WP(C) 1815/2007 BEFORE THE HON’BLE MR JUSTICE RANJAN GOGOI THE HON’BLE MR JUSTICE B.P.KATAKEY The chequered history leading to filing of the present writ petitions may be not iced as under: 2. A process for empanelment of candidates under the provisions of the Assa m Education Department Selection Rules, 1981 (in short, the 1981 Rules) was init iated by issuing an advertisement by the Member-Secretary of the State Selection Board, Assam on 2.3.2003, pursuant to which both the writ petitioner and the re spondent No.5 submitted their applications for selection. The said advertisement was challenged in a number of writ petitions, including WP(C) No.2956/2003, whe rein the present petitioner was one of the petitioners, on the ground of contrav ention of the UGC guidelines in the matter of minimum qualifications prescribed. An interim order dated 29.4.2003 was passed in the said writ petition directing the appropriate authority to allow the writ petitioners therein to participate in the interview, without however, conferring any right to them for being select ed for consequential appointment and further directing that if the authority des ires to take further steps to the selection held, it would be open to it to move the Court once again. The select list of empanelled candidates for the posts of Principal in Government aided colleges prepared by the State Selection Board on 17.9.03 and approved by the Government was thereafter published in the Assam Ga zette on 22.6.2004, wherein the name of respondent No.5 finds place at serial No .282 but the petitioner’s name did not find place. The said batch of writ petiti ons was disposed by a learned Single Judge of this Court on 28.9.2005 clarifying the eligibility criteria for the purpose of selection, giving liberty to the St ate authority to act upon the select list in accordance with the rules, includin g the list kept in sealed cover, for appointment of Principals by appointing onl y those candidates who have the requisite qualification as per the UGC norms. 3. The Damdama College authority, thereafter, under the provisions of Assam Aided College Employees Rules, 1960 (in short, 1960 Rules) issued a further adv ertisement on 7.10.05 (hereinafter referred to as the 1st advertisement) for sel ection of candidate for the post of Principal in that College, from out of the l ist of empanelled candidates prepared by the State Selection Board. This adverti sement was challenged by the petitioner in WP(C) No.7468/2005, wherein an interi m order dated 18.10.05 was passed to the effect that no appointment order pursua nt to impugned advertisement dated 7.10.2005 shall be made without prior leave o f this Court. Another writ petition, being WP(C) No.819/2006 was filed by one Dr Mani Ram Kalita, questioning the legality and/or validity of the selection made by the State Selection Board for empanelment of the candidates pursuant to the advertisement dated 2.3.2003 and the orders passed by the authority extending it s validity, on the ground of violation of the 1981 Rules as well as the UGC norm s. This writ petition was dismissed by a learned Single Judge of this Court vide judgment and order dated 19.6.2006. The Single Judge taking note of the interim order dated 15.2.2006 passed in the said writ petition restraining the official respondents from acting on the select list, directed the official respondents t o allow the select list to remain operative for the period for which the interim order was in force i.e. for a period of four months from the date of judgment a nd order, though the validity of the said list going to expire on 21.6.2006. The Director of Higher Education, in terms of the said judgment and order, vide ord er dated 1.7.2006 extended the validity of the said empanelled list for four mon ths i.e. up-to 19.6.2006. The judgment and order dated 19.6.2006 passed in WP(C) No.819/06 was challenged in WA No.261/2006, wherein an interim order was passed on 31.7.2006 staying operation of the said judgment and order dated 19.6.2006 a nd also directing the respondents therein not to give any further appointment in the vacant posts of Principal from the empanelled list dated 17.9.03 prepared b y the Assam State Selection Board, which was published in Assam Gazette on 22.6. 2004. The respondent No.5 herein, in the meantime, filed an application in WP(C) No.7468/2005 praying for modification/ clarification of the interim order dated 18.10.05, on the basis of which, the order dated 18.8.2006 was passed clarifyin g the interim order dated 18.10.05 to the effect that the selection process up-t o the stage of approval of the Director of Higher Education may continue, but on ce the approval is accorded, the said decision be placed before the Court for fu rther order. However, while passing the order dated 18.8.2006, the interim order passed by the Division Bench in MC 2638/06 arising out of WA 261/2006 was not b rought to the notice of the Court by any of the parties, including the State res pondents. 4. The Governing Body of Damdama College in its meeting dated 10.9.2006 dec ided to issue advertisement again by canceling the earlier advertisement for the post of Principal vide Resolution No.2 and also decided to hold the selection f or appointment of the regular Principal on 22.10.06 vide Resolution No.1. An adv ertisement was accordingly issued by the Governing Body in the newspaper on 17.9 .06, calling for applications from the eligible candidates for the post of Princ ipal. This advertisement (hereinafter referred to as the 2nd advertisement) was challenged, by the respondent No.5, in WP(C) No.5017/06, wherein an interim orde r was passed suspending the further proceeding pursuant to the said 2nd advertis ement dated 17.9.06 in respect of the post of Principal of Damdama College. The Governing Body of the college, after the said interim order issued an advertisem ent in the newspaper on 4.10.06, asking all the applicants who applied for the p ost of Principal in response to the 1st advertisement to appear in the interview to be held on 22.10.06. Accordingly, respondent No.5 along with another who app lied for selection for the said post pursuant to the 1st advertisement appeared in the interview conducted on 22.10.06 and the Governing Body in its meeting dat ed 22.10.06 approved the proceedings of the selection committee dated 22.10.06 a nd recommended the names of both the candidates who appeared in the selection, b eing Dr Balendra Kr Das as the first nominee and Dr Rabin Sarma(respondent No.5 ) as the second nominee. The Director of Higher Education accorded prior approva l as required under the provisions of the 1981 Rules for appointment of responde nt No.5 as Principal, as the candidate who got the first nomination, namely Dr B alendra Kr Das had refused to accept the post of Principal of the said College. The petitioner challenging the said order of the Director dated 10.11.06 accordi ng prior approval has filed WP(C) No.6131/2006, wherein an interim order dated 1 3.12.06 was passed by a learned Single Judge of this Court, suspending the order of prior approval dated 10.11.2006. The WP(C) No.7468/05 which was filed by the petitioner challenging the 1st advertisement was disposed of vide order dated 1 8.12.2006 as infructuous, in view of the resolution of the Governing Body dated 10.9.06, whereby it has been decided to issue fresh advertisement by canceling t he 1st advertisement. 5. The appeal, being WA No.261/2006 which was filed by one Dr Mani Ram Kali ta, the writ petitioner in WP(C) No.8191/06, challenging the judgment and order dated 19.6.06, was disposed of by another Division Bench of this Court with a di rection that the list of empanelled candidates published in the Assam Gazette on 22.6.2004 would remain operative till 18.10.06, pursuant to the judgment and or der dated 19.6.2006 passed by the learned Single Judge, which was challenged in the said writ appeal, with a further direction that no further appointment shall be made on the basis of such list to fill up the existing/future vacancies and also directing the respondent authorities to issue fresh advertisement in accord ance with the rules and regulations for filling up of those posts and to complet e the said process within a period of four months. The Division Bench, however, taking note of the submission of the learned senior counsel appearing for the St ate respondents that during the life span of the said list, in as many as 17 col leges, including the Damdama College, the selection to the post of Principal was made and approval was sought for by the college authority on or before 18.10.06 and, in case of Damdama College, the necessary approval has already been accord ed, but the selected candidate, namely respondent No.5 could not be appointed be cause of the interim order passed by this Court, has observed that the Director of Higher Education shall consider the application seeking approval in respect of the remaining 16 colleges. It has further been observed in the said judgment and order that the approval/appointment of respondent No.5 as Principal of Damda ma College and of another candidate in respect of Pandu College shall be subject to the decision in WA No.308/06 and WP(C) No.6131/06 (WA 308/06 relates to the selection and appointment of Principal of Pandu College, which is not concerned in the present writ petitions). The Governing Body of Damdama College, thereafte r, on 5.3.07 adopted a resolution keeping the matter of appointment of regular P rincipal in abeyance on the ground that the interview for the purpose of selecti on of Principal of the said College was conducted on 22.10.06 and the approval o f the Director was sought for on 1.11.2006, i.e. after the cut off date fixed in the said judgment. 6. The Addl.Secretary to the Government of Assam in the Education(Higher) D epartment, in spite of the aforesaid position, issued a communication dated 8.3. 07 to the Director of Higher Education, requesting him to issue directive/order for appointment of the respondent No.5 as Principal and to make such appointment subject to the decision in WP(C) No.3161/2006 filed by the petitioner, purporte dly pursuant to the judgment and order dated 15.2.07 passed in WA 261/2006. Cons equently, the Director of Higher Education issued the communication dated 9.6.20 07 to the President of the Governing Body of the Damdama College to take necessa ry action and to report compliance of the direction contained in the Govt. lette r dated 8.3.07. The respondent No.5 also vide communication dated 12.3.07 reques ted the President of the Governing Body of the Damdama College to issue order of appointment in terms of the Govt. direction contained in the communication date d 8.3.07 as well as in the communication issued by the Director on 9.3.07. Since the respondent No.5 was not appointed despite such direction issued, the Direct or of Higher Education informed the Commissioner & Secretary to the Govt of Assa m in the Education Department vide communication dated 12.3.2007 in that regard. The President of the Governing Body thereafter issued the order of appointment dated 5.4.07 appointing the respondent No.5 as the Principal of the College, sub ject to the decision in WP(C) No.6131/2006 and such appointment was formally app roved by the Director of Higher Education on the same date i.e. on 5.4.2007. 7. The petitioner, as indicated above, filed WP(C) No.6131/2006 challenging the approval accorded by the Director of Higher Education on 10.11.2006 for app ointment of respondent No.5 as Principal of Damdama College, pursuant to the sel ection made on 22.10.06 by the selection committee and the resolution of the Gov erning Body of the even date, on the ground that no such approval can be accorde d as the selection has been made by the selection committee of the college pursu ant to a non-existent advertisement, being the 1st advertisement (dated 7.10.05) , the same having no longer in force in view of the Governing Body’s subsequent Resolution dated 10.9.06 cancelling the 1st advertisement and for issuance of fr esh advertisement which was subsequently issued on 17.9.2006(2nd advertisement). A further prayer has also been made in the said writ petition for directing the State respondents including the State Selection Board, Assam to issue fresh adv ertisement for empanelment of candidates for appointment of regular Principals i n the colleges receiving deficit grants in aid in Assam in terms of the provisio ns contained in 1981 Rules, the life of the empanelled list published in the Ass am Gazette on 22.6.2004 having expired on 18.10.06, in terms of the judgment and order dated 19.6.06 passed in WP(C) No.819/2006 and the consequential order dat ed 1.7.06 issued by the Director of Higher Education extending the validity of t he said list for four months with effect from 19.6.2006. 8. The petitioner also filed WP(C) No.1815/2007 challenging the communicati on dated 8.3.2007 issued by the Addl.Secretary to the Government of Assam in the Education(Higher) Department, requesting the Director of Higher Education to is sue directive/order to the college authority to appoint the respondent No.5; the consequential communication dated 9.3.2007 issued by the Director of Higher Edu cation to the college authority; the order of appointment dated 5.4.2007 issued by the Governing Body of the college appointing the respondent No.5 as Principal and the approval of such appointment accorded by the Director of Higher Educati on vide order dated 5.4.07 purportedly in compliance with the judgment and order dated 15.2.07 passed in WA No.261/2006, basically on the ground that the respon dent No.5 cannot be appointed as Principal pursuant to the empanelled list publi shed in the Assam Gazette on 22.6.2006 and on the basis of the selection made by the college authority on 22.10.06, the validity of the empanelled list publishe d on 22.6.2006 having expired on 18.10.2006. The petitioner in the said writ pet ition has also challenged the appointment as well as the approvals of appointmen t of respondent No.5 as Principal of the said college on the grounds taken in WP (C) No.6131/2006. A single Bench of this Court by interim order dated 13.4.07 su spended operation of the impugned orders with immediate effect. 9. Both the writ petitions being relating to the appointment of Principal o f Damdama College, involving the same parties, are taken up for hearing and disp osal together, as agreed to by the learned counsel for the parties, having been placed before this Bench, in view of the order dated 6.5.08 passed by the learne d Single Judge. 10. We have heard Mr I. Choudhury, learned counsel for the petitioner; Mr AM Mazumdar, learned senior counsel for the private respondent No.5; Mr VM Thomas, learned standing counsel for the Education Department; and Mr M. Bhagabari, lea rned counsel for the Governing Body of the Damdama College. 11. Mr Choudhury, learned counsel for the petitioner has submitted that the college authority by Resolution dated 10.9.2006 having decided to cancel the 1st advertisement dated 7.10.05 issued by it for selection of candidate for the pos t of Principal and also having decided to re-advertise the said post and, accord ingly, the 2nd advertisement dated 17.9.06 having been issued, there cannot be a ny selection of candidate for the said post pursuant to the 1st advertisement da ted 7.10.05, the same being not in existence. It has further been submitted that the college authority by issuing the notification in the newspaper on 4.10.06 c onducted the interview for selection of candidate for the said post pursuant to such a non-existent advertisement being the 1st advertisement in the guise of th e interim order dated 27.9.06 passed by a learned Single Judge of this Court in WP(C) No.5017/2006 filed by respondent No.5, even though by the said interim ord er though the further proceeding pursuant to the 2nd advertisement dated 17.9.06 has been stayed, it never allowed the college authority to proceed with the sel ection pursuant to the 1st advertisement dated 7.10.05. According to Mr Choudhur y, admittedly the life span of the empanelled list prepared by the State Selecti on Board under the provisions of the 1981 Rules, which was published in the Assa m Gazette on 22.6.04, having expired on 18.10.06, on expiry of the initial perio d of 1(one) year, subsequent extension by the authority and also of four months period extended pursuant to the direction contained in the judgment and order da ted 19.6.06 passed in WP(C) No.819/06 and the Governing Body of the college havi ng taken a decision on 5.3.07 to keep the process of appointment of the Principa l of the college in abeyance in view of conducting the selection after the expir y of the validity of such empanelled list, the respondent No.5 cannot be appoint ed as Principal, which has been done under pressure from the Addl.Secretary to t he Govt of Assam in the Education(Higher) Department as well as of the Director, exerted vide communications dated 8.3.07 and 9.3.07, respectively, in complete disregard to the finding recorded by a Division Bench of this Court in the judgm ent and order dated 15.2.07 passed in WA No.261/2006 wherein it has been directe d not to make any appointment against the future or existing vacancy after 18.10 .06. It has also been submitted that the observation of the Division Bench of th is Court in the said judgment and order dated 15.2.07 is on the basis of the inc orrect submission made by the learned counsel for the Education Department as it is an admitted position of fact that the selection has been made on 22.10.06 by the selection committee of the college and the prior approval for appointment h as been accorded by the Director on 10.11.06 i.e. beyond 18.10.06. Mr Choudhury, therefore, submits that the appointment of respondent No.5 needs to be interfer ed with and the post in question is directed to be filled up in a fresh process to be initiated by the State Selection Board pursuant to the direction contained in the judgment and order dated 15.2.07 passed in WA 261/2006. It has further b een contended that even if the writ petitioner has not been empanelled in the li st published on 22.6.04, it cannot be said that the writ petitioner has no locus standi to file the writ petitions, as he would get a chance to apply for select ion for the purpose of empanelment and subsequent selection by the Governing Bod y of the Damdama College for the post of Principal and his right for participati ng in the subsequent process/selection for empanelment of candidates, upon setti ng aside the appointment of respondent No.5, cannot be taken away. 12. Mr Mazumdar, learned senior counsel for the respondent No.5, referring t o the judgment and order dated 15.2.2007 passed by a Division Bench of this Cour t in WA 261/06, has submitted that it is apparent from the said judgment and ord er that though the selection of the respondent No.5 and the consequent approval for appointment as Principal of the college is after 18.10.06, i.e. the date up- to which the list of empanelled candidates remained valid, the Division Bench in spite of noticing such fact, did not interfere with the appointment of responde nt No.5 as Principal and in fact excluded the Damdama College from the purview o f the said judgment. It has been contended that respondent No.5 was appointed no t without there being any process of selection undertaken, but pursuant to the i nterview conducted by the selection committee of the college on 22.10.06 on the basis of the applications filed by the candidates who applied for the post pursu ant to the 1st advertisement dated 7.10.05 and after issuing the notice in the n ewspaper. It has further been contended that the writ petitioner having not been empanelled in the list published on 22.6.04 in the Assam Gazette has no locus s tandi to challenge the selection and appointment of respondent No.5 as Principal of the college, who on the basis of the selection conducted by the State Select ion Board has been empanelled in the said list. It has also been submitted that the writ petitioner who is the In-charge Principal, has filed a series of writ p etitions before this Court only with a view to deprive a selected candidate from being appointed on regular basis and also with a design to continue as In-charg e Principal though he has not been empanelled in the said list dated 22.6.04. 13. Mr Bhagabati, learned counsel for the Governing Body of the college has submitted that the interview conducted on 22.10.06 pursuant to the paper notific ation issued on 4.10.l06 is not on the basis of the 1st advertisement dated 7.10 .05 but on the basis of the 2nd advertisement dated 17.9.06 and, therefore, the respondent No.5 has rightly been selected and appointed as Principal of the coll ege. 14. Mr Thomas, learned standing counsel of the Education Department has subm itted that it is a fact that the respondent No.5 has been selected on the basis of the interview conducted on 22.10.06 pursuant to the 1st advertisement dated 7 .10.05 and not on the basis of the 2nd advertisement dated 17.9.06 and such sele ction for appointment as Principal has been approved by the Director on 10.11.06 and consequently he has been appointed on 5.4.07 and the final approval has bee n accorded on the same day by the Director, after the validity of the empanelled list published on 22.6.04 expired. According to Mr Thomas, it is not correct to say that the selection for the post of Principal of the college in question has been conducted and the Director accorded the approval to such selection prior t o 18.10.06 as reflected in the judgment and order dated 15.2.07 passed in WA 261 /2006 and such observation has been made in the said judgment may be because of the communication gap between the learned standing counsel and the Education Dep artment. 15. We have considered the submissions of the learned counsel for the partie s and also perused the pleadings. From the facts noticed above it is evident tha t the list of empanelled candidates for appointment in the posts of Principals i n Govt. aided colleges in Assam prepared by the State Selection Board was publis hed in the Assam Gazette on 22.6.04, as required under Rule 10 of the 1981 Rules . The period of validity of such empanelled list is 1(one) year from the date of its publication, in view of Sub-Rule (3) of Rule 10 of the said Rules. The auth ority, however, has the power to extend the period of validity of such list for a period not exceeding one year. The said list having been published on 22.6.04, its normal life came to an end on 21.6.05. However, the appropriate authority, after expiry of the validity of such list, vide order dated 1.12.05 extended the same for a period of one year which came to be challenged in WP(C) No.819/06, w hich ultimately gave rise to WA 261/06. A learned Single Judge of this Court vid e judgment and order dated 19.6.06 while dismissing the WP(C) No.819/06 filed by Dr Mani Ram Kalita(not a part to the present proceeding) challenging such order s of extension of validity, however, extended the validity of the said empanelle d list by directing that it would be operative for another 4 months from the dat e of judgment i.e. 19.6.06, giving benefit of the period for which the operation of said empanelled list was stayed in the said proceeding. Consequently, the Di rector vide order dated 1.7.06 extended the validity up-to 18.10.06 i.e. for a p eriod of four months from 19.6.2006. Though the judgment and order dated 19.6.06 was challenged in WA No.261/06, but the decision of the learned Single Judge in that respect has not been interfered with by the Division Bench