Gauhati High Court
Page No.# 1/49 vs The State Of Assam And 7 Ors on 19 December, 2025
Page No.# 1/49
GAHC010086412022
2025:GAU-AS:17747
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2988/2022
SUBHRA SABHAPANDIT
W/O- DR. RANJAN CHAKRABORTY
R/O- HOUSE NO.10, OPPOSITE BAKUL PATH, NH 37, P.S- JALUKBARI, DIST-
KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, HIGHER EDUCATION DEPARTMENT, DISPUR,
GUWAHATI-781006
2:THE DIRECTOR
OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
3:THE PRESIDENT OF GOVERNING BODY
NALBARI COLLEGE
NALBARI
ASSAM
PIN-781335
Deepj Digitally signed
4:THE SELECTION COMMITTEE
by Deepjyoti
yoti Sarkar
Date: 2025.12.22
REP. BY ITS CHAIRMAN
Sarkar
15:38:50 +05'30'
NALBARI COLLEGE
NALBARI
ASSAM
PIN-781335
Page No.# 2/49
5:THE PRINCIPAL CUM SECRETARY
NALBARI COLLEGE
NALBARI
ASSAM
PIN-781335
6:CHANDANA DEKA
D/O- PROF. GIRISH CH. DEKA
R/O- BIDYAPUR
P.O AND DIST- NALBARI
WARD NO- 3
ASSAM
7:MAHENDRA NARAYAN CHOUDHURY BALIKA MAHAVIDYALAYA
REP. BY ITS PRESIDENT OF GOVERNING BODY
NALBARI
ASSAM
PIN-781335
8:THE PRINCIPAL
MAHENDRA NARAYAN CHOUDHURY BALIKA MAHAVIDYALAYA
NALBARI
PIN-781335
ASSA
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
Advocates for the petitioner :- Mr. I. Choudhury, Sr. Adv.;
Mr. S. Hazarika.
Advocate for the respondent Nos. 1 & 2 :- Mr. S. Das, SC, Higher Education,
Advocates for the respondent No. 6 :- Mr. K.N. Choudhury, Sr. Adv.;
Mr. J. Patowary.
Advocate for the respondent Nos. 7 & 8 :- Mr. M. Sharma.
Date on which judgment is reserved :- 02.12.2025.
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Date of pronouncement of judgment :- 19.12.2025.
Whether the pronouncement is of the
operative part of the judgment? : N/A
Whether the full judgment has been
pronounced? : Yes
JUDGEMENT & ORDER (CAV)
Heard Mr. I. Choudhury, learned Senior Counsel, assisted by Mr. S.
Hazarika, learned counsel for the petitioner. Also heard Mr. S. Das, learned
standing counsel for the respondent Nos. 1 and 2; being the authorities in the
Higher Education Department; Mr. K.N. Choudhury, learned Senior Counsel,
assisted by Mr. J. Patowary, learned counsel for the respondent No. 6; and Mr.
M. Sharma, learned counsel for the respondent Nos. 7 and 8. Respondent No. 3,
4 and 5, remained unrepresented.
2. Extra ordinary jurisdiction of this Court, under Article 226 of the
Constitution of India, is sought to be invoked herein this case by the petitioner,
namely, Dr. Subhar Sabhapandit seeking following relief(s):-
(i) to set aside and quashing the decision of the
Selection Committee for awarding 1 (one) marks to
respondent No-6 based on the purported experience
certificate for appointment to the post of Assistant
Professor, Sanskrit, Nalbari College.
(ii) to issue direction to the respondent authorities
to review the marks awarded to the candidates and
recommend the name of the selected candidates for
appointment to the post of Assistant Professor,
Sanskrit, Nalbari College pursuant to selection held
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on 25-04-2022, as per Advertisement dated 04-07-2015.
(iii) to issue direction to the respondent authorities to
consider the Complaint dated 22.04.2022, filed by the
petitioner before the respondent authorities against
the purported teaching experience certificates, dated
13-08-2011 and 10-02-2015, submitted by Respondent
No.6 for claiming marks in interview for the post of
Assistant Professor, Sanskrit, Nalbari College.
Background Facts:-
3. The background facts, leadin`g to filing of the present petition is briefly
adumbrated as under:-
"On 04.07.2015, the Principal-cum-Secretary of Nalbari College, has
issued an advertisement, which was published in daily English
Newspaper, namely, The Assam Tribune, inviting applications from eligible
candidates, amongst others, for filing up the vacant post of Assistant
Professor in Department of Sanskrit, Nalbari College, Assam.
Pursuant to the said advertisement, petitioner and respondent No.6,
along with some other candidates, had applied for the said post and
subsequently, selection was held and all the candidates including the
petitioner and respondent No. 6, were also called to the interview, held
on 04.10.2015. Accordingly, all the candidates appeared and the
interview was held and after the interview, it came to light that the
Selection Committee had awarded the marks in the Selection Process to
the candidates following the Office Memorandum (O.M.) dated
14.08.2015, issued by the Department of Higher Education, though the
Office Memorandum dated 25.06.2012, was holding the field at the time
when the advertisement was issued. Notably, the O.M. dated 25.06.2012,
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prescribes the procedure of adding the percentage of marks secured by a
candidate in HSLC, HS/PU, Degree, PG, B.Ed./M.Ed., Ph. D etc., so as to
arrive at the total marks for being selected and the same does not
provide for holding any interview and awarding of marks in the interview
by the Selection Committee.
Meanwhile, the petitioner came to learn that, the respondent
No.6/Chandana Deka, claimed to have served as an ad-hoc Lecturer in
the Mahendra Narayan Choudhury (MNC) Balika Mahavidaylaya, Nalbari
and accordingly, has applied for the aforesaid post based on a teaching
experience certificate, dated 13.08.2011, shown to be issued by Sri G.C.
Barman, who was the then In-charge Principal, Mahendra Narayan
Choudhury Balika Mahavidyalaya, Nalbari, Assam.
Notably, there was no sanctioned post of Sanskrit in MNC Balika
Mahavidyalaya, Nalbari and therefore, the question of appointing the
respondent No.6, as ad-hoc Lecturer, in the Department of Sanskrit, does
not arise. But, the respondent No.6 had worked in the Sanskrit
Department of MNC Balika Mahavidyalaya, Nalbari as a part time Lecturer
for a particular period, but, as per O.M. dated 25.06.2022, no marks can
be claimed as a part time Lecturer, which shows that she had
fraudulently obtained certificate, dated 13-08-2011 (ANNEXURE-1), as
ad-hoc Lecturer. The Annexure-1 also shows that it was issued by the
then In-charge Principal and from the face of it establishes its credibility
as no specific period of service is mentioned, as the respondent No.6 had
never been issued any appointment order and release order as an ad-hoc
Lecturer of Sanskrit. The respondent No.6 obtained the aforesaid
fraudulent and fabricated teaching experience certificate, shown to be
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issued by Sri G.C. Barman, mentioning ad-hoc service, during the session
of 2009-2010, in the aforesaid College, without any specific period of
service or indicating any date of appointment and termination as
mentioned with an intention to secure undue advantage in the selection
and even though she worked in the same college as a part time Lecturer
for a particular period for which she is not entitled to get any marks for
teaching experience.
When question was raised from all corners, about the teaching
experience certificate, dated 13.08.2011, the respondent No.6 again
managed to obtain another teaching experience certificate, dated
10.02.2015 (ANNEXURE-2), from Dr. D.K. Goudo/respondent No.8,
mentioning one year of service during the session 2009-2010, as a
teacher of Sanskrit in an ad-hoc capacity.
However, the O.M., dated 12.10.2004, issued by the Government of
Assam, Education (Higher) Department, Dispur, Assam, specifically
prohibits engagement of teaching and non- teaching staff in deficit grant-
in-aid colleges, without any sanctioned post by stating clearly that in the
aforesaid O.M., all members of the Governing Body or the College
including the Principal/Secretary of the College, will be responsible for
any violation of the above-mentioned conditions. Therefore, the MNC
Balika Mahavidyalaya, Nalbari having no sanctioned post of Lecturer in
the Sanskrit Department, has no authority to appoint as well as allow the
respondent No.6 to serve as an ad-hoc Lecturer of Sanskrit and
therefore, the certificate issued by the respondent No.8 as well as by the
erstwhile Principal In-charge is non-est in the eye of law and same
cannot be treated as a valid certificate for conferring any benefit to the
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said respondent No.6.
The petitioner then filed one RTI application seeking some
information and from the information supplied on the RTI application, on
17.04.2015 (ANNEXURE-4 & 5), submitted by one Dr. Maheswar
Hazarika before the Public Information Officer (P.I.O.), Office of the
Principal, MNC Balika Mahavidyalaya, Nalabri, Assam, it has came to light
that there is no record available in the college relating to any
appointment order of Teacher/Lecturer in ad-hoc basis in the Sanskrit
Department, during the session 2009-2010 and the connected
advertisement issued for such appointment. The college authorities also
do not have any record pertaining to joining report and termination letter
of any ad- hoc appointees, during the session 2009-10. But, the
respondent No.8, in order to justify the issuance of certificate by him on
10.02.2015, certifying that respondent No.6 served as a Teacher in
Sanskrit in an ad-hoc capacity for one year, contended that the same was
issued on the basis of the earlier certificate, dated 13.08.2011, issued by
his predecessor and after verifying the acquaintance register during
2009-10. It has also been stated that the second certificate was issued as
a clarification on the basis of the prayer made by the respondent No.6.
The information supplied by the respondent No.8, though claimed
that the second certificate issued by him was on the basis of a prayer
made to his office, but the application (ANNEXURE-6), filed by the
respondent No.6, seeking experience certificate is dated 17/03/2015, and
the purported teaching experience certificate is of dated 10-02-2015,
which was issued prior to the application, which falsify the contention of
the respondent No.8 and the same raises a doubt on his credibility as
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well as upon the certificate issued by him. The second certificate dated
10.02.2015, which is claimed to be issued after verification of the
acquaintance register is absolutely false and is not at all tenable as the
acquaintance register, depicts apparent anomalies, which is evident from
the difference in quantum of the amount of salary shown to be paid to
the respondent No.6, during the so called session 2009-10 and on the
contrary, the said entries in the acquaintance register, shows that her
service in the said college was as part time Lecturer and not as an ad-hoc
Lecturer.
It is also stated that the University Grant Commission Regulations,
2010 provides for appointment of ad-hoc teachers in the colleges and no
separate rules have been framed, which appears from the information
supplied by the UGC on 27.11.2018. And the college authority had not
followed the selection procedure for appointing ad hoc/contractual
Assistant Professors and failed to justify the appointment of the
respondent No.6 as an ad-hoc Lecturer in the college by following such
norms clearly vitiates the experience certificate issued to the respondent
No.6 certifying her teaching experience as ad-hoc.
It is also stated that though the interview was held on 04.10.2015,
pursuant to the advertisement dated 04.07.2015, in which the petitioner
along with the other candidates, including the respondent No.6, Ms.
Chandana Deka had participated, but, the said selection process was
stayed by this Court in W.P.(C) No. 6428/2015 (Ms. Chandana Deka
-Vs- The State of Assam & 4 Ors.), on the ground that at the time
of issuance of advertisement dated 04-07-2015, the Office Memorandum
dated 25-06-2012, was in force which did not provide for holding any
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interview, but, the college authorities, while holding the interview
adopted the procedure prescribed by the Office Memorandum dated 14-
08-2015, and therefore, prayed for setting aside the selection, that was
held on 04.10.2015, with a direction to hold fresh selection strictly as per
the procedure laid down in the Office Memorandum dated 25.06.2012.
Then this Court, vide its Order, dated 14.05.2018, had interfered
with the selection process, held on 04.10.2015 and also set aside the
same by observing that the procedure adopted by the respondent
authorities in following the O.M. dated 14.08.2015, for holding the
selection process pursuant to the advertisement dated 04.07.2015, is
vitiated in as much as on the date of the advertisement i.e. 04.07.2015,
the earlier O.M. dated 25.06.2012, was in force and thereby allowed
selection committee to proceed with the selection pursuant to
advertisement dated 04-07-2015, afresh, in accordance with law.
Thereafter, pursuant to the order dated 14-05-2018, passed by this
Court, fresh selection was to be held by considering the applications of
the candidates who had participated earlier in the selection process,
initiated vide advertisement dated 04.07.2015 and accordingly, all the
candidates including the petitioner was called to appear in the interview
schedule to be held on 25.04.2022, along with all relevant documents in
original, vide calling letter dated 06.04.2022, issued by the respondent
No.5/the Principal, Nalbari College.
The petitioner during the earlier selection also raised question about
the credibility and validity of the teaching experience certificate based on
which the respondent No.6 is claiming marks, but, the said issue
remained at lurch, in view of the suspension of the selection process by
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this Court. Therefore, the petitioner again raised the same by submitting
a complaint dated 22.04.2022, before the Principal/Secretary, Nalbari
College/respondent No.5 and copy of the same was also furnished to
other respondent Authorities.
And despite objection of the petitioner, the Selection Committee, to
her knowledge, overlooked the said objection and had awarded 1 (one)
mark to the respondent No.6, though she is not legally entitled to. It also
stated that the decision of the Selection Committee, pursuant to the
interview held on 25.04.2022, is yet to be finalized and approved by the
respondent No.2 as per the extant provisions of Assam College
Employees (Provincialisation) Rules, 2010 and therefore, no third party
right has been accrued yet from the aforesaid selection process.
It is also stated that awarding of marks by the selection committee,
on account of teaching experience as ad-hoc Lecturer of MNC Balika
Mahavidyalaya, Nalbari on the basis of purported certificates which
neither has any legal validity nor it being a genuine one, the entire
selection is vitiated for awarding of marks arbitrarily without being
entitled to. And the respondent No.6 has obtained benefits to get
selected in the selection process for the post of Assistant Professor
Sanskrit, Nalbari College by resorting to fraudulent and illegal means and
the same being overlooked by the Selection Committee, makes the entire
selection process void ab-initio and thus, the same confers no right upon
the respondent No.6."
4. The petitioner has filed an additional affidavit to place on record certain
important facts which, due to oversight, left to be mentioned in the Writ
Petition. It is stated that despite the complaint of the petitioner, the Selection
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Committee, to the knowledge of the petitioner overlooked the said objection
and had awarded 1 (one) mark to the respondent No.6 though she is not
legally entitled to and such awarding of marks to the respondent No.6, on the
strength of the purported experience certificate, has pre-judiced the petitioner
from being selected in the post of Assistant Professor Sanskrit, Nalbari College
and as per knowledge of the petitioner, the difference in marks after illegally
awarding 1 (one) mark to the Respondent No.6 (Ms. Chandana Deka) though is
less than one mark, but the same has affected the petitioner from being
selected.
5. The respondent No. 3, 4 and 5 have filed affidavit in opposition, wherein
they have raised the issue of maintainability of the petition. It is stated that the
entire writ petition is premature and even though the statements of marks
allotted to the candidates for the post of Assistant Professor in the Department
of Sanskrit, Nalbari College, Nalbari have been prepared by the Selection
Committee after carrying out the required selection process, the proposal over
the same has not yet been sent to the Governing Body of Nalbari College,
Nalbari, for according necessary approval over it. It is only after obtaining the
necessary approval from the Governing Body, the said proposal shall be sent to
the Director of Higher Education, seeking final approval as per the governing
rules of selection of an Assistant Professor of a College, of the State of Assam.
The representation of the petitioner dated 22.4.2022, is pending and the
authorities are yet to take any decision upon the issue.
5.1. It is also stated that on 08.06.2016, the Director of Higher Education,
Assam vide a letter issued to all the Principals of the State Colleges, informed
that the Government of Assam, Higher Education Department had decided to
abolish the system of awarding oral marks thereby cancelling the Government
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Office Memorandum dated 14.8.2015, and further directed the Principals of the
Colleges, to follow the Government Office Memorandum, dated 25.06.2012, for
selection of teachers of provincialised colleges of Assam. The said letter, dated
08.06.2016, was issued by the Director of Higher Education, Assam upon being
instructed by the Joint Secretary to the Government of Assam, Higher
Education Department vide letter dated 07.06.2016.
5.2. It is also stated that the advertisement for the post of Assistant Professor
in the Department of Sanskrit, Nalbari College, Nalbari was published on
04.07.2015, and though the selection process was started, the same was
interfered with by this Court, vide an order dated 14.5.2018, passed in WP(C)
No. 6428/2015, by directing the authorities to carry out the entire selection
process afresh. And in light of the direction passed by this Court, on 14.5.2018,
the respondent No. 2 vide letter dated 31.08.2021, directed it to proceed with
the selection process, in pursuance to the advertisement dated 04.07.2015, as
per law. Upon such development and direction, the Academic Registrar, Gauhati
University had issued a letter to them on 21.12.2021, informing about the
nominees for the Selection Committee, as approved by the Vice-Chancellor.
Accordingly, the instant selection committee was constituted and the selection
was carried out on 25.4.2022, after issuing the necessary call letters to
applicants.
5.3. Thereafter, an application dated 22.04.2022, was received by them from
the petitioner, wherein the she had raised allegation against the respondent No.
6 i.e. Chandana Deka, stating that the experience certificate, submitted by her
from MNC Balika Mahavidyalaya, Nalbari is not a genuinely acquired experience
certificate, for which reason, her candidature for the advertised post, should be
rejected. The said application dated 22.04.2022, was placed before the
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members of the Selection Committee, for consideration and decision, to which
the members of the Selection Committee gave their acknowledgment.
Thereafter, on 25.04.2022 when, the selection committee was considering the
candidature of the respondent No. 6, the respondent No. 6 was requested to
justify the allegations raised by the petitioner in her application dated
22.04.2022. In reply, the respondent No. 6 had produced a copy of the
judgment and order dated 14.6.2016, passed this Court in W.P.(C) No.
3245/2015, whereby, it was held that the experience certificate obtained by the
respondent No. 6 from the respondent No. 8, is a document based on original
records which can be acted upon for the purpose of award of marks towards
experience. Further, the respondent No. 6 has also produced a certificate issued
by the respondent No. 8, in which it was clearly stated that the experience
certificate issued in favour of the respondent No. 6 is based on genuine service
rendered by her to the respondent No. 7 college. Upon having considered this
explanation / order / certificate, the respondent No. 6 was granted the benefit
of one mark for her experience and on 25.4.2022, the Selection Committee had
concluded the selection procedure after allotting marks to all the candidates.
Thereafter, a consolidated statement of marks allotted to all the candidates for
the post of Assistant Professor in the Department of Sanskrit, Nalbari College,
Nalbari was prepared in which the respondent No. 6 has secured the highest
marks of 69.37, while the petitioner secured 68.65 marks. And as such, the
Selection Committee prepared its report in which the respondent no. 6 was
declared as the selected candidate for the concerned post. And this report
dated 25.4.2022, so prepared by the Selection Committee declaring the
respondent No. 6 as the selected candidate, is yet to be forwarded to the
Governing Body of the college for seeking necessary approval of the same. And
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only after the same being approved by the Governing Body, the same shall be
forwarded to the respondent No. 2 for final approval.
6. The respondent No. 7 and 8 have also filed their affidavit in opposition,
wherein they have taken a stand that when a college starts a new department,
the first steps which is required to be taken is to obtain necessary permission
from the concerned affiliating university. To accord permission from the
University, for starting a new subject department, the university demands
appointment of teacher(s) in the same department, sufficient books in the
library, student's enrolment in the respective subject, etc. So, when a college
want to introduce a new subject department, for the academic growth of the
College, then the college must have to appoint part-time or ad-hoc teacher(s)
to start the classes of the subject department, before inspection by the
university. And once, the necessary permission is granted by the university, the
college usually starts the functioning of the department with contractual / part-
time teachers. Pursuant to which the college has to undergo an elaborate
process to obtain government concurrence, only upon which the college
becomes eligible for a new sanctioned post. The government does not provide
any sanctioned faculty before concurrence of the subject from the government.
In this extensive process, right from the very inception of a new department,
till the creation of a new sanctioned post, there are always some teachers who
at the cost of minimum / meager amount of salary devoted their time for the
upliftment of such department. The payment of these part-time / ad-hoc
teacher(s) is made from the college fund and the salary of these teachers
depends on the fund position of the college, for which reason it varies from
time to time. And the respondent No. 6 and her experience in their college is
the leading example of such kind of devoted teachers.
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6.1. Thereafter, the college adopted a resolution on 24.04.2005, to seek
permission from Gauhati University for the subject department of Sanskrit.
Accordingly, Executive Council of Gauhati University on 08.11.2006, adopted a
resolution to grant permission for opening TDC 1 st Year (Arts) General Course
in Sanskrit for the Session 2006-2007. The Registrar, Gauhati University
thereafter, on 7.12.2006, had issued a letter to the Secretary to the
Government of Assam, Education Department, forwarding the copy of the
resolution dated 8.11.2006, as a proposal, to accord concurrence of the State
Government.
6.2. It is also stated that the respondent No. 6 was appointed as a Lecturer,
Department of Sanskrit based on Governing Body resolution dated 02.08.2009
and served in the college on ad-hoc basis, during 2009-2010. The respondent
No. 6, also served as a Lecturer on part-time basis for the session 2010-2011
and 2011-2012. The certificate dated 10.2.2015, was issued to the respondent
No. 6 upon her oral request on the basis of the existing college records, more
particularly the Acquaintance Roll maintained by the college that reflects the
salary drawn by the teachers of the college, where the name of the respondent
No. 6 figured in the salary drawn column for the months May, 2009 to August,
2010 (16 months). The written application dated 17.03.2015, for issuance of
the experience certificate dated 10.02.2015, for the period of service rendered
by Mrs. Chandana Deka was sought for and given only for the purposes of the
college records and nothing should be read into it as the experience certificate
was issued on the basis of college records showing the period of service. In so
far as the details of the replies given by the deponent to the RTI queries dated
17.04.2015, they are fully answered by the Acquaintance Roll maintained by
the college that clearly and unambiguously shows beyond doubt that Mrs.
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Chandana Deka had served as a Lecturer in the Department of Sanskrit for the
period May, 2009 to August, 2010 on ad-hoc basis. The experience certificate
dated 10.02.2015, merely supplements and further supports the earlier
certificate dated 13.08.2011, issued by the Principal of the College regarding
the service rendered by the respondent No. 6 in college.
6.3. It is also stated that the certificate dated 10.02.2015, was upheld by this
Court, vide its judgment and order dated 14.06.2016, passed in W.P.(C) No.
3245/2015, whereby it was held that the experience certificate obtained by the
respondent No. 6 from the college, is a document based on original records
which can be acted upon for award of marks towards experience. And as per
UGC norms and regulations, the respondent No. 6 is qualified and eligible for
appointment as she has M. Phil. qualification form the month of June, 2009.
Also the position before 10.07.2009 is that the M. Phil. degrees are considered
to be equivalent to NET/SLET qualification.
7. The petitioner has filed her reply to the affidavit in opposition filed by the
respondents' No. 3, 4, 5, 7 and 8, denying the statements and averments made
in the same. It is stated that the respondent No. 3, 4 & 5 have failed to
substantiate their claim and dispute the claim of the petitioner which is based
on record. The statement that the Writ Petition filed by the Deponent is not a
pre matured one, as the respondent Nos. 3, 4 & 5 in para 6 of their affidavit
stated that the Selection Committee has already prepared its report and as per
the report, respondent No.6 has given (1) one mark on the strength of the
purported experience certificate issued by the respondent No.8 and she was
declared as the selected candidate for the concerned post. The respondents
have taken a contradictory stand by stating that the complaint filed by the
petitioner dated 22.04.2022, is pending and the authorities are yet to take any
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decision upon the issue, however, on the contrary in the Para 6 of the said
affidavit, it is clearly mentioned that considering the certificate issued by the
respondent No.8, respondent No.6 was granted the benefit of one mark for her
experience and therefore, it is apparent that the representation of the
deponent has been grossly ignored.
7.1. It is also stated that the Judgment and Order dated 14.06.2016, passed
by this Court in W.P. No.3245/2015, declaring the Experience Certificate, dated
10.02.2015, as valid is, firstly, not binding upon the petitioner as she being not
a party in that proceeding and secondly, the subject matter of challenge and
context raised in the aforesaid writ petition is not similar to the challenge made
in this instant writ petition, in as much as the appointment of the respondent
No.6 as an ad-hoc Lecturer in a non sanctioned post is in violation of O.Μ.
dated 12.10.2004, issued by the Government of Assam, Education (Higher)
Department, Dispur, Assam was not an issue in the earlier writ petition and the
same, was, thus, not a consideration while adjudication the earlier lis.
7.2. It is also stated that though the proposal for staring a new subject
Sanskrit is sent for according concurrence of the State Government, however,
till date, as no concurrence has been granted for the post of Sanskrit,
therefore, the respondent Nos.7 & 8 had no authority to appoint and allow
respondent No.6 to serve as an ad-hoc Lecturer at MNC Balika Mahavidyalaya
and Respondent No.6 would not be entitled to claim any benefit for the service
rendering under such capacity. It is also stated that there is no such
appointment letter or release letter of the respondent No.6, as ad hoc Lecturer
available with the college as well as with the respondent No.6, and as per reply
information dated 23/05/2022, provided under RTI, the I/c Principal of M.N.C.
Balika Mahavidyalaya acknowledged that there are no sanctioned post of
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Assistant Professor in the Department of Sanskrit, till date, in M.N.C. Balika
Mahavidyalaya, Nalbari.
8. Notably, the respondent No. 6 has not filed any affidavit in opposition here
in this proceeding.
Submissions:-
9. Mr. I. Choudhury, learned Senior Counsel for the petitioner submits that
pursuant to the advertisement dated 04.07.2015, issued by the Principal-cum-
Secretary, Nalbari College, for filling up of one vacant post of Assistant
Professor, Sanskrit in Nalbari College, the petitioner has applied for the same
and the respondent No 6 also participated in the said selection process. Mr.
Choudhury also submits that after the interview, it came to light that the
Selection Committee had awarded marks on the basis of the O.M. dated
14.08.2015, whereas at the time of issuance of advertisement, O.M. dated
25.06.2012, was holding the field, and that the O.M. dated 25.06.2012,
prescribes procedure for awarding of marks on the basis of the marks secured
by the candidates starting from HSLC, HS/PU, Degree, PG, B.Ed./M.Ed., Ph.D.,
M.Phil. and other academic achievements, and the same also provides for
awarding of marks, 1 mark for each completed year of service, maximum 5
marks on the basis of teaching experience in an affiliated Government college.
Mr. Choudhury further submits that the respondent No. 6 had filed WP(C)
6428/2015, before this Court challenging the selection process held on
04.10.2015, on the ground that at the time of issuance of advertisement dated
04.07.2015, the O.M. dated 25.06.2012, was in force, and thereafter, this Court
was pleased to set aside the interview as well as the selection process held on
04.10.2015 and directed the respondent authorities to proceed with the
selection process, pursuant to advertisement dated 04.07.2015, as per law, and
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thereafter, a fresh selection was held and the Selection Committee had
recommended the name of the respondent No. 6 by awarding her 69.37 marks
and the petitioner had been awarded 68.65 marks, which is less than 1 mark
than the respondent No. 6, and the said selection and recommendation of the
respondent No. 6 is being challenged in this petition.
9.1. Mr. Choudhury has pointed out that the respondent No. 6 was illegally
awarded 1 mark on the basis of teaching experience certificates dated
13.08.2011 and 10.02.2015, issued by the M.N.C. Balika Mahavidyalaya, Nalbari.
Mr. Choudhury also submits that the respondent No. 6 had submitted a teaching
experience certificate, dated 13.08.2011, issued by the In-charge Principal,
M.N.C Balika Mahavidyalaya, Nalbari, claiming that she served as an Ad-hoc
Lecturer in the Department of Sanskrit during 2009-2010 and as part-time
Lecturer for the sessions 2010-2011 and 2011-2012, and in the said certificate
dated 13.08.2011, the period of ad-hoc service, i.e. from which date to which
date, was not mentioned, and that there is no sanctioned post of Sanskrit in
M.N.C Balika Mahavidyalaya, Nalbari. Mr. Choudhury further submits that when
authenticity of the said certificate dated 13.08.2011, was raised, the respondent
No. 6 had managed to obtain another certificate dated 10.02.2015, from the
respondent No. 8/Principal, M.N.C Balika Mahavidyalaya, Nalbari, wherein it was
shown that the respondent No. 6 had purportedly served as a Teacher in
Sanskrit in ad-hoc capacity, during the session 2009-2010 for one year, and that
the said certificate is dated 10.02.2015, whereas the respondent No. 6 had filed
an application for the fresh certificate only on 17.03.2015, and the respondent
No. 6 did not state that she had actually served during 2009-2010, in the
application dated 17.03.2015.
9.2. Mr. Choudhury also submits that one Dr. Maheswar Hazarika had filed an
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RTI application before the P.I.O., M.N.C Balika Mahavidyalaya, Nalbari, seeking
information regarding services of Teachers of Sanskrit on ad-hoc capacity during
the session 2009-2010, and the RTI reply furnished to Dr. Maheswar Hazarika
on 19.05.2015, revealed that there is no record available relating to
appointment of ad-hoc Teacher in Sanskrit for the session 2009-2010, and there
is no appointment letter in respect of respondent No. 6, and that there is no
joining report or any termination letter, pertaining to the respondent No. 6, and
that the respondent No. 8 stated that he had issued the experience certificate
on the basis of the one issued by his predecessor after verifying the
acquaintance register during 2009-2010.
9.3. Mr. Choudhury, by referring to one O.M. dated 12.10.2004, has pointed
out that for the period, for which the respondent No. 6 has claimed to have
served and produced an experience certificate, the said O.M. was holding the
field, which put a ban on appointment/engagement against any non-sanctioned
post. Mr. Choudhury also submits that thereafter, the petitioner had filed one
complaint before the respondent No. 5/Principal-Cum-Secretary, Nalbari College
regarding the teaching experience certificate submitted by the respondent No.
6, but despite such complaint being filed, the respondent No. 6 was awarded
one mark by the Selection Committee overlooking the objection. Mr. Choudhury
further submits that the respondent No. 6 has produced one judgment and
order dated 14.06.2016, passed by this Court in WP(C) No. 3245/2015, to
contend that the issue pertaining to the experience certificate dated 10.02.2015,
had already been adjudicated upon by this Court in the context of selection to
another college, and relying on the said judgment, it has been further
contended that the said judgment and order dated 14.06.2016, is final and
binding, in so far as the present writ petition is concerned, but, Mr. Choudhury
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submits that such argument is not tenable, inasmuch as the writ petitioner
herein was not a party in the proceeding of WP(C) No. 3245/2015, and
secondly, in WP(C) No. 3245/2015, the issue confined to the veracity and
validity of the certificate, dated 10.02.2015, was not in issue, however, the O.M.
dated 12.10.2004, prohibiting/banning appointment/engagement against non-
sanctioned post was not even placed before this Court in WP(C) No. 3245/2015,
and therefore, this Court had no occasion to consider the applicability and effect
of the O.M. dated 12.10.2004, and this foundational fact having not been
considered by this Court in WP(C) No. 3245/2015, the said judgment and order
dated 14.06.2016, has no application to the facts of the instant case. Under
such circumstances, Mr. Choudhury has contended to allow this petition.
9.4. In support of his submission, Mr. Choudhury has referred to the following
decisions:
(i) Divisional Controller, KSRTC vs. Mahadeva Shetty and
Anr., reported in (2003) 7 SCC 197.
(ii) Uttaranchal Road Transport Corpn. and Ors. vs.
Mansaram Nainwal, reported in (2006) 6 SCC 366.
(iii) Bhavnagar University vs. Palitana Sugar Mill (P) Ltd.
and Ors., reported in (2003) 2 SCC 111.
(iv) Haryana Financial Corporation and Anr. vs. Jagdamba
Oil Mills and Anr., reported in (2002) 3 SCC 496.
10. Per contra, Mr. K.N. Choudhury, learned Senior Counsel for the respondent
No. 6 has opposed the petition. Mr. Choudhury submits that the present petition
is premature as no cause of action, violating any right of the petitioner, has
arisen. Mr. Choudhury has pointed out that the selection process has not yet
been completed as the select list is yet to be placed before the Governing Body
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of Nalbari College, who in turn would send it to the Director, Higher Education,
Assam, and thereafter, the Director of Higher Education, Assam would issue
appointment order to the selected candidate. Mr. Choudhury also submits that
the said requirement is envisaged under Rule 5(2) and 5(7) of the Assam
College Employees (Provincialisation) Rules, 2010, and that the petitioner has
failed to disclose the marks secured by her vis-a-vis the respondent No. 6, so as
to justify that in view of the award of 1 mark in question, the respondent No. 6
would steal a mark over the petitioner. Mr. Choudhury further submits that the
O.M. dated 25.06.2012, issued by the Government of Assam in the Higher
Education Department, amongst others, provides for distribution of marks in
respect of selection to the post of Assistant Professor, and Clause 2 thereof
envisage 5 marks for teaching experience (1 mark for each completed year of
service in an affiliated Government Degree College subject to maximum of 5
marks), and that the respondent No. 6 is entitled to the said 1 mark on the
strength of teaching experience certificate, dated 10.02.2015, in the selection in
question.
10.1. Mr. Choudhury also submits that the respondent No. 6 having served
for one year as ad-hoc Sanskrit Teacher at Mahendra Narayan Choudhury Balika
Mahavidyala, Nalbari for the session 2009-2010, she was issued the teaching
experience certificate, dated 10.02.2015, and thereafter, the respondent No. 6
had pressed the said certificate into service while applying for a similar post i.e.
Assistant Professor in Sanskrit at Anandaram Dhekial Phookan (ADP) College,
Nagaon and the respondent No. 6 was selected to the said post as she topped
the merit list with 69.37 marks. Mr. Choudhury further submits that another
aspirant to the said post Sri Chandan Hazarika, who got 68.43 marks, had
approached this Court by filing WP(C) No. 3245/2015, assailing the legality and
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validity of the said selection, and the grounds of challenge in the said writ
petition are similar to the case at hand, where one mark was awarded on the
strength of teaching experience certificate, dated 10.02.2015, and this Court,
after hearing the contesting parties and also on perusal of the records,
dismissed the said writ petition, vide judgment and order dated 14.06.2016 and
thereby upheld the validity of the teaching experience certificate, dated
10.02.2015 of the respondent No. 6 herein, and that the said judgment and
order dated 14.06.2016, has attained finality in the meantime, and therefore,
the contention of the petitioner is barred by principle of constructive res judicata
and does not warrant any interference. Mr. Choudhury further submits that
pursuant to dismissal of WP(C) No. 3245/2015, the respondent No. 6 has been
appointed as Assistant Professor in Sanskrit in ADP College, Nagaon by counting
the 1 mark allotted to her for past teaching experience, and that awarding of
one mark as teaching experience to the respondent No. 6 during the ban period
imposed by the said OM dated 12.10.2004, is wholly misconceived, and as such,
deserves to be rejected. In support of his submission, Mr. Choudhury has
referred to a decision of a Division Bench of this Court in the case of Dilip
Kumar Sarma vs. State of Assam and Ors., reported in 2022 (5) GLT
324, and another decision of Hon'ble Supreme Court in the case of Dr. Asim
Kumar Bose vs. Union of India, reported in (1983) 1 SCC 345.
10.2. Mr. Choudhury also submits that even assuming, while not admitting,
that the appointment of respondent No. 6 is illegal in view of the ban imposed
by the O.M. dated 12.10.2004, then in that event also, the teaching experience
gained by the respondent No. 6 would be saved by application of the de-facto
doctrine, according to which the acts of officers de-facto performed within the
sphere of their assumed official capacity, in the interest of the public or the third
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parties are generally held valid and binding as if they were performed by de-jure
officers. In support of his submission, Mr. Choudhury has referred to a decision
of Hon'ble Supreme Court in the case of Central Bank of India vs. C.
Bernard, reported in (1991) 1 SCC 319.
10.3. By referring to another decision of Hon'ble Supreme Court in the case of
Chief Commercial Manager, South Central Railway, Secuderabad vs.
G. Ratnam and Ors., reported in (2007) 8 SCC 212, Mr. Choudhury submits
that it is no longer res-integra that the O.M. dated 12.10.2004, being in the
nature of administrative instruction, any breach of the same does not confer any
right on any member of the public to ask for a writ against the offending party
by a petition under Article 226 of the Constitution of India. Under such
circumstances, Mr. Choudhury has contended to dismiss this petition.
11. In reply to the submission of Mr. K.N. Choudhury, learned Senior Counsel
for the respondent No. 6, Mr. I. Choudhury, learned Senior Counsel for the
petitioner, submits that the de-facto doctrine, so referred by Mr. Choudhury,
learned Senior Counsel for the respondent No. 6, i.e. de-facto doctrine, is not
applicable in the case in hand and the decision in C. Bernard (supra), so
referred by learned counsel for the respondent No.6, is also not applicable in the
case in hand. Mr. Choudhury also pointed it out that since the petitioner was not
a party in WP(C) No. 3245/2015, the judgment and order passed in the said
case, dated 14.06.2016, is not binding upon the petitioner, and moreover, in the
said writ petition, the O.M. dated 12.10.2004, was not placed and that was also
not an issue before the Court, and as such, said decision is not binding upon the
petitioner. Mr. Choudhury also submits that the selection process has already
been completed and the Selection Committee has awarded 1(one) mark to the
respondent No.6, on the basis of the experience certificate issued by the
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respondent No. 8, and the respondent No. 6 on the basis of the said certificate,
marched ahead of the petitioner, by securing one more mark and if awarding of
such mark, on the basis of a certificate, which was issued while engagement of
any teacher on ad-hoc basis, without any sanctioned post, was banned by the
state respondent by issuing an O.M., the same cannot be taken into account.
And since the Selection Committee had allotted the mark and selected the
respondent No. 6, and therefore, the selection process has already been
completed, despite objection being raised by the petitioner, and as such, this
petition cannot be said to be premature.
The Issue Before This Court:-
12. In view of the contentions being made in the pleadings and also in view
the rival submissions, advanced by learned counsel for both the sides, the issue
to be decided by this Court is formulated as under:-
(i) Whether the decision of the Selection Committee for
awarding 1 (one) marks to respondent No.6, based on the
purported experience certificate for appointment to the
post of Assistant Professor, Sanskrit, Nalbari College,
is justified and it withstand the legal scrutiny?
13. Having heard the submissions of learned counsel for both the parties, I
have carefully gone through the petition and the documents placed on record,
and also gone through the decisions referred by learned counsel for both the
parties.
Discussion and analysis:-
14. The basic facts herein this case is not in dispute. Pursuant to an
advertisement, dated 04.07.2015, issued by the Principal-cum-Secretary of
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Nalbari College, published in daily English Newspaper, namely, The Assam
Tribune, inviting applications from eligible candidates, for filing up the vacant
post of Assistant Professor in Department of Sanskrit, Nalbari College, Assam
the petitioner and respondent No.6, along with some other candidates, had
applied for the said post and appeared in the interview held on 04.10.2015. The
Selection Committee, however, had awarded the marks in the Selection Process
to the candidates following the O.M. dated 14.08.2015, issued by the
Department of Higher Education. But at the relevant time of advertisement, the
Office Memorandum dated 25.06.2012, was holding the field. Notably, the O.M.
dated 25.06.2012, prescribes the procedure of adding the percentage of marks
secured by a candidate in HSLC, HS/PU, Degree, PG, B.Ed./M.Ed., Ph. D. etc., so
as to arrive at the total marks for being selected and the same does not provide
for holding any interview and awarding of marks in the interview by the
Selection Committee. Meanwhile, the petitioner learnt that, the respondent No.6
claimed to have served as an ad-hoc Lecturer in the MNC Balika Mahavidaylaya,
Nalbari and accordingly, has applied for the aforesaid post based on a teaching
experience certificate, dated 13.08.2011, shown to be issued by Sri G.C. Barman
who was the then I/c Principal, Mahendra Narayan Choudhury Balika
Mahavidyalaya, Nalbari, Assam. But, at that time, there was no sanctioned post
of Sanskrit in MNC Balika Mahavidyalaya, Nalbari and therefore, the question of
appointing the respondent No.6 as ad-hoc Lecturer in the Department of
Sanskrit does not arise. But, as per O.M. dated 25.06.2012, no marks can be
claimed as a part time Lecturer.
14.1. Under the given factual scenario, the petitioner has claimed that the
respondent No.6 had fraudulently obtained the certificate dated 13-08-2011
(ANNEXURE-1), as ad-hoc Lecturer, as no specific period of service is
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mentioned, and as the respondent No.6 had never issued any appointment
order and release order of the petitioner as an ad-hoc Lecturer of Sanskrit and
as such it is contended that the respondent No.6 is not entitled to get any
marks for teaching experience.
14.2. In order to appreciate the contentions of the petitioner, this Court has
gone through the impugned Certificate, dated 13.08.2011 (Annexure-1), reads
as under:-
"TO WHOM IT MAY CONCERN
This is to certify that Miss. Chandana Deka, M.A.,
M.Phil., Kavya-Vyakarana Shastri, served as an ad-hoc
lecturer in the Department of Sanskrit in M.N.C. Balika
Mahavidyalaya, Nalbari during 2009-2010 and she has been
serving as part-time lecturer for the session 2010-2011
and 2011-2012. Both are purely temporary and terminable
basis.
She is rendering her duties with sincerity and devotion.
Endowed with amiable qualities, Miss. Chandana Deka, is
eager to learn new things and has a positive bent of
mind.
I wish her all the best.
(G.C. Barman)
Principal i/c
M.N.C. Balika Mahavidalaya
Nalbari: Assam"
14.3. It also appears that when question was raised from all corner about the
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teaching experience certificate dated 13.08.2011, then the respondent No.6
again managed to obtain another teaching experience certificate, dated
10.02.2015, (ANNEXURE-2) from Dr. D.K. Goudo/respondent No.8, mentioning
one year of service during the session 2009-2010 as a teacher of Sanskrit in an
Ad-hoc capacity. It is to be noted here that Annexure No.2 of the petition is read
as under:-
" OFFICE OF THE PRINCIPAL
MAHENDRA NARAYAN CHOUDHURY BALIKA MAHAVIDYALAYA
Nalbari :: Assam :: PIN-781335
Email:mncbm nalbari @rediffmail.com
Website www.mncbm.ac.in
Ref.MNCBM/44SC/494/2015, Date: 10/02/15
TO WHOM IT MAY CONCERN
This is to certify that MS Chandana Deka, D/O Prof
Grish Deka, P/O & Dist. Nalbari has served as a teacher
in Sankskrit in an ad hoc capacity during the session
2009.2010 for one year.
She was a sincere and Committed teacher, Her conduct
and character have been exemplary. She can entrusted with
any job of responsibility. I wish her success in life.
Principal
M.N.C. Balika Mahavidalaya
Nalbari"
14.4. It is not in dispute that the petitioner herein, having came to know that
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the respondent No. 6 had produced one experience certificate, had lodged one
complaint with the respondent No. 5, in respect of the experience certificate
that had been issued to the respondent No. 6 and admittedly, no decision has
been taken by the respondent authorities in that regard. But, it appears from
the affidavit filed by the respondent Nos. 3, 4 & 5 that on 25.04.2022, the
Selection Committee had concluded the selection process after allotment of
marks and it also appears that the petitioner has secured 68.65 marks and the
respondent No. 6 has secured 69.37 marks and as such, the selection process
has already been concluded without taking any decision on the complaint
lodged by the petitioner.
14.5. Since the committee had already awarded marks to the petitioner
and also to the respondent No. 6 and arrived at the conclusion, the selection
process has been completed and now, it is pending for approval by the
Governing Body and also by the Director of Higher Education, being respondent
No. 2 and as such, it cannot be said that this writ petition is premature as
contended by the respondent No. 6 and her counsel during the course of
argument. This Court is in respectful disagreement with the said submission.
14.6. Further, it appears that though the respondent Nos. 3 - 6 had relied
upon a decision of this Court, dated 14.06.2016, passed by a Co-ordinate Bench
of this Court, in W.P.(C) No. 3245/2015, to contend that the issue pertaining to
the experience certificate, dated 10.02.2015, had already been adjudicated and
the same is final and binding in the present case. But, indisputably, the present
petitioner was not a party in the said proceeding. And also admittedly, the OM
dated 12.10.2004, which put a ban in appointment/engagement against non-
sanctioned post, was not placed before the Court, in W.P.(C) No. 3245/2015.
Therefore, the contention so made in this regard by the learned counsel for the
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respondent No. 6, left this Court unimpressed. On the aforesaid counts, this
Court is of the view that the decision of this Court, dated 14.06.2016, passed in
W.P.(C) No. 3245/2015, is not binding upon the present petitioner. In arriving at
this decision this Court derived authority from the following decisions of Hon'ble
Supreme Court.
14.7. In the case of Mahadeva Shetty (supra) that a judgment
ordinarily is a decision of the case before the Court and it is further held that a
decision often takes its colour from the question involved in the case in which it
is rendered and the scope and authority of a precedent should never be
expanded unnecessarily beyond the needs of a given situation.
14.8. Again in the case of Mansaram Nainwal (supra), Hon'ble Supreme
Court has held that:-
"................... Reliance on the decision without looking into
the factual background of the case before it is clearly
impermissible. A decision is a precedent on its own
facts. Each case presents its own features. It is not
everything said by a judge while giving judgment that
constitutes a precedent. The only thing in a judge's
decision binding a party is the principle upon which the
case is decided and for this reason it is important to
analyse a decision and isolate from it the ratio
decidendi. According to the well-settled theory of
precedents, every decision contains three basic
postulates: (i) findings of material facts, direct and
inferential. An inferential finding of fact is the
inference which the judge draws from the direct, or
perceptible facts; (ii) statements of the principles of
law applicable to the legal problems disclosed by the
facts; and (iii) judgment based on the combined effect of
the above. A decision is an authority for what it
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actually decides. What is of the essence in a decision is
its ratio and not every observation found therein nor
what logically flows from the various observations made
in the judgment. The enunciation of the reason or
principle on which a question before a court has been
decided is alone binding as a precedent......."
14.9. Again in the case of Palitana Sugar Mill (P) Ltd. (supra),
Hon'ble Supreme Court has held that:
"59. A decision, as is well known, is an authority for
which it is decided and not what can logically be deduced
there from. It is also well settled that a little
difference in facts or additional facts may make a lot of
difference in the precedential value of a decision."
14.10. Dealing with the issue again in the case of Jagdamba Oil Mills
(supra), Hon'ble Supreme Court has held as under:-
"19. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with
the fact situation of the decision on which reliance is
placed. Observations of courts are not to be read as
Euclid's theorems nor as provisions of the statute. These
observations must be read in the context in which they
appear. Judgments of courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark
upon lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statutes,
they do not interpret judgments. They interpret words of
statutes, their words are not to be interpreted as
statutes............"
14.11. This Court has considered the submission of Mr. Choudhury, the
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learned counsel for the petitioner, that the judgment and order dated
14.06.2016, so passed by a co-ordinate Bench of this Court in WP(C) No.
3245/2015, has attained finality in the meantime, and therefore, the contention
of the petitioner is barred by principle of constructive res judicata and does not
warrant any interference. There is no quarrel at the Bar that principle of Res
Judicata would be applicable to the writ proceedings as well. Reference in this
context can be made to a decision of the Hon‟ble Supreme Court in the
judgment rendered in the case of Devilal Modi v. Sales Tax Officer,
Ratlam and Others, reported in 1964 SCC OnLine SC 17.
14.12. But, for applicability of the principle of Applicability and Requirements
of Constructive Res-Judicata certain conditions must be met to invoke the
principle of constructive res judicata under Section 11 of the CPC. These are:-
(I) Firstly, the parties involved in both proceedings
must be the same.
(II) Secondly, the subject matter of the subsequent
proceeding should be identical to that of the earlier
proceeding.
(III) Thirdly, the issue raised in the subsequent
proceeding should have been directly and
substantially in issue in the earlier proceeding.
(IV) Lastly, the earlier proceeding must have resulted
in a final decision on the merits.
14.13. Indisputably, the parties in the WP(C) No. 3245/2015, and in the
present proceeding are not same. The petitioner in the present proceeding was
not a party in the WP(C) No. 3245/2015. Therefore, the basic condition for
applicability of the principle of constructive res-judicata remains unfulfilled.
Page No.# 33/49
Therefore, this Court is unable to record concurrence to the submission of Mr.
Choudhury learned counsel for the respondent No.6. Even in the case of Dilip
Kumar Sarma(supra) referred by him also it has been held that to invoke the
principle of res-judicata, the issue must have been decided on merit amongst
the same parties.
14.14. This Court has also gone through the decision of Hon'ble Supreme
Court in the case of Dr. Asim Kumar Bose (supra) referred by learned
counsel for the respondent No.6. In the said case the recruitment rules
nowhere provide that the teaching experience gained by a Specialist in a
teaching hospital in the capacity of an Associate Professor (ex officio) shall not
count towards the requisite teaching experience. There is no provision made in
the Rules that the teaching experience must be gained on a regular
appointment. There is hardly any difference so far as teaching experience is
concerned whether it is acquired on regular appointment or as Specialist in a
teaching hospital with the ex officio designation. As the statutory rules do not
provide that the teaching experience gained in an ex officio capacity shall not
count towards the requisite teaching experience, the teaching experience gained
by the appellant while holding the post of Radiologist-cum-Associate Professor
of Radiology (ex officio) in the Irwin Hospital cannot be ignored in determining
his eligibility for appointment as Professor of Radiology in Maulana Azad Medical
College.
14.15. But, on careful consideration of the submission of Mr. Choudhury and
also perusal of the said decision reveals that the fact herein this case is
distinguishable from the said case. In the instant case, admittedly, there is one
O.M. dated 12.10.2004, which put a ban in appointment/engagement against
non-sanctioned post. Further, there is UGC Regulation, 2010, to deal with
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appointment of adhoc teachers in the colleges. That being so, the ratio laid
down in the case of Dr. Asim Kumar Bose (supra) would not come into
assistance of the respondent No.6.
15. It is also the categorical contention of Mr. I. Choudhury, learned Senior
Counsel for the petitioner, that the de-facto doctrine, as referred by the
learned Senior Counsel for the respondent No. 6, could not be pressed into
service in the instant case. There appears to be substance in the said contention
of Mr. Choudhury. It is to be noted here that the de-facto doctrine provides
that even if an appointment of a person is later found to be illegal, the same
would be interfered with, the action taken by such person during the period
which he occupied the office in question, such action would be saved.
15.1. While dealing with the said doctrine Hon'ble Supreme Court, in the cases
of Gokaraju Rangaraju vs. State of A.P., reported in (1981) 3 SCC
132, wherein it has been held as under:-
"What is the effect of the declaration by the Supreme
Court that the appointment of an Additional Sessions
Judge was invalid on judgments pronounced by the judge
prior to such declaration is the question for
consideration in these criminal appeals. The question may
seem to be short and simple but it cannot be answered
without enquiry and research. An answer, on first
impression, may be "a judgment by a judge who is not a
judge is no judgment" a simple, sophisticated answer. But
it appears second thoughts are necessary. What is to
happen to titles settled, declarations made, rules
issued, injunctions and decrees granted and even
executed? What is to happen to sentences imposed? Are
convicted offenders to be set at liberty and to be tried
again? Are acquitted accused to be arrested and tried
Page No.# 35/49
again? Public policy is clearly involved. And, in the
tangled web of human affairs, law must recognise some
consequences as relevant, not on grounds of pure logic
but for reasons of practical necessity. To clear the
confusion and settle the chaos, judges have invented the
de facto doctrine, which we shall presently examine. De
facto doctrine is thus a doctrine of necessity and public
policy."
15.2. Again in para No. 4, it has been held as under:-
"4. We are unable to agree with the submissions of the
learned Counsel for the appellants. The doctrine is now
well-established that "the acts of the officers de facto
performed by them within the scope of their assumed
official authority, in the interest of the public or
third persons and not for their own benefit, are
generally as valid and binding, as if they were the acts
of officers de jure" (Pulin Behari v. King-
Emperor [(1912) 15 Cal LJ 517, 574 : 16 IC 257 : 16 Cal
WN 1105 : 13 Cri LJ 609] ). As one of us had occasion to
point out earlier "the doctrine is founded on good sense,
sound policy and practical experience. It is aimed at the
prevention of public and private mischief and the
protection of public and private interest. It avoids
endless confusion and needless chaos. An illegal
appointment may be set aside and a proper appointment may
be made, but the acts of those who hold office de facto
are not so easily undone and may have lasting
repercussions and confusing sequels if attempted to be
undone. Hence the de facto doctrine" (vide Immedisetti
Ramkrishnaiah Sons v. State of A.P. [AIR 1976 AP 193 :
ILR 1976 AP 878])."
15.3. Again in the para No. 17, it has been held as under:-
"17. A judge, de facto, therefore, is one who is not a
mere intruder or usurper but one who holds office, under
Page No.# 36/49
colour of lawful authority, though his appointment is
defective and may later be found to be defective.
Whatever be the defect of his title to the office,
judgments pronounced by him and acts done by him when he
was clothed with the powers and functions of the office,
albeit unlawfully, have the same efficacy as judgments
pronounced and acts done by a judge de jure. Such is the
de facto doctrine, born of necessity and public policy to
prevent needless confusion and endless mischief. There is
yet another rule also based on public policy. The
defective appointment of a de facto judge may be
questioned directly in a proceeding to which he be a
party but it cannot be permitted to be questioned in a
litigation between two private litigants, a litigation
which is of no concern or consequence to the judge except
as a judge. Two litigants litigating their private titles
cannot be permitted to bring in issue and litigate upon
the title of a judge to his office. Otherwise so soon as
a judge pronounces a judgment a litigation may be
commenced for a declaration that the judgment is void
because the judge is no judge. A judged title to his
office cannot be brought into jeopardy in that fashion.
Hence the Rule against collateral attack on validity of
judicial appointments. To question a judged appointment
in an appeal against his judgment is, of course, such a
collateral attack."
15.4. In the case of C. Bernard (supra), Hon'ble Supreme Court has held
as under :-
"5. ..................
The de facto doctrine has two requisites, namely, (i)
the possession of the office and the performance of the
duties attached thereto, and (ii) colour of title, that
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is, apparent right to the office and acquiescence in the
possession thereof by the public. According to this
doctrine the acts of officers de facto performed within
the sphere of their assumed official authority, in the
interest of the public or third parties and not for their
own interest, are generally held valid and binding as if
they were performed by de jure officers. This doctrine
dates back to the case of Abbe de Fountaine decided way
back in 1431 to which reference was made by Sir Asutosh
Mookerjee, J. in Pulin Behari Das v. King Emperor [(1911-
12) 16 Cal WN 1105, 1120 : 15 CLJ 517] . Mookerjee, J.
held that as the complaint was made after complying with Section 196, Criminal Procedure Code, by the order of or under authority from local government which was de facto, the proceedings were valid. On the same principle it was further held that the Court of Sessions, assuming it was not the holder of a de jure office, was actually in possession of it under the colour of title which indicated the acquiescence of the public in its actions and hence its authority could not be collaterally impeached in the proceedings arising from the conviction of Pulin and his co-accused. Again, in Immedisetti Ramkrishnaiah Sons v. State of Andhra Pradesh [AIR 1976 AP 193] the government nominated nine persons on a Market Committee which nomination was later set aside by the High Court. However, before the High Court pronounced its judgment, the Market Committee had functioned as if it had been properly constituted. Between the date of its constitution and the date of the High Court decision it had taken several decisions, issued notifications, etc. which were the subject matter of challenge on the ground that its constitution was ab initio bad in law. Chinnappa Reddy, J. relying on the observations of Mookerjee, J., in Pulin case [(1911-12) 16 Cal WN 1105, 1120 : 15 CLJ 517] concluded that the acts of the Market Committee de Page No.# 38/49 facto performed within the scope of its assumed official authority, in the interest of the public or third persons and not for his own benefit are generally as valid and binding as if they were performed by a de jure Committee. The Allahabad High Court in Jai Kumar v. State [1968 All LJ 877] upheld the judgments of the District Judges whose appointments were later struck down by this Court on the principle that the acts of officers de facto are not to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or benefit by reason of being the officer which he claims to be. In all other cases, the acts of an officer de facto are valid and effectual, while he is suffered to retain the office, as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of the third parties. This Court in Gokaraju Rangaraju v. State of A.P. [(1981) 3 SCC 132 : 1981 SCC (Cri) 652 : (1981) 3 SCR 474 : AIR 1981 SC 1473] was required to consider the question of the effect of the declaration of this Court holding the appointment of an Additional Sessions Judge invalid on judgments pronounced by him prior to such declaration. This Court observed that the de facto doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the prevention of public and private interest. It avoids endless confusion and needless chaos. It, therefore, seems clear to us that the de facto doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of Page No.# 39/49 the office would be as efficacious as those made by a de jure officer. The same would, however, not be true of a total intruder or usurper of office.
6. In our view, the submission of Shri Shetye based on the de facto doctrine is clearly misconceived. Shri U.B. Menon can hardly be described as a person occupying or being in possession of an office to which certain duties affecting the members of the general public can be said to be attached. The de facto doctrine, as explained earlier, envisages that acts performed de facto by officers within the scope of their assumed official authority are to be regarded as binding as if they were performed by officers de jure. While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any collateral proceedings. But the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office. Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a bank employee, for that matter an ex-employee. We, therefore, see no merit in this contention."
15.5. In the instant case, none of the actions taken by the respondent No. 6, during her purported adhoc service for the period during the year 2009-10 is questioned in the present case. The issue in the present case, centers around the purported experience certificate (Annexure-1). This certificate was issued by the Principal of MNC Balika Mahavidyalaya, Nalbari not by the respondent No.6. And that too while the OM, dated 12.10.2004, was in force and as discussed earlier, the said OM put a ban in engagement/appointment against non-sanctioned post in the colleges.
Page No.# 40/49 15.6. In view of given factual and legal matrix, this Court is of the considered opinion that the de-facto doctrine would not be applicable in the present case as such it would not advance the argument of Mr. K.N. Choudhury, learned Senior Counsel for the respondent No.6, and the decision referred by him in C. Bernard (supra), and as discussed herein above, would not come into his argument. Mr. I. Choudhury, the learned Senior Counsel for the petitioner, has rightly pointed this out during argument and the decisions referred by him also fortified the same. Therefore, this Court is inclined to record concurrence to the same.
15.7. This Court has also carefully considered the submission of Mr. K.N. Choudhury, learned Senior Counsel for the respondent No.6 and also gone the decisions referred by him, but in view of the given factual and legal matrix, this Court is unable to agree with the same. And the decision referred by him in C. Bernard (supra), therefore, would not advance his argument.
16. It is pointed out by the learned counsel for the petitioner that the respondent No. 6 has failed to produce her engagement letter as well as the termination letter and also the relevant documents to show that at the relevant point of time, she was serving as ad-hoc teacher in the MNC Balika Mahavidyalaya, Nalbari, and there is also a contradiction in her application and the information filed by the respondent No. 6 in response to the RTI application. Nothing is also put forth by the respondent No.6 to dispute the said contention.
17. It is also the categorical contention of the petitioner that the appointment/engagement of the respondent No.6 in the MNC Balika Mahavidyalaya, Nalbari for the purported period of 2009-2010 was not made by the respondent No.7 and 8, following any Rules. It is stated that the University Page No.# 41/49 Grant Commission Regulations, 2010 provides for appointment of ad-hoc teachers in the colleges and no separate rules have been framed, which appears from the information supplied by the UGC on 27.11.2018. And the college authority had not followed the selection procedure for appointing ad hoc/contractual Assistant Professors and failed to justify the appointment of the respondent No.6 as an ad-hoc Lecturer in the college by following such norms, which clearly vitiates the experience certificate issued to the respondent No.6 certifying her teaching experience as ad-hoc.
17.1. Notably, the respondent No.6 had not filed her affidavit in opposition and as such the statement and averment of the petitioner, in respect of the respondent No.6 remained un-traversed.
17.2. Though, in their affidavit-in-opposition, the respondent No. 7 and 8 tried to justify engagement of part-time or ad-hoc teacher(s) to start the classes of the subject department, before inspection by the affiliating University, and that till the necessary permission is granted by the university, the college usually starts the functioning of the department with contractual / part-time teachers and that the college has to undergo an elaborate process to obtain government concurrence, only upon which the college becomes eligible for a new sanctioned post and till creation of a new sanctioned post, there are always some teachers who at the cost of minimum / meager amount of salary devoted their time for the upliftment of such department, yet there is nothing is placed on record to show that any the procedure prescribed by the University Grant Commission Regulations, 2010 for appointment of ad-hoc teachers in the colleges is followed in appointing the respondent No.6 17.3. Further, it appears from the affidavit of respondent No.7 and 8 that the college adopted a resolution on 24.04.2005, to seek permission from Gauhati Page No.# 42/49 University for the subject department of Sanskrit and that the Executive Council of Gauhati University on 08.11.2006, had granted permission for opening TDC 1st Year (Arts) General Course in Sanskrit for the Session 2006-2007 and thereafter the Registrar, Gauhati University, on 7.12.2006, had issued a letter to the Secretary to the Government of Assam, Education Department, forwarding the copy of the resolution dated 8.11.2006, as a proposal, to accord concurrence of the State Government, yet in her reply affidavit the petitioner had contended that till date, no concurrence has been granted for the post of Sanskrit by the Government, and as such the respondent Nos.7 & 8 had no authority to appoint and allow respondent No.6 to serve as an ad-hoc Lecturer at MNC Balika Mahavidyalaya and respondent No.6 would not be entitled to claim any benefit for the service rendering under such capacity.
17.4. Thus, it is not in dispute that the respondent No.6 was engaged by the respondent No.7 and 8 as adhoc lecturer in the MNC Balika Mahavidyalaya, Nalbari for the purported period of 2009-2010 was not made by the respondent No.7 and 8, following any Rules and as such there is sufficient force in the contention of the petitioner and in the submissions of her learned counsel that respondent No.6 would not be entitled to claim any benefit for the service rendering under such capacity.
17.5. In the case of Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra, reported in (1990) 2 SCC 715, a Constitution Bench of this Hon'ble Supreme Court has observed:
"13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan case [(1977) 3 SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR 775] was unsound and fit to be Page No.# 43/49 overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary.....
..................
Page No.# 44/49
47. To sum up, we hold that (A) Once an incumbent is appointed to a post according to a rule, his seniority has to counted from the date of appointment and not according to date of his confirmation. The corollary to the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account considering the seniority."
(emphasis supplied) 17.6. Same principle is re-iterated in the case of State of West Bengal & Ors. vs. Aghore Nath Dey & Ors., reported in (1993) 3 SCC 371, wherein it was held as follows:
"22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A).
It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which Page No.# 45/49 says that the officiation in such posts cannot be taken into account for counting the seniority.
23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other."
18. Here in this case, from the discussion in the foregoing para, it becomes apparent that the experience certificate of the respondent No. 6 was issued by the respondent No. 8, while the O.M. dated 12.10.2004, was holding the field, which imposed ban in the engagement/appointment against non-sanctioned post. Her engagement in the said college during the year 2009-10, was clearly in violation to the O.M. dated 12.10.2004. Besides, the college authority had not followed the selection procedure for appointing ad hoc/contractual Assistant Professors as provided in the University Grant Commission Regulations, 2010 which provides for appointment of ad-hoc teachers in the colleges. And as held by a Constitutional Bench of Hon'ble Supreme Court in the case of Direct Recruit Class II Engineering Officers' Association (supra), if an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two un-equals as equal which would violate the equality clause. It was further held that the period of Page No.# 46/49 officiation can be counted if the initial appointment is not made by following the procedure laid down by the Rules.
18.1. This Court is not oblivious of the fact that the aforesaid proposition has been laid in the case of determining seniority between regularly appointed employee and ad-hoc employee. But, as logical corollary, it can be held that since the appointment of the petitioner as ad-hoc Lecturer in the MNC Balika Mahavidalaya, Nalbari, without following the rules of appointment, as provided in the University Grant Commission Regulations, 2010, rather in direct violation of the existing O.M., the experience gathered by such appointment cannot be counted for regular appointment. Else, it would violate the right of the petitioner and other candidates guaranteed by Article 14 and 16(1) of the Constitution of India.
19. Thus, from the aforesaid discussions, the following findings could be arrived at, herein this case:-
(i) There is absence of materials/pleaded facts to suggest that the respondent No. 6 was engaged as adhoc Lecturer in MNC Valika Mahavidalaya, Nalbari for the period 2009-2010, following the Rules of appointment i.e. the University Grant Commission Regulations, 2010.
(ii) In fact, for the period 2009-2010, which the respondent No.6 claimed to have served as adhoc Lecturer in MNC Valika Mahavidalaya, Nalbari one O.M. dated 12.10.2004, was holding the field, which put a ban on appointment/engagement against any non sanctioned post.
(iii) There is no material to suggest that the respondent No.6 was appointed against a sanctioned post, Page No.# 47/49 rather the affidavit of respondent No.7 and 8 clearly indicates absence of any sanctioned post of Lecturer in Sanskrit in the said College, at the relevant point of time i.e. 2009-2010.
(iv) Though a co-ordinate Bench of this Court, in the judgment and order dated 14.6.2016, in W.P.(C) No. 3245/2015, held that the experience certificate, obtained by the respondent No. 6 from the respondent No.8, is a document based on original records which can be acted upon for the purpose of giving award of marks towards experience, yet, the decision is not binding upon the petitioner herein, as she was not a party in the said writ proceeding.
(v) The principle of Constructive Res-Judicata is not applicable herein this case since present petitioner was not a party in the W.P.(C) No. 3245/2015.
(vi) Further, the O.M. dated 12.10.2004, which was holding the field, and which put a ban on appointment/engagement against any non sanctioned posts, was not placed before the Court in W.P.(C) No. 3245/2015.
(vii) The finding, so recorded by the co-ordinate Bench of this Court in W.P.(C) No. 3245/2015, cannot be read as a binding precedent as the said observations has to be read in the context in which they appears and since the O.M. dated 12.10.2004, was not placed before the said Bench, it makes a lot of difference in the precedential value of the said decision, as held in the case of Palitana Sugar Mill (P) Ltd. (supra).
(viii) The De-facto Doctrine, as contended by the learned Senior Counsel for the respondent No. 6, is not Page No.# 48/49 applicable in the given factual scenario of the case in hand.
(ix) Since the Selection Committee had completed the selection process by awarding marks to the respondent No.6, on the basis of the purported experience certificate, despite objection being filed by the petitioner, it cannot be said that present writ petition is pre-mature.
(x) Breach of O.M. does not confer any right on the public to ask for a writ under Article 226 of the Constitution, but it does when such breach violates the fundamental right of the candidates guaranteed under Article 14 and 16(1) of the Constitution of India.
Conclusion:-
20. In view of the legal and factual matrix discussed herein above, the issue No. (i), so formulated herein above, has to be decided in affirmative and accordingly same is decided in favour of the petitioner.
21. In view of affirmative decision in issue No. (i), this Court finds sufficient merit in this petition and accordingly, the same stands allowed. Consequently, the decision of the Selection Committee, to award one mark to the respondent No. 6 based on the experience certificate, issued by the respondent No. 8, stands set aside and quashed.
22. In view of the above, the respondent authorities are directed to proceed with the selection process, in accordance with law and to take the same to a logical conclusion, in the light of the finding recorded herein above.
23. The aforementioned exercise has to be carried out within a period of 6 (six) weeks from the date of receipt of the certified copy of this judgment and Page No.# 49/49 order.
24. The petitioner shall obtain a certified copy of this judgment and order and place the same before the respondent authorities within a period of one week from today.
25. In terms of above, this writ petition stands disposed of. The parties have to bear their own costs.
JUDGE Comparing Assistant