Page No.# 1/13 GAHC010016212022 2026:GAU-AS:7556 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/864/2022 DURLAV BARUAH S/O- LATE BANDHU RAM BARUAH, R/O- WARD NO.4, SHANTIPUR, P.O AND P.S- MANGALDOI, DIST- DARRANG, ASSAM, PIN-784125 VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, EDUCATION (SECONDARY) DEPARTMENT, DISPUR, GUWAHATI-781006 2:THE PRINCIPAL SECRETARY CHAIRMAN OF BTC LEVEL SELECTION COMMITTEE BTC KOKRAJHAR 3:THE DIRECTOR OF EDUCATION BTC KOKRAJHAR 4:THE INSPECTOR OF SCHOOLS UDC UDALGURI 5:JAYANTA SAHARIYA PRINCIPAL OF KALAIGAON H.S SCHOOL P.O- KALAIGAON DIST- UDALGURI (BTAD) ASSAM 78452 Advocates for the petitioner : Ms. N. Saikia Page No.# 2/13 Advocates for the respondents : Mr. S. Borthakur, Senior Advocate Ms. R. Baruah, BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR Date on which judgment is reserved : 29.05.2026 Date of pronouncement of judgment : 01.06.2026 Whether the pronouncement is of the: N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) Heard Ms. N. Saikia, learned Counsel appearing for the petitioner. Also heard Mr. S. Borthakur, learned Counsel for the respondent No.4 and Ms. R. Baruah, learned Standing Counsel for Secondary Education. 2. The present writ petition under Article 226 of the Constitution of India has been preferred by the petitioner, being aggrieved by her non-selection and by the selection of the respondent No. 5 as the Principal of Kolaigaon Higher Secondary School pursuant to a selection process initiated by an advertisement dated 12.09.2019. 3. The petitioner was initially appointed as a subject teacher in the Kabirali Page No.# 3/13 Higher Secondary School by an order dated 08.05.1996, and thereafter, he was transferred to the Kolaigaon H.S. School against a vacancy which had arisen due to the expiry of a subject teacher. A selection process for the post of Principal in the School had been initiated in the year 2016, and a certain Dibakar Baishya was appointed, by order dated 13.06.2017, as the Principal of the School. The respondent No.5 herein was placed at Sl. No.1 on the waiting list in the aforesaid selection. Although Sri Dibakar Baishya was appointed by order dated 13.06.2017, he attained the age of superannuation on 31.01.2018. 4. On 19.01.2018, the Director of Education, BTC, issued an order appointing the respondent No.5 as the Principal of the School effective from 31.01.2018, following the superannuation of the incumbent principal. 5. The petitioner herein challenged the appointment of the respondent No.5 by preferring WP(C) No.2021/2018, which came to be disposed of by the order dated 12.03.2019. This Court had found the appointment of the respondent No. 5 to be unsustainable in law since his appointment was not preceded by a selection process in connection with the vacancy which arose due to the superannuation of Dibakar Baishya. This Court had held that since Dibarkar Baishya had been appointed pursuant to the selection process conducted in 2016-17, the question of appointing the respondent No.5 from the waiting list, since the selected candidate had joined and superannuated, could not arise. For ease of reference, the relevant portion of the order passed by this Court in WP(C)2021/2018 is reproduced below: Page No.# 4/13 “Once a selected candidate is appointed in the post advertised and for which the select list was prepared, purpose of the select list is over and the select list would stand exhausted. Thereafter, it would not be open for the authority to fall back upon the said select list to fill up the subsequent vacancies which may occur post-selection. In the instant case, Shri Dibakar Baishya was selected for the post of Principal of the School. Upon his selection, he was appointed. The moment Shri Dibakar Balshya was appointed, purpose of the select list. vis-à- vis the School was fulfilled and the said select list got exhausted. The anticipated vacancy on superannuation of Shri Dibakar Baishya w.e.f 31.01.2018 was never advertised. In so far a candidate placed in the waiting list is concerned, Supreme Court in the case of Surinder Singh Vs. State of Punjab, (1997) 8 SCC 488, had succinctly summed up the position that candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative. A waiting list prepared in an examination does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency, Government may as a matter of policy decision pick up persons in order of merit from the waiting list. A candidate in the waiting list in order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. However, a waiting list cannot be used as a perennial source of recruitment filling up the vacancies not advertised. Reverting back to the selection in question, as already noticed, it is a merit based selection. Candidates who come within the zone of consideration by having eligibility under Rule 12, their cases will be considered and selection made on the basis of merit by following the laid down criteria. After selection and appointment of Shri Dibakar Baishya as Principal of the School, many candidates may have attained eligibility in the meanwhile in terms of Rule 12. To exclude them from consideration by falling back on a select list which was acted upon and which got exhausted, besides being legally unsustainable, would also be unfair and arbitrary. Page No.# 5/13 It is, therefore, necessary that the post of Principal of the School which had fallen vacant following superannuation of Shri Dibakar Baishya is required to be filled up following a fresh selection process. Respondent No.5 who was appointed as Principal of the School on an erroneous understanding of the legal position may be continued as the in-charge Principal of the School i.e., on temporary basis during the Interregnum till regular appointment is made following fresh selection. Certainly he as well as petitioner would also be eligible to appear in such selection process. Let the fresh selection be conducted within a period of four months from the date of receipt of a certified copy of this order.” 6. As a consequence of the orders passed by this Court, the Additional Principal Secretary, BTC, issued an order dated 28.08.2019 requiring the Director of Education, BTC, to take steps for a fresh selection to the Post of Principal of the School. The respondent No. 5 was allowed to continue as the in-charge Principal of the School till the fresh selection was held and concluded. 7. By an order dated 04.09.2019, the Director of BTC reverted the respondent No. 5 to Post Graduate Teacher. 8. The In-Charge-Principal of the School, which post the respondent No.5 was holding, published an advertisement dated 12.09.2019, calling for aspirant teachers of the school to apply with relevant documents for the post of Principal of the Kolaigaon H.S. School on or before 14.09.2019. It is a matter of record that both the petitioner and the respondent No.5 applied for the post. The selection thereafter was conducted, with reference to the office memorandum dated 26.12.2018 issued by the Government of Assam in the Secondary Page No.# 6/13 Education Department, where the guidelines for selection of the Principal of provincialised H.S. School had been laid down. For a ready reference, the relevant portion of the guidelines is quoted below: Experience marks (a) Experience as Graduate teacher 1 mark for every 2 year of experience beyond 17 years of service subject to maximum 3 marks (b) Experience as Post Graduate teacher 1 mark for every 2 years of experience beyond 15 years of service subject to maximum 3 marks (c) Experience as In charge Principal 1 mark for each year of experience subject to maximum 3 marks (I/C Principal should be authorized by DSE to hold the post) 9. The BTC Level Selection Committee, for promotion to the post of Principal in Senior Secondary and Higher Secondary under the BTC area, through the minutes dated 04.03.2020, observed that the ACR for the years 2016-17, 2017- 18 and 2018-19 in respect of Sri Durlav Baruah, who is the petitioner herein, had been found to be false as per report received from the Inspector of Schools, Page No.# 7/13 Udalguri. The BTC Level Selection Committee decided to recommend the name of the respondent No.5 to be selected for appointment to the post of Principal in the Kolaigaon H.S. School on the basis of merit of the total marks awarded during the selection process. 10. The writ petitioner has annexed a comparative statement of the different candidates as prepared by the selection committee and as endorsed by the Director of Education, BTC, and the Principal Secretary, BTC. This comparative statement is not disputed by any of the contesting parties in the writ petition. A perusal of the comparative statement would show that the respondent No.5 had been awarded 4 marks under the column of experience, bringing his total score to 17, and the petitioner herein had been awarded 3 marks for experience, also bringing his total score to 17. Under the heading of ACR, the respondent No. 5 had been granted 2 marks while the petitioner had been granted 1 mark. 11. By an order dated 26.02.2021, the respondent No.5 was appointed to the post of Principal on a regular basis in the Kolaigaon H.S. School. The present writ petition was thereafter filed on 25.01.2022. 12. Ms. N. Saikia, learned Counsel appearing for the petitioner, has submitted that the grant of 4 marks to the respondent No.5 is not sustainable in law. Ms. Saikia has submitted that the respondent No.5 had been awarded 3 marks under clause 5 (A) and 5(B) of the Office memorandum dated 26.12.2018 and that he had been awarded 1 mark for experience as an In-charge Principal of the School. The learned Counsel has submitted that the respondent No.5 held Page No.# 8/13 the post of In-charge Principal upon his being so appointed on 04.09.2019, which was the date of his reversion from the post of Principal, as a consequence of the order passed by this Court in WP(C) No.2021/2018. The learned Counsel has submitted that counted from 04.09.2019 to the date of the selection, i.e., March, 2020, the respondent No.5 did not complete even 6 months as an In- charge Principal of the School. She had submitted that when the requirement of the office memorandum was to award one mark only on completion of a year as an in-charge, the respondent No.5 could not have been given the additional one mark for experience, since he did not completed even 6 months as an In-charge Principal. 13. It is the submission of the learned Counsel for the petitioner that the petitioner was entitled to be awarded at least 2 marks for his ACR, although he was awarded only one mark. In view of the above submission, Ms. Saikia, learned Counsel, has prayed that the prayers made in the writ petition for setting aside for selection and appointment of the respondent No.5 and for directions to appoint the petitioner as a Principal of Kolaigaon H.S. School deserve to be allowed. 14. Mr. Borthakur, the learned Senior Counsel appearing for the respondent No.5, has submitted that the respondent No.5 had been appointed as the Principal of the School on 19.01.2018 and had taken over charge with effect from 31.01.2018. From then on, he continuously held the charge of the post of Principal in the school till the time that the petitioner was again appointed as Page No.# 9/13 the regular Principal by the order dated 26.02.2021. The learned counsel for the respondent No.5 has submitted that, though the first appointment of the respondent No.5 as a regular Principal had been found to be not sustainable in law by this Court, by the order dated 12.03.2019, this Court allowed the respondent No.5 to continue as the In-charge Principal of the School. Therefore, the learned Senior Counsel for the respondent No.5 has submitted that the period in which the petitioner had discharged the duties of Principal from 31.01.2018 to the date of the selection process being held in the year 2020 is required to be counted in his experience as a Principal of the school. 15. In this regard, the learned Counsel has referred to the judgment of the Apex Court in Chaudhary Charan Singh v. Haryana Agricultural University, Hisar and Another, reported in (2024) SCC Online SC 3540, where, in para-20, the following had been observed. “Taking a cue from the aforesaid decisions, our observation is this. It cannot be gainsaid that even though the modalities for engagement of two individuals for executing similar nature of work could differ, there can be no quarrel that none can gain experience without being asked to work. One vital difference in working on a sanctioned post as a permanent employee and being employed in the exigencies of administration without having a right to post is that in the former, the appointee enjoys procedural safeguards bringing in a sense of security of service in him while in the latter the individual concerned may not have any such sense of security. But, in case, both perform the work of clerks, the experience gained would not be much at a variance subject, of course, that the job requirement is not too different. It would also be relevant to bear in mind stipulations in the advertisement if, at all, they call for any special requirement for marks to be secured for experience, viz. previous service rendered on a sanctioned post or if salary, as is specified, has to be received for Page No.# 10/13 service rendered in order to be eligible to apply.” He has also referred to the judgment of the Jammu Kashmir High Court in Bara Singh vs. Sher-i-Kashmir University, reported in (1996) SCC Online J&K 66, to elaborate on the meaning of the term experience. The relevant portion of the records is as follows: “Here the Advertisement notice uses the term "experience" as noun. The term "experience of teaching" is not defined anywhere. However the ordinary dictionary meaning of "experience" is the knowledge or skill resulting from practical acquaintance with facts and actual observations of events. Blacks Law Dictionary, Sixth Edition, gives out the meaning of 'experience' as a state, extent or duration of being engaged in a particular study or work. The real life as contrasted with the ideal or imaginary. In common parlance "experience" means the knowledge or wisdom gained by working on a certain post. This knowledge, besides other factors, can be gained by observation and interaction. Experience implies skill and knowledge gained by personal knowledge, feeling or action. The term brings into its fold wisdom gained out of a person's instinctive faculties rather than by reason. It also signifies learning.” 16. The learned Senior Counsel has submitted that even though his regular promotion had been interfered with by this Court on the earlier round of litigation, the fact that the respondent No.5 had been discharging duties as a Principal and had actually gained experience in the said post cannot be denied. He has submitted that, therefore, the respondent No.5 was entitled to be granted the marks for his experience, since by March 2020, he had completed more than 2 years of service as the In-charge Principal. The learned Counsel has submitted that, in fact, the respondent No.5 ought to have been awarded 2 marks for experience, whereas he has been awarded only a single mark. He Page No.# 11/13 submits that had he been actually awarded two marks, the total score of the respondent No.5 would have been 18, thereby scoring more than the petitioner. He has accordingly prayed for dismissal of the writ petition. 17. The respondents in the BTC have filed two affidavits. In both the affidavits, the stand taken is that the marks allotted to the respondent No.5 by the selection committee do not suffer from any illegality and due to the higher experience of the respondent No.5 and the false ACRs submitted by the petitioner, the respondent No.5 was selected for promotion to the post of principal. 18. The respondents in the Government of Assam have supported the case of the respondent No. 5 and the BTC authorities, and it has been submitted on their behalf that the appointment of the respondent No. 5 was solely in order of total marks obtained and in accordance with the provision of Rule 13 Assam Secondary Education (Provincialised Schools) Service Rules, 2003. 19. Responding to the submission made on behalf of the respondents, Ms. Saikia, learned Counsel for the petitioner, has submitted that the respondent No.5 did not deserve the marks awarded to him for experience as an In-charge Principal since he did not have the mandatory one-year service as an In-charge Principal. She has further submitted that the notings in the ACR are not in the hands of the petitioner and the ACRs are maintained by the appropriate authorities who submit the same before the Selection Committee, and therefore, the question of the ACRs being false cannot and does not arise. She has Page No.# 12/13 submitted that the writ petition be allowed, promoting the petitioner to the post of the Principal and appropriate relief, either in the nature of back wages or in the form of compensation, be also allowed in his favour. 20. Heard the learned counsel appearing for the parties, and also considered the documents on record and the citation provided by the learned Counsel. 21. The order dated 12.03.2019 passed by this Court had set aside the appointment of the respondent No.5 on the grounds elucidated in the order itself; the said order had recorded that the respondent No.5 would be allowed to continue as the In-charge Principal of the school till a regular appointment is made. It is not the case of the petitioner that the petitioner is either senior to the respondent No.5 in service or that the respondent No.5 was at any point in time ineligible to hold the charge of principal of the school. 22. The appointment of the respondent No.5 in the first round of litigation had been interfered with, but the fact remains, which cannot be disputed, that the respondent No.5 had gained experience in holding the office of the Principal of the school from 31.01.2018 to the date of his regular appointment pursuant to the second selection as regular principal. In the event the arguments of the petitioner, that the respondent would only be entitled to count the period from September 2019 to March 2020 as an In-charge Principal, is accepted, the same would lead to a very anomalous situation since the period of service of the respondent No.5 from 31.01.2018 to 04.09.2019 would not be counted as a post graduate teacher since he holding office of the principal and therefore that Page No.# 13/13 period would become a gray area. The fact that the respondent No.5 had gained experience of holding the office of the Principal from 31.01.2018 to the date of his regular appointment on 26.02.2020, in my opinion, has to be counted for experience as an In-charge Principal. For the purpose of selection, the experience was required to be counted from 31.01.2018 to 14.09.2019, i.e., the last day of submitting the application for the post of Principal. Viewed in the above manner, in the present case, I do not find any anomaly in the respondent No.5 being granted one mark for experience as in-charge Principal. 23. Although the petitioner had knowledged that she had been given only one mark for her ACR, and the reason for granting only a single mark was also brought on record, the petitioner has not put the same to challenge, and therefore, this Court is not required to decide the validity or legality of granting one mark for his ACRs. 24. Since this Court does not find any anomaly in the awarding of marks by the selection committee in the selection process initiated by the advertisement dated 12.09.2019, the present writ petition is dismissed. Parties are left to bear their own costs. JUDGE Comparing Assistant