Gauhati High Court
Dr. Swarnajyoti Das vs The State Of Assam on 31 October, 2025
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/11
GAHC010123872022
2025:GAU-AS:14671
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4237/2022
1. Dr. Swarnajyoti Das,
Aged about 40 years
W/o- Sri Diganta DAs,
Revisent of village Darangi Chuk,
P.O & P.S- Jorhat, Assam
Pin-785001
... . Petitioner
VERSUS
1. The State of Assam
Represented by the Commissioner & Secretary to the
Government of Assam, Higher Education Department,
Dispur, Guwahati-781006, Assam.
2. The Director,
Higher Education, Assam
Kahilipara, Guwahati-19
3. The Governing Body
Sonari College,
Represented by its Chairman, Sonari,
P.O-Sonari, District- Charaideo
Assam, Pin-785690
4. The Principal
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Sonari College, Sonari
P.O- Sonari, District-Charaideo
Assam, Pin-785690
.... Respondents
BEFORE
Hon'ble MR. JUSTICE NELSON SAILO
Advocate for the Petitioner : Mr. K.K. Mahanta,
Sr.Advocate
Mr. D.K. Das,
Advocate
Advocates for the Respondents : Mr. K. Gogoi,
SC, Higher Education
Mr. N. Borah, Advocate
Date on which judgment is reserved : 28.10.2025
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 & ORDER (CAV)
Heard Mr. K.K. Mahanta, learned senior counsel assisted by Mr.
D.K. Das, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned
Standing Counsel, Higher Education Department appearing for the respondent
Nos. 1 & 2 and Mr. N. Borah, learned counsel appearing for the respondent
Nos. 3 and 4.
[2.] The controversy in the instant writ petition is in respect of the
selection and appointment of a suitable candidate to the post of Assistant
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Professor in Political Science reserved for Scheduled Caste candidate in Sonari
College, Sivasagar. An advertisement was floated by the Principal of the
College in the local daily 'The Assam Tribune' on 15.07.2017 for filling up the
post along with another post of Assistant Professor in Zoology. Responding to
the advertisement, the instant writ petitioner along with other candidates
participated in the selection process and the Selection Committee shortlisted
three candidates including the writ petitioner for the said post. From the
comparative statement annexed by the writ petitioner, the petitioner is placed at
Serial No.3 in the order of preference as per the marks scored. There is no
dispute at the bar that the candidate who scored the highest marks turned down
the offer even before the results of the selection was forwarded to the Director
of Higher Education. The candidate who scored the second highest marks was
then required to submit a 'No Objection Certificate' (NOC) since he was
employed and working at Naharkatia Higher Secondary School. However, as
he could not submit the NOC, the name of the instant writ petitioner was
proposed to be considered for appointment to the said post. Aggrieved, the
candidate who scored the second highest marks, approached this Court by
filing WP(C) No.1355/2018 and the instant writ petitioner was arrayed as
respondent No.6. This Court on 12.03.2018 while issuing notice of motion,
passed an interim order to the effect that the post should not be filled up until
further order(s).
[3.] It may be stated herein that even before passing the interim order,
the name of the present writ petitioner had already been forwarded to the
Director for considering her appointment. However, the said writ petitioner
ultimately decided not to pursue the matter and sought for withdrawal of the
same. This Court vide order dated 11.03.2022 permitted withdrawal of the writ
petition with a further observation that the College authorities may go ahead
with the matter in accordance with law in view of the closure of the writ
petition. Thereafter the Principal of the College vide letter dated 19.03.2022
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wrote to the Director of Higher Education to look into the matter in terms of
the Court's direction. The Principal of the College also vide letter dated
23.05.2022 forwarded the name of the petitioner to the Director of Higher
Education for approval of her appointment to the post in question. Despite the
same, since no further action was taken, the present writ petition has been field.
[4.] Prayer made in the writ petition is for a direction to the respondent
No.2 to approve the Resolution dated 08.01.2018 of the Governing Body of the
College and to appoint the petitioner as the Assistant Professor in Political
Science.
[5.] Mr. K.K. Mahanta, learned senior counsel for the petitioner
submits that the advertisement floated in the local daily on 15.07.2017 was
preceded by a permission given by the respondent No.2 on 27.06.2017, which
was communicated to the College Principal. In the said communication, it was
specifically indicated that in the event of the first candidate joining elsewhere
or not offering to join, the appointing authority may go for preparation of select
list up to candidate No.3 in the comparative statement and not beyond, which
shall however be subject to the approval of the Governing Body. This was for
the purpose of avoiding successive re-advertisement for the same post. He
submits that since the candidate who scored the highest marks withdrew herself
from the post in question while the candidate scoring second highest marks
failed to produce NOC from his employer and ultimately withdrew his claim, it
was therefore incumbent upon the respondent authority concerned to accept the
Resolution of the Governing Body and appoint the writ petitioner to the post in
question. However, the respondent No.2 by taking a contrary view has refused
to appoint the petitioner to the post on the ground that preparation of a panel
list is not permissible. He submits that the same cannot be accepted in view of
the fact that the relevant Rules i.e. the Assam College Employees
(Provincialisation) Rules, 2010 (Rules of 2010) and the Act i.e. the Assam
College Employees (Provincialisation) Act, 2005 (Act of 2005) does not bar
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preparation of a panel list.
[6.] The learned senior counsel further submits that according to the
respondent No.2, the Select List for appointment to vacant sanctioned post
should contain names equal to the number of vacant post notified at the time of
calling for applications for filling up the post in terms of the Assam Fiscal
Responsibility and Budget Management Act, 2005 (FRBM Act). The learned
senior counsel submits that the said provision cannot be pressed into service in
the instant case in view of the fact that the Rules applicable in the instant case
is the Rules of 2005, which nowhere prohibits preparation of panel list and
importantly in view of the clear permission and instructions given by the
respondent No.2 through communication dated 27.06.2017. He also submits
that the FRBM Act has been enacted to ensure fiscal stability and transparency
in the management of public finance of the State amongst others. That
preparation of select list up to the third candidate as per communication dated
27.06.2017 is also an austerity measure i.e., to avoid successive advertisement
for the said post.
[7.] Referring to Section 6 of the Act of 2005 and Rule 5(1), (2) and (7)
and also Rule 7 of the Rules of 2010 amongst others, the learned senior counsel
submits that the FRBM Act cannot be an embargo upon the respondent
authority concerned for appointing the petitioner to the post in question. He
thus submits that the petitioner having waited for his chance to be appointed
since the selection, which was held in the month of September, 2017 and as the
College is without a teacher in Political Science, Court may direct the
respondent authority to act upon the recommendation made by the Governing
Body and appoint the petitioner to the post in question. In support of his
submission, the learned senior counsel has relied upon the following
authorities:-
(1) Dr. Ajit Kr. Baruah and Others -vs- State of Assam and Others,
reported in (2013) 1 GLR 345; and
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(2) Arijita Paul -vs- State of Assam and Others, reported in 2019 (1)
GLT 87.
[8.] Per contra, Mr. K. Gogoi, learned Standing Counsel, Higher
Education Department submits that there is no provision in the Act of 2005 and
the Rules of 2010, which provides for preparation of a panel list or a waiting
list and therefore in the absence of any provision, the writ petitioner, who is put
in the third place cannot be given the appointment. He submits that no doubt,
the candidate who scored the highest marks withdrew herself from contesting
for the post and therefore, it was the candidate who scored the second highest
marks whose name was forwarded to the respondent No.2 for consideration
and appointment, but however, since the said candidate not only failed to
produce the NOC from his employer but also ultimately withdrew himself from
contesting for the post, the instant writ petitioner cannot come into the picture
and what would be required to be done is to go for a fresh selection. He
submits that the FRBM Act clearly provides that the select list should contain
names of the candidate equal to the number of vacant post and not beyond. The
communication dated 27.06.2017 is not backed by any provisions of the
relevant Rules governing the field and cannot be the basis for making a claim
for appointment to the post in question. In support of his submission, the
learned Standing Counsel, Higher Education Department has relied upon the
following authorities:-
(1) Vallampati Sathish Babu -vs- The State of Andhra Pradesh and
Others, reported in AIR 2022 SC 2949;
(2) The State of Uttar Pradesh -vs- Karunesh Kumar and Others,
reported in AIR 2023 SC 52;
(3) Employees' State Insurance Corporation -vs- Union of India and
Others, reported in (2022) 11 SCC 392;
(4) R. Ranjith Singh and Others -vs- State of Tamil Nadu and Others,
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reported in 2025 SCC OnLine SC 1009;
(5) Union of India and Others -vs- Mahendra Singh, reported in 2022
SCC OnLine SC 909;
(6) Mrinal Kumar Borah (Dr.) -vs- State of Assam and Others,
reported in 2017 (1) GLT 737; and
(7) Dhanraj -vs- Vikram Singh and Others, reported in 2023 SCC
OnLine SC 724.
[9.] Mr. N. Borah, learned counsel appearing for the College adopting
the argument made by Mr. K. Gogoi also submits that after the writ petition
filed by the candidate who scored the second highest marks was disposed of on
11.03.2022 with a direction to the College authorities to go ahead in
accordance with law, the Principal of the College had written to the Director of
Higher Education to look into the matter vide letter dated 19.03.2022 and
thereafter, had forwarded the name of the writ petitioner for approval and
thereafter, vide letter dated 23.05.2022. Such a step was taken on account of
the fact that the candidate who scored the second highest marks, failed to
produce NOC from his employer and his case was therefore rejected. Although
he filed a writ petition before this Court, but later on, he withdrew himself and
therefore, the College Principal forwarded the resolution of the Governing
Body wherein the name of the present writ petitioner was suggested for
approval and appointment since she scored the third highest marks in the
selection process.
[10.] The learned counsel further submits that the name of the petitioner
has figured for approval and appointment only in terms of the instructions and
permission given by the respondent No.2 through the communication dated
27.06.2017. He also submits that no further instruction was given to the
College after that. He also submits that in respect of the other post viz;
Assistant Professor in Zoology reserved for ST(P), which was advertised along
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with the post of Assistant Professor in Political Science, (03) three candidates
were short listed as well on the basis of the marks scored by them and the first
candidate did not decline the post and she was appointed. He thus, submits that
under the facts and circumstances, Court may consider and pass appropriate
orders s deem fit and proper.
[11.] From the above projection, the issue to be decided is as to whether
the petitioner can be appointed to the post of Assistant Professor in Political
Science in terms of the assessment made by the Selection Committee and the
Resolution adopted by the Governing Body of the College although she was
placed in the third place in order of preference. For the sake of brevity, facts
already narrated are not being repeated.
[12.] There is no dispute to the fact that the petitioner scored the third
highest marks in the selection process. The candidate who scored the highest
marks opted out from the selection while the candidate who scored the second
highest marks though initially interested also decided to opt out from the post
by withdrawing his writ petition. Under such circumstances, the question is
whether the petitioner can be considered and appointed to the post.
[13.] The Governing Body of the College through communication dated
24.01.2018 had written to the respondent No.2 seeking approval and
appointment of the petitioner to the post in question, but the same did not
receive consideration in view of the fact that the candidate who scored the
second highest marks in the selection process had approached this Court
through WP(C) No.1355/2018 and this Court had passed an interim order for
not filling up the post. However, as already stated earlier, the said writ petition
was withdrawn and the interim order was vacated vide order dated 11.03.2022.
Although the Resolution of the Governing Body for approving and appointing
the petitioner was forwarded to the respondent No.2, but the same has not been
acted upon. Stand taken by the respondent No.2 in the affidavit-in-opposition is
that there is no provision under the Act of 2005 and the Rules of 2010 to
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prepare a panel list.
[14.] A perusal of the Act of 2005, more particularly, Section 6 would go
to show that appointment of both teaching and non-teaching posts in Colleges
shall be made by the Director of Higher Education on the basis of selection and
recommendation of the Governing Body of the College in accordance with the
Rules and procedure of the Government in force. Rule-5 of the Rules of 2010
provides that appointment to the post of Principal shall be made by direct
selection and the Governing Body shall constitute a Selection Committee,
which shall select a person on the basis of interview from amongst eligible
candidates and the Governing Body shall recommend the candidate to the
Director for issuance of order of appointment. Similar process is provided for
the post of Lecturer/Librarian. Rule-7(a) also provides that all appointment
either by direct recruitment or by promotion shall be made by the Director on
the basis of recommendation of the Governing Body based on the
recommendation of the Selection Committee duly constituted. There is no bar
or otherwise for preparation of a panel list by the constituted Selection
Committee.
[15.] The respondent No.2 in the instant case, vide communication dated
27.06.2017 had issued instructions to the Principal of the College that a select
list be prepared by including up to the third candidate in the comparative
statement, subject to the approval of the Governing Body and the purpose
behind was to avoid successive re-advertisement for the same post. It,
therefore, can be seen that the respondent No.2 for reasons assigned in the
communication dated 27.06.2017, had instructed preparation of select list by
including up to the third candidate. There is also no dispute that the name of
the petitioner finds place in the select list prepared by the Selection Committee.
[16.] Reliance has been placed on the FRBM Act, which is an Act
enacted by the State Government with the object to ensure fiscal stability,
sustainability, to improve efficiency and transparency in management of public
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finances of the State including reduction of fiscal deficit. Restriction has been
placed for preparation of select list only equal to the number of vacant post
notified at the time of calling of applications for filling up the post. Applying
the same in the instant case, the Governing Body was required to forward a
name for appointment to the post in question. The candidate who scored the
highest marks, opted out from the post and the candidate who scored the
second highest marks was employed elsewhere and could not produce NOC
from his employer and therefore, under the circumstances, the name of the
petitioner was forwarded to the respondent No.2 for approval and appointment,
which in fact is only as per the instructions given vide letter dated 27.06.2017.
[17.] As noticed earlier, the object of the FRBM Act is to reduce fiscal
deficit amongst others and therefore, the same should not be applied beyond
the object sought to be achieved by the Act as was held by a Division Bench of
this Court in Dr. Ajit Kr. Baruah (supra). The instructions issued vide letter
dated 27.06.2017 by the respondent No.2 with regard to preparation of Select
List up to the third candidate is now being sought to be withdrawn by the same
authority as stated in the affidavit filed by the said authority. The same cannot
under the facts and circumstances be acceptable as it only attracts an act of
approbation and reprobation which is prohibited by the said principles of law.
[18.] In case of Mrinal Kumar Borah (supra), a Co-ordinate Bench of this
Court held that although it would appear that the Director has no discretion
once recommendation is made by the Governing Body, but however, the
Director is to satisfy himself that the selection and recommendation is carried
out in accordance with law and by following the eligibility norms etc.
[19.] In the present case, it is nobody's case that the petitioner is not
eligible for consideration, but it is a case whether the next person in line can be
taken into consideration for appointment to the post. The learned Standing
Counsel, Higher Education Department has strenuously argued by relying upon
the authorities already cited hereinabove to contend that Executive Instructions
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cannot supplant statutory provisions. There cannot be any argument on this
principle and that in the present case, no restriction has been placed by the Act
of 2005 or the Rules of 2010 for preparing a panel list and therefore, the
instructions issued vide communication dated 27.06.2017 cannot be construed
as an attempt to supplant statutory provisions applicable to the instant case.
[20.] The case of Vallampati Sathish Babu (supra) relied upon by Mr. K.
Gogoi, learned Standing Counsel, Higher Education Department is found to be
distinguishable since there was a clear provision for carrying forward the
vacancy not filled and preparation of waiting list prohibited. The decision finds
reference in the case of State of Uttar Pradesh -vs- Karunesh Kumar and
Others (supra). Both the authorities cited are found to be not applicable to the
instant case. The remaining cases relied upon having regard to the facts and
circumstances of this case are also found to be not applicable.
[21.] Thus, on an overall consideration of the case, this Court is of the
considered view that the petitioner has made out a case for considering her case
for approval and appointment to the post in question in accordance with the
relevant provisions of the Act of 2005 and the Rules of 2010.
[22.] The respondent No.2 is therefore directed to act upon the
communication dated 24.01.2018 (Annexure-6) made by the Principal of the
College within a period of 06 (six) weeks from the date of receipt of a certified
copy of this judgment and order.
23.] With the above observations and directions, the writ petition is
disposed of. No cost.
JUDGE
Comparing Assistant
