Gauhati High Court
Page No.# 1/ vs The State Of Assam And 7 Ors on 29 August, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/10
GAHC010078842024
2025:GAU-AS:11616
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./63/2024
MUKUL KR. SARMA
S/O LATE PITAMBAR SARMA, R/O JAPARKUCHI, NALBARI, P.O.-
TERECHIA, P.S.- NALBARI, DIST.- NALBARI, ASSAM.
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
HIGHER EDUCATION, DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR OF HIGHER EDUCATION
KAHILIPARA
GUWAHATI- 781019.
3:THE DEPARTMENTAL PROMOTION COMMITTEE
REP. BY ITS CHAIRMAN
BAPUJEE COLLEGE
SARUKSHETRI
P.O.- SARTHEBARI
BARPETA
ASSAM- 781307.
4:PRANAB KUMAR SARMA
EX-HEAD OF THE DEPTT. OF ENGLISH
BAPUJEE COLLEGE
SARUKSHETRI
P.O.- SATHEBARI
BARPETA
ASSAM- 781307.
5:JITENDRA DAS
H.O.D.
Page No.# 2/10
DEPTT. OF ENGLISH
BAPUJEE COLLEGE
SARUKSHETRI
SARTHEBARI
BARPETA
ASSAM- 781307.
6:THE GOVERNING BODY OF THE BAPUJEE COLLEGE
SARUKSHETRI
SARTHEBARI
BARPETA
ASSAM- 781307.
7:THE BAPUJEE COLLEGE
REP. BY THE PRINCIPAL
SARUKSHETRI
P.O.-SARTHEBARI
BARPETA
ASSAM- 781307.
8:GAUHATI UNIVERSITY
GOPINATH BORDOLOI NAGAR
REP. BY ITS REGISTRAR
GUWAHATI
KAMRUP (M)
ASSAM- 781014
Advocate for the Petitioner : MR. K N CHOUDHURY, MR. U K DAS,H THAKURIYA,MS. B D
SARMAH
Advocate for the Respondent : SC, HIGHER EDU, SC, G U
Linked Case : WP(C)/6393/2018
MUKUL KR. SARMA
S/O. LT. PITAMBAR SARMA
R/O. JAPARKUCHI
NALBARI
P.O. TERECHIA
P.S. NALBARI
DIST. NALBARI
ASSAM.
Page No.# 3/10
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HIGHER EDUCATION DISPUR
GUWAHATI-781006.
2:THE DIRECTOR OF HIGHER EDUCATION
KAHILIPARA
GUWAHATI-781019.
3:THE DEPARTMENTAL PROMOTION COMMITTEE
REP. BY ITS CHAIRMAN
BAPUJEE COLLEGE SARUKSHETRI
P.O. SARTHEBARI
BARPETA
ASSAM-781307.
4:PRANAB KUMAR SARMA
HEAD OF THE DEPTT. OF ENGLISH
BAPUJEE COLLEGE
SARUKSHETRI
P.O. SATHEBARI
BARPETA
ASSAM-781307.
5:JITENDRA DAS
EX H.O.D.
DEPARTMENT OF ENGLISH
BAPUJEE COLLEGE
SARUKSHETRI
SARTHEBARI
BARPETA
ASSAM-781307.
6:THE GOVERNING BODY OF THE BAPUJEE COLLEGE
SARUKSHETRI
SARTHEBARI
BARPETA
ASSAM-781307.
7:THE BAPUJEE COLLEGE
Page No.# 4/10
REP. BY THE PRINCIPAL
SARUKSHETRI
SARTHEBARI
BARPETA
ASSAM-781307.
8:GAUHATI UNIVERSITY
GOPINATH BORDOLOI NAGAR
REP. BY ITS REGISTRAR
GUWAHATI
KAMRUP (M)
ASSAM-781014.
------------
Advocate for : MR. S BORA
Advocate for : SC
EDU appearing for THE STATE OF ASSAM AND 7 ORS.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 29.08.2025
Heard Mr. U.K. Das, learned counsel for the petitioner. Also
heard Mr. P.J. Phukan, learned standing counsel for the Gauhati University,
respondent no. 8. No other respondents are represented.
2) The review petitioner, who is the writ petitioner in W.P.(C)
6393/2018, has preferred this review petition in respect of the order dated
21.04.2023, passed by this Court, by which the writ petition was dismissed with
cost.
3) In brief, the case of the petitioner, in the writ petition (para-2 of
the writ petition). Thus, the petitioner, who was initially appointed on a leave
vacancy, and thus, in a non-sanctioned post, had claimed his seniority from the
date of his appointment in the non-sanctioned post, which was found to be
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contrary to the law laid down by the Supreme Court of India in the case of
Nand Kumar Manjhi v. State of Bihar & Ors., (2019) 14 SCC 67 and Dr. M.A.
Haque v. Union of India, (1993) 2 SCC 213 . It may be mentioned that the
nature of the prayers, as made in the writ petition have been referred
hereinbefore and morefully referred to in the order under review. Thus, the
same are not reiterated again.
4) It would suffice to mention that this Court had, upon hearing
the learned counsel for the appearing parties, dismissed the writ petition with a
cost of Rs.10,000/- (Rupees Ten thousand only), by holding the writ petition of
the petitioner as frivolous and vexatious and abuse of the process of the Court.
5) The learned counsel for the petitioner had pressed all the
grounds on which this review petition has been filed. Referring to Ground-A, it
has been submitted that the advertisement to fill-up the leave vacancy, which
was not produced in the writ petition, clearly indicated that the appointment
was likely to be made permanent and therefore, for the purpose of seniority, the
period of service rendered from 08.01.1998, was required to be counted. By
referring to Ground-B, it has been submitted that in the case of Direct Recruit
Class-II Engineering Officers Association v. State of Maharashtra, AIR 1967 SC
1607, related to appointees who were appointed as stop-gap arrangement and
therefore, to equate the petitioner with those stop-gap appointees would be to
treat two unequal persons as equals and therefore, there is no reason to
exclude officiating service for the purpose of seniority, moreso, when the
petitioner was appointed after advertisement and after undergoing selection
process. Accordingly, it has been submitted that the case laws, based on which
the writ petition has been dismissed, were not applicable to the petitioner.
6) By referring to Ground-C and E of the review petition, it was
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submitted that the respondent no. 4 was not eligible to be considered for
promotion as per the UGC Guidelines, and that the incorrect constitution of DPC
and defect in the manner, the DPC was conducted could not be brought to the
notice of the Court at the time of hearing of the writ petition. By referring to
Ground-D, the petitioner has justified taking of classes at unscheduled slots and
claimed discrimination as others doing so were allowed to do so and
accordingly, the mental harassment of the petitioner is projected. Accordingly,
by referring to Ground-F, it was submitted that the impugned order warrants
interference.
7) The learned standing counsel for the Gauhati University
(respondent no. 8) has submitted that the respondent no. 8 is a formal party
and therefore, he has nothing to submit save and except to protect the interest
of the respondent no. 8. However, by referring to the order dated 28.07.2025,
he has submitted that he has been requested to respond to the Court query and
therefore, he is citing two case laws, which may suffice and accordingly, he has
referred to the case of Lily Thomas & Ors. V. Union of India & Ors., (2000) 6
SCC 224, and Ganga Dhar Das (Dr.) v. State of Assam & Ors., 2018 (3) GLT 235 .
8) Perused the contents of the review petition and the grounds on
which the review petition has been filed. Also carefully considered the cases
cited at the Bar.
9) It may be mentioned that in paragraph 9 of the order dated
21.04.2023, under review, the Court had observed to the effect that not only
the petitioner had not been taking his allotted classes on time and took classes
at his whims and fancies, but he had agitated his grievance against marking him
absent with red ink, which did not find favour of the Court in the impugned
order under review.
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10) It may also be stated that one of the prayers of the petitioner, in
the writ petition, was to the effect that there should be mental check-up of
teachers. On the said aspect, the Court had observed that the petitioner may
not mind to do what he preaches and that he should set an example to others
by voluntarily have his own periodical mental check-up done at his own volition
and his own free will and submit his periodical medical reports to the Principal of
the College, where he is serving, to be retained on record. It was held that the
petitioner had failed to show that he was mentally harassed.
11) Moreover, it may also be stated that the petitioner had
questioned the DPC because the DPC was held to examine the candidature of
only respondent no.4. In the said context, it was held that the same would not
prejudice the petitioner as the respondent no. 4 was senior to the petitioner and
it was further observed that the petitioner has not been able to show anything
which prohibits a DPC to be held for a single candidate, if he was otherwise
eligible.
12) The points referred to in the forgoing paragraph nos.9, 10 and
11 cannot be said to be vitiated by any error on the face of record.
13) In so far as ground no. (a) of this review petition is concerned,
which is briefly mentioned in paragraph 5 above, the petitioner has not been
able to show from the applicable service rules or from any case law that if a
statement is made in the employment advertisement that appointment made in
the leave vacancy is likely to be made permanent, on his selection and
appointment, he has become a member of any cadre from the date of his initial
appointment. In the impugned order, the Court had observed and held that the
petitioner was appointed in a non-sanctioned post and that his appointment to
the non-sanctioned post is not under challenge. Thus, the non-filing of the
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advertisement during the course of hearing of the writ petition is not found to
have caused any prejudice to the petitioner because even if the said
advertisement published in The Assam Tribune, edition dated 25.07.1997, had
been taken into consideration, it would not have made the appointment of the
petitioner to be an appointment to a sanctioned post. Be that as it may, it
cannot be accepted that the petitioner was not aware of the employment
advertisement published in the newspaper dated 25.07.1997. Therefore, the
production of the newspaper advertisement in this review petition cannot be
said to be the discovery of new and important matter or evidence which, after
the exercise of due diligence was not within the knowledge of the person
seeking review, or could not be produced by him at the time when the order
was made. Rather, the production of the newspaper appears to be an after-
thought and only to cover-up the deficiency in the writ petition.
14) By referring to Ground-B, it was submitted that the case of
Direct Recruit Class-II Engineering Officers Association (supra) , related to
appointees who were appointed as stop-gap arrangement and therefore, to
equate the petitioner with those stop-gap appointees would be to treat two
unequal persons as equals and therefore, there is no reason to exclude
officiating service for the purpose of seniority, moreso, when the petitioner was
appointed after advertisement and after undergoing selection process. In this
regard, while discussing Ground-A in the foregoing paragraph, it has been
observed that the petitioner has failed to show from the applicable service rules
or from any case law that if a statement is made in the employment
advertisement that appointment made in the leave vacancy is likely to be made
permanent, on his selection and appointment in leave vacancy, he has become a
member of any cadre from the date of his initial appointment. Moreover, in
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paragraph 4 of the writ petition, the petitioner has specifically pleaded as
follows - "... Thereafter, the service of the petitioner was regularised against a
regular and permanent post on 18.07.1999. On the other hand, the respondent
no. 4, Sri Pranab Kumar Sarma joined the Department against a regular and
permanent post on 23.10.1998." Therefore, the case of Direct Recruit Class-II
Engineering Officers Association (supra) , is not found to help the petitioner
because the advertisement was to fill-up only a leave vacancy. Thus, merely
because a regular selection process was carried out, through which the
petitioner has been appointed, would not make such an appointment in
accordance with the applicable service rules. Resultantly, Ground-C and Ground-
E of the review petition is also without any merit because if the petitioner is not
within the zone of consideration, he would have no locus standi to assail the
promotion of the respondent no. 4.
15) By Ground-D of the review petition, the petitioner has made an
attempt to justify non-taking of classes at scheduled slots and claimed
discrimination because he took classes on unscheduled slots as others doing so.
On that ground, the petitioner projects that he suffered mental harassment.
This ground appears to be an appeal in disguise as the said point has been
discussed and rejected in the order impugned in this review petition. In the case
of Surendra Kumar Vakil & Ors. v. Chief Executive Officer, M.P. & Ors., (2004) 10
SCC 126, the Supreme Court of India has held that a point that has been heard
and decided cannot form a ground for review even assuming that the view
taken in the judgment under review is erroneous.
16) Ground no. F of the review petition contains usual residuary plea
to the effect that for in any view of the matter, the impugned order warrants
review and modification for ends of justice, which is not sufficient to review the
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order impugned in this review petition.
17) The petitioner has failed to show that the order under review is
vitiated owing to misconception of facts or law or erroneous appreciation of
pleadings and documents. The petitioner has also failed to demonstrate that any
mistake or error apparent on the face of the impugned order exists and in this
regard, if one requires any authority on the point, paragraph 56 of the case of
Lily Thomas (supra), cited by the learned standing counsel for the respondent
no. 8 may be referred to.
18) Therefore, this review petition fails and accordingly, this review
petition is dismissed.
19) Before parting with the records, we record our appreciation for
the assistance rendered by Mr. P.J. Phukan, the learned counsel for respondent
no.8.
20) The Registry shall transmit a copy of this order to the
respondent no. 7.
JUDGE
Comparing Assistant
