Badal Khan Vs the State of Assam and 5 Ors.

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GAHC010232832024

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/5757/2024

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BADAL KHAN

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S/O SAMAD KHAN, VILL- KAKDHUA, P.O.-BAHARI HAT, P.S.-TARABARI, DISTBARPETA (ASSAM)

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VERSUS

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THE STATE OF ASSAM AND 5 ORS

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REPRESENTED BY SECRETARY TO THE GOVT. OF ASSAM, HIGHER EDUCATION DEPARTMENT, DISPUR, GUWAHATI-06

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2:THE UNIVERSITY GRANT COMMISSION REPRESENTED BY ITS CHAIRMAN BAHADUR SHAH ZAFAR MARG NEW DELHI-110002

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3:THE DIRECTOR HIGHER EDUCATION DEPARTMENT ASSAM KAHILIPARA GUWAHATI-19

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4:THE GOVERNING BODY MANDIA ANCHALIK COLLEGE MANDIA REPRESENTED BY ITS SECRETARY P.O.-MANDIA DIST- BARPETA ASSAM PIN-781308

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5:THE SELECTION COMMITTEE

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IN RESPECT OF APPOINTMENT TO THE POST OF ASSISTANT PROFESSOR IN ENGLISH IN MANDIA ANCHALIK COLLEGE

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MANDIA REPRESENTED BY ITS CHAIRPERSON P.O.-MANDIA DIST- BARPETA ASSAM PIN-781308 6:THE PRINCIPAL MANDIA ANCHALIK COLLEGE MANDIA P.O.-MANDIA DIST- BARPETA ASSAM PIN-78130

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Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A H M R CHOUDHURY,M ALAMGEER

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Advocate for the Respondent : SC, HIGHER EDU, SC, U G C

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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O R D E R

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05.05.2025

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Heard Mr. H.R.A. Choudhury, learned Senior counsel, assisted by Mr. M. Alamgeer, learned counsel for the petitioner; Mr. A.R. Tohbildar, learned standing counsel for the Higher Education Department, respondent Nos. 1 & 3; and Mr. R. Bhuyan, learned counsel appearing on behalf of Mr. A. Chamuah, learned counsel for the respondent No. 2.

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2. In this petition, under Article 226 of the Constitution of India, the petitioner has put to challenge the Office Memorandum dated 22.10.2024, issued by the Higher Education Department and further he prays for directing the respondent authorities to proceed with the selection process for the post of Assistant Professor in English

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Department in the Mandia Anchalik College, Mandia in terms of the OM dated 24.01.2022.

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2.1. Notably, vide OM dated 22.10.2024, the respondent authorities has partially modified the OM dated 24.01.2022, i.e. the guidelines for selection of Assistant Professors/Librarians in provincialized, Government and Government Model Colleges of Assam.

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3. The background facts, leading to filing of the present petition, are briefly stated as under:-

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“The respondent No. 6, the Principal of Mandia Anchalik College, Mandia, issued one Advertisement (Annexure No. 2) in one English daily newspaper, namely Assam Tribune published from Guwahati on 02.07.2024, for filling up the post in the department of English and one post of librarian in Mandia Anchalik College, Mandia.

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In the advertisement, it was provided that the educational qualification and selection procedures will be followed as per Government OM dated 24.01.2022.

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Thereafter, the petitioner, being eligible to take part in the selection process, has applied for the post of Assistant Professor in the department of English and while the selection process was in progress, the Department of Higher Education issued one Notification dated 22.10.2024, partially modifying the OM dated 24.01.2022, by stipulating that the candidates having more than 80% marks in Post Graduation will also be entitled to 30 marks giving effect from the date of its issuance.

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The said Notification dated 22.10.2024, is prospective in nature. But, the respondent authorities being influenced by some extraneous consideration, deliberately contemplated to proceed with the selection process in question as per OM dated 22.10.2024, and thereby caused serious prejudice to the petitioner.”

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4. Being aggrieved, the petitioner has approached this Court by filing the present petition with the aforesaid prayer and also to direct the respondent authorities to proceed with the selection procedure as per OM dated 24.01.2022, without taking into consideration of the OM dated 22.10.2024.

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5. The respondent Nos. 1 & 3, the Department of Higher Education has filed affidavit-in-opposition, wherein a stand has been taken that the OM dated 22.10.2024, is only a partial modification of the Government OM dated 24.01.2022, stating the guidelines for selection of Assistant Professors/Librarians in provincialized, Government and Model Colleges of Assam. And the said modification relates to awarding of marks and attendance of nominees of the VC through online mode, but the same has not changed the eligibility criteria of the candidates and as such, partial modification does not affect the selection process.

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6. Mr. Choudhury, learned Senior counsel for the petitioner submits that pursuant to Advertisement (Annexure No. 2) the petitioner had applied for the post of Assistant Professor in the department of English of Mandia Anchalik College, Mandia having being eligible for the same. Mr. Choudhury further submits that in the aforesaid Advertisement it was stated that the educational qualification and selection procedures

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will be followed as per the Government OM dated 24.01.2022, and the last date of receipt of application was within 15 days from the date of publication of the Advertisement and as such, the date of Advertisement was over on 17.07.2024. Thereafter, the respondent authorities had issued another OM, modifying the guidelines for selection of Assistant Professor/Librarian on 22.10.2024, that too while selection process was going on. According to Mr. Choudhury, the aforementioned modification was carried out to accommodate some other candidates and since the distribution of marks was changed after the process was initiated, the same is illegal and arbitrary. Mr. Choudhury further submits that in view of the proposition of law that rule of game cannot be changed once the game has started and as such, the OM dated 22.10.2024, is liable to be set aside and quashed. Mr. Choudhury also submits that the respondent No. 6 may be directed to proceed with the selection process as per the terms and conditions mentioned in the Advertisement dated 02.07.2024.

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6.1. In support of his submission, Mr. Choudhury has referred to a decision of Hon‟ble Supreme Court in the case of Tej Prakash Pathak and Others vs. Rajasthan High Court and Others , in Civil Appeal No. 2634/2013 with Civil Appeal No.2635/2013 and Civil Appeal No.2636/2013.

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7. On the other hand, Mr. Tohbildar, learned standing counsel for the Higher Education Department, respondent Nos. 1 & 3 submits that though the distribution of marks is changed in the OM dated 22.10.2024, yet, the eligibility criteria of the candidates has not been changed and the same will not affect the selection process and as such, the changing of rule of game after the starting of game, cannot be

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applied in the case in hand and therefore, it is contended to dismiss the petition.

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7.1. In support of his submission, Mr. Tohbildar has referred to a decision of Hon‟ble Supreme Court in the case of The State of Uttar Pradesh vs. Karunesh Kumar and Others , reported in 2023 0 AIR (SC) 52 .

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8. Having heard the submissions of learned counsel for both the petitioners, I have carefully gone through the petition as well as the documents placed on record and also perused the decisions of Hon‟ble Supreme Court referred by learned counsel for both the parties.

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9. It is well settled proposition of law that once the game has started, the rule of the game cannot be changed. Reference in this context can be made to a five Judges Constitutional Bench decision of Hon‟ble Supreme Court in the case of T ej Prakash Pathak (supra), while dealing with the issue on a reference of three Judges Bench, has summarized the principle as under:-

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CONCLUSIONS

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We, therefore, answer the reference in the following terms:

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(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;

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(2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the

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advertisement, which is not contrary to the
extant Rules, so permit. Even if such change is
permissible under the extant Rules or the
advertisement, the change would have to meet
the requirement of Article 14 of the
Constitution and satisfy the test of non-
arbitrariness;

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(3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;

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(4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ non arbitrary and has a rational nexus to the object sought to be achieved.

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(5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;

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(6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for CIVIL APPEAL NO.2634 OF 2013 Page 43 of 44 Page 44 of 44 CIVIL APPEAL NO.2634 OF 2013 bona fide reasons may choose

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not to fill up the vacancies. However, if
vacancies exist, the State or its
instrumentality cannot arbitrarily deny
appointment to a person within the zone of
consideration in the select list.

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10. Thus it has authoritatively been settled by the Constitutional Bench that eligibility criteria, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. It is also settled that even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of nonarbitrariness. Since the decision in Tejprakash (supra ) is decision of Constitutional Bench, the decision of Hon‟ble Supreme Court in Karunesh Kumar and Others (supra) being decision by a bench of two Judges strength, this Court is of the view that the same would not come into assistance of Mr. Tohbildar, learned counsel for the state respondent.

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11. Now, bearing above proposition in mind an endeavor will be made to ascertain whether the rule of game is changed after the game has started here in this case or not.

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12. The basic facts of the present petition are not in disputed. The Advertisement for filling up the post of Assistant professor in Mandia College was published on 02.07.2024, and the last date for filing its application was 15 days from the date of publication of advertisement which admittedly elapsed on 17.07.2024.

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12.1. In the said Advertisement, in no uncertain term, it is stated that the educational qualification and selection procedures to be followed, will be followed as per Government OM dated 24.01.2022.

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12.2. In the said OM, the distribution of marks of total 100 is shown in the table mentioned below:-

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DISTRIBUTION OF MARKS : TOTAL 100

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1) Academic Record (72 marks)

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`(i) HSLC or equivalent examination`	`Maximum 9 marks`
`(ii) HSLC or equivalent examination`	`Maximum 9 marks`
`(iii) Degree`	`Maximum 24 marks`
`(iv) Master Degree in the concerned subject`	`Maximum 30 marks`

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It is also provided that marking for academic records will be calculated as mentioned below :-

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`Sl.` `No.`		`Candidate`	`s Sco`	`re in`	`quali`	`fyin`	`g exam`	`inat`	`ion`
		`Column-1`	`Colum`	`n-2`	`Colum`	`n-3`	`Colum`	`n-4`	`Column-5`
`1`	`10`^th	`85% and` `above=9`	`75%` `less` `85%=8`	`to` `than`	`65%` `less` `than` `75%=7`	`to`	`50%` `less` `than` `65%=5`	`to`	`Less` `than` `50%=2`
`2`	`12`^th	`85% and` `above=9`	`75%` `less` `85%=8`	`to` `than`	`65%` `less` `than` `75%=7`	`to`	`50%` `less` `than` `65%=5`	`to`	`Less` `than` `50%=2`
`3`	`Graduation`	`90% and` `above=24`	`80%` `less` `90%=2`	`to` `than` `2`	`65%` `less` `than` `80%=1`	`to` `7`	`50%` `less` `than` `65%=1`	`to` `2`	`Less` `than` `50%=7`
`4`	`Post` `Graduation`	`90% and` `above` `=30`	`80%` `less` `than` `90%=`	`to` `27`	`65%` `less` `than` `80%=`	`to` `22`	`55%` `of` `(non` `laye` `less`	`[50%` `-cre` `r)/P` `tha`	`in case` `SC/ST/OBC` `amy` `WD]` `to` `n 65%=17`

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13. However, while the selection process had started, the respondent No. 2 had issued another OM, dated 22.10.2024, wherein the calculation of marks in Post Graduation is revised as under:-

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`Post`	`Candidates’`	`Score in Qua`	`lifying Examination`
`Graduation`	`Column - 1`	`Column - 2`	`Column - 3`
	`More` `than`	`60 - 80% =`	`55% [50% in case`	`of`
	`80%` `=` `30`	`27 Marks`	`SC/ST/OBC` `(non-c`	`reamy`
	`Marks`		`layer)/(PWD)]` `to`	`less`
			`than 60% = 24 Marks`

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14. A cursory perusal of the OM dated 22.10.2024, indicates that it is prospective in nature, as in the last sentence of the said OM, it is stated that ‘it will come into effect from the date of issuance of this OM’ i.e. from 22.10.2024.

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15. The categorical stand, being taken by the petitioner is that the OM dated 22.10.2024, was issued only to accommodate some other candidates and the respondent authorities are contemplating to proceed with the selection process as per procedure prescribed in OM dated 22.10.2024.

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15.1. In paragraph No. 12 of the petition, the petitioner has categorically stated that the college authority, being influenced by extraneous consideration, is contemplating to select and appoint a candidate of their choice on the strength of OM dated 22.10.2024, and if that being so, he will be prejudiced.

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15.2. The said statement, made in paragraph No. 12 of the petition is not controverted by the respondent Nos. 1 & 3 in the affidavit-inopposition dated 04.12.2024.

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16. Though referring to the decision of Karunesh Kumar (Supra) , Mr. Tohbildar has argued that the principle of changing the „ rules of game once the game started’ would not have any application in the present process and that the changes so brought in respect of marking pattern not with respect to the qualification or the eligibility, yet, the said submission left this Court unimpressed.

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17. Though the qualification and eligibility criteria have not been changed by the respondent authorities in OM dated 22.10.2024, yet, it has changed the marking pattern and if that was done only to accommodate some other candidates of college authority‟s choice, the same cannot be permitted both in law and equity.

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18. Thus, in view of the terms and conditions as set out in the Advertisement dated 02.07.2024, that the selection procedure has to be governed by the OM dated 24.01.2022. The college authority, i.e. the respondent No. 4, 5 and 6, now cannot turn around and apply the changes so brought in vide OM dated 22.10.2024, in the selection process.

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19. Therefore, in view of the submissions of learned counsel for both the parties and also in view of the given facts and circumstances on the record, the real question to be determined herein this petition is whether the OM dated 22.10.2024, is applicable in the selection process of Assistant Professor in the Mandia Anchalik College, Mandia or not.

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And as stated in the terms and conditions of the Advertisement dated 02.07.2024, that the selection procedures will be governed by the OM dated 24.01.2022, the OM dated 22.10.2024, cannot be applied in the aforementioned advertisement as the same is prospective in nature.

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20. Besides, herein this petition, the game has started with the Advertisement dated 02.07.2024, and the rule of game, as stated in the Advertisement shall be governed as per OM dated 24.01.2022, and after the game starts, the changing of marking pattern, to the considered opinion of this Court would amount to changing the rule of the game. In that view of the matter, the submission of Mr. Tohbildar and the stand taken in the affidavit-in-opposition by the respondent Nos. 1 & 3, are clearly unsustainable in the eye of law and the decision referred by Mr. Tohbildar would not come into his assistance.

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21. It is to be noted here that in the case of Tej Prakash (Supra) , Hon‟ble Supreme Court has held that after commencement of the recruiting process, the eligibility criteria cannot be altered midway through the recruitment process unless the extant Rules so permit.

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22. Under the aforementioned facts and circumstances, I find sufficient merit in this petition and accordingly, the same stands allowed .

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23. By a mandamus of this Court the respondent authorities are directed to proceed with the selection process for the post of Assistant Professor in the Mandia Anchalik College, Mandia in terms of the O.M. dated 24.01.2022. The impugned O.M. dated 22.10.2024, cannot be applied in the selection process as it is prospective in nature.

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24. In terms of above, this writ petition stands disposed of. The parties have to bear their own cost.

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JUDGE

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Comparing Assistant

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Badal Khan v. the State of Assam and 5 Ors.

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Badal Khan v. the State of Assam and 5 Ors.

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