Page No.# 1/20 GAHC010201902022 2025:GAU-AS:5661- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/326/2022 BONALI DUTTA CHANGMAI AND ANR . W/O- SRI BIPLOB CHANGMAI, R/O VILL.- GOWAL GAON, P.O.- GOWAL CHAPORI, P.S. and DIST.- DHEMAJI, ASSAM, PIN- 787057. 2: MAUCHUMI DEKA W/O- MR. RAMEN KUMAR BARUAH R/O- WARD NO. 5 BHARALICHUK P.O. P.S. and DIST.- DHEMAJI ASSAM PIN- 787057 VERSUS THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, GENERAL ADMINISTRATION DEPTT., SACHIVALAYA, DISPUR, GHY- 6. 2:THE UNDER SECY. TO THE GOVT. OF ASSAM GENERAL ADMINISTRATION DEPTT. SACHIVALAYA DISPUR GHY- 6. 3:THE DY. SECY. TO THE GOVT. OF ASSAM GENERAL ADMINISTRATION DEPTT. SACHIVALAYA DISPUR GHY- 6. 4:THE DY. COMMISSIONER DHEMAJI Page No.# 2/20 DIST.- DHEMAJI. 5:MISS MANASHI HAZARIKA D/O SRI BIPUL HAZARIKA RESIDENT OF DHEMAJI TOWN WARD NO. 3 PO PS AND DIST DHEMAJI ASSAM 78705 Advocate for the Petitioner : MR S BORTHAKUR, MR. P. SINGHA Advocate for the Respondent : GA, ASSAM, MR. P J PHUKAN (R5),SC, GAD Linked Case : WA/10/2023 MANASHI HAZARIKA D/O SRI BIPUL HAZARIKA R/O DHEMAJI TOWN W/NO.3 P.O. and P.S. and DIST- DHEMAJI ASSAM PIN-787057 VERSUS THE STATE OF ASSAM AND 6 ORS. REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM DISPUR GHY-6 2:THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM GENERAL ADMINISTRATION DEPTT. DISPUR GHY-6 3:THE COMMISSIONER NORTH ASSAM DIVISION TEZPUR DIST- SONITPUR ASSAM PIN-784001 Page No.# 3/20 4:THE ADDL. SECY. TO THE GOVT. OF ASSAM GENERAL ADMINISTRATION DEPTT. DISPUR GHY-6 ASSAM 5:THE DY. COMMISSIONER DHEMAJI DIST- DHEMAJI ASSAM PIN-787057 6:MRS. BORNALI DUTTA CHANGMAI W/O SRI BIPLAB CHANGMAI R/O GOWAL CHAPORI P.O. and P.S. and DIST- DHEMAJI ASSAM PIN-787057 7:MOUCHUMI DEKA D/O LT. SADANANDA DEKA VILL. BHARALICHUK P.O. and P.S. and DIST- DHEMAJI ASSAM PIN-787057 ------------ Advocate for : MR. P J PHUKAN Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 6 ORS. BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR HONOURABLE MR. JUSTICE BUDI HABUNG Date : 30-04-2025 Date of hearing : 24.11.2023 Date of Judgment : 30.04.2025 JUDGMENT & ORDER (CAV) Page No.# 4/20 (L.S. Jamir, J) Heard Mr. D. Das, learned senior counsel assisted by Mr. S. Borthakur, learned counsel for the appellants in Writ Appeal No.326/2022 and Mr. P.J. Phukan, learned counsel for the appellant in Writ Appeal No.10/2023. Also heard Mr. B. Gogoi, learned Standing Counsel, GAD, representing the respondent Nos. 1, 2 and 3 in Writ Appeal No.326/2022 and respondent Nos. 2 & 4 in Writ Appeal No.10/2023, Mr. R.K. Bora, learned Government Advocate, representing the respondent Nos. 4 in Writ Appeal No. 326/2022 and respondent Nos. 1, 3 and 5 in Writ Appeal No.10/2023. 2. These two appeals are preferred against a common judgment and order dated 08.09.2022 passed by the learned Single Judge in WP(C) No.5430/2016 and WP(C) No.6730/2016. 3 The Deputy Commissioner, Dhemaji, published an Advertisement on 04.04.2007, inviting applications from eligible candidates for filling up of few posts of amalgamated establishment of Deputy Commissioner’s Office, Dhemaji. Amongst the posts advertised, there were two posts of Stenographer with the educational qualification of having 10+2 with Shorthand and Typing speed of 80 and 30 words per minute respectively. It was also provided that preference will be given to Computer Diploma Holders and having knowledge of Word Processing. However, in the said recruitment process, there were no qualified candidates to fill up the posts of Stenographers. 4 Thereafter, the Deputy Commissioner, Dhemaji published another Advertisement on 27.02.2008 for filling up two posts of Stenographers and the educational qualifications stipulated therein was HSSLC Examination or an equivalent Examination of recognized University or Board with Shorthand and Typing speed of 80 and 30 words per minute respectively. It was also provided that preference will be given to Computer Diploma Holders and having knowledge of Word Processing. Further, the scale of pay was provided as Rs.3850-90-4480-120-4600-DB-120-5200-175-6600-250- 7350/- per month plus other allowances as admissible as per Rules. The advertisement further stipulated that appointment against the sanctioned vacant post will be made in accordance with the provisions of Assam Fiscal Responsibility and Budget Management Act, 2005 under Section 7(1)(G) (AFRBM Act of 2005 in short). The advertisement further provided that appointments will be made after getting necessary approval from the Government of Assam, General Administration Department. 5 Pursuant to the advertisement dated 27.02.2008, the appellants in both the writ petitions along with Page No.# 5/20 others submitted their applications for the said posts of two Stenographers. After completion of the selection process, the Deputy Commissioner, Dhemaji by two separate orders, both dated 17.06.2008, appointed the appellants in Writ Appeal No.326/2022 as Stenographer (under qualified) against sanctioned vacant posts of Stenographers in the scale of pay of Rs.3010-60-3490-90-3850- EB-90-4480-120-5200-175-6075/- per month plus other allowances as admissible under the Amalgamated establishment of the Deputy Commissioner, Dhemaji. It is worthwhile to mention herein that the scale of pay against which the two appellants were appointed was lower than the advertised scale of pay as per the advertisement dated 27.02.2008. Being aggrieved with the appointments of the appellants in Writ Appeal No.326/2022, the appellants in Writ Appeal No.10/2023 as writ petitioner along with four others assailed the appointment orders of the appellants in Writ Appeal No.326/2022. The said writ petition was registered as WP(C) No.3197/2008, which was disposed of by an order dated 16.06.2011 with a direction to the Commissioner and Secretary to the Government of Assam in the General Administration (B) Department to examine the matter based on the material available on record and to pass appropriate orders as deemed expedient in law. It was further observed that, while taking action, the authority should also consider whether, in the meantime, the two respondents have acquired the required qualification and whether they should be given an opportunity to do so. 6 Thereafter, by a letter dated 16.12.2011, the Deputy Secretary of the General Administration Department communicated to the Deputy Commissioner of Dhemaji that both appellants may be given an opportunity to acquire the requisite qualification within a specified time frame for the post of Stenographer-III, as envisaged and prescribed in Schedule I, Part A (Rule 8) of the Assam Stenographers Service Rules. 7 This letter dated 16.12.2011 was challenged in WP(C) No. 590 of 2012 by respondent No. 5 in W.A. No. 326/2023 / appellant in WA No. 10/2022. After hearing the parties and reviewing the earlier order dated 16.6.2011, the learned single Judge, by an order dated 31.05.2016, set aside the letter dated 16.12.2011. The learned single Judge passed the following order:- “… the order dated 16.6.2011 passed in WP (c) No.3197/2008 has clearly spelt out the various points that the respondent No.2 has to consider while examining the case of the respondent Nos 6 & 7. However, on perusal of the order dated 16.12.2011, passed by the Deputy Secretary of the Govt. of Assam, GAD, I find that the issues raised by this Court in the earlier writ petition has not been considered and no findings have been made in that aspect. Accordingly, I find the letter dated 16.12.2011 is cryptic. The said letter dated 16.12.2011 is accordingly set aside. The respondent No.2 is directed to consider all Page No.# 6/20 the points raised by this Court in its order dated 16.6.2011, passed in WP (c) No.3197/2008 and come to the finding by giving reason(s). The respondent No.2 will thereafter take a decision on the selection and appointment of the private respondents…” 8 Pursuant to the order and directions dated 31.05.2016 passed in WP(C) No. 590 of 2012, the respondent, the Commissioner & Secretary to the Government of Assam, issued a reasoned order on 18.08.2016. In this order, the Commissioner & Secretary directed the Deputy Commissioner of Dhemaji to consider canceling the earlier irregular recruitment process and to issue a fresh advertisement for filling the posts of Stenographer-III, in accordance with the norms laid down in the Assam Stenographers’ Service Rules, 1995. This was to be done after obtaining fresh approval from the relevant government departments (Finance (SIU) Department and General Administration Department) for filling the vacant sanctioned posts. 9 . Being aggrieved, this order dated 18.8.2016 has been challenged from two separate fronts. The two writ appellants in W.A. No.326/2022 challenged the order dated 18.8.2016 by filing WP(C) No.6730/2016; the writ appellant in WP(C) No.10/23 challenged the same order by filing WP(C) No.5430/2016. They also arrayed two writ appellants in W.A. No.326/22 as respondents No.6 and 7, respectively. 10. By the common judgment and order under appeal dated 8.9.2022, both writ petitions were dismissed. The Deputy Commissioner of Dhemaji is directed to proceed with the selection process to fill the resulting vacancies in the post of Stenographer, Grade III, in his establishment, in accordance with the extant rules and procedures. Being aggrieved by this judgment and order, the appellants filed the present two appeals from two separate fronts. 11. The contention of the appellant in WA. No.326/22 is that it was the government, in compliance with the order dated 16.06.2011 passed in WP(C) No.3197/2008, that allowed the two appellants to obtain the necessary qualification. Based on this government order, they obtained the National Trade Certificate in Stenography (E) awarded by the Industrial Training Institute of Assam. The appellant further contends that they have continued to work as Stenographers in the said establishment since their appointment in 2008. Therefore, the appellants argue that they bear no fault in their selection or in their continued service. However, the learned Single Judge failed to consider these facts and erred in not taking this aspect into account. 12. The contention of the appellant in W.A. No.10/2023 is that, by applying the doctrine of severability, she, being among the eligible and qualified candidates who successfully participated in the selection Page No.# 7/20 process, should have been included in the recalibrated select list to fill one of the resultant vacancies for the post of Stenographer Grade-III in the Dhemaji District establishment. The learned single judge, however, failed to consider this aspect. 13. To justify the argument that the learned single judge erred in dismissing the writ petitions and in directing the Deputy Commissioner, Dhemaji, to proceed with the selection process to fill the resultant vacancies in the post of Stenographer Grade-III, the learned senior counsel for the appellant in W.P. No. 326/2022 contended as follows: The Deputy Commissioner, Dhemaji, issued an advertisement on 4.4.2007 for two posts of Stenographer. However, none of the candidates qualified in that recruitment process. Consequently, the Deputy Commissioner published another advertisement for the same two posts on 27.02.2008. The essential educational qualification specified was HSSLC examination or an equivalent qualification from a recognized university or board, with shorthand and typing speeds of 80 and 30 words per minute, respectively. The advertisement stated that appointments against the sanctioned vacant posts would be made in accordance with the provisions of section 7(1)(g) of the Assam Fiscal Responsibility and Budget Management Act, 2005 (the AFRBM Act, 2005). The appellant fulfilled the required qualifications as per the advertisement; however, no rules were mentioned in the advertisement. 14. In pursuance of the advertisement, two appellants participated. Accordingly, both were selected, and by an order dated 17.6.2008, they were appointed as Stenographers (Under Qualified) against the sanctioned post of Stenographer-III. This appointment order was challenged by two petitioners in WP(C) No. 3197/2008. By an order dated 16.06.2011, the learned single judge disposed of the matter with a direction to the Commissioner and Secretary to the Government of Assam in the General Administration (B) Department to examine the matter based on the available record and to pass appropriate orders as may be expedient in law. It was further observed that, while taking action in accordance with this order, the authority may also consider whether, in the meantime, the two respondents have acquired the required qualification and/or whether they should be given an opportunity to do so. The appellant contends that this order dated 16.6.2011 was never challenged before any court. 15. Thereafter, by a letter dated 16.12.2011, the Deputy Secretary of the General Administration Department communicated to the Deputy Commissioner of Dhemaji that both appellants may be given an opportunity to acquire the requisite qualification within a specified time frame for the post of Stenographer-III, as prescribed in Schedule I, Part A (Rule 8) of the Assam Stenographers Service Page No.# 8/20 Rules. Accordingly, both appellants obtained the required qualification certificates on 20.12.2013 and 31.7.2014, respectively. 16. The order dated 16.12.2011 was again challenged in WP(C) No.590/2012. By an order dated 31.05.2016, the learned single judge observed that the order dated 16.6.2011, passed in WP(C) No.3197/2008, clearly outlined the various points that respondent No.2 was required to consider while examining the cases of respondents Nos. 6 and 7. However, upon perusal of the order dated 16.12.2011, passed by the Deputy Secretary to the Government of Assam, it was found that the issues raised by the Court in the earlier writ petition had not been considered, and no findings had been made on that aspect. Accordingly, the learned single judge found the letter dated 16.12.2011 to be cryptic and set it aside. Further, respondent No.2 was directed to consider all the points raised in the order dated 16.6.2011, passed in WP(C) No.3197/2008, and to arrive at a decision by providing reasons. Thereafter, respondent No.2 was to make a decision regarding the selection and appointment of the private respondents. 17. Subsequently, the Commissioner and Secretary to the Government of Assam, General Administration Department, issued an order dated 18.08.2016, directing the Deputy Commissioner of Dhemaji to consider scrapping the earlier irregular recruitment process and to issue a fresh advertisement to fill the posts of Stenographer-III, in accordance with the laid-down norms of the Assam Stenographers’ Service Rules, 1995. This was to be done after obtaining fresh approval from the Government (Finance (SIU) Department/General Administration Department) for filling the vacant sanctioned posts. 18. This order was again challenged by the writ appellant in WP(C) No.6730/2016. By a common judgment and order dated 08.09.2022, the writ petitions were dismissed, and the Deputy Commissioner of Dhemaji was directed to proceed with the selection process to fill the resulting vacancies for the post of Stenographer Grade III in his establishment, in accordance with the applicable rules and procedures, if so advised. Aggrieved by the judgment and order dated 08.09.2022, the appellants have filed the present appeal. 19. The learned senior counsel for the appellant submitted that the finding of the learned Single Judge was that the appointment to the post of Stenographer-III must be made in accordance with the relevant rules. However, the appointments of the appellants were not based on these rules, as they were not mentioned in the advertisement. 20.The main argument of the learned senior counsel for the appellant in WA. No. 326/22 is that it was Page No.# 9/20 the government, in compliance with the order dated 16.06.2011 passed in WP(C) No. 3197/2008, that provided an opportunity and allowed the two appellants to acquire the necessary qualifications. Based on this order, the appellants obtained the required degree and the National Trade Certificate in Stenography (E), awarded by the Industrial Training Institute of Assam. This High Court order dated 16.06.2011 was never challenged before any court. Furthermore, the appellants have continued to work as Stenographers in the same establishment since their appointment in 2008, maintaining their positions up to 2023. At this stage, there should be no interference, considering the long years of service rendered by the appellants since 2008, as such interference would cause undue hardship to them given their age and length of service. Therefore, the learned senior counsel pray for setting aside the impugned judgment and order. 21. In support of his argument, the learned counsel for the appellant relied on the following citations: (i) Dr M.S Mudhol and Another Vs.S.D.Halegkar and others, reported in (1993)3 SCC 591. (ii) Ravinder Kumar Vs. State of Haryana and Others, reported in (2010)5 SCC 136. (iii) Vikas Pratap Singh and Others Vs. State of Chhattisgarh and Others, reported in (2013)14 SCC 494. (iv) Municipal Board, Pratapgarh and Another Vs. Mahendra Singh Chawla and Others, Reported in (1982)3 SCC 331. 23. Mr. P.J. Phukan, learned counsel for the appellant in Writ Appeal No.10/2022 and respondent No.5 in WA No.326/23, submitted that the qualifications for appointment to the post of Stenographer, Grade III, have been specifically laid down in Rule 8 read with Schedule I, Part A of the Assam Stenographers Service Rules, 1995. Therefore, any vacancy in the post of Stenographer, Grade III, must be filled only by candidates who meet the prescribed qualifications. In the present case, while the appellant fulfilled the eligibility criteria under the Assam Stenographers Service Rules, 1995, the private respondents No.6 and 7, who are the appellants in W.A. No.326/23, did not possess the requisite qualifications as of the last date for submission of applications, as fixed by the advertisement dated 27.02.2008. They were under qualified which is explicitly mentioned in their appointment orders. He further argued that the Deputy Commissioner of Dhemaji, being the appointing authority, was legally obligated to fill the vacancies in accordance with the provisions of the Assam Stenographers Service Rules, 1995, and could not have deviated from the prescribed eligibility criteria. 24. The learned counsel for the appellant also contended that upon learning of the illegal Page No.# 10/20 appointments made by the Deputy Commissioner of Dhemaji through appointment orders dated 17.06.2008, the appellant immediately approached this Court in 2008 by challenging their appointment in WP (C) No.3197/2008, and has since been pursuing the matter. Additionally, he emphasized that no relaxation of the essential qualifications prescribed in the Assam Stenographers Service Rules, 1995, could be permitted. He further submitted that it is settled law that when a particular authority is required to exercise a power in a specified manner, it must do so accordingly, or not at all. He referred to a decision of the Supreme Court in Hukam Chand Shyam Lal Vs. Union of India and Others, reported in (1976) 2 SCC 128 . 25. Mr. Phukan, learned counsel for the appellant, primarily supported the part of the order dated 18.08.2016, whereby the Commissioner & Secretary to the Government of Assam, GAD, directed the cancellation of the selection process, resulting in the cancellation of the private respondents’ appointments. However, he did not support the other part of the order, which directed the authority to conduct a fresh recruitment process to fill the two vacancies of Stenographer, Grade III. He argued that since there are several candidates, including the present appellant, who meet the prescribed qualifications under the Assam Stenographers Service Rules, 1995, the respondent authorities should be directed to continue the selection process from the stage where it was vitiated, applying the doctrine of severability to the remaining qualified candidates. 26. The learned counsel further pointed out that the appellant was qualified and had been selected. While respondent No.6 and 7 scored 58.5 and 51.6 marks respectively, the appellant scored only 26.3 marks. He contended that, since there was no minimum cut-off mark, the appellant is entitled to appointment against one of the remaining vacancies. 27. In support of his submissions, Mr. Phukan referred to the decision of a Division Bench of this Court in Kime Bobby and others vs. Gauhati High Court and others, reported in 2021 [3] GLT 33. He also relied upon the decisions of the Hon’ble Supreme Court of India in Rakesh Kumar Sharma vs. State [NCT of Delhi] and others, reported in [2013] 11 SCC 58, as well as Ashok Kumar Sharma and others vs. Chander Shekhar and others, reported in [1997] 4 SCC 18. He submitted that the selection process does not get extinguished. To support his argument on the doctrine of severability, he referred to the decision of this Court in Dr. Khagendra Narayan Baruah and another vs. State of Assam and others, reported in 2002 [1] GLT 285, and contended that the doctrine of severability squarely applies to the case of the Page No.# 11/20 appellant. Regarding his submission that the qualification of the respondent could not have been relaxed initially, the learned counsel referenced the case of Dr. Khagendra Narayan Baruah and others vs. State of Assam & others, reported in 2002 (1) GLT 285. 28. On the other hand, the learned Government Advocate for respondent Nos. 4 in Writ Appeal No. 326/2022 and respondent Nos. 1, 3, and 5 in Writ Appeal No. 10/2023 submitted that, pursuant to the advertisement dated 4.4.2007, which was issued earlier, no qualified candidates could be found. Consequently, another advertisement was published on 27.2.2008. In the selection conducted pursuant to this latter advertisement, out of 110 marks, the first appellant secured 58.5 marks, and the second appellant secured 51.6 marks. Accordingly, by letters dated 2.5.2008 and 2.6.2008, the Deputy Commissioner of Dhemaji intimated the Commissioner & Secretary, General Administration (B) Department, and sought approval for the select list. 29. Thereupon, the Commissioner & Secretary, General Administration (B) Department, by his letter dated 1.8.2008, addressed to the Deputy Commissioner, Dhemaji, requested that no appointments be made of the selected candidates if they were found to be ineligible according to the relevant rules. However, this letter was not included as part of the pleadings before the learned single judge. The division bench, however, directed the State to file an affidavit to bring the said letter on record. It is now part of the record. Prior to receiving any response from the Commissioner and Secretary regarding this letter, the Deputy Commissioner, Dhemaji, had already appointed the two appellants on 17.6.2008. 30. Thereafter, by letter dated 16.12.2011, the Deputy Secretary, General Administration Department, communicated to the Deputy Commissioner, Dhemaji, that both appellants should be given an opportunity to acquire the requisite qualifications within a specified time frame for the post of Stenographer-III, as prescribed in Schedule I, Part A (Rule-8) of the Assam Stenographers Service Rules. However, the government was required to pass a speaking order, as directed by the single judge in its order dated 16.6.2011 in WP(C) No. 3197/2008. The letter dated 16.12.2011, issued by the Deputy Secretary to the Government of Assam, was not in the form of a speaking order; it was merely a communication. Consequently, this communication was challenged in WP (C) No. 590/2012. 31. The learned Government Advocate further submitted that the claim of the appellants— that they were given an opportunity to acquire qualification—has been interfered with by an Page No.# 12/20 order dated 31.05.2016 passed in WP (C) No. 590 of 2012. The court passed the following order: “… the order dated 16.6.2011 passed in WP (c) No.3197/2008 has clearly spelt out the various points that the respondent No.2 has to consider while examining the case of the respondent Nos 6 & 7. However, on perusal of the order dated 16.12.2011 passed by the Deputy Secretary of the Govt. of Assa, GAD, I find that the issues raised by this Court in the earlier writ petition has not been considered and no findings have been made in that aspect. Accordingly, I find the letter dated 16.12.2011 is cryptic. The said letter dated 16.12.2011 is accordingly set aside. The respondent No.2 is directed to consider all the points raised by this Court in its order dated 16.6.2011 passed in WP (c) No.3197/2008 and come to the finding by giving reason(s). The respondent No.2 will thereafter take a decision on the selection and appointment of the private respondents…” Thus, the letter dated 16.12.2011 no longer exists. 32. Thereafter, a final speaking order was passed by the Commissioner & Secretary to the Government of Assam, GAD, on 18.8.2016, in accordance with the Court’s direction dated 31.5.2016 in WP (C) No. 590/2012. The Court had directed that all points raised by the Gauhati High Court in its order dated 16.6.2011 in WP (C) No. 3197/2008 be considered and that a reasoned decision be made. The order states: “…Now, therefore, in consideration of the governing the recruitment of Stenographers, the matter is disposed of by directing the Deputy Commissioner, Dhemaji, to consider scrapping the earlier irregular recruitment process and to consider issue of advertisement a fresh to fill up the posts of Stenographer-III as per laid down norms in the Assam Stenographers’ Service Rules, 1995, after obtaining fresh approval from the Govt. [Finance (SIU) Department/General Administration Department] towards filling up of vacant sanction posts only…” 33. This order was again challenged by the writ appellants. Finally, after hearing all the parties, the impugned order was passed, directing the Deputy Commissioner, Dhemaji, to proceed with the selection process to fill the resulting vacancies in the post of Stenographer, Grade III, in his establishment, in accordance with the extant rules and procedures, if so advised. 34. The learned Government Advocate submitted that, at paragraph 29 of the impugned judgment, it is clearly noted that in the selection process, there were a number of qualified candidates fulfilling the eligibility criteria laid down for the post of Stenographer, Grade III, in the Assam Stenographer Service Rules, 1995. Therefore, this is not a case where no qualified Page No.# 13/20 candidates were available. The appellants in 326/2023 were not qualified at the time of selection, as they did not possess the minimum qualifications required for the post under the Assam Stenographer Service Rules, 1985. The minimum qualifications cannot be relaxed. 35. He further submitted that there is a government notification issued on 2.9.1988, by the Personnel Department of the Government of Assam, concerning the appointment of underqualified stenographers in the state government and semi-government organizations. Through this Office Memorandum, all concerned were reminded of instructions issued earlier by the department via Office Memoranda dated July 6, 1978, and May 2, 1981, on the same subject. It was stated that the State Government had come to notice that, despite previous instructions, some departments continued to engage underqualified stenographers. Consequently, the Government reiterated its earlier decision and cautioned all concerned not to appoint underqualified stenographers, holding appointing authorities responsible in case of such appointments. This Office Memorandum emphasized that appointing authorities shall not appoint underqualified stenographers. 36. In the present case, instead of approving the selection forwarded by the Deputy Commissioner, Dhemaji, the Government directed the Deputy Commissioner that no appointment should be made pursuant to the selection. Subsequently, the Government ordered that a fresh selection be conducted in accordance with the Assam Stenographers Service Rules. 37. The recruitment to the post of Stenographer Grade III is governed by the Assam Stenographers Service Rules, 1995. The qualifications required for appointment to this post are specifically prescribed in Rule 8 read with Schedule I, Part A of the Rules. One of the essential qualifications for appointment as a Stenographer Grade II is the National Trade Certificate in Stenography (English), awarded to trainees from the Industrial Training Institute in Assam by the National Council for Vocational Trade, or a diploma in Stenography from a government- recognized polytechnic of the State. Candidates must also possess the requisite academic qualification, such as passing the PU or HSSLC examination or an equivalent examination from a recognized university or board, and must have passed the speed test of 80 words per minute in English Stenography or in an Indian language stenography (Assamese, Bengali, or Hindi) conducted by the Board. Therefore, any vacancy in the post of Stenographer Grade III must be filled only by candidates who meet these prescribed qualifications. However, in the present case, it is admitted that the appellants in W.A. No. 326/2023 did not possess the requisite Page No.# 14/20 qualifications, particularly the National Trade Certificate in Stenography (English) awarded by the Industrial Training Institute of Assam, as required by the Assam Stenographers Service Rules, 1995, as of the last date for submission of applications as specified in the advertisement dated 27.02.2008, nor at the time of issuance of their appointment orders for the post of Stenographer Grade III. They were therefore underqualified, as clearly stated in their appointment orders. 38. When the recruitment for the post of Stenographer Grade-III is governed by the Assam Stenographers Service Rules, 1995, the Deputy Commissioner of Dhemaji, being the Appointing Authority, was obligated under the law to fill the vacancies strictly in accordance with the provisions of the said Rules. However, in the present case, the Deputy Commissioner of Dhemaji, while advertising the post of Stenographer, failed to include the mandatory qualification as prescribed in Schedule-1, Part-A (Rule-8) of the Assam Stenographer Service Rules, 1995. Moreover, the Deputy Commissioner accepted applications from the appellants, conducted interviews, selected them, and issued appointment orders, thereby appointing the appellants as Stenographer-III despite their lacking the requisite qualifications. Since the appellants were underqualified, the Deputy Commissioner could not have permitted them to appear in the interview or appointed them against the sanctioned post of Stenographer Grade- III. 39. Furthermore, as per the advertisement dated 27.02.2008, issued to fill two vacancies of Stenographers, Grade-III, the scale of pay was specified as Rs. 3850-90-4480-120-4600-EB- 120-5200-175-6600-250-7350 per month. However, the appointments made to the appellants on 17.06.2008, against the sanctioned post of Stenographer (Under Qualified), were in a lower pay scale of Rs. 3010-60-3490-90-3850-EB-90-4480-120-5200-175-6075 per month. The Deputy Commissioner of Dhemaji, as the Appointing Authority, has not provided any explanation for why the two appellants were appointed as underqualified Stenographers at a lower pay scale. Therefore, the appointments of the appellants were not made in accordance with the Assam Stenographers Service Rules, 1995. In the case of Hukam Chand Shyam Lal Vs. Union of India and Others, (Supra), it is observed that”…It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performances are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural Page No.# 15/20 justice…” 40. By the government notification dated 2.9.1988, issued by the Personnel Department of the Government of Assam on the subject: "Appointment of Under Qualified Stenographers in the State Government and Semi-Government Organizations," all concerned were reminded of the instructions issued through Office Memoranda dated 06.07.1978 and 02.05.1981 on the same subject. These memoranda highlighted that the State Government had received reports indicating that, despite previous instructions, some departments continued to engage Under Qualified Stenographers. Consequently, the Government reaffirmed its earlier decision and issued a caution to all concerned, emphasizing that Under Qualified Stenographers should not be appointed. The memorandum also made it clear that the Appointing Authorities would be held responsible if Under Qualified Stenographers were appointed. Through this Office Memorandum, the State Government explicitly directed that Appointing Authorities shall not appoint Under Qualified Stenographers. Following this directive, it is not on record whether the Government held any officer liable. However, it is noted that the Deputy Commissioner of Dhemaji, as the appointing authority, did not adhere to the proper procedure when appointing the two appellants to the sanctioned post of Stenographer Grade III, as they lacked the requisite qualifications both at the time of application and at the time of appointment. 41. Regarding the appellants' claim that the advertisement dated 27.2.2008 did not specify the requirement of a National Trade Certificate in Stenography, and therefore, it was not their fault for applying and being selected, it is important to clarify that the omission of a specific qualification in the advertisement does not absolve the State Government or the Appointing Authorities from their obligation to follow the applicable rules. In this case, these are the Assam Stenographers Service Rules, 1995, and the AFRBM Act, 2005. The State and its authorities are bound by the standards set forth in these rules and cannot disregard or bypass them. They are obligated to enforce the existing rules and ensure proper compliance in appointments. 42. In Rakesh Kumar Sharma [supra], the Hon’ble Supreme Court of India also referred to a decision in State of Gujarat vs. Arvindkumar T. Tiwari, reported in [2012] 9 SCC 545, which held that a person who does not possess the requisite qualification cannot even apply for recruitment, as his appointment would be contrary to statutory rules and therefore void in law. Lacking eligibility for the post cannot be remedied at any stage, and appointing such a person would amount to serious illegality rather than mere irregularity. Such a person cannot approach Page No.# 16/20 the court for relief, as he does not have a right that can be enforced through legal proceedings. Furthermore, it was emphasized that there is no obligation on the court to protect an illegal appointment. The court’s extraordinary power should be exercised only in appropriate cases to advance the cause of justice, and not to defeat the rights of others or to create arbitrariness. Usurpation of a post by an ineligible candidate under any circumstances is impermissible. It was also noted that if an ineligible candidate is appointed during the selection process, it could mean that many other candidates who did not meet the eligibility criteria—either as per the rules or the advertisement—were also ineligible on the last date for submitting applications. Granting benefits to only one ineligible candidate would violate the doctrine of equality, which is a fundamental aspect of the rights guaranteed under the Constitution. Many such candidates may have refrained from applying, believing themselves ineligible, in accordance with statutory rules and the terms of the advertisement. 43. In the case of Vikas Pratap Singh and others (Supra) as relied upon by the learned counsel for the appellants, the question of the appellants' ineligibility due to lack of the qualification prescribed in the statutory rules was never at issue. However, in the present case, the matter concerns the lack of the requisite qualification of the appellants for appointment to the post of Stenographer, Grade III, as of the last date for submission of their applications in response to the advertisement, as well as on the dates of their appointments. The position in the case of Vikas Pratap Singh and others (Supra) cannot be equated with the present circumstances. Therefore, we are of the view that the decision in that case, relied upon by the private respondents, cannot be applied to the case of the appellants. It is an established legal principle that appointments made in contravention of statutory rules are void ab initio. Furthermore, the appointments of the appellants have been challenged from the very beginning, with the institution of the writ petition in the year 2008. 44. The appointments of the appellants were challenged in Writ Petition No. 3197/2008. This petition was disposed of on 16.6.2011. In its order, the court directed the Commissioner and Secretary to the Government of Assam, GAD, to examine the matter based on the available record and to pass an appropriate order as deemed fit under the law. The court also observed that the authority should consider whether, in the meantime, the two private respondents had acquired the required qualification or whether they should be given an opportunity to do so. Based on this observation, the learned counsel for the appellants argued that there was an indication of deemed relaxation. They further contended that, following the order dated June 16, Page No.# 17/20 2011, the authority provided the two appellants an opportunity to acquire the requisite qualification for the post of Stenographer Grade III, as prescribed in Schedule I, Part A (Rule 8) of the Assam Stenographers Service Rules, 1995. Both appellants obtained the necessary degree certificates; however, the impugned order dated August 18, 2016, did not consider this aspect of deemed relaxation. 45. From Rule 25 of the Assam Stenographers Service Rules, 1995, it is evident that the power of relaxation is vested solely in the Government and not in any other authority. The purpose of conferring this power on the Government is to enable it to dispense with or relax the requirements of the Rules to the extent deemed necessary, subject to such conditions as it considers appropriate. This authority is intended to mitigate undue hardship in specific cases and to ensure a just and equitable resolution. If the Rules cause undue hardship or operate in an inequitable manner, the State Government has the authority to relax or dispense with certain requirements. 46. In Arvind Kumar T.Tiwari [Supr], it has been held that, in particular cases, relaxation of even educational qualifications may be permissible, provided that the rules explicitly empower the authority to relax eligibility criteria either generally, or in specific cases or classes of cases where undue hardship exists. However, such power must be exercised for justifiable reasons and should not be used arbitrarily or solely to favor an individual. The authority to relax recruitment rules or any other rules made by the State Government is granted to address emergent situations where injustice might have been caused or is likely to be caused to any person or group, or where the strict application of the Rules could render their implementation impossible. 47. It is important to note that, during the selection process for the post of Stenographer, Grade III, under the Assam Stenographers Service Rules, 1995, there were several qualified candidates who met the eligibility criteria. Therefore, this is not a case where no qualified candidates were available. Additionally, the communication dated 16.12.2011 from the Deputy Secretary to the Government of Assam, GAD, has already been set aside by an order dated 31.05.2016 in a writ petition. As a result, the observations made therein are nullified, and further discussion on that matter is unnecessary. 48. The order dated 18.08.2016 clearly stated that the entire recruitment process was vitiated. The Deputy Commissioner of Dhemaji was directed to consider scrapping the existing Page No.# 18/20 recruitment process and to issue a fresh advertisement to fill the post of Stenographer, Grade III, in accordance with the norms laid down in the Assam Stenographers Service Rules, 1995, after obtaining fresh approval from the relevant government departments. Furthermore, it was observed that the Deputy Commissioner, Dhemaji, as the Appointing Authority, would also examine whether the applicants (including the present appellants) possessed the required qualifications. This clearly indicated that the authority had refused to exercise the power of relaxation under Rule 25 of the Assam Stenographers Service Rules, 1995, in favor of the appellants. 49. A reading of the order dated 18.08.2016 shows that due consideration was given to all relevant factors. The learned single judge did not find any sufficient reason to conclude that the order was inconsistent with or contrary to the directions issued by this Court in its order dated 16.06.2011 in WP (C) No. 3197/2008. 50. In light of the above, we are of the opinion that a person who does not possess the requisite qualifications for appointment to the post of Stenographer, Grade III, as per the rules governing such appointments—namely, the Assam Stenographers Service Rules, 1995—cannot be appointed to that post during the selection process. Any such appointment would be contrary to the rules and therefore void. The subsequent acquisition of the prescribed qualification cannot remedy this defect at any stage, and the continuation of such an appointee would be illegal. 51. Because of the discussions and points raised above, we are firmly of the view that the state's action in passing the order dated 18.08.2016, directing the cancellation of the earlier selection process—which culminated in the appointment orders dated 17.06.2008—is just, proper, and in accordance with law. 52. The interim order dated 30.09.2022 passed in W.A 326/2022is hereby recalled, and the competent authority shall pass the necessary consequential order accordingly. 53. Regarding the contention raised on behalf of the appellant in W.A. No.10/2022 concerning the doctrine of severability, it is noted that the advertisement dated 27.02.2008 explicitly stated that appointments against the sanctioned posts would be made in accordance with the provisions of Section 7(1)(g) of the AFRBM Act, 2005. This section contains a non- obstante clause, which stipulates that, notwithstanding any other provisions in any Act or Rules, the select list prepared for fresh appointments to vacant sanctioned posts shall include only the Page No.# 19/20 number of names equal to the number of vacancies notified at the time of calling for applications. 54. The advertisement dated 27.02.2008 was issued for filling two vacant posts of Stenographer. Under the provisions of Section 7(1)(g) of the AFRBM Act, 2005, the select list for these two posts should contain only two names. During the selection process, private respondents Nos. 6 and 7 scored 58.5 and 51.6 marks, respectively, while the petitioner scored 26.3 marks. There is no record indicating whether the petitioner met any required cut-off mark, if such a mark existed. 55. Be that as it may, the process of recruitment initiated by the Advertisement dated 27.02.2008 for filling up of two nos. of posts of Stenographers stood culminated after the preparation of select list in terms of Section 7[1][g] of the AFRBM Act, 2005 and with the orders of appointment dated 17.06.2008, whereby, the two private respondents came to be appointed. The selection process stood culminated with the publication of the select list and the consequent appointments of the candidates from the select list. The setting aside of the two private respondents will not result in revival of the selection process by relating it back to the stage where it stood vitiated. Furthermore, even if the doctrine of severability applies, the appellant in W.A.No.10/2022 will not be a person who would be the next candidate for selection/appointment. The other non-selected candidates who are not before us are found to be ahead of the appellant in W.A.No.10/2022 as they secured more marks than the petitioner in W.A.No.10/2022. They secured 35.6 and 30.7 respectively, whereas the appellant in W.A.No.10/2022 has secured only 26.3 marks. Moreover, in the instant case there is nothing to show that the appellant in W.A.No.10/2022 was eligible for selection. 56. We have gone through the case of Dr. Khagendra Narayan Baruah and another [supra]. In Dr. Khagendra Narayan Baruah and another [supra] the selection process was not culminated with the appointment of candidates and at the time the challenge was made, only the select list of candidates recommended by the Commission was prepared and no appointment from the select list was made. In such view of the matter, the decision in Dr. Khagendra Narayan Baruah and another [supra] is found not applicable to the facts and circumstances of the case in hand. The fact and circumstances of the case in Kime Bobby and Anr. [Supra] is also different, and cannot be applied to the present case. In view of the above, the case of the appellant in W.A.No.10/2022 also fails. Page No.# 20/20 57. In view of the discussions made herein above, we see no reason to interfere with the common judgment and order dated 08.09.2022 passed by the learned Single Judge in WP(C) No.5430/2016 and WP(C) No.6730/2016 and accordingly, both the appeals are dismissed. However, no order as to costs. 22 JUDGE JUDGE JUDGE Comparing Assistant