WA 227/2009 BEFORE HON’BLE MR JUSTICE B.K. SHARMA HON’BLE MR JUSTICE C.R. SARMA 1. The writ appeal and the writ petition raising the same issue hav e been heard together and are being disposed of by this common judgment and orde r. 2. While in the writ appeal the challenge is to the judgment and order date d 30.06.09 passed in W.P.(C) No. 1657/2009 filed by the respondent No. 6, in th e writ petition the challenge is to the consequential action of publishing the s elect list for appointment of Principal in 51 provincialised colleges. Be it st ated here that the present appellants/ petitioners were not party to the said pr oceeding. 3. The writ petition being W.P.(C) No. 1657/2009 from which the present pro ceeding has arisen, was filed by one Shri Durgeswar Hazarika (respondent No. 6 i n the appeal) in respect of the dispute relating to the charge of Principal of t he college called Lakhimpur Kendriya Mahabidyalaya. The challenge in the writ pe tition was the Annexure-15 order dated 31.03.2009 and Annexure-17 order dated 18 .03.2009 (annexed to the writ petition) passed by the Principal of the Mahabidya laya and the Director of Higher Education, Assam respectively. By Annexure-15 or der dated 31.03.2009, the resolution of the Governing Body of the college and c onsequential handing over of charge to the respondent No. 5 therein was conveyed . The said resolution and action of the Principal of the college was approved by the Director of Higher Education Assam by the aforesaid Anenxure-17 order dated 18.03.2009. 4. According to the writ petitioner, i.e. respondent No. 6, because of non- sanctioning of the post of Vice-Principal in which capacity he had been discharg ing duties and functions, he had been deprived of being the In-charge Principal . 5. While adjudicating the said issue involved in the writ petition, learned Single Judge took up the larger issue of appointment of Principals in colleges on regular basis and on the basis of the submission made by the learned Standing counsel, Education Department that interview, selection and other process for s electing the candidates were already over, held that the select list should be p ublished. Accordingly, direction was issued to publish the select list and there after to make appointments on that basis as per the provision of law. 6. As regards the issue raised in the writ petition it was held that in abs ence of any provision in the Rules that the Vice-Principal should be allowed to hold the charge of the Principal, the petitioner involved in the writ petition w as not entitled to any superior claim over the respondent No. 5 therein. Accordi ngly, direction was issued for continuation of the respondent No. 5 as In-Charge Principal for a period of three months and thereafter to take action for appoin tment of regular Principal on the basis of the select list that was directed to be published. 7. In the present proceeding, we are not concerned with the dispute between the respondent No. 5 and the writ petitioner involved in the writ petition from which the present writ appeal and the writ petition have arisen. The issue invo lved is as to whether the selection for appointments of Principal had been condu cted in accordance with rules and if not, whether the learned Single Judge could have issued the direction for publication of the select list and thereafter to make appointments of Principal on that basis. 8. The appellants/ writ petitioners are working in provincialised colleges in Assam. They claim to be qualified for empanelment pursuant to the selection t o be conducted by the State Selection Board, Assam for the post of Principal. Re ferring to the Assam Education Department Selection Rules, 1981, the appellants/ writ petitioners have contended that under Rule 10 (1), the number of the selec ted candidates to be empanelled should be at least 3 times of the existing vacan cies. They have also stated about the Assam College Employees Provincialisation Act, 2005 providing for provincialisation of the services of the employees of th e Non-government colleges. Emphasizing on Section-6 of the said Act, it has been stated that the appointments against both teaching and non-teaching posts in th e colleges should be made by the Director of Higher Education, Assam on the basi s of the selection and recommendation of the Governing Body of the respective co lleges in accordance with the rules and procedure being followed. 9. The above stand of the appellants/petitioners has a vital bearing in the instant proceeding inasmuch as the impugned select list has been prepared by Go vt. of Assam in the Higher Education on the basis of the selection conducted by the State Selection Board and in the process there is no association of Governin g Body of the respective colleges. 10. Since in the present proceeding we are concerned with the issue as to wh ether the select list was prepared in accordance with law or not, the basic fact related to the said issue are briefly indicated. The selection in question was conducted pursuant to the judgment and order dated 15.02.2007 passed in the writ appeal being WA No. 261/2006. The appeal was preferred against the judgment and order dated 19.06.2006 in W.P.(C) No. 819/2006 whereby it was provided that the particular select list published on 21.06.2004 was valid till 21.06.2006. It wa s also provided that the select list would continue to operate for further perio d of 4 months upto 18.10.2006. 11. In the said judgment and order the significant observation made is in pa ragraph-6 dealing with the contention about the number of posts for which the pa rticular advertisement was issued. The said observation is moreover, this is no t a case of selection for appointment; it is a case of selection for empanelment of teachers for the post of Principal. Rule provides that persons who are empan elled in the select list are eligible for appointment to the post of Principal a nd the concerned college is required to make selection from the said list only . 12. In the said writ appeal the following direction was issued. We, therefore, direct the respondent authority, the Selection Board to issue fr esh advertisement in accordance with Rule and regulations governing the matter, clearly indicating therein the number of vacancies for which advertisement is is sued. The entire process of selection shall be completed and selection panel lis t be published within a period of four months . 13. After the aforesaid judgment and order, the State Selection Board, Assam issued an advertisement inviting candidatures for selection of candidates for a ppointment of Principals in provincialised colleges of Assam. In response to the said advertisement, candidatures were offered including the candidatures of the appellants/ writ petitioners. In acceptance of the candidatures, call letters h ad been issued for interview. After the interview etc., the Member Secretary of the Selection Board by its letter dated 13.02.2009 submitted the select list of the candidates for appointment of Principals in provincialised colleges to the P rincipal Secretary to the Govt. of Assam in the Higher Education. The select li st was prepared in order of preference with the ratio of 1:3. Keeping the said r atio against 51 vacant posts, 153 candidates were selected. It is the stand of t he writ petitioners that the select list could not have been prepared in order o f preference as according to them, in fact it was not a select list but an empan elled list of eligible candidates for selection as Principal to be conducted by the respective colleges. 14. By letter dated 13.02.2009 (Annexure-9 to the writ petition), the Govt. of Assam in the Education (Higher) Department informed the Principal Secretary o f the State Selection Board that the earlier direction for selection of Principa l against the vacancies at the ratio of 1:3 be restricted to the number of vacan cies only as per the provision of Fiscal Responsibility and Budget Management Ac t, 2005 (hereinafter referred to FRBM Act, 2005). Thereafter the Principal Secre tary, Govt. of Assam in the Education (Higher) Department issued office memorand um dated 24.02.2009 notifying that in view of coming into force of the FRBM Act , 2005, the first sentence in Rule 10 (1) of the Assam Education Department Sel ection Rules, 1981 stood amended. The amendment of Rule 10 was indicated as foll ows: Rule 10: Publication of selection list of Lecturers and Principals (I) Th e Selection Board shall prepare lists of candidates for Lecturers and Principals numbering equal to the number of vacancies notified in the advertisement and sh all forward the list as prepared to the Government . 15. It was at that stage the writ petitioners came to know about the impugne d judgment and order issuing direction for publication of the select list within three months. It was their stand that they were expecting publication of the se lect list/empanelled list containing the names of 153 candidates at the ratio of 1:3 on the basis of which the further selection was to be made by the respectiv e colleges. 16. When the writ petitioners/appellants came to know about the impugned jud gment and order, they made queries about the proceeding therein and could come t o know about the writ petition, facts stated therein with eventual impugned judg ment and order. Thereafter by impugned office memorandum dated 13.07.2009 the se lect list containing the names of 51 candidates had been published. While challe nging the select list, the petitioners have also contended that the ratio of 1:3 as envisaged in the Rules of 1981 could not have been set at naught by a stroke of pen taking recourse to FRBM Act. 17. We have heard Mr. S.S. Goswami alongwith Ms. L. Devi, learned counsel fo r the appellants/ petitioners as well as Mr. D. Saikia, learned Addl. Advocate G eneral, Assam alongwith Mr. A. Deka, learned Standing counsel, Education Departm ent representing the official respondents. We have also heard Mr. U.K. Nair, lea rned counsel representing the respondent Nos. 7 to 43; Mr. T.J. Mahanta, learned counsel representing the respondent No. 5; Mr. A. Choudhury, learned counsel re presenting the respondent Nos. 13, 16, 17: Mr. D. Baruah, learned counsel repr esenting the respondent No. 47 to 101 and Mr. P.J. Phukan, learned counsel repre senting the respondent Nos. 103 and 104. 18. While Mr. A. Choudhury, learned counsel for the respondent No. 13, 14 an d 17 in course of argument supported the case of the respondent Nos. 7 to 43 re presented by Mr. U.K. Nair, Mr. D. Baruah, learned counsel representing the resp ondent Nos. 47 to 101 supported the case of the appellants /writ petitioners. On the other hand Mr. T.J. Mahanta, learned counsel representing the respondent No . 5 submitted that in the event of the appeal/petition being allowed with direc tion to hold a regular selection in accordance with Rules, the interest of the r espondent No. 5 as In-charge Principal of the particular college should be prot ected till finalisation of the said selection. 19. In his elaborate and detailed argument, Mr. Goswami, learned counsel app earing for the appellants/ petitioners, submitted that all through out the histo ry of the Education Department, in every selection of Principal a list of empane lled candidates was prepared making the empanelled candidates eligible for selec tion to be conducted by the respective colleges. According to him a deviation wa s made in making the impugned selection. In this connection, he has exclusively referred to the aforementioned judgment and order dated 15.02.2007 passed by the Division Bench of this Court in WA No. 261/2006 in which the above quoted direc tions had been issued. 20. In addition to above, Mr. Goswami, learned counsel for the appellants/pe titioners has also placed reliance on certain other decisions which are as follo ws: i) 1993 (2) GLJ 242 (Shri Bhupender Singh vs. Director of Public Instruction (Hi gher Education) Govt. of Assam & ors.) ii) (1998) 9 SCC 223 (B.L. Gupta & ors. vs. M.C.D.) iii) (2010) 7 SCC 560 (Md. Raisul Islam & anr. Vs. Gakul Mohan Hazarika and ors.) iv) Unreported judgment dated 10.06.2009 passed in WA No. 308/2006 alongwith W.P.(C) No. 1546/2007 (Dr. Ramen Talukdar vs. State of Assam & ors.) v) Unreported Judgment dated 02.12.2009 passed in WA No. 167/2007 (The Governing Body of Dibru College vs. State of Assam and ors. ) vi) Unreported judgment dated 23.09.2008 passed in WP(C) No. 6131/2006 (Bhabeswar Deka vs. State of Assam and ors.) 21. Mr. D. Saikia, learned Addl. Advocate General during the course of argum ent submitted that since in the meantime the Assam College Employees’ (Provincia lisation) Rules, 2010 has come into force, the procedure envisaged in the said r ules should be applied towards consideration of the selection. He has also refer red to the provision of the Assam College Employees’ (Provincialisation) Act, 20 05 to emphasize the point. Referring to the decision reported in 2011 (1) GLT (S C) 52 (Ranu Hazarika vs. State of Assam) , he submitted that he the High Court w ill not perpetuate an illegality that was committed while preparing the select l ist. 22. Mr. P.J. Phukan, learned counsel representing the respondent Nos. 103 an d 104 referring to the provision of the Act of 2005, submitted that the entire s election was vitiated due to non-compliance of the provisions of the said Act an d consequently the learned Single Judge could not have issued the direction for publication of the select list that was prepared in violation of the provisions of the said Act. In support of his submission he has placed reliance on the deci sion of the Apex Court reported in AIR 1975 SC 984 (Dr. Amarjit Singh Ahluwalia vs. State of Punjab and others) . 23. Mr. U.K. Nair, learned counsel for the respondent Nos. 7 to 43 strenuous ly argued towards defending the impugned judgment and order. He submitted that t he appellants/ petitioners having participated in the selection process cannot t urn around the same so as to contend that the selection was not as per the Rules . Referring to the provisions of the Assam Education Department Selection Rules, 1981, he submitted that the entire selection process was strictly in accordance with the provisions of the said Rules and thus, there was no infirmity in the i mpugned judgment and order by which direction was issued for publication of the select list and to make appointment on that basis. As regards the contention of the appellants/ petitioners that as per the provision of Section 6 of the 2005 A ct requiring appointment of the Principal on the basis of the selection to be co nducted by the respective colleges, he submitted that in absence of any Rules la ying down the procedure thereof, the authority rightly followed the procedure en visaged in the Rules of 1981. 24. We have carefully considered the submissions made by the learned counse l for the parties. We have also scrutinised the entire materials on record. Afte r giving our anxious consideration to the same, our findings and conclusions are as follows: 25. The writ petition from which the impugned judgment and order has arisen was not involved with the question of publication of the select list for appoint ment of Principals in proviscialised colleges of Assam. As to what was the issue involved in the writ petition, has been noted above. The controversy raised in the writ petition was relating to charge of the post of Principal. It was only d uring the course of hearing of the writ petition, the learned Standing counsel f or the Education Department had apprised the Court about the particular process and selection for appointment to the vacant posts of Principal in different coll eges and selection of 51 candidates. However, no reasons could be furnished as t o why the select list was not published. It was submitted that the Rules envisag ed under Section 12 of the Assam College Employees’ (Provincialisation) Act, 200 5 had been framed leading to difficulties in making appointment to the vacant po sts of Principal. 26. Learned Single Judge had noticed that there was objection regarding numb er of candidates selected in comparison to 51 number of posts. As per the requir ement of Rule 10 of the Assam Education Department Selection Rules, 1981, the Se lection Board was required to select candidates at the ratio of 1:3. However, f alling back on the provision of FRBM Act, 2005, the learned Single Judge concede d that the select list prepared for fresh appointment to sanctioned posts of Pri ncipal was equal to the number of vacancies. However, in the process it was not brought to the notice of the learned Single Judge that as per the provision of t he Act of 2005 (Section 6) which provides that the Governing Body of the respect ive colleges is the authority for selection and recommendation of candidates for the post of Principal. 27. While it is true that by office memorandum dated 24.02.2009, the Princip al Secretary to the Govt. of Assam in the Education (Higher) Department notified amendment of Rule 10 (1) of the Assam Education Department Selection Rules, 198 1 providing for preparation of select list of candidates equal to the number of vacancies, but in the process the said authority completely overlooked as what w ould be the position in view of the clear cut provision under Section 6 of the 2 005 Act empowering the Governing Bodies of the colleges to make the final select ion. It was also not brought to the notice of the learned Single Judge that as p er the provision of the Assam Non-Government College Management Rules, 2001 bein g followed at that relevant point of time, the Governing Body of the college was to take prior approval of the Director of Higher Education, Assam in the matter of appointment of both teaching and non-teaching staff including Principal. 28. Apart from the above, it was also not brought to the notice of the learn ed Single Judge that the selection in question was pursuant to the Division Benc h judgment of this Court in WA No. 261/2006 in which it was clearly held that th e selection by the State Selection Board was not a selection for appointment, bu t a selection for empanelment of candidates for the post of Principal and that s uch empanelled candidates are required to undergo another selection to be conduc ted by the respective colleges. As to what was the direction in the said case ha s been noted above. 29. It was pursuant to the said direction, the impugned selection was conduc ted. It is on record (Annexure-6 to the writ petition) that the Director of High er Education, Assam by his letter dated 01.02.2006 addressed to all Principals a nd Secretaries of the Provincialised colleges circulated the Guidelines to be fo llowed by the provincialised colleges in respect of selection of Principals as p er the provision of Section 6 of 2005 Act. As per the said Guidelines, the colle ge authority is to constitute a selection committee for selection of candidates for vacant sanctioned posts of Principal/ Lecturer /Librarian etc. Detailed proc edure was laid down in the said guidelines. The same was followed by Annexure-7 letter dated 12.09.2007 addressed to the Principal Secretary, State Selection B oard by the Secretary to the Govt. of Assam in the Education (Higher) Department interalia stating that there had been no change regarding selection of Principa l either for provincialised or Govt. college since 2000. A copy of the said lett er was marked to the learned Sr. Standing counsel, Education Department with the endorsement that the letter had been issued in reference to the aforesaid judgm ent and order dated 15.02.2007 in WA No. 261/2006 in terms of which the selectio n conducted by the Selection Board was to be only for empanelment of candidates, but instead the select list was prepared by the Board itself for appointment wi thout referring the empanelled list to the respective colleges for further selec tion. 30. The aforesaid communications were followed by Annexure 8 dated 18.02.200 9 addressed to the Principal Secretary, Education (Higher) Department by the Pri ncipal Secretary, State Selection Board intimating selection of candidates apply ing the ratio of 1:3 against 51 vacant posts. However, on 24.02.2009 the aforesa id office memorandum was issued purportedly amending Rule 10 (1) of the Rules of 1981 so as to provide equal number of selected candidates for equal number of v acant posts as against 1:3 ratio provided in Rule 10 (1) of the said Rules. 31. Learned counsel for the appellants/petitioners has placed reliance on th e decisions in Shri Bhupendra Singh, Dr. Ramen Talukdar, Governing Body of Dibru College and Bhabeswar Deka (supra) to emphasize that it has been the practice a nd procedure being followed in the matter of selection and appointment of Princi pal in colleges with first the State Selection Board takes a task of empanelling all eligible candidates applying the ratio of 1:3 and thereafter the final sele ction is made by the respective colleges from the said list of empanelled candid ates. 32. In the aforesaid decision the above practice and procedure has been reco gnised. Irrespective of the said judgments when the very selection was conducted on the basis of the direction contained in the aforementioned judgment and orde r dated 15.02.2007 passed in WA No. 261/2006, the respondents ought to have hel d the selection in tune with the said direction. 33. It was in that context Mr. D. Saikia, learned Addl. Advocate General, re ferring to the decision of the Apex Court in Ranju Hazarika (supra), submitted t hat if the direction of the learned Single Judge in the impugned judgment and o rder is to be implemented, and this Court issues directions to that effect, the same will amount to perpetuate an illegality. 34. Mr. Goswami, learned counsel for the appellants/petitioners placed relia nce on the decision of the Apex Court in Md. Raisul Islam and B.L. Gupta (supra) , to emphasise that when the statutory rules are there the vacancy will have to be filled up only according to the said rules without taking recourse to RFBM Ac t. 35. Mr. Phukan, learned counsel for the respondents No. 103 and 104 has plac ed reliance on Dr. Amarjit Singh (supra) so as to emphasize that the Rules of 19 81 are not statutory rules having force of law and are mere administrative instr uctions issued by the State Govt. exercising its executive power. He further sub mitted that in view of the provision of Section 6 of 2005 Act mandatorily requir ing the selection to be conducted by the respective colleges, the respondents co uld not have taken recourse to non statutory Rules of 1981 so as to frustrate th e said provision of the Act. 36 Mr. Nair, learned counsel for the respondent Nos. 7 to 43 in his painsta king argument submitted that the selection having been conducted as per the prov isions of 1981 Rules and there being no objection from any corner even to the ex tent of participation of the appellants/ petitioners, learned Single Judge was r ight in issuing the direction for appointment from the select list prepared on t hat basis. When it was pointed out to him that as per the provision of Section 6 of 2005 Act, it is mandatory to make the selection by the respective Governing Body of the colleges, it was his submission that in absence of the rules framed thereunder, the competent authority was within its right and jurisdiction to ta ke recourse to 1981 Rules. 37. The above submission