[Cites 14, Cited by 0]
Gauhati High Court
WP(C)/108/2024 on 12 December, 2025
GAHC010005042024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Principal Seat at Guwahati
WP(C)/108/2024
1. Sajal Das,
S/o- Jatindra Das,
Vill.- Dudhpatil Part-4, P.O.- Haticherra,
P.S.- Silchar, PIN- 788002, Cachar, Assam,
Selected Grade-IV Vill. Tekandrajir M.E. School,
under Silchar Block, Select List Sl. No.- 6.
2. Shyamal Das,
S/o- Prasanna Kumar Das,
Vill.- Salchapra Pt-II, P.O.- Salchapra T.E.,
P.S.- Silchar, PIN- 788801, Cachar, Assam,
Selected Grade-IV Salchapra M.E. School,
under Salchapra Block, Select List Sl. No. 34.
3. Shibu Ranjan Das,
S/o- Lt. Sunil Chandra Das,
Ward No. 1 near Joy Kumar School,
Silchar Mela Road Malugram, P.S.- Silchar,
PIN- 788002, Cachar, Assam,'
Selected Grade-IV, Janinganj Pathsala,
under Silchar Block, Select List Sl. No. 1.
4. Babul Chandra Dey,
S/o- Lt. Hari Charan Dey,
Gunomoyee Road Tarapur Pt-1,
P.S. Silchar, PIN- 788803, Cachar, Assam,
Selected Grade-IV Ramkumar Nandi Pathsala,
Rajib Digitally signed by
Rajib Kumar Roy
Kumar Roy Date: 2025.12.16
13:57:27 +05'30'
under Silchar Block, Select List Sl. No. 4.
Page 1 of 44
5. Galak Kharwar,
S/o Ghanashyam Kharwar,
Vill. and P.O.- Dalubasti, P.S.- Borkhola,
Cachar, Assam,
Selected Grade-IV, Dulu M.E. School,
under Salchapra Block, Select List Sl. No. 15.
6. Taj Uddin Barbhuiya,
S/o- Lt. Samsur Uddin Barbhuiya,
Vill.- Ujangram, P.O.- Borkhola,
P.S.- Borkhola, PIN- 788111, Cachar, Assam,
Selected Grade-IV, Abdul Musabbir M.E. School,
Under Salchapra Block, Select List Sl. No. 16.
7. Abu Abdulla Mashud Barbhuiya,
S/o- Abdul Rouf Barbhuiya,
Vill.- Niz Fulbari Part-1, P.O.- Sialtek,
P.S.- Katigorah, PIN- 788802, Cachar, Assam,
Selected Grade-IV Tarinipur M.E. School,
under Katigorah Block Select List Sl. No. 44.
8. Abdul Kalam,
S/o- Gouse Uddin,
Vill.- Lakhipur Pt-1, P.O.- Kalain,
P.S.- Katigorah, PIN- 788815, Cachar, Assam,
Selected Grade-IV Kalain M.E. Madrassa,
Under Katigorah Block Select List Sl. No. 36.
9. Suraj Barman,
S/o- Binode Barman,
Vill.- Ganganagar Pt-VI, P.O.- Ganganagar,
PIN- 788099, Cachar, Assam,
Selected Grade-IV Nikma M. V. School,
Under Narsingpur Block Select List Sl. No. 25.
10. Raju Tantubai,
S/o- Lt. Nitai Tantubai,
Page 2 of 44
Vill.- Pangram Pt-3, P.O.- Pangaram,
PIN- 788030, Cachar, Assam,
Selected Grade-IV, Pangram M.E. School,
under Udharbond Block, Select List Sl No. 9.
11. Raj Kishore Rabidas,
S/o- Kamal Charan Rabidas,
Vill.- Barjalenga Pt- 6, P.O.- Kabuganj,
PIN- 788121, Cachar, Assam,
Selected Grade-IV Bhudhan Chuhan M.E. School,
under Narsingpur Block Select List Sl. No. 33.
12. Abdul Karim Barbhuiya,
S/o- Azimul Islam Barbhuiya,
Vill.- Sarail, P.O.- Krishnapur, P.S.- Silchar,
PIN- 788025, Cachar, Assam,
Selected Grade-IV Hazi Mujamil Ali M.E. School,
under Salchapra Block Select List Sl No. 7.
13. Muktar Uddin,
S/o- Sajjad Ali,
Vill.- Niz Hari Tikar Pt-II, P.O.- Rajartilla,
P.S.- Katigorah, PIN- 788805, Cachar, Assam,
Selected Grade-IV Karal Kandi M.E. School,
under Katigorah Block Select List Sl. No. 12.
14. Shams Uddin Barbhuiya,
S/o- Habibur Rahman Barbhuiya,
Vill- Jagadishpur Pt-5, P.O.- Jagadishpur,
P.S.- Katigorah, PIN- 788805, Cachar, Assam,
Selected Grade-IV Jagadishpur M.E. Madrassa School,
under Katigorah Block Select List Sl. No. 32.
15. Sambhu Proshad Nunia,
S/o Satyanarayan Nunia, Vill. and P.O.- Silcuri,
PIN- 788118, Cachar, Assam,
Selected Grade-IV. Lakshmi Narayan M.E. School,
under Salchapra Block Select List Sl. No. 10.
Page 3 of 44
16. Abdul Ahad Laskar,
S/o- Lt. Faizul Hoque Laskar,
Vill. and P.O. Buribail Pt-II, PIN- 788025,
P.S.- Borkhola, Cachar, Assam,
Selected Grade-IV Buribail M.E. School,
under Salchapra Block Select List Sl. No. 11.
17. Ibrahim Ali Laskar,
S/o- Lt. Mahir Uddin Laskar,
Vill.- Rangirghat Pt-II, Amjurghat,
P.S.- Sonai, PIN- 788119, Cachar, Assam,
Selected Grade-IV Harina Public M.E. School,
under Sonai Block Select List Sl. No. 49.
18. Amit Ree,
S/o- Lt. Subal Bauri,
Vill.- Masimpur Pt-II, P.O.- Subedarbasti,
PIN- 788003, Cachar, Assam,
Selected Grade-IV Masimpur M.E. School,
under Salchapra Block Select List Sl. No. 37.
19. Nazrul Hoque Laskar,
S/o- Mosoddar Ali Laskar,
Vill.- Saidpur Pt-III, P.O.- Sonabarighat,
P.S.- Sonai, PIN- 788013, Cachar, Assam,
Selected Grade-IV Ahad Ahmed M.E. School,
under Soai Block Select List Sl. No. 19.
20. Ranjit Das,
S/o- Rajendra Lal Das,
Vill.- Daccaipatty, Silchar, PIN- 788001,
Cachar, Assam,
Selected Grade-IV ACB Pathsala,
under Silchar Block Select List Sl. No. 15.
21. Hiralal Daslaskar,
S/o- Ramesh Chandra Daslaskar,
Page 4 of 44
Vill- Gobindapur Pt-I, P.O.- Dungripar,
P.S.- Udharbond, PIN- 788101, Cachar, Assam,
Selected Grade-IV Bagehar NH M.E. School,
under Lakhipur Block Select List Sl. No. 31.
22. Menglemba Singha,
S/o- N Kunja Singha,
Vill. and P.O. Tulengram, PIN- 788103,
Cachar, Assam,
Selected Grade-IV Punyabati M.E. School,
under Lakhipur Block Select List Sl. No. 43.
23. N. Sarat Kumar Singha,
S/o- Krishna Mohan Singha,
Vill.- Ramnagar Tuko, P.O.- Ramnagar Tarapur,
P.S.- Silchar, PIN- 788003, Cachar, Assam,
Selected Grade-IV K.I.M. Hazire M.E. School,
under Salchapra Block Select List Sl. No. 40.
24. Rehana Begum,
W/o- Lt. Siddek Ahmed,
Vill.- Natun Krishnapur, P.O.- Hatikhal,
PIN- 788802, Cachar, Assam,
Selected Grade-IV Public M.E. School,0
under Sonai Block Select List Sl. No. 18.
25. Jakir Hussain,
S/o Abdul Monaf,
Vill.- Sapar Maina, P.O.- Lakhipur, P.S.- Lakhipur,
PIN- 788103, Cachar, Assam,
Selected Grade-IV Sapar Maina M.E. School,
under Lakhipur Block Select List Sl No. 41
........Petitioners
-Versus-
Page 5 of 44
1. The State of Assam, represented by the Commissioner and Secretary to
the Govt. of Assam, Department of School
Education (Elementary), Assam (Civil) Secretariat,
Block-C, Dispur, Guwahati, Assam, PIN-781006.
2. The Director of Elementary Education, Assam, Cum Chairperson, State
Level Selection Committee, Kahilipara, Guwahati, Assam,
PIN- 781019.
3. The District Elementary Education Officer, cum Chairperson,
District Level Screening Committee, Cachar, Silchar, Assam,
PIN- 788003.
4. The Commissioner and Secretary to The Govt. of Assam,
Department of Finance, Assam, Civil Secretariat, Dispur,
Guwahati, Assam, PIN-781006.
.......Respondents
- B E F O R E-
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioners : Mr. B. Purkayastha
Advocate for the respondents : Mr. B. Kaushik, SC, Ele. Edu.;
Mr. A. Chaliha, SC, Finance
Date on which judgment is reserved : 18.11.2025
Date of pronouncement of judgment : 12.12.2025
Whether the pronouncement is of the
operative part of the judgment? : N/A
Whether the full judgment has been
pronounced? : Yes
Page 6 of 44
JUDGMENT & ORDER (CAV)
Heard Mr. B. Purkayastha, learned counsel for the petitioners.
Also heard Mr. B. Kaushik, learned Standing Counsel for the
Elementary Education Department, being respondent Nos.1 - 3, Mr.
A. Chaliha, learned Standing Counsel for Finance department, being
respondent No. 4.
2. In this petition, under Article 226 of the Constitution of India,
the petitioners have challenged the communication, dated
18.12.2023 (Annexure-11), issued by the respondent No.1, and also
for issuing direction to the State respondents, more particularly to
the respondent No.2, to issue appointment orders in favour of the
selected candidates, including the petitioners, as per the select list
and recommendations of State Level Selection Committee, dated
07.03.2019 (Annexure-8A & 8B) published by the Director of
Elementary Education (DEE hereinafter), Assam in compliance of
the common order dated 12.07.2018, passed by this Court in
WP(C)No.7663 of 2016.
Background Facts:-
3. The background facts, leading to filing of the present petition,
is briefly stated as under:-
With a view to fill up 504 numbers of vacancies in Grade-
IV, in different Government provincialised upper primary
schools in about 18 districts of Assam, that have arisen due to
retirement or death of the incumbents, since the year 2000,
the Director of Elementary Education, Assam vide
communication No. EAA.60.2005/17, dated 16.12.2005, has
issued a common direction to all the District Elementary
Education Officer (DEEO hereinafter)s of the State of Assam
for issuing school wise advertisement, for filling up the posts
of Grade-IV employees of the Elementary Schools.
In accordance with the above instruction, the respective
DEEOs of different districts had issued advertisements within
their districts inviting applications from the intending
candidates to fill up those posts. After having received the
applications pursuant to the above advertisements, the
respective DEEOs, including the DEEO, Cachar had fixed the
dates of interview of the candidates for different schools
under them and accordingly, they informed the respective
Member Secretaries/ Headmasters/ Headmistresses of those
schools and requested them to issue call letters to the
respective candidates pertaining to the vacant posts of their
respective schools. Accordingly, the call letters were issued to
the candidates and the interviews were held by the competent
authorities on various dates in the year 2006.
The petitioners herein were selected against the
vacancies of their respective schools. All the petitioners
appeared in the above interviews held under the respective
schools as stated above and they were all selected in the
above interviews for being appointed as Grade-IV employees
against the vacancies in the respective schools.
Earlier some selected candidates, including the petitioners
of Cachar district had approached this Court by filing a writ
petition, being WP(C) No.6413 of 2011, with a prayer for a
direction to the respondent authorities to appoint them. Said
writ petition was disposed of by this Court vide order dated
20.12.2011, with liberty to the respondents to take decision
regarding the appointment of Grade IV employees of the
Cachar District, as soon as possible. The petitioners thereafter
submitted the copy of the same in the offices of the
respondents, but no action was taken.
As no action was taken by the DEE, Assam, the
petitioners approached this Court, again by filing WP(C) No.
3175 of 2012 and WP(C)No. 4810 of 2013, praying for a
similar direction dated 03.04.2012, passed by this Court in
WP(C)No. 6044 of 2010, filed by the candidates selected from
Hailakandi District. This Court vide its common order dated
05.06.2014, disposed of a series of writ petitions including the
above two writ petitions directing the respondent authorities
to examine and complete the process of ongoing recruitment
within 30.09.2014.
On receipt of the above order, dated 05.06.2014, passed
by this Court, the DEE, Assam had constituted a State Level
Selection Committee, for examination and scrutiny of the
documents pertaining to the recruitment process. After that
the DEE, Assam has passed the order dated 22.12.2014,
whereby he has decided to proceed with the recruitment
process in respect of all the districts of Assam, excluding the
Cachar district and thereby through the order dated
22.12.2014, he had rejected the selection in respect of Cachar
district on the ground that there existed three numbers of
select lists submitted by the DEEO, Cachar and the same was
not done as per the guideline dated 16.12.2005, issued by the
DEE, Assam and decided to go for a fresh selection for filling
up the vacant posts of Grade-IV in respect of Cachar district.
After issuance of the rejection order dated 22.12.2014,
by the DEE, Assam, the candidates like petitioners being
aggrieved by the above order, had approached this Court by
preferring four numbers of writ petitions, being WP(C)
No.7663 of 2016, WP(C)No.7361 of 2016, WP(C)No.6741 of
2015 and WP(C)No.7607 of 2015. This Court, vide common
order, dated 12.07.2018, had disposed of all the above writ
petitions with a direction to the District Elementary Education
Officer, Cachar to prepare a bona-fide consolidated list of
selected candidates in order of merit as against respective
schools on the basis of the individual lists from respective
schools, in a strict accordance with the merit of the
candidates, who appeared for selection before the respective
screening committees of respective schools and also directed
to complete the exercise within a period of 4 (four) months
from the date of the order.
Thereafter, the DEE, Assam had constituted a
departmental enquiry committee to examine the entire
selection process. The Enquiry Officer vide his letter dated
09/10/2018, has directed the DEEO Cachar to appear before
the Enquiry Committee to enquire with regard to the interview
process in compliance of the order dated 12.07.2018, passed
in WP(C)No.7663/2016 and others. The Enquiry Officer,
thereafter, submitted the Enquiry report before the DEE,
Assam. Thereafter, the enquiry committee submitted
recommendation before the State Level Selection Committee.
The State Level Selection Committee accepted the
recommendation of the Enquiry Committee and adopted a
resolution on 07.03.2019, with regard to appointment and
publication of Select List of Grade-IV candidates of Cachar
district. Accordingly, on the same date, the Office of the DEE,
Assam vide order No.EAA/SIU/H/956/2016/341, dated
07.03.2019, has published the select list of Grade-IV
employees wherein the names of the petitioners have been
reflected as selected candidates.
Though the Enquiry report cum list of candidates has been
published by the DEE, Assam as per the direction of this
Court, but the approval of the same has not been done by the
authorities of the Department. The petitioners then again
approached this Court through WP(C) No.3731/2019 and this
Court vide its order dated 25.07.2019, while appreciating the
above facts had disposed of the same with a direction to the
State Respondents to consider the said select list published by
the Director, if the same is approved and the necessary
appointment order may be issued by the appointing authority
within a specified period of four months.
But, as the order has not been complied with by the
DEE, Assam, the petitioners hereof had preferred a contempt
case (Civil) vide Cont. Case (C)No.174/2020. In the name of
compliance of the order of this Court, several departmental
communications, dated 04.12.2019, dated 16.08.2021, dated
02.02.2022, dated 22.08.2022, dated 12.12.2023, have been
made in between the office of the respondents No.1 & 2.
Ultimately, the respondent No.1 vide impugned
communication dated 18.12.2023, has rejected the claim of
appointment of the petitioners on the ground that there is no
service rule in respect of appointment of Grade-IV employees
of the Upper Primary Schools and secondly, there was no SIU
approval from the Finance Department before issuance of the
advertisement. Further, the DEEO, Cachar has submitted three
lists of selected candidates and on such count, the respondent
No.1 had rejected the case of the petitioners for appointment.
The petitioners stated that the process of appointment
of Grade-IV employees of Upper Primary Schools had been
initiated in the year 2005, throughout the state of Assam and
therefore, the requirement of SIU approval of Finance
Department before issuance of the advertisement, is not
applicable in case of the petitioners hereof.
Further, the letter dated 12.12.2023, issued by the DEE,
Assam goes to show that the State respondents have almost
appointed 367 numbers of Grade-IV employees like the
petitioners in respect of other districts of the State of Assam
and for them the requirement of the SIU was never became
the obstacle to issue the order of appointment. It is also
stated that the issue of submission of three numbers of select
list by the DEEO, Cachar has been examined and settled by
the Department after interference of this Court in earlier round
of litigation. Moreover, in the earlier round of litigations, the
State respondents had never raised the issue of SIU approval,
though they had filed their affidavit in contesting the cases
and as such, the State respondents are barred by the principle
of constructive res-judicata.
Then on production of the impugned communication
dated 18.12.2023, this Court, vide order dated 20.12.2023,
has closed the Cont. Case (C)No. 174/2020, and that the State
respondents have accorded their approval and communicated
to the DEE, Assam for issuance of the appointment orders to
the similarly situated candidates in respect of entire State of
Assam, except the district of Cachar, till 18th February, 2023.
But, in respect of the petitioners, the respondent No.1 for the
first time, had raised the issue of SIU approval and rejected
the claim of the petitioners arbitrarily vide impugned
communication dated 18.12.2023, and till then the issue of
SIU approval in respect of remaining candidates, who have
been appointed till 18.02.2023, pursuant to the advertisement
of 2005, never been raised. And as such, the action on the
part of the State respondents are absolutely arbitrary,
unlawful as well as illegal and as such, the same has grossly
violated the fundamental rights of the petitioners guaranteed
under Article 14, 16 & 21 of the Constitution of India.
Therefore, it is contended to interfere with the impugned
communication dated 18.12.2023, and to direct the State
respondents to appoint the petitioners as Grade IV candidates
as per the selection list published by the DEE, Assam as has
been made in respect of other similarly situated candidates,
time to time, for the ends of justice."
4. The respondent No.1 has filed affidavit-in-opposition where in
it has taken a stand that for finding a logical conclusion,n it has
constituted an Inquiry Committee consisting of three members to
look into and ascertain the facts and circumstances that led to the
appointment in Grade-IV posts of 16 districts of the State.
Accordingly, the three member Committee, after through discussion,
has submitted its detail report on 07/05/2024, explaining the
inability to approve the list by the Government.
5. The petitioners then filed their affidavit in reply to the affidavit
in opposition filed on behalf of the respondent No.1, denying the
averment made therein. It is stated that this Court vide order dated
12.07.2018, while deciding the four numbers of writ petitions of
Cachar district had clearly directed the DEEO, Cachar and the DEE,
Assam to re-visit the entire screening process and selection process.
Accordingly, the DEE, Assam had conducted a hearing of all the
petitioners, DEEO, and the Headmasters concerned of all the
schools of Cachar district and had published the final select list of
candidates in respect of fifty numbers of Upper Primary Schools of
Cachar district, vide meeting of the State Level Selection
Committee's minutes dated 07.03.2019. In the said select, list the
names of the petitioners have been duly reflected against the
names of their respective schools. It is also stated that the
constitution of Enquiry Committee by the respondent is without any
direction from this Court by the Government, after filing of the
instant writ petition challenging the order dated 18.12.2023, which
goes to establish the fact that the impugned order dated
18.12.2023, has been issued mechanically without any basis and
the respondents in order to strengthen their stand had prepared
this Enquiry Report. The Enquiry Report, dated 07.05.2024, goes to
show that the Government has rejected the claim of the petitioners
mechanically, arbitrarily and putting the blame upon its subordinate
authorities like DEEO, Cachar and DEE, Assam and whereas the
Selection Committee headed by the DEE, Assam is the appropriate
authority to publish the select list. So far the taking of SIU approval
from the Finance Department, for the purpose of appointment
comes only after issuance of the Memorandum dated 30.03.2012,
but those vacancies which had been advertised prior to that would
not be covered by the mandates of the above Memorandum of the
Finance Department so far as the requirement of the SIU approval.
The SIU approval is introduced by the Finance Department only to
verify the creation number, existence of the post, retention number
etc. So far as the statements made in the Enquiry Report that the
DEEO, Cachar has not taken the signatures of the members of
Committees, in this regard it is stated that while DEE, Assam has
conducted an enquiry and called all the candidates, DEEO, Cachar,
all the Headmasters of the Upper Primary Schools and the records
of the selection, who had appeared before the Enquiry Committee
and the Enquiry Committee thereafter, submitted its report and on
the basis of the said report, the State Level Selection Committee
has published the select list as per the direction of this Court. In the
earlier round of litigations, by filing the counter affidavits, in the
earlier round of litigations, the respondents had never taken a stand
with regard to any such irregularities committed by them. Absence
of signature in the forwarding letter and in the consolidated lists
does not amount to any irregularities at all. It is an admitted fact on
records that the DEEO, Cachar took the signatures of the candidates
in the attendance sheet on the date of interview and in the said
attendance sheets all the members of the Screening Committee had
put their signatures. Moreover, this Court had directed the DEE,
Assam to finalize the select list with the cooperation of the DEEO,
Cachar by conducting the Enquiry. Accordingly, all the members of
the State Level Selection Committee had put their signatures after
taking hearing and interview of the candidates in the office of the
DEE, Assam in presence of the DEEO, Cachar and the Headmaster
concerned of the Schools in questions.
6. The respondent No.4 had also filed an affidavit in-opposition,
wherein it had taken a stand that the Department of School
Education had informed it that the other Grade IV posts in other
districts have been filled up with approval of Finance SIU
Department. An Inquiry Committee was constituted under the
chairmanship of Joint Secretary, Department of School Education to
look into and ascertain the circumstances that led to the
appointment in Grade IV (Chowkidar) posts in 16 districts of the
state against the advertisement in 2005. The Inquiry Committee,
after thorough examination, had submitted in its report that
appointments in all other districts were made with SIU approval. It
is also stated that Ex-post facto (SIU) approval cannot be accorded
by Finance (SIU) Department. It is clearly stated in OM No.
FSI.5/2005/Vol-VI/76 dated 30-03-2012, that all administrative
department will continue to move Finance (SIU) Department for
prior approval as per existing procedure and no Grade IV Posts or
post of teachers of Elementary School and drivers shall be filled up
by any appointing authority without prior approval of Finance
Department. It is also stated that any appointment that is to be
made by the Government has to be in accordance with the service
rules, as existed at the time of initial appointment process and the
service rule, which existed at the time of publication of the
advertisement needs to be followed. In the instant case, as
informed by Director Elementary Education that there is no service
rule for Grade-IV Chowkidar in Government and provincialized LP
and UP Schools under Elementary Education Department. It is also
stated that as per report of the Inquiry Committee: the select list of
50 candidates for Cachar district appears to be not genuine and not
signed by the members of the screening committee and is
anomalous. As such, Ex post facto approval cannot be accorded
where compliance with all requisite norms for appointment has not
been established. Finance Department cannot regularise the
irregularities committed earlier. Moreover, the select list has itself
become time barred. It is also stated that at present, appointment is
centrally made through State Level Recruitment Committee (SLRC).
The incumbents may freshly apply for appointment through SLRC as
and when vacancy arises.
7. The petitioner had filed affidavit in reply to the affidavit in
opposition filed by the respondent No.4, denying the averments
made therein. It is stated that Annexure-13A to 13E, clearly
establish the fact that the Finance Department had granted
approval recently in respect of all other districts, after receipt of the
proposal from the Elementary Education Department. It is an
admitted fact on record that no prior SIU approval was taken from
the Finance Department and therefore, there does not arise any
reasons to deny SIU approval in respect of Cachar district. Granting
of SIU approval is a formality and administrative requirement just to
verify as to whether the posts are in existence against which the
appointments are going to be given. Therefore, denial of SIU
approval by Finance Department is not at all justified and
reasonable on the part of the respondents. Moreover, the Finance
Department has admitted the fact that they have given SIU
approval in respect of 16 districts. The act of denial of SIU approval
on the part of the Finance Department to the candidates of Cachar
district amounts to arbitrary acts on the part of the State
respondents and the same has no lawful basis at all. It is also stated
that the OM dated 30.03.2012, is prospective in nature and it
cannot have any retrospective effect. The selection process to the
post of Grade-IV in the entire State of Assam started in the year
2005, prior to issuance of the OM dated 30.03.2012. Had there
been any administrative difficulties, the Finance Department could
not have accorded the SIU approval in respect of the other districts.
But, the denial on the part of the Finance Department, is nothing
but to cause harassment to the petitioners for no fault of their own.
It is also stated that the petitioners have been duly selected by
following due process of law and the process of appointment has
been started by following the terms and conditions of advertisement
circulated by the DEE, Assam and as such, the Finance Department
cannot take a stand that the process of appointment suffers from
any irregularities at this stage. Further, it is stated that the earlier
rejection by the DEE, Assam on the ground of anomaly, had been
interfered with by this Court and after contest by the State
respondents, including Finance Department and this Court has
directed the State respondents to revisit the entire selection
process. And accordingly the DEE, Assam had constituted the State
Level Committee and the said Committee has enquired the entire
selection process and thereafter, published the list of selected
candidates for appointment to the post of Grade-IV. Now the State
respondents cannot go back and take a new ground in this
proceeding. They are barred by the principles of constructive res-
judicata.
8. The petitioners have filed an additional affidavit to bring on
record some documents relating to the selection process as
Annexure-14. It is also stated that the respondent had failed to
produce the original documents also.
9. The petitioners have filed another additional affidavit to bring on
record some document as Annexure-15, in respect of Tinsukia,
district wherein the consolidated statements of selected candidates
submitted by then the DEEO, Tinsukia and said list reflects that the
DEEO, Tinsukia has only put his signatures in the consolidated
statements and the candidates have been selected and appointed
by the DEE, Assam.
10. The petitioners have filed another additional affidavit to bring
on record one copy of the instruction letter dated 11.04.2025,
served on 23.07.2025, issued by the DEE, Assam as Annexure-16.
Submissions:-
11. Mr. Purkayastha, learned counsel for the petitioners submits
that the process for recruitment of the petitioners was initiated in
the year 2005 and the petitioners had participated in the said
process and they have been selected and on various occasions, they
have filed writ petitions for being appointed as Grade - IV
employees in different schools of Cachar district. But, the
respondents have not complied with the same, on the ground that
there were some anomalies in the selection process and in the final
recommendation made by the DEEO and that there was no
signature of the members of the selection committee.
11.1. Mr. Purkayastha further submits that the said contention of
the petitioners was dismissed by this Court in earlier round of
litigation and in the year 2019, a Coordinate Bench of this Court,
vide order dated 25.07.2019, in W.P.(C) No. 3731/2019, had
directed the Director of Elementary Education to consider the case
in respect of Cachar district and to make an enquiry and prepare a
consolidated bona fide select list and thereafter, to approve the
same to make appointments. Accordingly, the Director of
Elementary Education had carried out the said exercise and
prepared a select list of 50 candidates by calling all the
Headmasters of the schools and DEEO Cachar and thereafter, said
select list was approved by the State Level Committee and despite
the respondent authorities have not been complying with the
direction of this Court.
11.2. Mr. Purkayastha also submits that lastly, the respondent
No. 1, vide letter dated 18.12.2023, had rejected the claim of the
petitioners by holding that there are three lists, submitted by the
DEEO and that there was no Finance (SIU) approval, but such stand
was not taken during the earlier round of litigation and as such, the
respondent authorities cannot reject the claim of the petitioners on
a new ground, in view of principle of constructive resjudicata, which
is applicable in the present writ petition also.
11.3. Further, submission of Mr. Purkayastha is that the
respondent authorities had relied upon an OM, issued in the year
2012, but the same was not there during the year 2005, when the
advertisement for filling up the post of Grade - IV in different
schools of Cachar district was published and that there was no
provision for giving retrospective effect of the said OM, issued in the
year 2012 and to apply the same to a recruitment process started in
the year 2005. Further, referring to Annexure 13, 13A, 13B, 13C,
13D, & 13E, Mr. Purkayastha submits that the said OM has not been
made applicable in case of the similarly situated candidates, whose
approval were given subsequently by the Finance (SIU)
Department, and as such, the same is violative of Article 14 of the
Constitution of India.
11.4. Mr. Purkayastha also submits that while the writ petition is
pending, the respondent No. 1 had constituted a committee to
enquire the matter and accordingly, the committee had made an
inquiry into the matter and submitted a report and the report
submitted by the said committee was also taken into account in
rejecting the claim of the petitioners, and that such exercise was
initiated while the writ petition is pending and the respondent
authorities are not entitled to carry out a parallel exercise, while the
matter is sub-judice before the Court.
11.5. Under the given facts and circumstances, Mr. Purkayastha
submits that the grounds for rejection of the claim of the petitioners
are, thus, illegal and arbitrary and therefore, the same is liable to be
interfered with and accordingly, it is contended to direct the
respondent authorities to appoint the petitioners, who have been
fighting for last 20 years.
12. Per-contra, Mr. Kaushik, learned standing counsel for the
Elementary Education Department has supported the impugned
communication dated 18.12.2023, and submits that the respondent
No. 1 had constituted a committee comprising of three members
and the said committee made an inquiry and thereafter, submitted a
report and in the said report, it is stated that the Government has
justification in not making any appointment and on the basis of the
said report, the respondent authorities had rejected the claim of the
petitioners.
12.1. Referring to the OM of the year 2012, Mr. Kaushik submits
that as per the said OM, the department has to obtain approval for
appointment of the candidates and the requirement of said OM has
not been fulfilled in the case of the petitioners. He further submits
that the primary ground for rejecting the claim of the petitioners is
that there were three select lists and that the lists were prepared by
the DEEO, but the said list bears no signatures of other members of
the selection committee, which is in violation of the existing
guidelines and for which, doubt arises about the veracity of the said
list.
12.2. Mr. Kaushik further submits that there was no service rule
in respect of Grade - IV employee at the relevant point of time and
that now, new enactment for filling up the post of Grade - III and
Grade - IV employee has been put in place and as such, the
petitioners could not be appointed.
12.3. Mr. Kaushik also submits that the report of the Inquiry
Committee, dated 07.05.2024, has not been challenged by the
petitioners in this petition and under such circumstances, the
impugned communication, suffers from no infirmity or illegality
requiring any interference of this Court and accordingly, it is
contended to dismiss the petition.
12.4. Mr. Kaushik has also referred to a decision of a Coordinate
Bench of this Court, in W.P.(C) No. 217/2024, to contend that an
advertisement inviting applications for appointment to fill up vacant
posts at a particular department does not create any legal or
fundamental right in favour of the participating candidate to get the
selection completed and therefore, writ of mandamus to that effect
cannot be issued as merely participating in a recruitment process or
sitting in examination or scoring good marks in the merit list, does
not confer the participating candidate a legal or fundamental right in
his favour for being appointed to the said post. In support of his
submission, he has referred to a decision of Hon'ble Supreme Court
in the case of Union of India and Others vs. Tarun K.
Singh and Others, reported in (2003) 11 SCC 768.
12.5. Mr. Kaushik has also referred to a decision of Hon'ble
Supreme Court, in the case of Gohil Vishvaraj Hanubhai and
Others vs. State of Gujarat and Others, reported in 2017
13 SCC 621, wherein it is stated that the State or its
instrumentalities can cancel examination whenever such action is
believed to be necessary on the basis of some reasonable material
to indicate that the examination process is vitiated.
Issue before the Court:-
13. In view of the contentions being made by the respective
parties and the argument being advanced the issue to be decided in
this petition are:-
(i) Whether the O.M. No FSI 5/2005/Vol.VI/76
dated, 30/03/2012, can be applied
retrospectively to a process of recruitment
that was initiated in the year 2005, much
prior to issuance of the same O.M., and also
in a selective manner?
(ii) Whether the respondent authorities are
entitled to initiate parallel proceeding
while the subject matter is already sub-
judice before this Court?
(iii) Whether the respondent authorities are
justified in rejecting the claim of the
petitioners on different ground which were
not taken in the earlier round of
litigation, on the principle of constructive
res-judicata?
(iv) Whether the impugned communication, dated
18.12.2023, withstands the legal scrutiny?
13.1. All these issues will be discussed together in the following
paragraphs.
Analysis and reason:-
14. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the petition and the
documents placed on record and also gone through the case laws
referred by Mr. Purkayastha, learned counsel for the petitioners.
14. Here in this case, the basic facts are not in dispute. The
Director of Elementary Education, Assam vide communication No.
EAA.60.2005/17, dated 16.12.2005, has issued a common direction
to all the DEEOs of the State of Assam for issuing school wise
advertisement for filling up 504 numbers of vacancies of Grade-IV
employees in different Government provincialised upper primary
schools in about 18 districts of Assam, that have arisen due to
retirement or death of the incumbents since the year 2000. The
petitioners herein have participated in the said selection process and
they have been selected for the same.
14.1. The respondent authorities however, have not appointed the
petitioners for which they had approached this Court by filing a writ
petition, being WP(C) No.6413 of 2011, and the same was disposed
of, vide order dated 20.12.2011, granting liberty to the respondents
to take decision regarding the appointment of Grade IV employees
of the Cachar District, as soon as possible. While no action was
taken by the DEE, Assam, they approached this Court again by filing
WP(C) No. 3175 of 2012 and WP(C)No. 4810 of 2013, praying for a
similar direction dated 03.04.2012, passed by this Court in
WP(C)No.6044 of 2010, filed by the candidates selected from
Hailakandi District, and then this Court vide order dated 05.06.2014,
had directed the respondent authorities to examine and complete
the process within 30.09.2014. Then pursuant to the order, dated
05.06.2014, passed by this Court, the DEE, Assam had constituted a
State Level Selection Committee, for examination and scrutiny of
the documents pertaining to the recruitment process.
14.2. Thereafter the DEE, Assam had passed the order, dated
22.12.2014, whereby he had decided to proceed with the
recruitment process in respect of all the districts of Assam,
excluding the Cachar district, and vide order dated 22.12.2014, he
had rejected the selection in respect of Cachar district on the
ground that there existed three numbers of select lists, submitted
by the DEEO, Cachar and the same was not done as per the
guideline dated 16.12.2005, issued by the DEE, Assam and decided
to go for a fresh selection for filling up the vacant posts of Grade-IV
in respect of Cachar district.
14.3. The petitioners then approached this Court by preferring
four numbers of writ petitions vide WP(C)No.7663 of 2016,
WP(C)No.7361 of 2016, WP(C)No.6741 of 2015 and WP(C)No.7607
of 2015. Thereafter, this Court, vide common order dated
12.07.2018, had disposed of all the above writ petitions with a
direction to the District Elementary Education Officer, Cachar to
prepare a bona-fide consolidated list of selected candidates, as
against respective schools, on the basis of the individual lists from
respective schools, in a strict accordance with the merit of the
candidates.
14.4. Thereafter, the DEE, Assam had constituted a departmental
Enquiry Committee to examine the entire selection process. The
Enquiry Officer thereafter, submitted the Enquiry Report before the
DEE, Assam. Thereafter, the report of the Enquiry Committee and
its recommendation was placed before the State Level Selection
Committee. The State Level Selection Committee had accepted the
recommendation of the Enquiry Committee and adopted a
resolution on 07.03.2019, with regard to appointment and
publication of Select List of Grade-IV candidates of Cachar district.
Accordingly, on the same date, the Office of the DEE, Assam vide
order No.EAA/SIU/H/956/2016/341, dated 07.03.2019, has
published the select list of Grade-IV employees, for Cachar district,
wherein the names of the petitioners have been reflected as
selected candidates. Then for non approval of the same by the
authorities, the petitioners had again approached this Court by filing
WP(C) No.3731/2019 and this Court vide its order dated
25.07.2019, directed the State respondents to consider the said
select list published by the Director, if the same is approved and the
necessary appointment order may be issued by the appointing
authority, within a specified period of four months.
14.5. Then for non compliance of the direction by the DEE,
Assam, the petitioners had preferred a contempt case (Civil) vide
Cont. Case (C)No.174/2020. The respondent No.1, vide impugned
communication dated 18.12.2023, then rejected the claim of the
petitioners and then on production of said communication, the
contempt proceeding was closed granting the petitioners liberty to
challenge the said communication dated 18.12.2023.
15. The impugned communication, dated 18.12.2023, is
reproduced herein below, for ready reference:-
GOVERNMENT OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION,
DISPUR: GUWAHATI
From :- Shri Narayan Konwar, IAS
Secretary to the Govt. of Assam Department
of School Education,
To :- The Director of Elementary Education, Assam
Kahilipara, Guwahati-06
Sub :- Regarding filling up of 50 (Fifty) Nos, of
vacant posts of Grade-IV (Chowkidar) in
LP/UP Schools under Cachar district i/c with
COP(C) No.174/2020 in WP(C) No. 3731/2019 of
Sajal Das & 40 anrs.
Sir,
With reference to the subject cited above, I am
directed to inform you that as per OM No FSI 5/2005/Vol
VI/76 dated 30/03/2012 wherein it was clearly mentioned
that-
"All administrative departments will continue to
move Finance SIU Department for prior approval as per
existing procedure and no Grade-IV post or post of
teachers of Elementary Schools and drivers shall be
filled up by any appointing authority without prior
approval of Finance Department."
Finance SIU Department has informed that 'any
appointment that has to be made by the Government, has
to be in accordance with the service rules as existed
at the time of the initial appointment process. As per
your report vide No. EAA/SIU/H/956/2016/588 dated:
12/12/2023 it has emerged that there was already an
existing guideline issued vide No. EAA.60/05/17 dated
16/12/2005 and the Selection Committee of the
Directorate had rejected the 3 nos. of different lists
of candidates submitted by DEEO, Cachar due to
violation of the said guidelines.
In light of the above facts and the existing
guidelines laid down by Finance SIU Department, this
department is not in a position to accord approval for
appointment orders of the select list published by DEE
which at the time of advertisement, was neither
approved by the department nor was the necessary
concurrence of Finance (SIU) Department obtained for
filling up of vacant posts of Grade-IV (Chowkidar) in
LP/UP Schools under Cachar district. You are therefore
requested to take necessary steps as per the order of
HHC dated: 25/07/2019 passed in WP(C)/3731/2019
accordingly.
Yours faithfully,
Signed by
Narayan Konwar,
Secretary to the Govt. of Assam
Department of School Education
15.1. A perusal of the impugned communication reveals that on
following counts, the claim of the petitioners were rejected :-
(i) In view of OM No FSI 5/2005/Vol VI/76 dated
30/03/2012, prior approval of Finance
Department was not taken.
(ii) There was already an existing guideline
issued vide No. EAA.60/05/17, dated
16/12/2005;
(iii) The Selection Committee of the Directorate
had rejected the 3 nos. of different lists
of candidates submitted by DEEO, Cachar due
to violation of the said guidelines.
15.2. Further, from the affidavit of the respondent No.1, it
appears that the three member Committee, after through
discussion, has submitted its detail report on 07/05/2024, explaining
the inability to approve the list by the Government. Notably, this
three members committee was constituted on 02.03.2024, vide
Notification No. E.229846/379, while the present writ petition is
pending for adjudication before this Court. The concluding remark
of the said committee is read as under:-
Concluding remark:-
‚As evident from the aforesaid facts, the
appointments to the posts of Grade-IV in respect
of all the other districts excluding Cachar kept
on going since no such anomalies in the lists
submitted from the concerned Screening Committees
were ever detected at any level. On the other
hand, Finance SIU Approval was taken in respect
of each and every appointment of all the other
districts before issuing the appointment letters.
In case of Cachar, although the list of 50
candidates finally selected by the Inquiry
Committee of the Directorate Level and later
endorsed by the SLSC is the edifice on which the
present claims for appointments are going on,
yet, the list itself was prepared based on lists
signed only by the DEEO Cachar which clearly
smacks of manipulations and mala-fide intentions.
At no level, any attempt was ever made to do away
with these issues or deal with the issues in more
pragmatic manner as directed by the Hon'ble High
Court in the judgement and order dated-12/07/2018
in WP(C)-7663/2016.
Thus, in view of the above findings and
additional facts that have emerged from the
Inquiry, the Govt. seems to be right when it
expressed its inability to 'approve' the list of
50 candidates in case of Cachar through its
communication vide no-228946/212, dated-
18/12/2023.‛
Signed by Signed by Signed by
Nikunjalal Das, Titu Gogoi Ashru Moni Malakar
Date: 07-05-2024
15.3. It is to be noted here that the O.M. upon which the
respondent No.1 had relied upon to reject the claim of the petitioner
is of dated 30th March, 2012 and Clause 7 is relevant here and the
same read as under:-
GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
No FSI 5/2005/Vol VI/76, Dated Dispur the 30th
March, 2012,
OFFICE MEMORANDUM
Sub:- Filling up of vacant sanctioned posts:
Relaxation of OM No BW 21/99/98 dated 4/7/2005
in respect of Grade I, II and III posts.
(7) The existing procedure will continue for
filling up of vacant sanctioned Grade-IV posts
of all designations/description as well as
posts of drivers and teachers of Elementary
Schools, i.e. teachers under Elementary
Education Department until further orders. All
Administrative Departments will continue to
move Finance (SIU) Department for prior
approval as per existing procedure and no Grade
IV post or posts of teachers of Elementary
Schools and drivers shall be filled up by any
appointing authority without prior approval of
Finance Department.
Sd./Iligible
30/03/12.
Principal Secretary to the Govt. of Assam,
Finance Department
15.4. It is also to be noted here that the existing guideline, issued
vide No. EAA.60/2005/17, dated 16/12/2005; so referred in the
impugned order, is enclosed as Annexure-'A' of the affidavit of
respondent No.1. However, a perusal of the same reveals that it
primarily concerned with the selection procedure not even remotely
relates to the requirements of obtaining necessary concurrence of
Finance (SIU) Department for filling up of vacant posts of Grade-IV
(Chowkidar) in LP/UP Schools, under Cachar district.
15.5. Indisputably, the Office Memorandum, No FSI 5/2005/Vol
VI/76, was issued by the Finance Department of the Government of
Assam, on 30/03/12, requiring concurrence of the Finance (SIU)
Department, for filling up of vacant posts of Grade-IV (Chowkidar)
in LP/UP Schools. A careful perusal of the same indicates that the
said O.M. is prospective in nature. Whereas, the record indicates
that the selection process, to the post of Grade-IV, in the entire
State of Assam, including Cachar district, was started in the year
2005, prior to issuance of the OM dated 30.03.2012. And as such,
application of the said O.M. dated 30.03.2012, to the process
initiated in the year 2005, is fallacious on the part of the respondent
No.1. Mr. Purkayastha, the learned counsel for the petitioner has
rightly pointed this out during argument and this Court is inclined to
record concurrence to the same.
15.6. It is also well settled in catena of decisions of Hon'ble
Supreme Court that an Office Memorandum/Government Order
cannot have a retrospective effect unless and until there is an
express provision to make its effect retrospective or that the
operation thereof is retrospective by necessary implication.
Reference in this context can be made to a decision of Hon'ble
Supreme Court in the case of V. Vincent Velankanni vs. Union
of India, reported in 2024 SCC OnLine SC 2642. Therefore, on
this count, the impugned letter No. 228946/212, dated 18.12.2023,
is unsustainable and liable to be interfered with.
15.7. On another count also the impugned letter No. 228946/212,
dated 18.12.2023, is unsustainable. From the Annexure-13A, 13B,
13C, 13D and 13E of the writ petition it can be observed that the
Finance SIU approval was granted for appointment of 237 Grade-IV
posts, 57 numbers of Grade-IV posts, 4 numbers of Grade IV posts,
and 50 posts of Grade-IV posts, and 5 numbers of Grade IV posts,
respectively, in respect of other districts of the State of Assam and
for them the requirement of the SIU was never became the obstacle
to issue the order of appointment. Thus, selective enforcement of
the O.M., across similar cases, is a breach of natural justice and fair
trial principles. This undermines equality under Article 14 of the
Constitution of India. Failure to uniformly apply an OM, without
reasoned distinction, amounts to indirect discrimination. The
learned counsel for the petitioners has also rightly pointed this out,
at the time of argument and there is substance in the same.
15.8. In view of aforesaid discussion and finding, the Issue No. I
has to be decided in negative, and accordingly, the same stands
answered.
16. It is also well settled that no parties can initiate actions on the
subject matter of a pending writ petition, without leave of the
Court, as it is considered sub-judice. While the matters are under
judicial consideration, like a pending writ petition, the parties are
precluded from taking independent actions to avoid prejudicing the
proceedings. No administrative or parallel legal steps can proceed
on the issue until the court decides. Reference in this context can
be made to decision of a Co-ordinate Bench of this Court in
Akaddas Ali vs. State of Assam, reported in (2014) 4 GLR
3, wherein it has been held that -when the Court is in-seisin of the
matter, then administrative authority cannot start parallel
proceeding on the very same subject and record a finding, as it
would amounts to interfering with the dispensing of justice by court.
16.1. But, in the present case, the respondent No.1 had
constituted a three members Committee on 02.03.2024, to look into
and ascertain the facts and circumstances, that led to the
appointment in Grade -IV (Chowkidar) posts in 16 districts of the
state, and the said Committee had filed its report on 07.05.2024.
And the present writ petition, having the same been filed on
06.01.2024, is pending for adjudication before this Court at that
time. And respondent No. 1 and 4 had placed reliance upon the said
report dated 07.05.2024, in their affidavit in oppositions, to negate
the claim of the petitioners.
17. Thus, constitution of the Committee on 02.03.2024, to look
into and ascertain the facts and circumstances that led to the
appointment in Grade -IV (Chowkidar) posts in 16 districts of the
state, while the matter is sub-judice before this Court and without
leave of the Court, itself is an illegal and arbitrary action, in view of
the decision of this Court in the case of Akaddas Ali (supra),
and such a venture, made by the respondent No.1, is an attempt to
interfere with the dispensing of justice by the Courts and it is an
attempt to circumvent the orders passed by this Court. This high
handed attitude on the part of the respondent No.1 deserved to be
depreciated in strongest terms and accordingly, the same stands
deprecated in strongest terms. It is unfortunate that Education
Department is headed by such an incumbent.
17.1. Since constitution of the committee dated 02.03.2024, itself
is illegal and the report submitted by such committee is also illegal
and rejection of the claim of the petitioners by the respondent
No.1 based upon such report is more illegal and on such counts
also the impugned letter of the respondent No.1, dated 18.12.2023,
is liable to be interfered with.
17.2. In view of said discussion and finding the Issue No.(II), as
formulated herein above, has to be answered in negative and
accordingly, the same stands answered.
18. It is also not in dispute that before this petition, several other
writ petitions were also filed by the petitioners against the present
respondents. In those writ petitions, the state respondents had
never raised the issue of Finance SIU approval. Such stand is taken
in the present writ petition only. It is the categorical contention of
the petitioners that due to constructive res-judicata such a stand
cannot be taken in sub-sequent proceeding to negate their claim.
There appears to be force in the said contention.
18.1. It is now well settled that the principle of res-judicata
applies even to petitions arising for decision in the writ jurisdiction
under Article 226 of the Constitution. If any authority is required,
one may profitably refer to the decision in T.P. Moideen Koya v.
State of Kerala, reported in (2004) 8 SCC 106.
18.2. In the case of Hope Plantations Ltd. vs. Taluk Land
Board, reported in (1999) 5 SCC 590, a three-Judges Bench of
Hon'ble Supreme Court has elucidated the applicability of the
principles of res-judicata and estoppels in the Indian context and
held as under:-
‚26. It is settled law that the principles of
estoppel and res judicata are based on public
policy and justice. Doctrine of res judicata is
often treated as a branch of the law of
estoppel though these two doctrines differ in
some essential particulars. Rule of res
judicata prevents the parties to a judicial
determination from litigating the same question
over again even though the determination may
even be demonstratedly wrong. When the
proceedings have attained finality, parties are
bound by the judgment and are estopped from
questioning it. They cannot litigate again on
the same cause of action nor can they litigate
any issue which was necessary for decision in
the earlier litigation. These two aspects are
'cause of action estoppel' and 'issue
estoppel'. These two terms are of common law
origin. Again, once an issue has been finally
determined, parties cannot subsequently in the
same suit advance arguments or adduce further
evidence directed to showing that the issue was
wrongly determined. Their only remedy is to
approach the higher forum if available. The
determination of the issue between the parties
gives rise to, as noted above, an issue
estoppel. It operates in any subsequent
proceedings in the same suit in which the issue
had been determined. It also operates in
subsequent suits between the same parties in
which the same issue arises. Section 11 of the
Code of Civil Procedure contains provisions of
res judicata but these are not exhaustive of
the general doctrine of res judicata. Legal
principles of estoppel and res judicata are
equally applicable in proceedings before
administrative authorities as they are based on
public policy and justice. .........
31. Law on res judicata and estoppel is well
understood in India and there are ample
authoritative pronouncements by various courts
on these subjects. As noted above, the plea of
res judicata, though technical, is based on
public policy in order to put an end to
litigation. It is, however, different if an
issue which had been decided in an earlier
litigation again arises for determination
between the same parties in a suit based on a
fresh cause of action or where there is
continuous cause of action. The parties then
may not be bound by the determination made
earlier if in the meanwhile, law has changed or
has been interpreted differently by a higher
forum. But that situation does not exist here.
Principles of constructive res judicata apply
with full force. It is the subsequent stage of
the same proceedings. If we refer to Order
XLVII of the Code (Explanation to Rule 1)
review is not permissible on the ground 'that
the decision on a question of law on which the
judgment of the Court is based has been
reversed or modified by the subsequent decision
of a superior court in any other case, shall
not be a ground for the review of such
judgment'.‛
18.3. Thus, on this count also, the impugned letter of the
respondent No.1, dated 18.12.2023 (Annexure - 11), is liable to be
interfered with.
18.4. In view of the discussion and finding above, the Issue No.
(III) has to be answered in negative and accordingly, the same
stands answered.
19. Further, it is to be noted here that in para No.5 of the
affidavit-in-opposition, filed by the respondent No.4, it has taken a
stand that in view of OM No FSI 5/2005/Vol VI/76 dated
30/03/2012,- ex-post facto (SIU) approval cannot be accorded by
Finance (SIU) department. As discussed in the foregoing
paragraphs, Clause 7 of the said O.M. concerned with the filling up
of Grade -IV- posts. But, on careful perusal of the said Clause,
indicates that nowhere in the said Clause it has been stated that
before the advertisement, Finance (SIU) approval has to be taken.
In the case in hand, the process for filling up the Grade -IV-posts
were initiated in the year 2005. The present O.M. was issued in the
year 2012. It has already been held that the O.M. dated
30/03/2012, cannot be applied to the case of the petitioners
retrospectively and that too in a manner, while such requirement
was not applied in case of some other districts. In the case of
Cachar district i.e. in case of petitioners' appointment has not yet
been made. And as such, if such proposal for approval before
appointment being made is submitted, then there is no bar in
approval by the respondent authority, even for the sake of
argument, if it is accepted that the O.M. is applicable in the present
case.
20. Notably, the impugned communication, dated 18.12.2023
(Annexure -11), is being challenged on account of the same being
arbitrary and being violative of Article 14 of the Constitution of India
also. And in that view of the matter, the impugned letter dated
18.12.2023 (Annexure-11), has to be tested by applying the
Wednesbury principle, in view of the decision of Hon'ble Supreme
Court in the case of Om Kumar vs. Union of India, reported in
(2001) 2 SCC 386, where in it has been held as under:-
‚68. Thus, when administrative action is attacked
as discriminatory under Article 14, the
principle of primary review is for the courts
by applying proportionality. However, where
administrative action is questioned as
‚arbitrary‛ under Article 14, the principle
of secondary review based
on Wednesbury Principles applies.‛
20.1. It is also well settled that when administrative action is
challenged for being arbitrary, it only 'indirectly' violates the right to
equality under Article 14. It is to be noted here that arbitrariness
was established as a ground of challenge by Hon'ble Supreme Court
in the case of E.P. Royappa vs. State of T.N, reported in AIR
1974 SC 555, by giving Article 14 an expansive interpretation. In
the said case, it was observed that 'from a positivistic point of view,
equality is antithetic to arbitrariness and where an act is arbitrary, it
is implicit in it that it is unequal both according to political logic and
constitutional law, therefore violating Article 14 of the Constitution
of India.'
20.2. Therefore, when an administrative action is challenged on
grounds of arbitrariness, the courts play a secondary role in
examining whether the administrators in discharging their primary
role as adjudicators have adhered to the standards laid down in the
Wednesbury test. The courts cannot apply the more intrusive
proportionality test in such cases, limiting their intervention to
judging the reasonableness of the decision-making process on the
basis of the Wednesbury test.
20.3. It is to be noted here in the case of Associated
Provincial Picture House Limited vs. Wednesbury
Corporation, reported in (1947) 2 AII ER 680, the United
Kingdom, Court of Appeal held that the action of the administrative
authorities would be declared unconstitutional if it meets the
following circumstances:-
1. Consideration of irrelevant and extraneous factors.
2. Neglect of relevant factors.
3. Decision is irrational to a reasonable person and no
reasonable person in their wildest of dream would reach
that particular conclusion.
20.4. Now, it is well settled that the impugned order has to be
decided not on its merit, but examining the process of making the
same and as held by Hon'ble Supreme Court in the case of TATA
Cellular vs. Union of India, reported in (1994) 6 SCC 651,
(Supra), the Court has to examine (1) whether a decision making
authority exceeded its powers; (2) committed an error of law; (3)
committed a breach of the rules of natural justice; (4) reached a
decision which no reasonable tribunal would have reached, or; (5)
abused its powers.
20.5. In the instant case, the respondent No. 1 had neglected the
relevant factors while issuing the impugned communication. Instead
he had considered irrelevant factors i.e. the O.M. dated 12.12.2023,
which cannot be applied retrospectively and that too in a selective
manner. He had also constituted a committee to look into the
matter and thereby initiated parallel proceeding, without leave of
this Court, while the matter is sub-judice before this Court, and
thereafter, relying upon such report he had rejected the claim of the
petitioners, to circumvent and overreach the courts order. As such
the impugned communication is not only irrational to a reasonable
person but also contrary to the settled position of law. Thus, the
impugned communication dated 18.12.2023 (Annexure - 11), failed
to withstand the Wednesbury Test and also the test laid down in the
case of Tata Cellular (supra).
20.6. In view of the discussion and finding above, the Issue
No.(IV), so formulated above, has to be answered in negative and
accordingly the same stands answered.
Conclusion:-
21. In the result, this Court finds sufficient merit in this petition
and accordingly, the same stands allowed. The impugned letter
dated 18.12.2023 (Annexure-11,) issued by the respondent No.1,
stands set aside and quashed. By a mandamus of this Court, the
State respondents, more particularly to the respondent No.2, is
directed to issue appointment orders in favour of the selected
candidates, including the petitioners as per the select list and
recommendations of State Level Selection Committee dated
07.03.2019 (Annexure-8A & 8B), published by the DEE, Assam in
compliance of the common order dated 12.07.2018, passed by this
Court in WP(C) No. 7663 of 2016.
22. The exercise mentioned above, has to be carried out within a
period of six weeks from the date of receipt of certified copy of this
order. The petitioners shall obtain a certified copy of this order and
place the same before the respondent authorities within a week
from today. The parties have to bear their own costs.
JUDGE
Comparing Assistant
