WP(C) 113/2009 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA 1. The matters pertain to selection for the posts of Principal and Superintendent of Arabic College/Title Madrassa and Senior Madrassa (Provinciali sed). In W.P.(C) No. 113/09 (hereinafter referred to as the first writ petition) and W.P.(C) No. 364/09 (hereinafter referred to as the second writ petition), the petitioners have also incidentally challenged the very constitution of the S election Board and the State Madrassa Education Board. In W.P.(C) No. 396/09 (he reinafter referred to as the third writ petition), the challenge to the selectio n made is on ground of violation of the provisions of Assam Scheduled Caste, Sch eduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978. In W.P .(C) No. 1726/09 (hereinafter referred to as the fourth writ petition) the two writ petitioners while supporting the select lists in question and the appointme nt orders issued pursuant thereto, have prayed for a direction towards handing o ver the charge of the posts of the Superintendent to the petitioners. All the wr it petitions being on the same central issue of validity or otherwise of the sel ection of the candidates for the posts of Principal and Superintendent and the m atters incidental thereto, have been heard together and are being disposed of by this common judgment and order. 2. The petitioners in the first writ petition are the Assistant Teachers pr esently holding the charge of the Superintendent in their respective institution s. The single petitioner in the second writ petition is a Lecturer of Rahmatganj Arabi College, Dhubri, Assam. The petitioners in the third writ petition are M. A. in Arabic with teaching experience to their credit. Likewise, the petitioners in the fourth writ petition are the Principal of their respective institutions. As noted above, while in the first three writ petitions the petitioners have ch allenged the very selection and appointment of the private respondents for the posts of Superintendent/ Principal, in the fourth writ petition the two writ pet itioners who are the selected candidates have prayed for a direction towards han ding over the charge of regular post pursuant to such selection. 3. As narrated in the first two writ petitions, the Madrassa Education in t he State of Assam is governed by the notification dated 09.08.54 issued by the G ovt. of Assam in the Department of Education. A set of rules was published by th e Govt. providing for constitution of Assam State Madrassa Board for management and control of Madrassa Education in the State in general and in particular High Madrassa and Senior Madrassa. The constitution of the Board as indicated in the writ petitions is as follows: (i) The Director of Public Instruction - President, ex-officio (ii) The Senior Inspector of Schools - Member, ex-officio (iii) The Assistant Inspector of Schools - Secretary for Muslim Education - ex-officio (iv) The Principal, Deorail Title Madrassa - Member Non-offi cial (v) One Lecturer or Professor of Islamic - Member Subjects, Cotton College, Guwahati - official (vi) One Superintendent of a High Madrass - Member Non-Offi cial (vii) One Superintendent of a Senior Madrassa- Member Non-offi cial 4. By Annexure-C notification dated 12.03.08 issued by the Govt. of Assam i n the Education (Secondary) Department reconstituted the Board with 13 members w hich according to the petitioner is in complete violation of Rule 2 of the afore said notification dated 09.08.54. It is the case of the petitioners that it is o nly the Directorate of Public Instruction (DPI) who should be the President of t he Board Ex-officio, but in the newly constituted Board vide notification dated 12.03.08 Shri Wazed Ali Choudhury, Ex-Minister of the Govt. of Assam and a membe r of a political party was appointed as the Chairman. Further case of the petiti oners is that the Director of Madrassa Education, Assam and the Deputy Director of Madrassa, Assam could not have been nominated as the Member and Member Secret ary respectively in terms of the aforesaid Rules. Thus, according to the petitio ners, the very constitution of the Board is illegal and accordingly the said not ification dated 12.03.08 is liable to be set aside and quashed. 5. By Annexure-D letter dated 19.04.08 issued by the Govt. of Assam in the Education Department approval was accorded to the proposal sent by the Director of Madrassa Education Assam for filling up 323 numbers of posts all over the Sta te including the posts of Principal and Superintendent of Arabic Colleges and Ti tle Madrassas against which the petitioners have been working as In-Charge Super intendents. It is the stand of the petitioners that the approval so accorded is silent regarding the procedure to be followed by the Directorate of Madrassa Edu cation, Assam for filling up the posts. It is the further stand of the petition ers that the Department of Finance accorded their approval vide No. FSI. 437/07 dated 01.03.08 only after the Department of Education in their communication sta ted that the posts of the Head of the aforesaid institutions would be filled up only by promotion and not by fresh recruitment. According to the petitioners, in absence of any recruitment Rules such approval has no meaning in the eye of law . 6. After the aforesaid approval the Director of Madrassa Education, Assam b y his Annexure-E letter dated 03.06.08 instructed/ directed the Principals/ Supe rintendents of the Arabic Colleges, Title Madrassas, Senior Madrassas of the Sta te to initiate selection process for filling up vacant posts of Assistant Teache rs in their respective institutions as per the provisions of the Act. 7. By Annexure -F notification dated 18.11.08, the Commissioner and Secreta ry to the Govt. of Assam in the Education (Secondary) Department constituted the State Selection Board in which the Chairman of the said Madrassa Education Boar d was made the Chairman. It is the stand of the petitioner that the very inducti on of the Chairman to the State Madrassa Education Board being illegal, his nomi nation as the Chairman of the State Selection Board is also illegal. 8. After the aforesaid developments, Annexure-G advertisement dated 30.11.0 8 was published in the local newspaper inviting applications from the candidates to fill up 6 (six) posts of Principal in Provincialised Title Madrassa and Arab ic College and 30 (thirty) posts of Superintendents in Provincialised Senior Ma drassa. Pursuant to such notification, the Deputy Director of Madrassa, Assam by his letter dated 01.12.08 apprised about the said advertisement to all the Prin cipals of Arabic Colleges/ Title Madrassas (Provincialised) and the Superintende nts of all Senior Madrassas (Provincialised). 9. In the advertisement minimum qualification for the post of Principal was prescribed as M.M. (Mumtazul Muhaddithin) with at least 15 years of teaching ex perience and for the post of Superintendent prescription was M.M. (Mumtazul Muha ddithin) with minimum 10 years teaching experience. According to the petitioners , the said notification was issued by the Principal Secretary without any approv al from the Govt. and without providing for any provision of reservation for OBC /MOBC/SC/ST/ Physically Handicapped etc. 10. Pursuant to the aforesaid advertisement dated 30.11.08 altogether 66 can didates applied for the posts of Principal and 175 candidates applied for the po st of Superintendent. It is the plea of the petitioners that they had also appli ed as a measure of abundant precaution and that they were ignorant about the ill egality committed in the entire episode about which mention has been made above. Further plea of the petitioners is that they had appear in the interview on 22 .12.08 for the post of Superintendent under compulsion as per schedule. Accordi ng to the petitioners apart from verification of the documents, they were asked to recite a ’hadith’ from the book of Miskatsh Sharif . No questions were ask ed to them by the members of the Selection Board. The petitioners have further p leaded that though the Selection Board was constituted with 7 (seven) members in cluding the Chairman and the Member Secretary, but at the time of interview only 4 (four) members were present. 11. In paragraph-16 of the writ petition, the petitioners have stated that t he Director of Madrassa Educatin in collaboration with the Member Secretary of t he Selection Board without any formal permission/ prior approval from the Govt. and without any authority started issuing appointment letters to various purport ed selected candidates. On enquiry, the petitioners could come to know that pur suant to the aforesaid advertisement and interview, a select list was published on 30.12.08 in which the petitioners did not figure. 12. In paragraph-19 of the writ petition, the petitioners have referred to t he earlier advertisement dated 08/14.01.1999 by which applications were invited from the candidates for filling up posts of Principal and Superintendent in the aforementioned institutions. The said advertisement was challenged by filing a w rit petition being W.P.(C) No. 2841/1999 which was disposed of by order dated 2 2.03.07. In the said order the Court taking a note of the aforesaid notificatio n dated 09.08.54, set aside and quashed the Board and directed the State Govt. to constitute the said Selection Board in accordance with law and then only to m ake appointment. It is the stand of the petitioners that since the present exist ing State Madrassa Education Board has been illegally constituted in violation o f the aforesaid notification dated 09.08.54 and the rules framed thereunder, the entire selection process is vitiated and therefore, all actions pursuant to suc h constitution of the Board are liable to be interfered with. 13. In the third writ petition, there are two writ petitioners out of which the petitioner No. 1 died on 11.03.09 and accordingly his name has been deleted by order dated 04.06.09. Thus it is the petitioner No. 2 who remains in the proc eeding as the lone petitioner. It is his case that he being a member of ’Maimal’ community which is recognized as OBC, is entitled to get reservation in the ma tter of appointment as per the provisions of Assam Scheduled Caste and Scheduled Tribes (Reservation of vacancies in Services and Posts) Act, 1978. The petition er has referred to letters dated 03.06.08 and 13.08.01 (Annexures 7 and 8) resp ectively so as to contend that the reserved category candidates are entitled to claim reservation in the matter of appointment and thus, the petitioner being a member of OBC, is also entitled to reservation. Annexures- 7 and 8 letters dated 03.06.08 and 13.08.01 were issued emphasizing the need for providing reservatio n in appointments including the appointment in Arobic Colleges, Title Madrassas and Senior Madrassas of the State. It is the grievance of the petitioner that co ntrary to expectation that the would be considered as a reserved category candid ate, no such reservation was provided and the selection was done favouring only the general category candidates. Further stand of the petitioner is that even ba ck log vacancies were not cleared and thus there was violation of the reservatio n roster. 14. As noted above, in the fourth writ petition the two writ petitioners who are the selected candidates pursuant to the impugned selection in the first thr ee writ petitions, have prayed for a direction towards materialization of their appointments as Superintendent. 15. A number of affidavits have been filed. In the counter affidavit filed b y the respondent No. 6, i.e. the Deputy Director of Madrassa Education, Assam, i t has been stated that the aforesaid notification and Rules of 1954 and 1955 had been amended vide notification dated 02.09.72 whereby it was provided that the President of Madrassa Education, Assam is to be nominated by the State Govt. and not the DPI who was earlier nominated as Ex-officio President. As per the amend ed Rules, the constitution of the Board is as follows: (i) The President - To be nominated by the State Govt. (ii) The Director of Public Instruction, Assam Shillong - Member (iii) The Senior Inspector of Schools- Member (iv) The Asstt. Inspector of Schools for Muslim Education - Secretary (v) The Principal of Deorail Title Madrassa - Member (vi) One Lecturer or Professor of Islamic Subject, Cotton - Member College (vii) One Superintendent of High Madrassa - Member (viii) One Supdt. Of Senior Madrassa- Member 16. In the affidavit, the respondent No. 6 has also indicated the names of the President/ Chairman of the Board who held the offices after the amendment of 1972. None of the said persons were holders of the post of DPI. Some of them we re Ministers, Parliamentary Secretaries , MLAs etc. 17. Further stand in the affidavit is that the State Govt. has bifurcated th e office of the DPI into three Directorates, namely (1) Directorate of Elementar y Education, (2) Directorate of Secondary Education and (3) Directorate of Highe r Education. In 2005 vide notification dated 24.10.05 a new Directorate, namely Directorate of Madrassa Education was created with the nomination of Director of Madrassa Educatin as the Member of the said Madrassa Board in place of DPI. 18. As regards to other members, it has been stated that the Govt. had upgra ded the post of Assistant Inspector of Schools for Muslim Education to the post of Deputy Director of Madrassa Education vide Govt. letter No. 09.01.84 and afte r this upgradation the Deputy Director of Madrassa Education is the Ex-officio S ecretary of the State of Madrassa Board. As regards the qualification etc. for t he post of Principal and Superintendent, it is the stand of the respondent No. 6 that as the Assam Madrassa Education (Provincialisation) Act, 1995 is silent re garding the procedure of filling up the post, the Selection Board Constituted as per the provisions of Section 5 (3) of the Act in its meeting held on 27.11.08 decided on the methodology of recruitment and laid down the guidelines/ criteria for selection of Principal and Superintendent as reflected in the advertisement . 19. Some of the private respondents have also filed their counter affidavits justifying the selection and constitution of the Madrassa Education Board and the Selection Board and also the selection conducted by the said Selection Board and the offer of appointments made thereafter. The respondent No. 1 in its affi davit has also justified the entire action towards construction of the Madrassa Education Board and the Selection Board and all consequential action undertaken by the said Boards. 20. In the reply affidavit filed by the petitioners, while reiterating the stand in the writ petitions they have also stated about minority status of the i nstitutions and lack of jurisdiction of the Governmental authorities over such i nstitutions. 21. I have heard Mr. A.R. Bhuyan and Mr. N. Choudhury, learned counsel for t he petitioners and so also Mr. A.M. Borbhuyan, learned counsel appearing for the petitioner in the fourth writ petition. I have also heard Mr. A.M. Majumdar, Mr . HRA Choudhury and Mr. N. Dutta, learned Sr. counsel and so also Mr. B. Singha, learned counsel appearing for the private respondents. Mr. M.K. Choudhury, lear ned Sr. Standing counsel, Education Department while made submissions on behalf of the Govt. of Assam in the Education Department, Ms. R. Chokraborty, learned A ddl. Sr. Govt. Advocate made submissions on behalf of the other State respondent s. 22. Upon consideration of the rival submissions advanced by the learned coun sel for the parties and on perusal of the relevant records, I record my findings and conclusions as follows: 23. Both Mr. A.M. Majumdar and Mr. N. Dutta, learned Sr. counsel appearing f or the private respondents at the very outset raised the preliminary objection o f the very maintainability of the writ petitions. Both of them argued that the p etitioners having participated in the selection process without any objection an d being unsuccessful, cannot now turn around the selection process so as to ques tion the very selection of the private respondents. Mr. N. Dutta, learned Sr. co unsel additionally argued that the writ petition is not maintainable in absence of necessary parties. It was argued that since the petitioners have challenged t he very constitution of the Madrassa Education Board and the Selection Board, it was incumbent on their part to implead all the members of the said Boards and t he petitioners having not done so, the writ Court will not accept the contentio ns of the petitioners so as to set at naught the said two selection Boards witho ut hearing the members thereof. In this connection, they have placed reliance on the four decisions, namely (1) (2007) 8 SCC 644 (Truvedi Himansu Ghanshyambhai vs. Ahmedabad Municipal Corporation) (2) (2006) 6 SCC 395 (K.H. Siraj Vs. High Court of Kerala) (3) (1995) 3 SCC 486 (Madan Lal vs. State of J & K) and (4) 20 06 (3) GLT 107 (Arun Deka (Dr.) & others vs. State of Assam and others). 24. Countering the above arguments, Mr. Bhuyan, learned counsel for the peti tioner has placed reliance on the decision of the Apex Court reported in (1997) 9 SCC 527 (Raj Kumar vs. Shakti Raj) 25. In the aforesaid decisions on which the learned counsel for the private respondents have placed reliance, it has been held that the petitioners involved having participated in the selection process are estopped from questioning the selection inasmuch as they took a chance for favourable consideration and it was only when they failed to qualify, questioned the selection process and the slec tion. In Rajkumar (supra) dealing with a similar question, the Apex Court nulli fied the same noticing the fact that the authority had committed glaring illega lity in the procedure and method of selection. In the said case it was held that the principle of estoppel by conduct or acquiescence has no application to such fact situation. 26. As noted above, the Madrassa Education Board constituted vide impugned A nnexure-C notification dated 12.03.08 consists of 13 members. Similarly Annexure -F notification dated 18.11.08 by which the Selection Board was constituted cons ists of 7 members. In the writ petition the respective Chairman of the Boards ar e party respondents, but the other members are not. It is in this context, it wa s argued that the writ petitions are bad for non joinder of necessary parties in asmuch as in the event of any interference with the said two notifications, the members who are not party respondents will also be affected. On the other hand, it was the argument of the learned counsel for the petitioners that since the Ch airman of the respective Boards are party respondents, the petitions cannot be s aid to be bad for non-joinder of necessary parties even in absence of other res pondents. 27. As regards the constitution of the Madrassa Education Board, the petitio ners have placed reliance on the earlier constitution as per the notification of 1954 and 1955 Rules in terms of which the Director of Public Instruction is th e Ex-officio President. It has been brought on record that in due course the Dir ectorate of Public Instruction was bifurcated to the Directorate of Higher, Seco ndary and Elementary Education and subsequently a new Directorate, i.e. Director ate of Madrassa Education was also created. It has also been brought on record t hat as per the amended Rules, 1972, the Chairman/ President is to be nominated b y the State Government and accordingly, the present Chairman was nominated by th e Govt. As regards the other members, it is on record that the earlier offices l ike Sr. Inspector of Schools, Assistant Inspector of Schools etc. were substitut ed by other offices and accordingly the members thereof were made the members of the Board. It was pleaded on behalf of the petitioners that although the earlie r offices/nomenclature were replaced by new names, but in absence of amendment o f rules to that effect, the holders of the said new offices could not have been made the members of the Boards. Such an argument cannot find favour inasmuch as even in absence of any amendment to the Rules showing the names of the new offic es, the fact remains that the earlier offices/nomenclatures thereof have been ab olished with the substitution of the new names. Thus in place of the names of ea rlier offices if the new names are inducted and the incumbents thereof are made members of the Boards, no fault can be attributed to the official respondents. 28. As regards to the plea of the petitioners that the interview was not con ducted in a proper manner and that they were not put any questions relating to t he purpose of selection, the writ Court cannot make a roving enquiry into the ve racity or otherwise on such contentions. The writ Court also does not have expe rtise to find out as to whether the Selection Board duly conducted the selectio n or not. 29. This now leads us to the issue raised in the third writ petition regardi ng non-making of any provision for reservation which needless to say includes re servation both horizontal and vertical. This particular plea has also been raise d in the first two writ petitions. While Mr. M.K. Choudhury, learned Standing co unsel, Education Department contended that there cannot be any reservation in mi nority institutions, Mr. N. Choudhury, learned counsel for the petitioner in the third writ petition upon a reference to the Govt. letters dated 03.06.08 and 13 .08.01 circulated under Memo dated 15.10.01, contended that such reservations a re applicable even in the institutions with which the present proceeding is conc erned. 30. The stand of Mr. M.K. Choudhury, learned Standing counsel, Education Dep artment which he raised with the support of the decision reported in (2005) 6 SC C 537 (P.A. Inamdar vs. State of Maharastra) , runs counter to the aforesaid Gov t. letters and also the counter affidavits filed by the Deputy Director Madrassa Education in which contradictory submissions have been made. While in some plac es the Deputy Director has stated that no reservation can be applied in Madrassa s, but in some places it has been stated that the aforesaid letter dated 03.06.0 8 is meant for the posts of Assistant Teachers and employees and not for the Pri ncipal and Superintendent. Thus, according to the respondent No. 3, i.e. the Dep uty Director, Madrassa Education, no reservation is applicable for the posts of Principal and Superintendent in the minority institutions. In other words, as co ntended in the affidavit, such reservations are applicable in respect of other p osts involved in such minority institutions, but not in the posts of Superintend ent and Principal. 31. Section 5 of the Assam Scheduled Castes and Scheduled Tribes (Reservatio n of Vacancies in Services and Posts) Act, 1978, states about reservation for SC and ST in vacancies to be filled up by promotion. Similarly, Section 4 of the act states about such reservation in direct recruitment. Section 6 empowers the Govt. to exempt in specialised service or posts from the purview of reservation. Such exemption can be made by notification in the official gezette. In the inst ant case, nothing has been brought on record that the post of Superintendent and Principal have been exempted from the purview of reservation, as envisaged unde r the provisions of the said act. The decision on which Mr. M.K. Choudhury, lear ned Standing Counsel, Education, has placed reliance i.e. P.A. Inamdar (Supra) t o contend that there cannot be any reservation in minority institutions like Mad rassas, is not applicable to the facts and circumstances involved in the present case. P.A. Inamdar was a case relating to admission to professional courses in unaided Minority Educational Institutions and the Apex Court was concerned with the scope and ambit of constitutional provisions relating thereto. 32. In the instant case, the institutions with which we are concerned is