Gauhati High Court

WP(C)/5584/2023 on 31 October, 2025

Author: Nelson Sailo

Bench: Nelson Sailo

                                                                              Page No.# 1/17

GAHC010215362023




                                                                        2025:GAU-AS:14093

                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                WP(C) No. 5584/2023


     Md. Mazid Ali,
     S/o - Late Mafizuddin Ahmed,
     R/o - Village Cheuni,
     P.O. - Pub Rehabari,
     P.S. - Patacharkuchi
     Dist. - Barpeta, Assam
     PIN- 781329.
                                                                            ... PETITIONER.
                                            -Versus-


     1. The State of Assam,
     Represented by the Secretary to the Government of Assam,
     Department of School Education,
     Dispur, Guwahati,
     PIN - 781006

     2. The Director of Secondary Education, Assam,
     Kahilipara, Guwahati
     Dist. - Kamrup (M), Assam
     PIN - 781019

     3. The Inspector of Schools,
     BDC, Barpeta
     Dist. - Barpeta, Assam,
     Pin - 781301.

     4. The State Selection Board (For Selection of Principal of Higher Secondary Schools),
     Represented by the Chairman cum Commissioner & Secretary to the Government of
     Assam,
     Secondary Education Department,
                                                                             Page No.# 2/17

      Dispur, Guwahati,
      PIN - 781006

      5. The School Selection Committee of Bamundongra H.S. School, Barpeta,
      Represented by the Chairman cum President of the School Managing Committee,
      P.O.- Habidongra
      Dist. - Barpeta, Assam,
      PIN - 781308.

      6. Sri Sajal Kamal Das,
      S/o - Late Bhubeneswar Das,
      R/o - Fairy Land Complex, Galihati No. 2,
      P.O. - Barpeta,
      Dist. - Barpeta,
      PIN - 781301.

                                                                        ... RESPONDENTS.

Advocates for the petitioner: Mr. P. J. Saikia, Sr. Adv.

Mr. M. Kalita, Adv.

Advocates for the respondents: Mr. K. N. Choudhury, Sr. Adv.

Mr. S. Hazarika, Adv.

Mr. U. Sarma, SC, Secondary Education.

WITH

Md. Mazid Ali, S/o - Late Mafizuddin Ahmed, R/o - Village Cheuni, P.O. - Pub Rehabari, P.S. - Patacharkuchi Dist. - Barpeta, Assam PIN- 781329.

... PETITIONER.

-Versus-

Page No.# 3/17

1. The State of Assam, Represented by the Secretary to the Government of Assam, Department of School Education, Dispur, Guwahati, PIN - 781006

2. The Director of Secondary Education, Assam, Kahilipara, Guwahati Dist. - Kamrup (M), Assam PIN - 781019

3. The Inspector of Schools, BDC, Barpeta Dist. - Barpeta, Assam, Pin - 781301.

4. The State Selection Board (For Selection of Principal of Higher Secondary Schools), Represented by the Chairman cum Commissioner & Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati, PIN - 781006

5. The School Selection Committee of Bamundongra H.S. School, Barpeta, Represented by the Chairman cum President of the School Managing Committee, P.O.- Habidongra Dist. - Barpeta, Assam, PIN - 781308.

6. Sri Sajal Kamal Das, S/o - Late Bhubeneswar Das, R/o - Fairy Land Complex, Galihati No. 2, P.O. - Barpeta, Dist. - Barpeta, PIN - 781301.

... RESPONDENTS.

Page No.# 4/17

BEFORE HONOURABLE MR. JUSTICE NELSON SAILO

Advocates for the petitioner: Mr. P. J. Saikia, Sr. Adv.

Mr. M. Kalita, Adv.

Advocates for the respondents: Mr. K. N. Choudhury, Sr. Adv.

Mr. S. Hazarika, Adv.

Mr. U. Sarma, SC, Secondary Education.

Date on which judgment is reserved    :           23.10.2025
Date of pronouncement of judgment     :           31.10.2025

Whether the pronouncement is of
the operative part of the judgment?   :          No
Whether the full judgment has been
pronounced?                           :           Yes



                          JUDGMENT AND ORDER (CAV)

Heard Mr. P. J. Saikia, learned Senior Counsel assisted by Mr. M. Kalita, learned counsel for the petitioner in both the writ petitions. Also heard Mr. K. N. Choudhury, learned Senior Counsel assisted by Mr. S. Hazarika, learned counsel for the respondent No. 6 in both the writ petitions and Mr. U. Sarma, learned Standing Counsel, Secondary Education Department appearing for the said department in both the writ petitions. Both the writ petitions are being disposed of by this common order.

[2.] The controversy involved in the present case is with regard to the filling up of the post of Principal, Bamundongra Higher Secondary School in terms of the Advertisement published in the daily newspaper "Dainik Asam"

dated 30.05.2019. The last date of submission of the application was Page No.# 5/17

07.06.2019 and both the writ petitioner as well as the private respondent No. 6 applied for the said post. The interview was held for the post in question on 15.06.2019 and a panel list was prepared, whereby the respondent No. 6 was placed in the first position. The petitioner not happy with the outcome of the interview process and the allotment of marks, submitted a complaint before the respondent authority concerned. Since the same was not acted upon, the petitioner filed WP(C) No. 7980 of 2019 with the following prayer: - (i) A writ in the nature of mandamus directing the respondent authorities, more particularly, the respondent Nos. 5 & 6 to re-examine the proposal of the Selection Committee for selection of Principal of the School, in view of the Letter dated 22.08.2019 issued by the respondent No. 3 (Joint Director, Secondary Education, Assam); and (ii) Call for the records and on hearing the parties to make the rule absolute and/or to pass any such order or further orders as deem fit and proper by this Court.

[3.] Although, the counter-affidavit was not filed by the respondents including present respondent No. 6, who was arrayed as respondent No. 7, this Court vide Order dated 06.12.2019, disposed of the writ petition by directing the respondent authorities to do the needful and complete the process of selection for appointment to the post in question as per rules and also by taking into consideration the Letter dated 22.08.2019 by which the Joint Director of Secondary Education Department had written to the Inspector of Schools, BDC, Barpeta, enclosing a copy of the complaint submitted by the petitioner with certain allegations.

[4.] Pursuant thereto, the Director of Secondary Education, Assam, Page No.# 6/17

issued an Order dated 29.07.2021 by which the present writ petitioner was appointed as Principal on regular basis. It was further provided that the Order would supersede any earlier order issued by the Office for placing the In-charge Principal of the said School.

[5.] Aggrieved, the respondent No. 6 filed WP(C) No. 3558 of 2021 challenging the Order of appointment issued in favour of the present writ petitioner. This Court, upon going through the various provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003 (Rules of 2003) disposed of the writ petition vide Judgment dated 11.08.2021 by remanding the matter back to the Government to verify from records as to whether Barpeta BT College from where the present respondent No. 6 had secured B.Ed. degree had made its application for recognition to the National Council for Teachers Education (NCTE) prior to 18.08.1997 or subsequent to the Judgment of this Court rendered in WP(C) No. 3289 of 2020 ( Pranita Sarma Vs. State of Assam & 7 Ors.) vide Judgment dated 25.02.2021. It was further directed that the appropriate authority shall specifically call for the records from the Barpeta BT College as well as from the NCTE to arrive at a factual satisfaction as to on which date the college had made application for recognition before the NCTE. Thereafter, depending upon the materials that may be available, appropriate order be passed. Both, the writ petitioner and the respondent No. 6 in the present case were to be given an opportunity of hearing to put across their respective cases. Pending such decision, the present writ petitioner was allowed to continue as the Principal of the School.

[6.] After the writ petition was disposed of in the above manner, the Page No.# 7/17

Director of Secondary Education passed an Order dated 29.04.2023, appointing the present respondent No. 6 as the Principal of the School and the writ petitioner reverted back to his original post as Graduate Teacher (Advanced Assamese) of Rehabari Higher Secondary School, Barpeta with immediate effect. The Order indicated that such action was taken after careful consideration and upon obtaining the approval of the competent authority. The present writ petitioner being aggrieved filed his second writ petition namely, WP(C) No. 2442 of 2023 briefly highlighting the nature of his grievance of having been replaced by the respondent No. 6, who according to him was given marks which he did not deserve. This Court upon considering the projected case of the parties was of the view that the earlier direction passed in Judgment dated 11.08.2021 in WP(C) No. 3558 of 2021 having not been complied with in the manner it was directed, found it appropriate to remand the matter back to the Secretary, School Education Department for rehearing the petitioner as well as the respondent No. 6 of the present writ petition. Accordingly, the writ petition was disposed of vide Order dated 19.06.2023. This Court had also set aside the Order dated 09.03.2023 by which, the State Government in the School Education Department had given the approval for appointment of the respondent No. 6, as Principal of the School. It was further provided that while hearing the rival parties, their respective claims should also be considered. The status-quo order passed earlier was directed to continue till a decision was arrived at and that the authority should immediately communicate the Order to be passed to the rival parties.

[7.] Following the above direction, the rival parties as well as the Director of Secondary Education and Inspector of Schools, Barpeta were informed by the Page No.# 8/17

Additional Secretary to the Government of Assam, School Education Department, about the date scheduled for hearing, i.e., 11.08.2023 and the parties were asked to appear along with all relevant documents, papers, etc., on the date fixed. The petitioner on 11.08.2023 submitted his written objection to the Secretary to the Government of Assam, School Education Department. As scheduled, hearing was conducted on 11.08.2023 and the Secretary to the Government of Assam, School Education Department as an outcome, issued an Order dated 18.08.2023 modifying the earlier Order with a finding that the respondent No. 6 was fit and eligible to be appointed as the Principal of the School concerned.

[8.] Aggrieved with the above finding, the petitioner filed his third writ petition, i.e., WP(C) No. 4843 of 2023 with the following prayer:-

"In the premises aforesaid, it is most respectfully prayed that Your Lordship may be pleased to admit this petition, cal for the records of the case, issue a Rule calling upon the Respondents to show cause as to why :

I. A writ in the nature of Certiorari and/or any other appropriate writ, Order or Direction of like nature shall not be issued towards setting aside and quashing the Impugned Order, vide No. E-272494/385 dated 18.08.2023 (Annexure- 9) issued by the Respondent No. 1, whereby decision was taken to notify the Respondent No. 6 viz., Shri Sajal Kamal Das as Principal of Bamundongra Higher Secondary School, Barpeta.

II. A writ in the nature of Certiorari and/or any other appropriate writ, Order or Direction of like nature shall not be issued towards setting aside and quashing Impugned statement of marks dated 15.06.2019 (Respondent No. 6's part only), Page No.# 9/17

prepared by the School Selection Committee, Bamundongra H.S. School, (Annexure- 1 Colly) whereby the Respondent No. 6 had been illegally awarded extra marks and illegally placed him in first position for the post of Principal of the said School.

III. A writ in the nature of Certiorari and/or any other appropriate writ, Order or Direction of like nature shall not be issued towards setting aside and quashing the impugned Appointment Order (if any) in favour of Respondent No. 6 issued by the Respondent Authority as Principal of Bamundongra Higher Secondary School, Barpeta.

IV. To pass any such other or further order/orders as your Lordships may deem fit and proper having regard to the facts and circumstances of the case.

-AND-

VII. During pendency of the instant Writ petition, it is most respectfully prayed that Your Lordship's may be pleased to stay the effect and operation of the impugned Order, vide No. E-272494/385 dated 18.08.2023 (Annexure- 9) issued by the Respondent No. 1 as well as Appointment Order (if any) in favour of Respondent No. 6 as Principal of Bamundongra H.S. School, Barpeta and/or to pass any such other or further order/orders as Your Lordships may deem fit and proper having regard to the facts and circumstances of the case."

[9.] This Court vide Order dated 23.08.2023 directed that till the next date fixed, the respondent authorities should not pass any final order, pursuant to the Order dated 18.08.2023 issued by the Secretary to the Government of Assam, School Education Department and the interim order continues till date. On 11.09.2023, when the matter was listed, the learned Standing Counsel for the Secondary Education Department produced the relevant records which revealed that both the writ petitioner as well as the respondent No. 6 were Page No.# 10/17

awarded 17 marks each by the State Selection Board, in contrast to 20 marks given to the private respondent No. 6 and 18 marks given to the writ petitioner by the School Selection Board. The writ petitioner having discovered, the marks allotted to him as well as the respondent No. 6 and having found the same to be contrary to the revised guidelines for selection of Principal of provincialised Higher Secondary Schools for awarding marks, circulated vide Office Memorandum dated 26.12.2018 filed his fourth writ petition, i.e., WP(C) No. 5584 of 2023 with the following prayer:-

"In the premises aforesaid, it is most respectfully prayed that Your Lordship may be pleased to admit this petition, call for the records of the case, issue a Rule calling upon the Respondents to show cause as to why :

I. A writ in the nature of Certiorari and/or any other appropriate writ, Order or Direction of like nature shall not be issued setting aside and quashing the Statement of Marks Awarded by the State Selection Board (SSB) dated 26.11.2020 (Annexure- 6) whereby the Respondent No. 6 had been illegally awarded extra marks and illegally placed him in similar marks with the Petitioner i.e., 17 marks and the Petitioner had been illegally awarded less marks i.e., 3 (three) marks in leadership skills (result of School) instead of 4 (four) marks for the post of Principal of the said School.

II. A writ in the nature of Mandamus and/or any other appropriate writ, Order or Direction of like nature shall not be issued by directing the Respondent Authorities to cancel the candidature of the Respondent No. 6 for the post of Principal of Bamundongra H.S. School, as the B.Ed degree of the Respondent No. 6 i.e., Sajal Kamal Das can not be taken into account since no previous permission was acquired from the appointing authority by him for obtaining B.Ed degree as per Rule 13 of the Assam Civil Service (Conduct) Rules, 1965.

Page No.# 11/17

III. To pass any such other or further order/orders as your Lordships may deem fit and proper having regard to the facts and circumstances of the case.

-AND-

During pendency of the instant Writ petition, it is most respectfully prayed that Your Lordship's may be pleased to stay the effect and operation of the Statement of Marks Awarded by the State Selection Board (SSB) dated 26.11.2020 (Annexure- 6) as well as Appointment Order (if any) in favour of Respondent No. 6 as Principal of Bamundongra H.S. School, Barpeta and/or to pass any such other or further order/orders as Your Lordships may deem fit and proper having regard to the facts and circumstances of the case."

[10.] Appearing for the writ petitioner, Mr. P. J. Saikia, learned Senior Counsel submits that the respondent No. 6 in violation of the Office Memorandum dated 26.12.2018 was awarded extra marks illegally and thereby bringing his marks at par with the petitioner. Referring to the Office Memorandum, the learned Senior Counsel submits that maximum 4 marks can be allotted towards leadership skills subject to the conditions stipulated therein. He submits that although, the result of the School in the final examination in the year 2018 was 76.28%, the respondent authorities have taken the percentage of 84.88 pertaining to the academic year of 2019 which resulted in granting of 3 marks to the respondent No. 6 instead of 2 marks. Further, towards administrative ability and in respect of contribution of article in magazines and journals, etc., on academic matters 1 mark was given to the respondent No. 6 although the journal was published in the month of September, 2019.

[11.] Whereas, in case of the writ petitioner, he is entitled to be given 4 marks under the heading leadership skills of the Office Memorandum since the Page No.# 12/17

pass percentage of the School for the year 2018 was 100%. However, the respondent authorities instead have taken the pass percentage of the year 2019, which is not correct, in view of the fact that the last date of submission of the application in terms of the Advertisement was 07.06.2019 and therefore, the marks of the preceding academic year i.e., 2018 is to be taken into account. He, therefore, submits that since such consideration has been illegally and arbitrarily done to the detriment of the writ petitioner, the respondent authorities should be directed to make necessary rectifications and appoint the petitioner formally as the Principal of the School concerned. He also submits that the principles of res judicata could not be attracted in the present case in view of the fact that the issue directly and substantially involved has not been finally decided, which can been seen from the impugned Order dated 18.08.2023. The learned Senior Counsel in support of his submissions has relied upon the following authorities:-

(i) State of U.P. Vs. Nawab Hussain, AIR 1977 SC 1680;

(ii) Smt. Rani Kusum Vs. Smt. Kanchan Devi & Ors., AIR 2005 SC 3304; and

(iii) Prem Kishore & Ors. Vs. Brahm Prakash & Ors, AIR Online 2023 SC

237.

[12.] Mr. K. N. Choudhury, learned Senior Counsel appearing for the respondent No. 6 while addressing the Court in respect of WP(C) No. 4843 of 2023 submits that it was the prayer of the petitioner in WP(C) No. 7980 of 2019 for consideration of his representation/complaint submitted for re-examination of the proposal of the Selection Committee which was forwarded by the Joint Director of Secondary Education Department vide his letter dated 22.08.2019 to the Inspector of Schools, Barpeta District Circle, Barpeta to take necessary steps Page No.# 13/17

for examination of the claim of the petitioner. Accordingly, this Court vide Order dated 06.12.2019 disposed of the writ petition by directing the respondent authorities to do the needful and to complete the process of selection for appointment of the Principal of the School concerned within a time frame.

[13.] The learned Senior Counsel has also drawn the attention of this Court to the subsequent writ petition filed by the petitioner, i.e., WP(C) No. 2442 of 2023, more particularly, the prayer portion, wherein, the petitioner prayed for setting aside and quashing the statement of the marks dated 15.06.2019 prepared by the School Selection Committee on account of respondent No. 6 having been illegally awarded extra marks and placed in the first position. In this connection, the learned Senior Counsel submits that explanation V of Section 11 of the Code of Civil Procedure, 1908 (CPC) is attracted. He submits that the provision clearly provides that any relief claimed in the plaint which has not been expressly granted by the decree shall for the purpose of the section be deemed to have been refused. He submits that applying the principles provided therein, it is clearly demonstrated that principles of constructive res judicata is attracted and the petitioner cannot reagitate the same grievance over and over again. He submits that in fact, this Court has considered the prayer of the petitioner and has decided the matter vide Order dated 19.06.2023 in WP(C) No. 2442 of 2023 by remanding the matter back for rehearing to the respondent authorities concerned.

[14.] He further submits that no order in respect of the second prayer made by the petitioner in WP(C) No. 2442 of 2023 was passed and the petitioner himself did not raise any grievance. Therefore, it is only clear that the Page No.# 14/17

principles of constructive res judicata is attracted and applicable and therefore, the writ petitions should be dismissed on this ground alone. The learned Senior Counsel, further submits that even on merit the marks given by the School Selection Committee had been re-visited by the State Selection Committee and the marks secured by the rival parties was 17 marks each. He, therefore, submits that even on merit, the petitioner cannot have any legitimate grievance against anyone. He, therefore, submits that both the writ petitions should be dismissed and the respondent No. 6 formally appointed as the Principal of the School concerned. In support of his submission, the learned Senior Counsel has relied upon the following authorities:-

(i) M/s. Kesho Ram & Co. & Ors. etc Vs. Union of India & Ors., (1989) 3 SCC 151;

(ii) Samir Kumar Majumder v. Union of India & Ors., 2023 SCC OnLine SC 1182; and

(iii) Daryao & Ors. Vs. State of U.P. & Ors., AIR 1961 SC 1457.

[15.] Mr. U. Sarma, learned Standing Counsel, Secondary Education Department by referring to the affidavit-in-opposition filed by the respondent No. 2 in WP(C) No. 4843 of 2023 submits that the respondent authorities in fact in compliance with the Court's Order dated 11.08.2021 passed in WP(C) No. 3558 of 2021 and also the Order dated 05.02.2023 passed in Contempt Case(C) No. 23 of 2022 filed by the respondent No. 6 passed the Order dated 09.03.2023. He submits that it was after careful consideration of all the relevant materials and with the approval of the competent authority that it was concluded that the respondent No. 6 should be notified as the Principal of the Page No.# 15/17

School concerned. Since the steps taken by the respondent authorities are strictly in accordance with the direction passed by this Court, the petitioner cannot have any grievance. He also submits that a formal appointment order could not be issued in view of the interim order passed by this Court.

[16.] I have heard the learned counsels for the rival parties and I have perused the materials available on record. Mr. K. N. Choudhury, learned Senior Counsel has questioned the maintainability of the writ petition on the ground that it is barred by the principles of constructive res judicata since the writ petitioner had already abandoned the second prayer made in his writ petition, i.e., WP(C) No. 2442 of 2023, by not raising any objection despite the Court having not decided or considered the said prayer when the writ petition was disposed of on 19.06.2023. It may be seen that the second prayer of the petitioner was for quashing the impugned statement of marks dated 15.06.2019, prepared by the Selection Committee of the School, whereby, the respondent No. 6 was said to have been illegally awarded extra marks and placed in the first position for the post of Principal of the said school. The marks scored by the writ petitioner was 18 marks, while the respondent No. 6 scored 20 marks. However, the fact remains that when the WP(C) No. 4843 of 2023 was listed on 11.09.2023, the learned counsel for the department had produced the relevant records, where it was revealed that both the writ petitioner as well as the respondent No. 6 were given 17 marks each. Therefore, it can be seen that the earlier statement of marks dated 15.06.2019 has since been re-visited and the writ petitioner aggrieved with the marks given to the respondent No. 6 as 17 marks and which is equal to the marks given to him, had initiated WP(C) No. 5584 of 2023. Specific pleadings with regard to the irregularity of the marks Page No.# 16/17

given to the respondent No. 6 has been taken at Paragraph Nos. 13, 14, 15 & 16 of the writ petition, including the violation of revised guidelines for Selection of Principal of Provincialised Higher Secondary Schools circulated vide Office Memorandum under Memo No. ASE.82/2014/Pt/116 dated 26.12.2018. Amongst the arrayed respondents, only the respondent No. 6 has filed his affidavit-in- opposition. A perusal of the affidavit-in-opposition goes to show that the specific pleadings made in the writ petition has not been rebutted and only that the writ petition is said to barred by the principles of constructive res judicata. As already noticed in view of the marks having been revisited, this Court is of the considered view that the Principle of constructive of res judicata cannot be said to be attracted for the reasons already stated earlier. Therefore, having regard to the peculiar facts and circumstances of the case, this Court is of the considered view that the specific allegations made by the writ petitioner that marks have been wrongly awarded to the respondent No. 6 in violation of the relevant guidelines including Office Memorandum dated 26.12.2018 remains unanswered and therefore requires to be considered and re-examined.

[17.] In that view of the matter, the writ petitions are disposed by directing the Secretary to the Government of Assam, Department of School Education to re-examine the marks given to the rival parties in terms of the Office Memorandum dated 26.12.2018 and to take a concise decision within a period of two (2) months from the date of receipt of a certified copy of this order. The Secretary shall also give the rival parties an opportunity of personal hearing before passing the order, as directed hereinabove. The earlier statement of marks that was prepared and re-visited shall abide by the order to be passed by the Secretary to the Government of Assam, Department of School Education.

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Once the order is passed by the Secretary, consequential action should follow. In view of the finding and conclusion arrived at, as above, reference to the authorities cited by the parties is found to be not necessary.

JUDGE

Comparing Assistant