mr. K.N. Choudhury, learned Senior Advocate for
the appellant, while defending the applicability of the latter
Office Memorandum to the ongoing process of selection,
submitted that in Tej Prakash Pathak (supra), the
decision in K. Manjusree (supra) was held to have laid
good law and that recruiting bodies, subject to the extant
Rules, may devise appropriate procedure for bringing the
recruitment process to its logical end, provided the
procedure so adopted is transparent, non-discriminatory/
non-arbitrary and has a rational nexus to the object sought
to be achieved. It was submitted that there was no reason
to keep a separate block for candidates having obtained
90% or more in the Post-Graduate Examination, who would
be awarded 30 marks. All that the new Office
Memorandum did was to keep in that bracket the
candidates who could be awarded 30 marks on that count,
namely, their performance in Post-Graduate Examination,
which would be 80% and above. There could be no
Writ Appeal No.249/2025 Page 12
rational nexus for granting 30 marks for persons having
obtained 90% and more in their Post-Graduation, which
percentage is almost a rarity. (It may, however, be noted
that the respondent No.1 has obtained 90% marks in his
Post-Graduation, who has actually challenged the
applicability of the new Office Memorandum).
28. To the afore-noted contention of Mr. K.N.
Choudhury, learned Senior Advocate, Mr. K. Gogoi, learned
Standing Counsel, Education (Higher) Department very
pithily submitted with reference to a judgment of this Court
in one Dr. Mintu Das & 3 Ors. -Vs- Union of India &
Ors. [WP(C) No.1040/2022] that the marking patterns
over the years have shown that at different periods the
marking is strict and in the later years, it has been
observed that more marks are awarded by the examiners.
Thus, increasing the range of such candidates who could
be awarded 30 marks, those 30 marks was made
awardable to even those candidates who have obtained
more than 80% marks in their Post-Graduation.
29. So far for the reasons to bring about a change in
the marking pattern; but whether such change in the
marking pattern, by virtue of a modified Office
Memorandum, with a specific stipulation that will be
prospective, but making it applicable to the ongoing
recruitment exercise is what has been questioned.
30. The answer is obviously in the negative for the
reason that the change in the marking pattern was brought
Writ Appeal No.249/2025 Page 13
out after a different marking pattern was delineated in the
advertisement, which even without changing the eligibility
criteria, would be impermissible as being unfair and not
garnering the muster of Articles 14 and 16 of the
Constitution of India. The decision to change the marking
pattern after the advertisement would be infested with
strong presumption of arbitrariness and perhaps an
attempt to accommodate someone with lesser marks in
Post-Graduation.
31. For the afore-noted reasons, we affirm the
judgment of the learned Single Judge as being wholly
justified and direct that the recruitment process should be
carried out in accordance with the terms of the
advertisement.
32. The appeal is accordingly dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
Writ Appeal No.249/2025 Page 14
