WP(C) 4269/2009 MCMCBEFORE HON’BLE MR. JUSTICE B K SHARMA Heard Mr. P Upadhyay, learned counsel for the petitioner as well as Mr. S Shyam, learned counsel for the respondent No.3. I have also heard Mr. S K Das, learned Standing Counsel, Education Department, Assam and so also Mr. B Chakraborty, le arned counsel representing the respondent No.4. [2] The matter pertains to three successive selections held by the r espondent No.3 for appointment of Lecturer in Assamese Department of Kamrup Coll ege. [3] The first advertisement was issued on 13.11.2008 calling upon ap plications for the said post. In response to which, 12 candidates including the petitioner and the respondent No.4 had applied. The petitioner was selected as t he first nominee but no appointment was made. Thereafter, the second advertiseme nt was issued on 05.02.2009 in which the candidates including the petitioner and respondent No.4 participated. The selection was held on 15.02.2009 and admitted ly, the petitioner got selected. However, on that occasion also he was not appoi nted for the reasons discussed below. [4] The post was advertised for the third time on16.06.2009. On that occasion also, the petitioner along with the respondent No.4 and other candidat es responded to the same. It is the case of the petitioner that he had responded to the third advertisement on protest and on being assured by the college autho rity that the same was being conducted to regularise his earlier selection. In t he third selection it is the respondent No.4, who was not selected in the earlie r two selections, has been selected and as submitted by the learned counsel appe aring for the respondent Nos.3 and 4, she has been temporarily appointed by the Governing Body of the College on 17.08.2009 immediately after the Governing Body ’s resolution dated 09.08.2009. However, pursuant to the second selection in whi ch the petitioner was selected as the 1st nominee nothing of the sort was done b y the Governing Body of the college and the petitioner was not appointed. [5] Coming to the second selection which is the issue involved in th is writ petition, admittedly, the petitioner was selected as the 1st nominee and he was recommended for appointment by the Governing Body of the college as per resolution adopted in its meeting held on 19.02.2009. The resolution so adopted was forwarded along with all the relevant documents to the Director of Higher Ed ucation, Assam, for necessary prior approval. The Director of Higher Education b y his letter dated 26.03.2009 addressed to the Principal of the College returned the proposal back for re-submission alongwith fresh unanimous Governing Body’s Resolution as the previous resolution was adopted with dissent note of 3 members of the Governing Body. For a ready reference the said letter dated 26.03.2009 i s quoted below. GOVT. OF ASSAM OFFICE OF THE DIRECTOR OF HIGHER EDUCATION:::: ASSAM::: KAHILIPARA GUWAHATI:-19 No.G(B)/AC/NET/SLET/15/2009/44 dated Kahilipara, the 26th March/2009 From :- Sri D Hussain Director of Higher Education, Assam Kahuilipara, Guwahati-19. To. The Principal i/c, Kamrup College, P.O. Chamata, Dist. Nalbari. Sub :- PRIOR APPROVAL OF APPOITMENT OF ASSAMESE DEPARTMENT. Ref :- Your letter No.KC/GB/Apptt/Aprove/2008-09/3540 dtd.20.02.2009. Sir, With reference to the letter on the subject cited above, I have the honour to r eturn herewith the proposal (in original) submitted by you vide your letter ment ioned under reference regarding accord of approval of appointment in respect of Sri Madhukar Giri Basumatory as lecturer in the Assamese Department for re-submi ssion alongwith fresh unanimous Governing Body’s Resolution for the same as the previous Resolution adopted with the dissent note raised by 3 members of the Gov erning Body. Yours faithfully, Sd- Director of Higher Education, Assam Kahilipara, Guwahati-19 [6] After the aforesaid letter dated 26.03.2009 it was incumbent on the part of the Governing Body of the College to re-submit the proposal to the D irector of Higher Education instead, the Governing Body issued the third adverti sement for the post and thereafter, conducted the selection in which the respond ent No.4, who was not selected in the earlier two selections was selected. There after, the Governing Body took its resolution on 09.08.2009 approving the recomm endation made in favour of the respondent No.4. The resolution alongwith the rel evant documents was sent to the Director of Higher Education for prior approval but no such approval has been accorded till date. Thus, the respondent No.4 has not been formally appointed but has been continuing on temporary basis as per th e appointment made by the Governing Body of the College. [7] For a proper appreciation of the matter the records of the case has been scrutinised. True to the assertion made by the petitioner that he was t wice selected the records have revealed so. So far as the first advertisement an d selection is concerned, the Governing Body of the College in its meeting held on 11.12.2008 vide resolution No.7 deferred the mater to the next meeting. On pe rusal of the said resolution contained in Proceeding Book No.3 of the Governing Body of the College w.e.f. 29.03.2008 what has transpired is that, after the par ticular resolution shown to have been adopted a whole line has been omitted usin g whitener. [8] After the aforesaid resolution, the Governing Body meeting was h eld on 17.01.2009 and vide resolution No.4 it was decided to go for a fresh sele ction. On that occasion also except the word fourth resolution the ink applied in writing the resolution is different from that of the ink applied in writing the other resolutions. That apart, as many as 5 lines have been overwritten by u sing whitener omitting the earlier lines and conspicuously a signature dated 17. 01.2009 has been put under the said resolution unlike the other resolutions wher e there is no such signature. On being asked Mr. Shyam, learned counsel appearin g for the respondent No.3 submits that the said signature is of Principal-in-Cha rge of the College Sri Narayan Sharma. [9] After the aforesaid course of action adopted by the Governing Bo dy of the College, the second selection was conducted in which also the petition er was selected. As to what happened thereafter has been noted above. As per the above quoted letter of the Director of Higher Education, the Governing Body was bound to resubmit the proposal either with the consent of the dissenting 3 memb ers or without their consent but instead decided to go for fresh advertisement a nd selection. In this connection, the Governing Body of the College in its meeti ng held on 24.05.2009 adopted the purported resolution No.4 by which it was deci ded to go for a fresh advertisement and selection. As on the earlier occasion th is time also, the resolution was adopted using whitener over several lines and t he handwriting of the 1st four lines and the remaining lines over the whiteners are apparently of two different persons. Conspicuously as on the earlier occasio n, on that occasion also a signature is there dated 24.05.2009 unlike the other resolutions where there is no signature and date. Thus, whole emphasis is on the particular resolutions pertaining to the advertisement and selection for the po st of Lecturer in Assamese. [10] The above overwriting making use of whitener and putting signatu res to give authenticity to the subsequent resolutions shown adopted over the wh iteners gives rise to serious suspicion in the matter requiring scrutiny of the same by an appropriate authority. [11] Coming to the real issue in hand i.e. whether the Governing Body of the college was justified in making third selection on the face of the above quoted Annexure-D letter dated 26.03.2009. The whole approach of both authoriti es i.e. the Director of Higher Education, Assam and the Governing Body of the Co llege was illegal. If the recommendation of the Selection Committee towards appo intment of the petitioner was accepted by majority of the members of the Governi ng Body, irrespective of dissenting note given by 3 of the members, it was incum bent on the part of the Director of the Higher Education to act upon the said re solution instead of returning the same back to the Governing Body of the College to obtain consent of the said 3 members. The Director of Higher Education, Assa m could not have and ought not to have applied force on the dissenting members s o as to give their consent to the resolution adopted by the Governing Body for a ppointment of the petitioner pursuant to his selection. Secondly, the Governing Body of the College irrespective of whether the 3 dissenting members had given a ny consent or not ought to have submitted the proposal to the Director of Higher Education instead of going for a fresh selection to the deprivation of the peti tioner and that too without any approval of the Director. [12] Mr. Shyam and Mr. Chakraborty, learned counsels appearing for th e respondent Nos.3 and 4 have submitted that the petitioner having participated in the third selection is estopped from questioning the legality of the third se lection. Mr. Shyam, learned counsel representing the Governing Body of the Colle ge further submits that if the Governing Body of the College in its perception c ommitted any mistake in respect of the action taken pursuant to the above quoted letter dated 26.03.2009 written by the Director of Higher Education, even than also, having regard to the subsequent advertisement and the third selection in w hich the petitioner dully participated, the Writ Court will be reluctant to inte rfere with the same. [13] The requirement of the law in the matter of appointment of Lectu rer is to get prior approval of the Director of Higher Education. The Director o f Higher Education had addressed the above quoted letter to the Governing Body o f the College as a step taken towards compliance of the said requirement of the Rules. It was incumbent for the Governing Body of the College to show its respon se to the said requirement spelt out in the letter instead of taking the purport ed resolution to go for a fresh selection without any reference to the Director of Higher Education. As per the requirement of Rules holding the field in the ma tter of appointment of Lecturer, the prior approval of the Director of Higher Ed ucation, Assam, is required to be taken. In the instant case, the respondent No. 3 on its own decided to go for a fresh advertisement and selection without any a pproval from the Director of Higher Education. [14] Needless to say that there cannot be any waiver, estoppel and ac quiescence when something is done in violation law and/or the requirement of the Rules. In this connection I may gainfully referred to the decision reported in (1997) 9 SCC 527 (Rajkumar and Ors. Vs. Shakti Raj and Others) in which the Apex Court dealing with the issue of estoppels held that the principle of estoppel b y conduct has no application when the Government committed glaring illegalities in conducting the particular selection and in the procedure adopted for the purp ose. [15] In response to the order passed by this Court on 20.07.2010 the Director of Higher Education, Assam, has filed his affidavit in which while admi tting the aforesaid facts it has been stated that the College Authority without obtaining any approval from the Director of Higher Education once again advertis ed the post and thereafter, the Selection Committee conducted the selection. In the affidavit it has further stated that, there is nothing in the Rule to sugges t that in case of dissenting note, irrespective of approval accorded by the majo rity members, the proposal is required to be sent back for unanimous resolution. This aspect of the matter need not detain us inasmuch as, the members of the Go verning Body accepted the resolution made by the Selection Committee towards app ointment of the petitioner. Even if 3 members of the Governing Body had expresse d their reservation same by itself could not have nullified the selection and re commendation made in favour of the petitioner. Thus, there was no occasion for t he Director of Higher Education, Assam to send the matter back to the Governing Body of the College. Similarly, the Governing Body of the College also could not have gone for fresh advertisement and selection without any reference to the Di rector of Higher Education, Assam. [15] In the third selection the respondent No.4 has been recommended by the Selection Committee, who was not so recommended in the earlier two select ions. It was the petitioner, who was all along recommended by the Selection Comm ittee on the basis of the fixed norms set out in the detailed procedure laid dow n towards selection of Lecturers. In this connection, the petitioner has indicat ed the norms fixed for such selection in Para-21, 22, 23 and 24. He has also all eged that the authority unduly favoured the respondent No.4 to the deprivation o f the petitioner. [16] All the above aspects of the matter will have to be considered b y the Director of Higher Education, Assam, while considering the recommendation made in favour of the respondent No.4 and resolution adopted by the Governing Bo dy of the College while considering the matter pertaining to prior approval to s uch recommendation. The Director of Higher Education, Assam will also have to co nsider as to whether the third advertisement and selection could have been issue d and conducted in view of his earlier above quoted letter dated 26.03.2009 (Ann exure-D). It is incumbent on the part of the Director of Higher Education, Assam to deal with the matter seriously taking into account all the material facts in cluding the aforesaid manipulations made in the Proceeding Book No.3 of the Gove rning Body of the Kamrup College made effective from 29.03.2008. The relevant pa ges of the said register are Page No.18(resolution No.7); Page No.22(resolution No.4) and Page No.30(resolution No.4). Be it stated here that all the resolution s pertain to the particular post only and in no other resolutions whiteners have been used. [17] The Director of Higher Education, Assam shall carry out the nece ssary exercise in the matter and pass a speaking order as expeditiously as possi ble, preferably within 30.11.2010. [18] The Proceeding Book No.3 of the Governing Body of Kamrup College , Chamata w.e.f. 29.03.2008 shall be returned back to Mr. Shyam, learned counsel for the respondent No.3 after keeping photocopies of the relevant pages mention ed above and handing over the same to Mr. P Upadhyay, learned counsel for the pe titioner with due attestation. The Registry shall do the needful in this regard. [19] With the above observation and directions writ petition is dispo sed of.