Page No.# 1/49 GAHC010086412022 2025:GAU-AS:17747 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2988/2022 SUBHRA SABHAPANDIT W/O- DR. RANJAN CHAKRABORTY R/O- HOUSE NO.10, OPPOSITE BAKUL PATH, NH 37, P.S- JALUKBARI, DIST- KAMRUP (M), ASSAM VERSUS THE STATE OF ASSAM AND 7 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, HIGHER EDUCATION DEPARTMENT, DISPUR, GUWAHATI-781006 2:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GUWAHATI-781019 3:THE PRESIDENT OF GOVERNING BODY NALBARI COLLEGE NALBARI ASSAM PIN-781335 4:THE SELECTION COMMITTEE REP. BY ITS CHAIRMAN NALBARI COLLEGE NALBARI ASSAM PIN-781335 Deepj yoti Sarkar Digitally signed by Deepjyoti Sarkar Date: 2025.12.22 15:38:50 +05'30' Page No.# 2/49 5:THE PRINCIPAL CUM SECRETARY NALBARI COLLEGE NALBARI ASSAM PIN-781335 6:CHANDANA DEKA D/O- PROF. GIRISH CH. DEKA R/O- BIDYAPUR P.O AND DIST- NALBARI WARD NO- 3 ASSAM 7:MAHENDRA NARAYAN CHOUDHURY BALIKA MAHAVIDYALAYA REP. BY ITS PRESIDENT OF GOVERNING BODY NALBARI ASSAM PIN-781335 8:THE PRINCIPAL MAHENDRA NARAYAN CHOUDHURY BALIKA MAHAVIDYALAYA NALBARI PIN-781335 ASSA BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN Advocates for the petitioner :- Mr. I. Choudhury, Sr. Adv.; Mr. S. Hazarika. Advocate for the respondent Nos. 1 & 2 :- Mr. S. Das, SC, Higher Education, Advocates for the respondent No. 6 :- Mr. K.N. Choudhury, Sr. Adv.; Mr. J. Patowary. Advocate for the respondent Nos. 7 & 8 :- Mr. M. Sharma. Date on which judgment is reserved :- 02.12.2025. Page No.# 3/49 Date of pronouncement of judgment :- 19.12.2025. Whether the pronouncement is of the operative part of the judgment? : N/A Whether the full judgment has been pronounced? : Yes JUDGEMENT & ORDER (CAV) Heard Mr. I. Choudhury, learned Senior Counsel, assisted by Mr. S. Hazarika, learned counsel for the petitioner. Also heard Mr. S. Das, learned standing counsel for the respondent Nos. 1 and 2; being the authorities in the Higher Education Department; Mr. K.N. Choudhury, learned Senior Counsel, assisted by Mr. J. Patowary, learned counsel for the respondent No. 6; and Mr. M. Sharma, learned counsel for the respondent Nos. 7 and 8. Respondent No. 3, 4 and 5, remained unrepresented. 2. Extra ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, is sought to be invoked herein this case by the petitioner, namely, Dr. Subhar Sabhapandit seeking following relief(s):- (i) to set aside and quashing the decision of the Selection Committee for awarding 1 (one) marks to respondent No-6 based on the purported experience certificate for appointment to the post of Assistant Professor, Sanskrit, Nalbari College. (ii) to issue direction to the respondent authorities to review the marks awarded to the candidates and recommend the name of the selected candidates for appointment to the post of Assistant Professor, Sanskrit, Nalbari College pursuant to selection held Page No.# 4/49 on 25-04-2022, as per Advertisement dated 04-07-2015. (iii) to issue direction to the respondent authorities to consider the Complaint dated 22.04.2022, filed by the petitioner before the respondent authorities against the purported teaching experience certificates, dated 13-08-2011 and 10-02-2015, submitted by Respondent No.6 for claiming marks in interview for the post of Assistant Professor, Sanskrit, Nalbari College. Background Facts:- 3. The background facts, leadin`g to filing of the present petition is briefly adumbrated as under:- “On 04.07.2015, the Principal-cum-Secretary of Nalbari College, has issued an advertisement, which was published in daily English Newspaper, namely, The Assam Tribune, inviting applications from eligible candidates, amongst others, for filing up the vacant post of Assistant Professor in Department of Sanskrit, Nalbari College, Assam. Pursuant to the said advertisement, petitioner and respondent No.6, along with some other candidates, had applied for the said post and subsequently, selection was held and all the candidates including the petitioner and respondent No. 6, were also called to the interview, held on 04.10.2015. Accordingly, all the candidates appeared and the interview was held and after the interview, it came to light that the Selection Committee had awarded the marks in the Selection Process to the candidates following the Office Memorandum (O.M.) dated 14.08.2015, issued by the Department of Higher Education, though the Office Memorandum dated 25.06.2012, was holding the field at the time when the advertisement was issued. Notably, the O.M. dated 25.06.2012, Page No.# 5/49 prescribes the procedure of adding the percentage of marks secured by a candidate in HSLC, HS/PU, Degree, PG, B.Ed./M.Ed., Ph. D etc., so as to arrive at the total marks for being selected and the same does not provide for holding any interview and awarding of marks in the interview by the Selection Committee. Meanwhile, the petitioner came to learn that, the respondent No.6/Chandana Deka, claimed to have served as an ad-hoc Lecturer in the Mahendra Narayan Choudhury (MNC) Balika Mahavidaylaya, Nalbari and accordingly, has applied for the aforesaid post based on a teaching experience certificate, dated 13.08.2011, shown to be issued by Sri G.C. Barman, who was the then In-charge Principal, Mahendra Narayan Choudhury Balika Mahavidyalaya, Nalbari, Assam. Notably, there was no sanctioned post of Sanskrit in MNC Balika Mahavidyalaya, Nalbari and therefore, the question of appointing the respondent No.6, as ad-hoc Lecturer, in the Department of Sanskrit, does not arise. But, the respondent No.6 had worked in the Sanskrit Department of MNC Balika Mahavidyalaya, Nalbari as a part time Lecturer for a particular period, but, as per O.M. dated 25.06.2022, no marks can be claimed as a part time Lecturer, which shows that she had fraudulently obtained certificate, dated 13-08-2011 (ANNEXURE-1), as ad-hoc Lecturer. The Annexure-1 also shows that it was issued by the then In-charge Principal and from the face of it establishes its credibility as no specific period of service is mentioned, as the respondent No.6 had never been issued any appointment order and release order as an ad-hoc Lecturer of Sanskrit. The respondent No.6 obtained the aforesaid fraudulent and fabricated teaching experience certificate, shown to be Page No.# 6/49 issued by Sri G.C. Barman, mentioning ad-hoc service, during the session of 2009-2010, in the aforesaid College, without any specific period of service or indicating any date of appointment and termination as mentioned with an intention to secure undue advantage in the selection and even though she worked in the same college as a part time Lecturer for a particular period for which she is not entitled to get any marks for teaching experience. When question was raised from all corners, about the teaching experience certificate, dated 13.08.2011, the respondent No.6 again managed to obtain another teaching experience certificate, dated 10.02.2015 (ANNEXURE-2), from Dr. D.K. Goudo/respondent No.8, mentioning one year of service during the session 2009-2010, as a teacher of Sanskrit in an ad-hoc capacity. However, the O.M., dated 12.10.2004, issued by the Government of Assam, Education (Higher) Department, Dispur, Assam, specifically prohibits engagement of teaching and non- teaching staff in deficit grant- in-aid colleges, without any sanctioned post by stating clearly that in the aforesaid O.M., all members of the Governing Body or the College including the Principal/Secretary of the College, will be responsible for any violation of the above-mentioned conditions. Therefore, the MNC Balika Mahavidyalaya, Nalbari having no sanctioned post of Lecturer in the Sanskrit Department, has no authority to appoint as well as allow the respondent No.6 to serve as an ad-hoc Lecturer of Sanskrit and therefore, the certificate issued by the respondent No.8 as well as by the erstwhile Principal In-charge is non-est in the eye of law and same cannot be treated as a valid certificate for conferring any benefit to the Page No.# 7/49 said respondent No.6. The petitioner then filed one RTI application seeking some information and from the information supplied on the RTI application, on 17.04.2015 (ANNEXURE-4 & 5), submitted by one Dr. Maheswar Hazarika before the Public Information Officer (P.I.O.), Office of the Principal, MNC Balika Mahavidyalaya, Nalabri, Assam, it has came to light that there is no record available in the college relating to any appointment order of Teacher/Lecturer in ad-hoc basis in the Sanskrit Department, during the session 2009-2010 and the connected advertisement issued for such appointment. The college authorities also do not have any record pertaining to joining report and termination letter of any ad- hoc appointees, during the session 2009-10. But, the respondent No.8, in order to justify the issuance of certificate by him on 10.02.2015, certifying that respondent No.6 served as a Teacher in Sanskrit in an ad-hoc capacity for one year, contended that the same was issued on the basis of the earlier certificate, dated 13.08.2011, issued by his predecessor and after verifying the acquaintance register during 2009-10. It has also been stated that the second certificate was issued as a clarification on the basis of the prayer made by the respondent No.6. The information supplied by the respondent No.8, though claimed that the second certificate issued by him was on the basis of a prayer made to his office, but the application (ANNEXURE-6), filed by the respondent No.6, seeking experience certificate is dated 17/03/2015, and the purported teaching experience certificate is of dated 10-02-2015, which was issued prior to the application, which falsify the contention of the respondent No.8 and the same raises a doubt on his credibility as Page No.# 8/49 well as upon the certificate issued by him. The second certificate dated 10.02.2015, which is claimed to be issued after verification of the acquaintance register is absolutely false and is not at all tenable as the acquaintance register, depicts apparent anomalies, which is evident from the difference in quantum of the amount of salary shown to be paid to the respondent No.6, during the so called session 2009-10 and on the contrary, the said entries in the acquaintance register, shows that her service in the said college was as part time Lecturer and not as an ad-hoc Lecturer. It is also stated that the University Grant Commission Regulations, 2010 provides for appointment of ad-hoc teachers in the colleges and no separate rules have been framed, which appears from the information supplied by the UGC on 27.11.2018. And the college authority had not followed the selection procedure for appointing ad hoc/contractual Assistant Professors and failed to justify the appointment of the respondent No.6 as an ad-hoc Lecturer in the college by following such norms clearly vitiates the experience certificate issued to the respondent No.6 certifying her teaching experience as ad-hoc. It is also stated that though the interview was held on 04.10.2015, pursuant to the advertisement dated 04.07.2015, in which the petitioner along with the other candidates, including the respondent No.6, Ms. Chandana Deka had participated, but, the said selection process was stayed by this Court in W.P.(C) No. 6428/2015 (Ms. Chandana Deka -Vs- The State of Assam & 4 Ors.), on the ground that at the time of issuance of advertisement dated 04-07-2015, the Office Memorandum dated 25-06-2012, was in force which did not provide for holding any Page No.# 9/49 interview, but, the college authorities, while holding the interview adopted the procedure prescribed by the Office Memorandum dated 14- 08-2015, and therefore, prayed for setting aside the selection, that was held on 04.10.2015, with a direction to hold fresh selection strictly as per the procedure laid down in the Office Memorandum dated 25.06.2012. Then this Court, vide its Order, dated 14.05.2018, had interfered with the selection process, held on 04.10.2015 and also set aside the same by observing that the procedure adopted by the respondent authorities in following the O.M. dated 14.08.2015, for holding the selection process pursuant to the advertisement dated 04.07.2015, is vitiated in as much as on the date of the advertisement i.e. 04.07.2015, the earlier O.M. dated 25.06.2012, was in force and thereby allowed selection committee to proceed with the selection pursuant to advertisement dated 04-07-2015, afresh, in accordance with law. Thereafter, pursuant to the order dated 14-05-2018, passed by this Court, fresh selection was to be held by considering the applications of the candidates who had participated earlier in the selection process, initiated vide advertisement dated 04.07.2015 and accordingly, all the candidates including the petitioner was called to appear in the interview schedule to be held on 25.04.2022, along with all relevant documents in original, vide calling letter dated 06.04.2022, issued by the respondent No.5/the Principal, Nalbari College. The petitioner during the earlier selection also raised question about the credibility and validity of the teaching experience certificate based on which the respondent No.6 is claiming marks, but, the said issue remained at lurch, in view of the suspension of the selection process by Page No.# 10/49 this Court. Therefore, the petitioner again raised the same by submitting a complaint dated 22.04.2022, before the Principal/Secretary, Nalbari College/respondent No.5 and copy of the same was also furnished to other respondent Authorities. And despite objection of the petitioner, the Selection Committee, to her knowledge, overlooked the said objection and had awarded 1 (one) mark to the respondent No.6, though she is not legally entitled to. It also stated that the decision of the Selection Committee, pursuant to the interview held on 25.04.2022, is yet to be finalized and approved by the respondent No.2 as per the extant provisions of Assam College Employees (Provincialisation) Rules, 2010 and therefore, no third party right has been accrued yet from the aforesaid selection process. It is also stated that awarding of marks by the selection committee, on account of teaching experience as ad-hoc Lecturer of MNC Balika Mahavidyalaya, Nalbari on the basis of purported certificates which neither has any legal validity nor it being a genuine one, the entire selection is vitiated for awarding of marks arbitrarily without being entitled to. And the respondent No.6 has obtained benefits to get selected in the selection process for the post of Assistant Professor Sanskrit, Nalbari College by resorting to fraudulent and illegal means and the same being overlooked by the Selection Committee, makes the entire selection process void ab-initio and thus, the same confers no right upon the respondent No.6.” 4. The petitioner has filed an additional affidavit to place on record certain important facts which, due to oversight, left to be mentioned in the Writ Petition. It is stated that despite the complaint of the petitioner, the Selection Page No.# 11/49 Committee, to the knowledge of the petitioner overlooked the said objection and had awarded 1 (one) mark to the respondent No.6 though she is not legally entitled to and such awarding of marks to the respondent No.6, on the strength of the purported experience certificate, has pre-judiced the petitioner from being selected in the post of Assistant Professor Sanskrit, Nalbari College and as per knowledge of the petitioner, the difference in marks after illegally awarding 1 (one) mark to the Respondent No.6 (Ms. Chandana Deka) though is less than one mark, but the same has affected the petitioner from being selected. 5. The respondent No. 3, 4 and 5 have filed affidavit in opposition, wherein they have raised the issue of maintainability of the petition. It is stated that the entire writ petition is premature and even though the statements of marks allotted to the candidates for the post of Assistant Professor in the Department of Sanskrit, Nalbari College, Nalbari have been prepared by the Selection Committee after carrying out the required selection process, the proposal over the same has not yet been sent to the Governing Body of Nalbari College, Nalbari, for according necessary approval over it. It is only after obtaining the necessary approval from the Governing Body, the said proposal shall be sent to the Director of Higher Education, seeking final approval as per the governing rules of selection of an Assistant Professor of a College, of the State of Assam. The representation of the petitioner dated 22.4.2022, is pending and the authorities are yet to take any decision upon the issue. 5.1. It is also stated that on 08.06.2016, the Director of Higher Education, Assam vide a letter issued to all the Principals of the State Colleges, informed that the Government of Assam, Higher Education Department had decided to abolish the system of awarding oral marks thereby cancelling the Government Page No.# 12/49 Office Memorandum dated 14.8.2015, and further directed the Principals of the Colleges, to follow the Government Office Memorandum, dated 25.06.2012, for selection of teachers of provincialised colleges of Assam. The said letter, dated 08.06.2016, was issued by the Director of Higher Education, Assam upon being instructed by the Joint Secretary to the Government of Assam, Higher Education Department vide letter dated 07.06.2016. 5.2. It is also stated that the advertisement for the post of Assistant Professor in the Department of Sanskrit, Nalbari College, Nalbari was published on 04.07.2015, and though the selection process was started, the same was interfered with by this Court, vide an order dated 14.5.2018, passed in WP(C) No. 6428/2015, by directing the authorities to carry out the entire selection process afresh. And in light of the direction passed by this Court, on 14.5.2018, the respondent No. 2 vide letter dated 31.08.2021, directed it to proceed with the selection process, in pursuance to the advertisement dated 04.07.2015, as per law. Upon such development and direction, the Academic Registrar, Gauhati University had issued a letter to them on 21.12.2021, informing about the nominees for the Selection Committee, as approved by the Vice-Chancellor. Accordingly, the instant selection committee was constituted and the selection was carried out on 25.4.2022, after issuing the necessary call letters to applicants. 5.3. Thereafter, an application dated 22.04.2022, was received by them from the petitioner, wherein the she had raised allegation against the respondent No. 6 i.e. Chandana Deka, stating that the experience certificate, submitted by her from MNC Balika Mahavidyalaya, Nalbari is not a genuinely acquired experience certificate, for which reason, her candidature for the advertised post, should be rejected. The said application dated 22.04.2022, was placed before the Page No.# 13/49 members of the Selection Committee, for consideration and decision, to which the members of the Selection Committee gave their acknowledgment. Thereafter, on 25.04.2022 when, the selection committee was considering the candidature of the respondent No. 6, the respondent No. 6 was requested to justify the allegations raised by the petitioner in her application dated 22.04.2022. In reply, the respondent No. 6 had produced a copy of the judgment and order dated 14.6.2016, passed this Court in W.P.(C) No. 3245/2015, whereby, it was held that the experience certificate obtained by the respondent No. 6 from the respondent No. 8, is a document based on original records which can be acted upon for the purpose of award of marks towards experience. Further, the respondent No. 6 has also produced a certificate issued by the respondent No. 8, in which it was clearly stated that the experience certificate issued in favour of the respondent No. 6 is based on genuine service rendered by her to the respondent No. 7 college. Upon having considered this explanation / order / certificate, the respondent No. 6 was granted the benefit of one mark for her experience and on 25.4.2022, the Selection Committee had concluded the selection procedure after allotting marks to all the candidates. Thereafter, a consolidated statement of marks allotted to all the candidates for the post of Assistant Professor in the Department of Sanskrit, Nalbari College, Nalbari was prepared in which the respondent No. 6 has secured the highest marks of 69.37, while the petitioner secured 68.65 marks. And as such, the Selection Committee prepared its report in which the respondent no. 6 was declared as the selected candidate for the concerned post. And this report dated 25.4.2022, so prepared by the Selection Committee declaring the respondent No. 6 as the selected candidate, is yet to be forwarded to the Governing Body of the college for seeking necessary approval of the same. And Page No.# 14/49 only after the same being approved by the Governing Body, the same shall be forwarded to the respondent No. 2 for final approval. 6. The respondent No. 7 and 8 have also filed their affidavit in opposition, wherein they have taken a stand that when a college starts a new department, the first steps which is required to be taken is to obtain necessary permission from the concerned affiliating university. To accord permission from the University, for starting a new subject department, the university demands appointment of teacher(s) in the same department, sufficient books in the library, student’s enrolment in the respective subject, etc. So, when a college want to introduce a new subject department, for the academic growth of the College, then the college must have to appoint part-time or ad-hoc teacher(s) to start the classes of the subject department, before inspection by the university. And once, the necessary permission is granted by the university, the college usually starts the functioning of the department with contractual / part- time teachers. Pursuant to which the college has to undergo an elaborate process to obtain government concurrence, only upon which the college becomes eligible for a new sanctioned post. The government does not provide any sanctioned faculty before concurrence of the subject from the government. In this extensive process, right from the very inception of a new department, till the creation of a new sanctioned post, there are always some teachers who at the cost of minimum / meager amount of salary devoted their time for the upliftment of such department. The payment of these part-time / ad-hoc teacher(s) is made from the college fund and the salary of these teachers depends on the fund position of the college, for which reason it varies from time to time. And the respondent No. 6 and her experience in their college is the leading example of such kind of devoted teachers. Page No.# 15/49 6.1. Thereafter, the college adopted a resolution on 24.04.2005, to seek permission from Gauhati University for the subject department of Sanskrit. Accordingly, Executive Council of Gauhati University on 08.11.2006, adopted a resolution to grant permission for opening TDC 1st Year (Arts) General Course in Sanskrit for the Session 2006-2007. The Registrar, Gauhati University thereafter, on 7.12.2006, had issued a letter to the Secretary to the Government of Assam, Education Department, forwarding the copy of the resolution dated 8.11.2006, as a proposal, to accord concurrence of the State Government. 6.2. It is also stated that the respondent No. 6 was appointed as a Lecturer, Department of Sanskrit based on Governing Body resolution dated 02.08.2009 and served in the college on ad-hoc basis, during 2009-2010. The respondent No. 6, also served as a Lecturer on part-time basis for the session 2010-2011 and 2011-2012. The certificate dated 10.2.2015, was issued to the respondent No. 6 upon her oral request on the basis of the existing college records, more particularly the Acquaintance Roll maintained by the college that reflects the salary drawn by the teachers of the college, where the name of the respondent No. 6 figured in the salary drawn column for the months May, 2009 to August, 2010 (16 months). The written application dated 17.03.2015, for issuance of the experience certificate dated 10.02.2015, for the period of service rendered by Mrs. Chandana Deka was sought for and given only for the purposes of the college records and nothing should be read into it as the experience certificate was issued on the basis of college records showing the period of service. In so far as the details of the replies given by the deponent to the RTI queries dated 17.04.2015, they are fully answered by the Acquaintance Roll maintained by the college that clearly and unambiguously shows beyond doubt that Mrs. Page No.# 16/49 Chandana Deka had served as a Lecturer in the Department of Sanskrit for the period May, 2009 to August, 2010 on ad-hoc basis. The experience certificate dated 10.02.2015, merely supplements and further supports the earlier certificate dated 13.08.2011, issued by the Principal of the College regarding the service rendered by the respondent No. 6 in college. 6.3. It is also stated that the certificate dated 10.02.2015, was upheld by this Court, vide its judgment and order dated 14.06.2016, passed in W.P.(C) No. 3245/2015, whereby it was held that the experience certificate obtained by the respondent No. 6 from the college, is a document based on original records which can be acted upon for award of marks towards experience. And as per UGC norms and regulations, the respondent No. 6 is qualified and eligible for appointment as she has M. Phil. qualification form the month of June, 2009. Also the position before 10.07.2009 is that the M. Phil. degrees are considered to be equivalent to NET/SLET qualification. 7. The petitioner has filed her reply to the affidavit in opposition filed by the respondents’ No. 3, 4, 5, 7 and 8, denying the statements and averments made in the same. It is stated that the respondent No. 3, 4 & 5 have failed to substantiate their claim and dispute the claim of the petitioner which is based on record. The statement that the Writ Petition filed by the Deponent is not a pre matured one, as the respondent Nos. 3, 4 & 5 in para 6 of their affidavit stated that the Selection Committee has already prepared its report and as per the report, respondent No.6 has given (1) one mark on the strength of the purported experience certificate issued by the respondent No.8 and she was declared as the selected candidate for the concerned post. The respondents have taken a contradictory stand by stating that the complaint filed by the petitioner dated 22.04.2022, is pending and the authorities are yet to take any Page No.# 17/49 decision upon the issue, however, on the contrary in the Para 6 of the said affidavit, it is clearly mentioned that considering the certificate issued by the respondent No.8, respondent No.6 was granted the benefit of one mark for her experience and therefore, it is apparent that the representation of the deponent has been grossly ignored. 7.1. 7.1. It is also stated that the Judgment and Order dated 14.06.2016, passed by this Court in W.P. No.3245/2015, declaring the Experience Certificate, dated 10.02.2015, as valid is, firstly, not binding upon the petitioner as she being not a party in that proceeding and secondly, the subject matter of challenge and context raised in the aforesaid writ petition is not similar to the challenge made in this instant writ petition, in as much as the appointment of the respondent No.6 as an ad-hoc Lecturer in a non sanctioned post is in violation of O.Μ. dated 12.10.2004, issued by the Government of Assam, Education (Higher) Department, Dispur, Assam was not an issue in the earlier writ petition and the same, was, thus, not a consideration while adjudication the earlier lis. 7.2. It is also stated that though the proposal for staring a new subject Sanskrit is sent for according concurrence of the State Government, however, till date, as no concurrence has been granted for the post of Sanskrit, therefore, the respondent Nos.7 & 8 had no authority to appoint and allow respondent No.6 to serve as an ad-hoc Lecturer at MNC Balika Mahavidyalaya and Respondent No.6 would not be entitled to claim any benefit for the service rendering under such capacity. It is also stated that there is no such appointment letter or release letter of the respondent No.6, as ad hoc Lecturer available with the college as well as with the respondent No.6, and as per reply information dated 23/05/2022, provided under RTI, the I/c Principal of M.N.C. Balika Mahavidyalaya acknowledged that there are no sanctioned post of Page No.# 18/49 Assistant Professor in the Department of Sanskrit, till date, in M.N.C. Balika Mahavidyalaya, Nalbari. 8. Notably, the respondent No. 6 has not filed any affidavit in opposition here in this proceeding. Submissions:- 9. Mr. I. Choudhury, learned Senior Counsel for the petitioner submits that pursuant to the advertisement dated 04.07.2015, issued by the Principal-cum- Secretary, Nalbari College, for filling up of one vacant post of Assistant Professor, Sanskrit in Nalbari College, the petitioner has applied for the same and the respondent No 6 also participated in the said selection process. Mr. Choudhury also submits that after the interview, it came to light that the Selection Committee had awarded marks on the basis of the O.M. dated 14.08.2015, whereas at the time of issuance of advertisement, O.M. dated 25.06.2012, was holding the field, and that the O.M. dated 25.06.2012, prescribes procedure for awarding of marks on the basis of the marks secured by the candidates starting from HSLC, HS/PU, Degree, PG, B.Ed./M.Ed., Ph.D., M.Phil. and other academic achievements, and the same also provides for awarding of marks, 1 mark for each completed year of service, maximum 5 marks on the basis of teaching experience in an affiliated Government college. Mr. Choudhury further submits that the respondent No. 6 had filed WP(C) 6428/2015, before this Court challenging the selection process held on 04.10.2015, on the ground that at the time of issuance of advertisement dated 04.07.2015, the O.M. dated 25.06.2012, was in force, and thereafter, this Court was pleased to set aside the interview as well as the selection process held on 04.10.2015 and directed the respondent authorities to proceed with the selection process, pursuant to advertisement dated 04.07.2015, as per law, and Page No.# 19/49 thereafter, a fresh selection was held and the Selection Committee had recommended the name of the respondent No. 6 by awarding her 69.37 marks and the petitioner had been awarded 68.65 marks, which is less than 1 mark than the respondent No. 6, and the said selection and recommendation of the respondent No. 6 is being challenged in this petition. 9.1. Mr. Choudhury has pointed out that the respondent No. 6 was illegally awarded 1 mark on the basis of teaching experience certificates dated 13.08.2011 and 10.02.2015, issued by the M.N.C. Balika Mahavidyalaya, Nalbari. Mr. Choudhury also submits that the respondent No. 6 had submitted a teaching experience certificate, dated 13.08.2011, issued by the In-charge Principal, M.N.C Balika Mahavidyalaya, Nalbari, claiming that she served as an Ad-hoc Lecturer in the Department of Sanskrit during 2009-2010 and as part-time Lecturer for the sessions 2010-2011 and 2011-2012, and in the said certificate dated 13.08.2011, the period of ad-hoc service, i.e. from which date to which date, was not mentioned, and that there is no sanctioned post of Sanskrit in M.N.C Balika Mahavidyalaya, Nalbari. Mr. Choudhury further submits that when authenticity of the said certificate dated 13.08.2011, was raised, the respondent No. 6 had managed to obtain another certificate dated 10.02.2015, from the respondent No. 8/Principal, M.N.C Balika Mahavidyalaya, Nalbari, wherein it was shown that the respondent No. 6 had purportedly served as a Teacher in Sanskrit in ad-hoc capacity, during the session 2009-2010 for one year, and that the said certificate is dated 10.02.2015, whereas the respondent No. 6 had filed an application for the fresh certificate only on 17.03.2015, and the respondent No. 6 did not state that she had actually served during 2009-2010, in the application dated 17.03.2015. 9.2. Mr. Choudhury also submits that one Dr. Maheswar Hazarika had filed an Page No.# 20/49 RTI application before the P.I.O., M.N.C Balika Mahavidyalaya, Nalbari, seeking information regarding services of Teachers of Sanskrit on ad-hoc capacity during the session 2009-2010, and the RTI reply furnished to Dr. Maheswar Hazarika on 19.05.2015, revealed that there is no record available relating to appointment of ad-hoc Teacher in Sanskrit for the session 2009-2010, and there is no appointment letter in respect of respondent No. 6, and that there is no joining report or any termination letter, pertaining to the respondent No. 6, and that the respondent No. 8 stated that he had issued the experience certificate on the basis of the one issued by his predecessor after verifying the acquaintance register during 2009-2010. 9.3. Mr. 9.3. Mr. Choudhury, by referring to one O.M. dated 12.10.2004, has pointed out that for the period, for which the respondent No. 6 has claimed to have served and produced an experience certificate, the said O.M. was holding the field, which put a ban on appointment/engagement against any non-sanctioned post. Mr. Choudhury also submits that thereafter, the petitioner had filed one complaint before the respondent No. 5/Principal-Cum-Secretary, Nalbari College regarding the teaching experience certificate submitted by the respondent No. 6, but despite such complaint being filed, the respondent No. 6 was awarded one mark by the Selection Committee overlooking the objection. Mr. Choudhury further submits that the respondent No. 6 has produced one judgment and order dated 14.06.2016, passed by this Court in WP(C) No. 3245/2015, to contend that the issue pertaining to the experience certificate dated 10.02.2015, had already been adjudicated upon by this Court in the context of selection to another college, and relying on the said judgment, it has been further contended that the said judgment and order dated 14.06.2016, is final and binding, in so far as the present writ petition is concerned, but, Mr. Choudhury Page No.# 21/49 submits that such argument is not tenable, inasmuch as the writ petitioner herein was not a party in the proceeding of WP(C) No. 3245/2015, and secondly, in WP(C) No. 3245/2015, the issue confined to the veracity and validity of the certificate, dated 10.02.2015, was not in issue, however, the O.M. dated 12.10.2004, prohibiting/banning appointment/engagement against non- sanctioned post was not even placed before this Court in WP(C) No. 3245/2015, and therefore, this Court had no occasion to consider the applicability and effect of the O.M. dated 12.10.2004, and this foundational fact having not been considered by this Court in WP(C) No. 3245/2015, the said judgment and order dated 14.06.2016, has no application to the facts of the instant case. Under such circumstances, Mr. Choudhury has contended to allow this petition. 9.4. In support of his submission, Mr. Choudhury has referred to the following decisions: (i) Divisional Controller, KSRTC vs. Mahadeva Shetty and Anr., reported in (2003) 7 SCC 197. (ii) Uttaranchal Road Transport Corpn. and Ors. vs. Mansaram Nainwal, reported in (2006) 6 SCC 366. (iii) Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and Ors., reported in (2003) 2 SCC 111. (iv) Haryana Financial Corporation and Anr. vs. Jagdamba Oil Mills and Anr., reported in (2002) 3 SCC 496. 10. Per contra, Mr. K.N. Choudhury, learned Senior Counsel for the respondent No. 6 has opposed the petition. Mr. Choudhury submits that the present petition is premature as no cause of action, violating any right of the petitioner, has arisen. Mr. Choudhury has pointed out that the selection process has not yet been completed as the select list is yet to be placed before the Governing Body Page No.# 22/49 of Nalbari College, who in turn would send it to the Director, Higher Education, Assam, and thereafter, the Director of Higher Education, Assam would issue appointment order to the selected candidate. Mr. Choudhury also submits that the said requirement is envisaged under Rule 5(2) and 5(7) of the Assam College Employees (Provincialisation) Rules, 2010, and that the petitioner has failed to disclose the marks secured by her vis-a-vis the respondent No. 6, so as to justify that in view of the award of 1 mark in question, the respondent No. 6 would steal a mark over the petitioner. Mr. Choudhury further submits that the O.M. dated 25.06.2012, issued by the Government of Assam in the Higher Education Department, amongst others, provides for distribution of marks in respect of selection to the post of Assistant Professor, and Clause 2 thereof envisage 5 marks for teaching experience (1 mark for each completed year of service in an affiliated Government Degree College subject to maximum of 5 marks), and that the respondent No. 6 is entitled to the said 1 mark on the strength of teaching experience certificate, dated 10.02.2015, in the selection in question. 10.1. Mr. Choudhury also submits that the respondent No. 6 having served for one year as ad-hoc Sanskrit Teacher at Mahendra Narayan Choudhury Balika Mahavidyala, Nalbari for the session 2009-2010, she was issued the teaching experience certificate, dated 10.02.2015, and thereafter, the respondent No. 6 had pressed the said certificate into service while applying for a similar post i.e. Assistant Professor in Sanskrit at Anandaram Dhekial Phookan (ADP) College, Nagaon and the respondent No. 6 was selected to the said post as she topped the merit list with 69.37 marks. Mr. Mr. Choudhury further submits that another aspirant to the said post Sri Chandan Hazarika, who got 68.43 marks, had approached this Court by filing WP(C) No. 3245/2015, assailing the legality and Page No.# 23/49 validity of the said selection, and the grounds of challenge in the said writ petition are similar to the case at hand, where one mark was awarded on the strength of teaching experience certificate, dated 10.02.2015, and this Court, after hearing the contesting parties and also on perusal of the records, dismissed the said writ petition, vide judgment and order dated 14.06.2016 and thereby upheld the validity of the teaching experience certificate, dated 10.02.2015 of the respondent No. 6 herein, and that the said judgment and order dated 14.06.2016, has attained finality in the meantime, and therefore, the contention of the petitioner is barred by principle of constructive res judicata and does not warrant any interference. Mr. Choudhury further submits that pursuant to dismissal of WP(C) No. 3245/2015, the respondent No. 6 has been appointed as Assistant Professor in Sanskrit in ADP College, Nagaon by counting the 1 mark allotted to her for past teaching experience, and that awarding of one mark as teaching experience to the respondent No. 6 during the ban period imposed by the said OM dated 12.10.2004, is wholly misconceived, and as such, deserves to be rejected. In support of his submission, Mr. Choudhury has referred to a decision of a Division Bench of this Court in the case of Dilip Kumar Sarma vs. State of Assam and Ors., reported in 2022 (5) GLT 324, and another decision of Hon’ble Supreme Court in the case of Dr. Asim Kumar Bose vs. Union of India, reported in (1983) 1 SCC 345. 10.2. Mr. Choudhury also submits that even assuming, while not admitting, that the appointment of respondent No. 6 is illegal in view of the ban imposed by the O.M. dated 12.10.2004, then in that event also, the teaching experience gained by the respondent No. 6 would be saved by application of the de-facto doctrine, according to which the acts of officers de-facto performed within the sphere of their assumed official capacity, in the interest of the public or the third Page No.# 24/49 parties are generally held valid and binding as if they were performed by de-jure officers. In support of his submission, Mr. Choudhury has referred to a decision of Hon’ble Supreme Court in the case of Central Bank of India vs. C. Bernard, reported in (1991) 1 SCC 319. 10.3. By referring to another decision of Hon'ble Supreme Court in the case of Chief Commercial Manager, South Central Railway, Secuderabad vs. G. Ratnam and Ors., reported in (2007) 8 SCC 212, Mr. Choudhury submits that it is no longer res-integra that the O.M. dated 12.10.2004, being in the nature of administrative instruction, any breach of the same does not confer any right on any member of the public to ask for a writ against the offending party by a petition under Article 226 of the Constitution of India. Under such circumstances, Mr. Choudhury has contended to dismiss this petition. 11. In reply to the submission of Mr. K.N. Choudhury, learned Senior Counsel for the respondent No. 6, Mr. I. Choudhury, learned Senior Counsel for the petitioner, submits that the de-facto doctrine, so referred by Mr. Choudhury, learned Senior Counsel for the respondent No. 6, i.e. de-facto doctrine, is not applicable in the case in hand and the decision in C. Bernard (supra), so referred by learned counsel for the respondent No.6, is also not applicable in the case in hand. Mr. Choudhury also pointed it out that since the petitioner was not a party in WP(C) No. 3245/2015, the judgment and order passed in the said case, dated 14.06.2016, is not binding upon the petitioner, and moreover, in the said writ petition, the O.M. dated 12.10.2004, was not placed and that was also not an issue before the Court, and as such, said decision is not binding upon the petitioner. Mr. Choudhury also submits that the selection process has already been completed and the Selection Committee has awarded 1(one) mark to the respondent No.6, on the basis of the experience certificate issued by the Page No.# 25/49 respondent No. 8, and the respondent No. 6 on the basis of the said certificate, marched ahead of the petitioner, by securing one more mark and if awarding of such mark, on the basis of a certificate, which was issued while engagement of any teacher on ad-hoc basis, without any sanctioned post, was banned by the state respondent by issuing an O.M., the same cannot be taken into account. And since the Selection Committee had allotted the mark and selected the respondent No. 6, and therefore, the selection process has already been completed, despite objection being raised by the petitioner, and as such, this petition cannot be said to be premature. The Issue Before This Court:- 12. In view of the contentions being made in the pleadings and also in view the rival submissions, advanced by learned counsel for both the sides, the issue to be decided by this Court is formulated as under:- (i) Whether the decision of the Selection Committee for awarding 1 (one) marks to respondent No.6, based on the purported experience certificate for appointment to the post of Assistant Professor, Sanskrit, Nalbari College, is justified and it withstand the legal scrutiny? 13. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also gone through the decisions referred by learned counsel for both the parties. Discussion and analysis:- 14. The basic facts herein this case is not in dispute. Pursuant to an advertisement, dated 04.07.2015, issued by the Principal-cum-Secretary of Page No.# 26/49 Nalbari College, published in daily English Newspaper, namely, The Assam Tribune, inviting applications from eligible candidates, for filing up the vacant post of Assistant Professor in Department of Sanskrit, Nalbari College, Assam the petitioner and respondent No.6, along with some other candidates, had applied for the said post and appeared in the interview held on 04.10.2015. The Selection Committee, however, had awarded the marks in the Selection Process to the candidates following the O.M. dated 14.08.2015, issued by the Department of Higher Education. But at the relevant time of advertisement, the Office Memorandum dated 25.06.2012, was holding the field. Notably, the O.M. dated 25.06.2012, prescribes the procedure of adding the percentage of marks secured by a candidate in HSLC, HS/PU, Degree, PG, B.Ed./M.Ed., Ph. D. etc., so as to arrive at the total marks for being selected and the same does not provide for holding any interview and awarding of marks in the interview by the Selection Committee. Meanwhile, the petitioner learnt that, the respondent No.6 claimed to have served as an ad-hoc Lecturer in the MNC Balika Mahavidaylaya, Nalbari and accordingly, has applied for the aforesaid post based on a teaching experience certificate, dated 13.08.2011, shown to be issued by Sri G.C. Barman who was the then I/c Principal, Mahendra Narayan Choudhury Balika Mahavidyalaya, Nalbari, Assam. But, at that time, there was no sanctioned post of Sanskrit in MNC Balika Mahavidyalaya, Nalbari and therefore, the question of appointing the respondent No.6 as ad-hoc Lecturer in the Department of Sanskrit does not arise. But, as per O.M. dated 25.06.2012, no marks can be claimed as a part time Lecturer. 14.1. Under the given factual scenario, the petitioner has claimed that the respondent No.6 had fraudulently obtained the certificate dated 13-08-2011 (ANNEXURE-1), as ad-hoc Lecturer, as no specific period of service is Page No.# 27/49 mentioned, and as the respondent No.6 had never issued any appointment order and release order of the petitioner as an ad-hoc Lecturer of Sanskrit and as such it is contended that the respondent No.6 is not entitled to get any marks for teaching experience. 14.2. In order to appreciate the contentions of the petitioner, this Court has gone through the impugned Certificate, dated 13.08.2011 (Annexure-1), reads as under:- “ TO WHOM IT MAY CONCERN This is to certify that Miss. Chandana Deka, M.A., M.Phil., Kavya-Vyakarana Shastri, served as an ad-hoc lecturer in the Department of Sanskrit in M.N.C. Balika Mahavidyalaya, Nalbari during 2009-2010 and she has been serving as part-time lecturer for the session 2010-2011 and 2011-2012. Both are purely temporary and terminable basis. She is rendering her duties with sincerity and devotion. Endowed with amiable qualities, Miss. Chandana Deka, is eager to learn new things and has a positive bent of mind. I wish her all the best. (G.C. Barman) Principal i/c M.N.C. Balika Mahavidalaya Nalbari: Assam” 14.3. It also appears that when question was raised from all corner about the Page No.# 28/49 teaching experience certificate dated 13.08.2011, then the respondent No.6 again managed to obtain another teaching experience certificate, dated 10.02.2015, (ANNEXURE-2) from Dr. D.K. Goudo/respondent No.8, mentioning one year of service during the session 2009-2010 as a teacher of Sanskrit in an Ad-hoc capacity. It is to be noted here that Annexure No.2 of the petition is read as under:- “ OFFICE OF THE PRINCIPAL MAHENDRA NARAYAN CHOUDHURY BALIKA MAHAVIDYALAYA Nalbari :: Assam :: PIN-781335 Email:mncbm nalbari @rediffmail.com Website www.mncbm.ac.in Ref.MNCBM/44SC/494/2015, Date: 10/02/15 TO WHOM IT MAY CONCERN This is to certify that MS Chandana Deka, D/O Prof Grish Deka, P/O & Dist. Nalbari has served as a teacher in Sankskrit in an ad hoc capacity during the session 2009.2010 for one year. She was a sincere and Committed teacher, Her conduct and character have been exemplary. She can entrusted with any job of responsibility. I wish her success in life. Principal M.N.C. Balika Mahavidalaya Nalbari” 14.4. It is not in dispute that the petitioner herein, having came to know that Page No.# 29/49 the respondent No. 6 had produced one experience certificate, had lodged one complaint with the respondent No. 5, in respect of the experience certificate that had been issued to the respondent No. 6 and admittedly, no decision has been taken by the respondent authorities in that regard. But, it appears from the affidavit filed by the respondent Nos. 3, 4 & 5 that on 25.04.2022, the Selection Committee had concluded the selection process after allotment of marks and it also appears that the petitioner has secured 68.65 marks and the respondent No. 6 has secured 69.37 marks and as such, the selection process has already been concluded without taking any decision on the complaint lodged by the petitioner. 14.5. Since the committee had already awarded marks to the petitioner and also to the respondent No. 6 and arrived at the conclusion, the selection process has been completed and now, it is pending for approval by the Governing Body and also by the Director of Higher Education, being respondent No. 2 and as such, it cannot be said that this writ petition is premature as contended by the respondent No. 6 and her counsel during the course of argument. This Court is in respectful disagreement with the said submission. 14.6. Further, it appears that though the respondent Nos. 3 – 6 had relied upon a decision of this Court, dated 14.06.2016, passed by a Co-ordinate Bench of this Court, in W.P.(C) No. 3245/2015, to contend that the issue pertaining to the experience certificate, dated 10.02.2015, had already been adjudicated and the same is final and binding in the present case. But, indisputably, the present petitioner was not a party in the said proceeding. And also admittedly, the OM dated 12.10.2004, which put a ban in appointment/engagement against non- sanctioned post, was not placed before the Court, in W.P.(C) No. 3245/2015. Therefore, the contention so made in this regard by the learned counsel for the Page No.# 30/49 respondent No. 6, left this Court unimpressed. On the aforesaid counts, this Court is of the view that the decision of this Court, dated 14.06.2016, passed in W.P.(C) No. 3245/2015, is not binding upon the present petitioner. In arriving at this decision this Court derived authority from the following decisions of Hon’ble Supreme Court. 14.7. In the case of Mahadeva Shetty (supra) that a judgment ordinarily is a decision of the case before the Court and it is further held that a decision often takes its colour from the question involved in the case in which it is rendered and the scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. 14.8. Again in the case of Mansaram Nainwal (supra), Hon’ble Supreme Court has held that:- “………………. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a judge while giving judgment that constitutes a precedent. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it Page No.# 31/49 actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent…….” 14.9. Again in the case of Palitana Sugar Mill (P) Ltd. (supra), Hon’ble Supreme Court has held that: “59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced there from. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.” 14.10. Dealing with the issue again in the case of Jagdamba Oil Mills (supra), Hon’ble Supreme Court has held as under:- “19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes…………” 14.11. This Court has considered the submission of Mr. Choudhury, the Page No.# 32/49 learned counsel for the petitioner, that the judgment and order dated 14.06.2016, so passed by a co-ordinate Bench of this Court in WP(C) No. 3245/2015, has attained finality in the meantime, and therefore, the contention of the petitioner is barred by principle of constructive res judicata and does not warrant any interference. There is no quarrel at the Bar that principle of Res Judicata would be applicable to the writ proceedings as well. Reference in this context can be made to a decision of the Hon‟ble Supreme Court in the judgment rendered in the case of Devilal Modi v. Sales Tax Officer, Ratlam and Others, reported in 1964 SCC OnLine SC 17. 14.12. But, for applicability of the principle of Applicability and Requirements of Constructive Res-Judicata certain conditions must be met to invoke the principle of constructive res judicata under Section 11 of the CPC. These are:- (I) Firstly, the parties involved in both proceedings must be the same. (II) Secondly, the subject matter of the subsequent proceeding should be identical to that of the earlier proceeding. (III) Thirdly, the issue raised in the subsequent proceeding should have been directly and substantially in issue in the earlier proceeding. (IV) Lastly, the earlier proceeding must have resulted in a final decision on the merits. 14.13. Indisputably, the parties in the WP(C) No. 3245/2015, and in the present proceeding are not same. The petitioner in the present proceeding was not a party in the WP(C) No. 3245/2015. Therefore, the basic condition for applicability of the principle of constructive res-judicata remains unfulfilled. Page No.# 33/49 Therefore, this Court is unable to record concurrence to the submission of Mr. Choudhury learned counsel for the respondent No.6. Even in the case of Dilip Kumar Sarma(supra) referred by him also it has been held that to invoke the principle of res-judicata, the issue must have been decided on merit amongst the same parties. 14.14. This Court has also gone through the decision of Hon’ble Supreme Court in the case of Dr. Asim Kumar Bose (supra) referred by learned counsel for the respondent No.6. In the said case the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex officio designation. As the statutory rules do not provide that the teaching experience gained in an ex officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the appellant while holding the post of Radiologist-cum-Associate Professor of Radiology (ex officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College. 14.15. But, on careful consideration of the submission of Mr. Choudhury and also perusal of the said decision reveals that the fact herein this case is distinguishable from the said case. In the instant case, admittedly, there is one O.M. dated 12.10.2004, which put a ban in appointment/engagement against non-sanctioned post. Further, there is UGC Regulation, 2010, to deal with Page No.# 34/49 appointment of adhoc teachers in the colleges. That being so, the ratio laid down in the case of Dr. Asim Kumar Bose (supra) would not come into assistance of the respondent No.6. 15. It is also the categorical contention of Mr. I. Choudhury, learned Senior Counsel for the petitioner, that the de-facto doctrine, as referred by the learned Senior Counsel for the respondent No. 6, could not be pressed into service in the instant case. There appears to be substance in the said contention of Mr. Choudhury. It is to be noted here that the de-facto doctrine provides that even if an appointment of a person is later found to be illegal, the same would be interfered with, the action taken by such person during the period which he occupied the office in question, such action would be saved. 15.1. While dealing with the said doctrine Hon’ble Supreme Court, in the cases of Gokaraju Rangaraju vs. State of A.P., reported in (1981) 3 SCC 132, wherein it has been held as under:- “What is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgments pronounced by the judge prior to such declaration is the question for consideration in these criminal appeals. The question may seem to be short and simple but it cannot be answered without enquiry and research. An answer, on first impression, may be “a judgment by a judge who is not a judge is no judgment” a simple, sophisticated answer. But it appears second thoughts are necessary. What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed? What is to happen to sentences imposed? Are convicted offenders to be set at liberty and to be tried again? Are acquitted accused to be arrested and tried Page No.# 35/49 again? Public policy is clearly involved. And, in the tangled web of human affairs, law must recognise some consequences as relevant, not on grounds of pure logic but for reasons of practical necessity. To clear the confusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine. De facto doctrine is thus a doctrine of necessity and public policy.” 15.2. Again in para No. 4, it has been held as under:- “4. We are unable to agree with the submissions of the learned Counsel for the appellants. The doctrine is now well-established that “the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure” (Pulin Behari v. King- Emperor [(1912) 15 Cal LJ 517, 574 : 16 IC 257 : 16 Cal WN 1105 : 13 Cri LJ 609] ). As one of us had occasion to point out earlier “the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine” (vide Immedisetti Ramkrishnaiah Sons v. State of A.P. [AIR 1976 AP 193 : ILR 1976 AP 878]).” 15.3. Again in the para No. 17, it has been held as under:- “17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under Page No.# 36/49 colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judged title to his office cannot be brought into jeopardy in that fashion. Hence the Rule against collateral attack on validity of judicial appointments. To question a judged appointment in an appeal against his judgment is, of course, such a collateral attack.” 15.4. In the case of C. Bernard (supra), Hon’ble Supreme Court has held as under :- “5. ……………… The de facto doctrine has two requisites, namely, (i) the possession of the office and the performance of the duties attached thereto, and (ii) colour of title, that Page No.# 37/49 is, apparent right to the office and acquiescence in the possession thereof by the public. According to this doctrine the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers. This doctrine dates back to the case of Abbe de Fountaine decided way back in 1431 to which reference was made by Sir Asutosh Mookerjee, J. in Pulin Behari Das v. King Emperor [(1911- 12) 16 Cal WN 1105, 1120 : 15 CLJ 517] . Mookerjee, J. held that as the complaint was made after complying with Section 196, Criminal Procedure Code, by the order of or under authority from local government which was de facto, the proceedings were valid. On the same principle it was further held that the Court of Sessions, assuming it was not the holder of a de jure office, was actually in possession of it under the colour of title which indicated the acquiescence of the public in its actions and hence its authority could not be collaterally impeached in the proceedings arising from the conviction of Pulin and his co-accused. Again, in Immedisetti Ramkrishnaiah Sons v. State of Andhra Pradesh [AIR 1976 AP 193] the government nominated nine persons on a Market Committee which nomination was later set aside by the High Court. However, before the High Court pronounced its judgment, the Market Committee had functioned as if it had been properly constituted. Between the date of its constitution and the date of the High Court decision it had taken several decisions, issued notifications, etc. which were the subject matter of challenge on the ground that its constitution was ab initio bad in law. Chinnappa Reddy, J. relying on the observations of Mookerjee, J., in Pulin case [(1911-12) 16 Cal WN 1105, 1120 : 15 CLJ 517] concluded that the acts of the Market Committee de Page No.# 38/49 facto performed within the scope of its assumed official authority, in the interest of the public or third persons and not for his own benefit are generally as valid and binding as if they were performed by a de jure Committee. The Allahabad High Court in Jai Kumar v. State [1968 All LJ 877] upheld the judgments of the District Judges whose appointments were later struck down by this Court on the principle that the acts of officers de facto are not to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or benefit by reason of being the officer which he claims to be. In all other cases, the acts of an officer de facto are valid and effectual, while he is suffered to retain the office, as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of the third parties. This Court in Gokaraju Rangaraju v. State of A.P. [(1981) 3 SCC 132 : 1981 SCC (Cri) 652 : (1981) 3 SCR 474 : AIR 1981 SC 1473] was required to consider the question of the effect of the declaration of this Court holding the appointment of an Additional Sessions Judge invalid on judgments pronounced by him prior to such declaration. This Court observed that the de facto doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the prevention of public and private interest. It avoids endless confusion and needless chaos. It, therefore, seems clear to us that the de facto doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of Page No.# 39/49 the office would be as efficacious as those made by a de jure officer. The same would, however, not be true of a total intruder or usurper of office. 6. In our view, the submission of Shri Shetye based on the de facto doctrine is clearly misconceived. Shri U.B. Menon can hardly be described as a person occupying or being in possession of an office to which certain duties affecting the members of the general public can be said to be attached. The de facto doctrine, as explained earlier, envisages that acts performed de facto by officers within the scope of their assumed official authority are to be regarded as binding as if they were performed by officers de jure. While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any collateral proceedings. But the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office. Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a bank employee, for that matter an ex-employee. We, therefore, see no merit in this contention.” 15.5. In the instant case, none of the actions taken by the respondent No. 6, during her purported adhoc service for the period during the year 2009-10 is questioned in the present case. The issue in the present case, centers around the purported experience certificate (Annexure-1). This certificate was issued by the Principal of MNC Balika Mahavidyalaya, Nalbari not by the respondent No.6. And that too while the OM, dated 12.10.2004, was in force and as discussed earlier, the said OM put a ban in engagement/appointment against non-sanctioned post in the colleges. Page No.# 40/49 15.6. In view of given factual and legal matrix, this Court is of the considered opinion that the de-facto doctrine would not be applicable in the present case as such it would not advance the argument of Mr. K.N. Choudhury, learned Senior Counsel for the respondent No.6, and the decision referred by him in C. Bernard (supra), and as discussed herein above, would not come into his argument. Mr. I. Choudhury, the learned Senior Counsel for the petitioner, has rightly pointed this out during argument and the decisions referred by him also fortified the same. Therefore, this Court is inclined to record concurrence to the same. 15.7. This Court has also carefully considered the submission of Mr. K.N. Choudhury, learned Senior Counsel for the respondent No.6 and also gone the decisions referred by him, but in view of the given factual and legal matrix, this Court is unable to agree with the same. And the decision referred by him in C. Bernard (supra), therefore, would not advance his argument. 16. It is pointed out by the learned counsel for the petitioner that the respondent No. 6 has failed to produce her engagement letter as well as the termination letter and also the relevant documents to show that at the relevant point of time, she was serving as ad-hoc teacher in the MNC Balika Mahavidyalaya, Nalbari, and there is also a contradiction in her application and the information filed by the respondent No. 6 in response to the RTI application. Nothing is also put forth by the respondent No.6 to dispute the said contention. 17. It is also the categorical contention of the petitioner that the appointment/engagement of the respondent No.6 in the MNC Balika Mahavidyalaya, Nalbari for the purported period of 2009-2010 was not made by the respondent No.7 and 8, following any Rules. It is stated that the University Page No.# 41/49 Grant Commission Regulations, 2010 provides for appointment of ad-hoc teachers in the colleges and no separate rules have been framed, which appears from the information supplied by the UGC on 27.11.2018. And the college authority had not followed the selection procedure for appointing ad hoc/contractual Assistant Professors and failed to justify the appointment of the respondent No.6 as an ad-hoc Lecturer in the college by following such norms, which clearly vitiates the experience certificate issued to the respondent No.6 certifying her teaching experience as ad-hoc. 17.1. Notably, the respondent No.6 had not filed her affidavit in opposition and as such the statement and averment of the petitioner, in respect of the respondent No.6 remained un-traversed. 17.2. Though, in their affidavit-in-opposition, the respondent No. 7 and 8 tried to justify engagement of part-time or ad-hoc teacher(s) to start the classes of the subject department, before inspection by the affiliating University, and that till the necessary permission is granted by the university, the college usually starts the functioning of the department with contractual / part-time teachers and that the college has to undergo an elaborate process to obtain government concurrence, only upon which the college becomes eligible for a new sanctioned post and till creation of a new sanctioned post, there are always some teachers who at the cost of minimum / meager amount of salary devoted their time for the upliftment of such department, yet there is nothing is placed on record to show that any the procedure prescribed by the University Grant Commission Regulations, 2010 for appointment of ad-hoc teachers in the colleges is followed in appointing the respondent No.6 17.3. Further, it appears from the affidavit of respondent No.7 and 8 that the college adopted a resolution on 24.04.2005, to seek permission from Gauhati Page No.# 42/49 University for the subject department of Sanskrit and that the Executive Council of Gauhati University on 08.11.2006, had granted permission for opening TDC 1st Year (Arts) General Course in Sanskrit for the Session 2006-2007 and thereafter the Registrar, Gauhati University, on 7.12.2006, had issued a letter to the Secretary to the Government of Assam, Education Department, forwarding the copy of the resolution dated 8.11.2006, as a proposal, to accord concurrence of the State Government, yet in her reply affidavit the petitioner had contended that till date, no concurrence has been granted for the post of Sanskrit by the Government, and as such the respondent Nos.7 & 8 had no authority to appoint and allow respondent No.6 to serve as an ad-hoc Lecturer at MNC Balika Mahavidyalaya and respondent No.6 would not be entitled to claim any benefit for the service rendering under such capacity. 17.4. Thus, it is not in dispute that the respondent No.6 was engaged by the respondent No.7 and 8 as adhoc lecturer in the MNC Balika Mahavidyalaya, Nalbari for the purported period of 2009-2010 was not made by the respondent No.7 and 8, following any Rules and as such there is sufficient force in the contention of the petitioner and in the submissions of her learned counsel that respondent No.6 would not be entitled to claim any benefit for the service rendering under such capacity. 17.5. In the case of Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra, reported in (1990) 2 SCC 715, a Constitution Bench of this Hon’ble Supreme Court has observed: “13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan case [(1977) 3 SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR 775] was unsound and fit to be Page No.# 43/49 overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary….. ……………… Page No.# 44/49 47. To sum up, we hold that (A) Once an incumbent is appointed to a post according to a rule, his seniority has to counted from the date of appointment and not according to date of his confirmation. The corollary to the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account considering the seniority.” (emphasis supplied) 17.6. Same principle is re-iterated in the case of State of West Bengal & Ors. vs. Aghore Nath Dey & Ors., reported in (1993) 3 SCC 371, wherein it was held as follows: “22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ‘according to rules’. The corollary set out in conclusion (A), then is, that ‘where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority’. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which Page No.# 45/49 says that the officiation in such posts cannot be taken into account for counting the seniority. 23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.” 18. Here in this case, from the discussion in the foregoing para, it becomes apparent that the experience certificate of the respondent No. 6 was issued by the respondent No. 8, while the O.M. dated 12.10.2004, was holding the field, which imposed ban in the engagement/appointment against non-sanctioned post. Her engagement in the said college during the year 2009-10, was clearly in violation to the O.M. dated 12.10.2004. Besides, the college authority had not followed the selection procedure for appointing ad hoc/contractual Assistant Professors as provided in the University Grant Commission Regulations, 2010 which provides for appointment of ad-hoc teachers in the colleges. And as held by a Constitutional Bench of Hon’ble Supreme Court in the case of Direct Recruit Class II Engineering Officers’ Association (supra), if an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two un-equals as equal which would violate the equality clause. It was further held that the period of Page No.# 46/49 officiation can be counted if the initial appointment is not made by following the procedure laid down by the Rules. 18.1. This Court is not oblivious of the fact that the aforesaid proposition has been laid in the case of determining seniority between regularly appointed employee and ad-hoc employee. But, as logical corollary, it can be held that since the appointment of the petitioner as ad-hoc Lecturer in the MNC Balika Mahavidalaya, Nalbari, without following the rules of appointment, as provided in the University Grant Commission Regulations, 2010, rather in direct violation of the existing O.M., the experience gathered by such appointment cannot be counted for regular appointment. Else, it would violate the right of the petitioner and other candidates guaranteed by Article 14 and 16(1) of the Constitution of India. 19. Thus, from the aforesaid discussions, the following findings could be arrived at, herein this case:- (i) There is absence of materials/pleaded facts to suggest that the respondent No. 6 was engaged as adhoc Lecturer in MNC Valika Mahavidalaya, Nalbari for the period 2009-2010, following the Rules of appointment i.e. the University Grant Commission Regulations, 2010. (ii) In fact, for the period 2009-2010, which the respondent No.6 claimed to have served as adhoc Lecturer in MNC Valika Mahavidalaya, Nalbari one O.M. dated 12.10.2004, was holding the field, which put a ban on appointment/engagement against any non sanctioned post. (iii) There is no material to suggest that the respondent No.6 was appointed against a sanctioned post, Page No.# 47/49 rather the affidavit of respondent No.7 and 8 clearly indicates absence of any sanctioned post of Lecturer in Sanskrit in the said College, at the relevant point of time i.e. 2009-2010. (iv) Though a co-ordinate Bench of this Court, in the judgment and order dated 14.6.2016, in W.P.(C) No. 3245/2015, held that the experience certificate, obtained by the respondent No. 6 from the respondent No.8, is a document based on original records which can be acted upon for the purpose of giving award of marks towards experience, yet, the decision is not binding upon the petitioner herein, as she was not a party in the said writ proceeding. (v) The principle of Constructive Res-Judicata is not applicable herein this case since present petitioner was not a party in the W.P.(C) No. 3245/2015. (vi) Further, the O.M. dated 12.10.2004, which was holding the field, and which put a ban on appointment/engagement against any non sanctioned posts, was not placed before the Court in W.P.(C) No. 3245/2015. (vii) The finding, so recorded by the co-ordinate Bench of this Court in W.P.(C) No. 3245/2015, cannot be read as a binding precedent as the said observations has to be read in the context in which they appears and since the O.M. dated 12.10.2004, was not placed before the said Bench, it makes a lot of difference in the precedential value of the said decision, as held in the case of Palitana Sugar Mill (P) Ltd. (supra). (viii) The De-facto Doctrine, as contended by the learned Senior Counsel for the respondent No. 6, is not Page No.# 48/49 applicable in the given factual scenario of the case in hand. (ix) Since the Selection Committee had completed the selection process by awarding marks to the respondent No.6, on the basis of the purported experience certificate, despite objection being filed by the petitioner, it cannot be said that present writ petition is pre-mature. (x) Breach of O.M. does not confer any right on the public to ask for a writ under Article 226 of the Constitution, but it does when such breach violates the fundamental right of the candidates guaranteed under Article 14 and 16(1) of the Constitution of India. Conclusion:- 20. In view of the legal and factual matrix discussed herein above, the issue No. (i), so formulated herein above, has to be decided in affirmative and accordingly same is decided in favour of the petitioner. 21. In view of affirmative decision in issue No. (i), this Court finds sufficient merit in this petition and accordingly, the same stands allowed. Consequently, the decision of the Selection Committee, to award one mark to the respondent No. 6 based on the experience certificate, issued by the respondent No. 8, stands set aside and quashed. 22. In view of the above, the respondent authorities are directed to proceed with the selection process, in accordance with law and to take the same to a logical conclusion, in the light of the finding recorded herein above. 23. The aforementioned exercise has to be carried out within a period of 6 (six) weeks from the date of receipt of the certified copy of this judgment and Page No.# 49/49 order. 24. The petitioner shall obtain a certified copy of this judgment and order and place the same before the respondent authorities within a period of one week from today. 25. In terms of above, this writ petition stands disposed of. The parties have to bear their own costs. J U D G E Comparing Assistant