[Cites 10, Cited by 0]
Gauhati High Court
Sri Sajal Kamal Das vs The State Of Assam And Ors on 6 April, 2026
Page No.# 1/11
GAHC010266712025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/402/2025
SRI SAJAL KAMAL DAS
SON OF LATE BHUBANESWAR DAS RESIDENT OF FAIRY LAND COMPLEX
GALIAHATI NO 2 PO AND DISTRICT BARPETA 781301 ASSAM.
VERSUS
THE STATE OF ASSAM AND ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT
OF ASSAM DEPARTMENT OF SCHOOL EDUCATION SECONDARY DISPUR
GUWAHATI 6
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA, GUWAHATI 19
3:THE INSPECTOR OF SCHOOLS
BARPETA DISTRICT CIRCLE BARPETA 781301
4:THE STATE SELECTION BOARD FOR SELECTION OF PRINCIPAL OF
HIGHER SECONDARY SCHOOLS
REPRESENTED BY THE CHAIRMAN CUM COMMISSIONER AND
SECRETARY TO THE GOVT OF ASSAM SECONDARY EDUCATION
DEPARTMENT DISPUR, PIN 781006
5:THE SCHOOL SELECTION COMMITTEE
BAMUNDONGRA HS SCHOOL BARPETA
REPRESENTED BY CHAIRMAN CUM PRESIDENT OF THE SCHOOL
MANAGING COMMITTEE PO HABIDONGRA DISTRICT BARPETA
PIN 781308
6:MD MAZID ALI
SON OF LATE MAFIZUDDIN AHMED RESIDENT OF VILLAGE CHEUNI PO
PUB REHABARI PS PATACHARKUCHI DISTRICT BARPETA ASSAM
PIN 78132
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For the Appellant(s) : Mr. K.N. Choudhury, Senior Advocate, assisted by Mr.
T. Kashyap, Advocate.
For the Respondent(s) : Ms. R. Barua, Standing Counsel, Education (Secondary)
Department for respondent Nos.1, 2, 3 & 4.
: Mr. S.K. Das, Advocate for respondent No.5.
: Mr. P.J. Saikia, Sr. Advocate, assisted by Ms. M. Nirola
and Mr. J. Hatimuriya, Advocates for respondent No.6.
Date on which judgment
is reserved : 02.04.2026.
Date of pronouncement
of judgment : 06.04.2026.
Whether the pronouncement
is of the operative part of the
judgment? : Not Applicable.
Whether the full judgment
has been pronounced? : Yes.
JUDGMENT & ORDER
(CAV)
(Ashutosh Kumar, CJ)
The appellant has questioned the judgment dated 31.10.2025,
passed by a learned Single Judge in WP(C) Nos. 5584 and 4843 of 2023,
preferred by the respondent No. 6 herein, whereby the writ petitions
referred to above were disposed off by remanding the matter to the
Secretary to the Government of Assam, Department of School
Education, to re-examine the marks allotted to the appellant and the
respondent No. 6 and to take a decision in that regard within a period of
two months from the date of receipt of the certified copy of the afore-
noted judgment, with a specific direction that the Secretary shall give to
the appellant and the respondent No. 6 the opportunity of personal
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hearing before passing the order and, after the decision is arrived at by
revisiting the marks allotted to the parties inter se, the consequential
action should also follow.
2. We have heard Mr. K.N. Choudhury, learned Senior Advocate,
assisted by Mr. T. Kashyap, learned Advocate for the appellant; Ms. R.
Barua, learned Standing Counsel, Education (Secondary) Department for
respondent Nos.1 to 4; Mr. S.K. Das, learned Advocate for respondent
No.5 and Mr. P.J. Saikia, learned Senior Advocate assisted by Ms. M.
Nirola and Mr. J. Hatimura, learned Advocates for respondent No.6.
3. Vide order dated 26.03.2026, passed in this appeal, this Court set
out the sequence of events leading to the filing of the above-referred
two writ petitions by the respondent No. 6 in the background of the long-
running dispute between the parties for the post of Principal at
Bamundongra Higher Secondary School, Barpeta, Assam.
The relevant part of our order dated 26.03.2026 is being reproduced
herein-below for avoiding any prolixity as also for the sake of
completeness.
"We have heard Mr. K.N. Choudhury, learned Senior Advocate assisted by Mr.
T. Kashyap, learned Advocate for the appellant; Ms. R. Barua, learned Standing
Counsel, Secondary Education Department for respondent Nos.1 to 4; Mr. S.K.
Das, learned Advocate for respondent No.5 and Mr. P.J. Saikia, learned Senior
Advocate assisted by Mr. J. Hatimura, learned Advocate for respondent No.6.
This is a long-running battle between the appellant and the respondent
No.6 for the post of Principal at Bamundongra Higher Secondary School,
Barpeta, Assam.
The sequence of events are as hereunder:
On 30.05.2019, an advertisement was issued by the competent authority
for section for the post of Principal of Bamundongra Higher Secondary School in
the district of Barpeta.
The School Selection Committee had prepared a panel of candidates
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wherein the appellant was placed at Serial No.1 whereas respondent No.6 was
placed at Serial No.2 in the merit list. The list of persons to be considered was
then placed before the State Selection Board, which, in turn, referred the list to
the Government for its approval.
It may be noted herein that no selection had been made till that time.
However, respondent No.6, on being placed second in the merit list, filed a
representation before the Director of Secondary Education, Assam, making a
request to re-examine the select list before the list was acted upon by the
authorities.
The re-examination of the list was done by Member Secretary, State
Selection Board.
The State Selection Board, after critically examining the list, approved of it,
which paved the way for the appellant to be appointed ultimately.
The respondent No.6, thereafter, but before any final selection was made,
preferred a writ petition [WP(C) No.7980/2019] mounting the challenge that the
re-examination as directed was never carried out and the list which was
already prepared, was forwarded for selection.
At that stage, a Bench of this Court, disposed off that writ petition with a
direction to the authorities to complete the process of selection, initiated
pursuant to the advertisement.
Whatever may have been understood by the authorities regarding the
directions referred to above the prospect of the appellant being appointed even
though marked first in the merit list was marred because of cloud over his B.Ed.
degree, which, at that time, was found to be invalid. As such, a decision was
taken to appoint respondent No.6 on the post of Principal of Bamundongra
Higher Secondary School.
On 29.07.2021, the respondent No.6 was actually appointed as the
regular Principal of the said School.
The charge against the appellant of his having applied on an invalid B.Ed.
degree, was questioned by him vide WP(C) No.3558/2021.
A Bench of this Court in the afore-noted writ petition directed the
Government to verify whether Barpeta B.T. College from where the B.Ed. degree
was obtained by the appellant was actually recognized by the NCTE prior to
18.08.1997 and then to take a decision whether the B.Ed. degree of the
appellant was valid or invalid.
Once it was found that the B.Ed. degree of the appellant was valid, on
09.03.2023, the Government in the Department of School Education, decided to
appoint him as the Principal of Bamundongra Higher Secondary School in place
of respondent No.6.
The appellant was appointed as the regular Principal of the said school on
29.04.2023 and respondent No.6 was reverted to his original post of Post-
Graduate Teacher of Rehabari High School, Barpeta.
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This again was challenged by respondent No.6 vide WP(C) No.2442/2023
on various grounds, one amongst them inter alia was the faulty marking pattern
adopted by the authorities.
This time, the High Court, setting aside the appointment of the appellant
as Principal of Bamundongra Higher Secondary School, remanded the matter to
the Secretary, School Education Department to re-hear both the appellant and
respondent No.6 on the issue of validity of the B.Ed. degree of the appellant.
The contention of the appellant is that the order of remand on a particular
aspect was accepted without demur by respondent No.6. Thus, he would be
presumed to have given up his challenge to the statement of marks where,
initially the appellant was given 20 marks and the respondent No.6 was given
18 marks and later, both were awarded 17 marks.
Some time elapsed and it was found, on a fresh verification of all related
records that the B.Ed. degree of the appellant was valid, he again stood
appointed as Principal of the School on 18.08.2023.
Respondent No.6 thereafter again challenged the appointment of the
appellant vide WP(C) No.4843/2023, questioning the correctness of the marking
pattern and grant of marks to him and the appellant both, even when that issue
after being addressed to, was not the plank on which the remand order was
made for verification of the validity of the B.Ed. degree of the appellant.
During the pendency of the afore-noted writ petition, respondent No.6 filed
WP(C) No.5584/2023 assailing the B.Ed. degree of the appellant as well as the
statement of marks.
Both the afore-noted writ petitions, preferred by respondent No.6, were
taken up together and were disposed off by impugned judgment dated
31.10.2025.
The impugned judgment dated 31.10.2025 contains the direction to the
Secretary to the Government of Assam, Department of School Education, now to
again re-examine the marks given to both the contenders in terms of the Office
Memorandum dated 26.12.2018 and come to a definite conclusion within a
period of 2(two) months.
In the meantime, according to the averments, the respondent No.6
continued to officiate as Principal of the Bamundongra Higher Secondary
School.
The contention of the appellant, however, is that over a period of time,
respondent No.6 was suspended and there is an In-Charge Principal governing
the said School for all this while.
Several arguments were initially advanced by the learned counsel for the
parties, justifying their respective appointments to the post of Principal of the
Bamundongra Higher Secondary School. However, after going through the
present sequence of events demonstrating seesawing so far as the appointment
of the Principal of Bamundongra Higher Secondary School is concerned for 7
(seven) years, we tentatively arrived at the view that the entire process has
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become a source of unnecessary litigation and it would only be appropriate if
the entire process of appointment of the regular Principal of the Bamundongra
Higher Secondary School is initiated afresh, giving both the appellant and the
respondent No.6 and may be others a clear field to stake their claims and
compete with each other.
In that case, a fresh advertisement will have to be issued with specific
directions for the pattern of marking so that the entire process is completed.
It is really unfortunate that because of the disputes inter se two claimants,
the school does not have a regular Principal for approximately 7(seven) years.
This is not a comfortable situation to be in.
On hearing the views of the Court, the learned counsel for the parties,
namely, Mr. K.N. Choudhury and Mr. P.J. Saikia, learned Advocates for the
appellant and respondent No.6, respectively, seek some time to take
instructions in the matter and get back to this Court."
4. Mr. Choudhury, learned senior Advocate for the appellant has
submitted that it would be apparent from the records of this case that
the respondent No. 6 has approbated and reprobated at the same time,
which may not be permissible. The respondent No. 6 had defended the
selection on the basis of the same set of marks as the correct decision.
However, when the appellant was appointed as the Principal on
29.07.2021, the respondent No. 6 questioned the award of marks and
claimed that he should have been awarded more marks than the
appellant.
5. Referring to the judgment of the Supreme Court in New Bihar Biri
Leaves Co. & Ors. Vs. The State of Bihar : (1981) 1 SCC 537 , he submitted that it is
one of the fundamental principles of general application that if a person
of his own accord, accepts the marking pattern and the marks obtained
by him, he cannot be allowed to dispute the same later. This principle is
based on the concept of "qui approbat non reprobat" ("one who
approbates cannot reprobate"). On this inhibitory principle, Mr.
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Choudhury contends, the learned Single Judge ought not to have
remanded the matter again to the Secretary, Department of Education,
to revisit the marks allotted to the parties; rather, the Court should have
taken a decision whether the appointment of the appellant as Principal
of the school in question as well as the reversion of the respondent No. 6
to his original post was justified.
6. The impugned judgment was further assailed on the ground of
constructive res judicata, which, according to the appellant, was not
appreciated by the learned Single Judge in its contextual perspective.
The respondent No. 6 had challenged the statement of marks dated
15.06.2019 in WP(C) 2442/2023, but such challenge was given up, which
would be evident from the judgment and order dated 19.06.2023 passed
in the afore-noted writ petition whereby the matter was remanded to the
Secretary, Education Department to re-hear the parties on the issue of
validity of the B.Ed. Degree of the appellant, notwithstanding the fact
that in the afore-noted writ petition, the respondent No. 6 had also
challenged and assailed the statement of marks dated 15.06.2019.
Therefore, the respondent No. 6, it is argued, was disentitled to raise the
afore-noted challenge again in the subsequent writ proceedings,
namely, WP(C) No. 4843/2023 and WP(C) No. 5584/2023. This only reflects
that either the respondent No. 6 did not press the challenge qua the
statement of marks in WP(C) No. 2442/2023, or that it was pressed but the
challenge was not sustained. Thus, the impugned judgment remanding
the matter again on the issue of award of marks to the parties, is hit by
the principle of constructive res judicata. The remand vide the impugned
judgment amounts to vexation of the appellant for the third time.
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In order to buttress his arguments, Mr. Choudhury has relied on the
judgments of the Hon'ble Supreme Court in Daryao & Ors. Vs. State of U.P.
and Ors.: AIR 1961 SC 1457; Devilal Modi vs. Sales Tax Officer, Ratlam & Ors.:
AIR 1965 SC 1150; Mr. Kesho Ram and Co. & Ors. Vs. Union of India: (2024) 16
SCC 738.
7. Mr. P. J. Saikia, learned senior Advocate for the respondent No. 6,
however, expostulated that the issue of fair award of marks, according to
the rules, was never decided in any one of the writ proceedings referred
to by the appellant; rather, in WP(C) No. 7980/2019, vide the judgment
and order dated 06.12.2019, a Bench of this Court had directed the
authorities to complete the process of selection as per the rules and also
taking into consideration the letter dated 22.08.2019, whereby the Joint
Director of the Secondary Education had issued instructions to the
Inspector of Schools, annexing the Government letter dated 31.07.2019,
to examine the allegations made by the respondent No. 6 against the
marking pattern.
8. According to the respondent No. 6, WP(C) No. 2442/2023 was filed
against the order dated 29.04.2023 appointing the appellant as the
Principal of the school on the basis of the decision dated 19.03.2023,
whereby no opportunity of hearing, as contemplated by the judgment
dated 11.08.2021 passed in WP(C) No. 3558/2021, was granted, nor the
directions contained in the order dated 06.12.2019, passed in WP(C) No.
7980/2019 was complied with. It was in such circumstances the matter
was remanded to be heard before passing any appropriate order, but
unfortunately no opportunity was given to the respondent No. 6 to put up
his case. Under such circumstances, it cannot be said that the judgment
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impugned is hit by the principle of constructive res judicata.
9. The rules of procedure, Mr. Saikia contends, are hand-maids of
justice. The processual law must aim towards advancing the cause of
justice and not obstructing it. The issue in question for which remand has
been made by the impugned judgment, was never directly or
substantially in issue in the earlier writ petitions and, therefore, the
argument of the appellant of constructive res judicata is not well
founded.
He has referred to the judgments of the Hon'ble Supreme Court in
Sheodan Singh vs. Daryao Kunwar: AIR 1966 SC 1332; State of U.P. vs. Nawab Hussain:
AIR 1977 SC 1680; Smt. Rani Kusum vs. Smt. Kanchan Devi and Ors.: AIR 2005 SC 3304;
Asgar and Ors. Vs. Mohan Verma and Ors.: AIR Online 2019 SC 581; Prem Kishore and
Ors. Vs. Brahm Prakash and Ors.: AIR Online 2023 SC 237 .
10. After having heard the learned counsel for the parties, we still are
of the view that the matter should have been finally decided by the
learned Single Judge, when the dispute regarding the candidature of
the appellant and the respondent No. 6 had continued for so long and
the school did not have any regular Principal for all this while.
11. So far as the concept of constructive res judicata is concerned, it is
a legal fiction embodied in Explanation 4 to Section 11 of the Code of
Civil Procedure, which expands the traditional doctrine of res judicata.
Ordinarily, res judicata bars the issues that were actually raised and
decided in an earlier proceeding. Constructive res judicata goes further
and it bars the issues that ought to have been raised, but were not. The
underlying principle is that if a party had an opportunity to raise a ground
or claim in an earlier litigation but failed to do so, law ought to treat it as if
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it has been raised and decided against that party. The rationale, it has
now been decided in a catena of decisions of the Supreme Court, is (i)
finality in litigation; (ii) prevention of multiplicity of proceedings and (iii)
avoidance of abuse of the process and unnecessary vexation of either of
the parties.
12. In other words, constructive res judicata is essentially a rule of
compulsory joinder of grounds; meaning thereby that all the grounds,
which ought to have been taken, or which is taken, must be pressed;
and the party not doing so would be disentitled to question it again in a
subsequent proceeding. The only limitation to this conceptual construct
could be in situations when the issue was not within the knowledge of the
party despite due diligence, or that the earlier forum lacked jurisdiction,
or there is a fraud or collusion amongst the parties, or if there is a
subsequent change in law or material facts.
13. In the present case, the question of award of marks was
specifically raised by the respondent No. 6 in WP(C) No. 2442/2013, but
while the Bench hearing the matter remanded the case to the Secretary
to the Government of Assam in the Education Department, it was on one
limited point with regard to the validity of the B. Ed. Degree of the
appellant and not on the award of marks. The respondent No. 6, while
pursuing the afore-noted writ petition [WP(C) 2442/2023], was dissatisfied
with the award of marks, which aspect he had raised also, but settled for
the remand on one issue, namely, validity of the B. Ed. Degree of the
appellant. This would clearly fall in the category of res judicata with the
challenge to the award of marks. The Bench deciding WP(C) 2442/2023
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had the jurisdiction to take cognizance of the challenge to the award of
marks. However, as it was noted earlier in our order dated 26.03.2026, we
are of the conclusive view that it would be more in the interest of the
parties, as also for concluding/settling the litigation that instead of setting
aside the impugned judgment, we modify the same by issuing a specific
direction to the Secretary to the Government of Assam, Department of
School Education, to finally examine the marks allotted to the appellant
and the respondent No. 6 and pass necessary order and also take a
consequential decision with respect to appointment of Principal of the
school in question, within a period of fifteen days of the
production/receipt of a certified copy of this judgment, which, we are
sanguine, would end the litigation.
14. We have set a strict timeline, keeping in mind the submission
advanced on behalf of the appellant that he is to retire from service
shortly and the issue regarding appointment of the Principal has been
hanging fire since the last seven years and the school is being run by an
in-charge Principal.
15. We order accordingly.
16. The appeal stands disposed off with the modification in the
impugned judgment to the extent indicated above.
JUDGE CHIEF JUSTICE
Comparing Assistant
