I.A. Ansari, J.
1. Can a candidate, who in a competitive examination or interview held by an educational institute to select a member of teaching staff, stands lower, in order, in the merit list, be arbitrarily refused to be given appointment if the person or persons, whose name figured higher in the merit list, decline to accept offer of appointment Can the principles of 'approbate or reprobate' be applied against statutory rights or constitutional remedies What is the period of validity of a reject list prepared in respect of the posts of lecturer of Government aided Colleges in Assam and at what point, or time, validity of such a list commences These are some significant questions, which the present writ petition has raised.
2. The case of the petitioner may, in brief, be stated as follows :
The petitioner is an educated unemployed youth. He passed HSLC examination in the year 1990 and was placed under first division. He passed the HSSLC examination in science stream in the year 1992 and was placed under second division. He passed B.Sc. examination with major in Botany from Gauhati University by obtaining 1st class and was placed first in the order of merit. Thereafter, the petitioner obtained his M.Sc. degree in Botany from Gauhati University in 1997-98 and was placed in 1st class. The petitioner, being from Kuch Rajbongshi community, belongs to the category of Other Backward Class. By the office order, dated 2.11.1998 (Annexure 4 to the writ petition) issued by the Principal, B. Baruah College, Guwahati, the petitioner was appointed as a tutor in the department of Botany on an allowance of Rs. 200 PM and, for the purpose of gaining experience, the petitioner accepted the appointment and joined the college as tutor. By a subsequent order, dated 5.4.1999 (Annexure 5 to the writ petition) issued by the Principal of the College, the appointment of the petitioner
as tutor was terminated. The governing body of the College issued an advertisement, dated 19.3.1999 (Annexure 6 to the writ petition) inviting applications from the candidates having UGC norms for the post of whole-time lecturer in B. Baruah College. One of the posts so advertised was the post of lecturer in the department of Botany with special paper in Cytogenetics. In the advertisement so published, it was, assured that due consideration will be given to SC/ST/OBC candidates as per roster system. The petitioner applied for the said post of lecturer in the department of Botany and in course of time, appeared for interview before the Selection Committee held on 31.5.1999. The Selection Committee, having interviewed, out of 20, 16 candidates, prepared a panel (Annexure 7 to the writ petition) of selected candidates, in the following order, namely, (i) Sri Someswar Rao, (ii) Sri Utpal Choudhury (i.e., the petitioner) and (iii) Smt. Neelanjana Baruah. Subsequently, as per suggestion of the Special Body, the Selection Committee, checked the application of the candidates for evaluating their teaching experience inasmuch as the same had not been considered earlier, while selecting the candidates. As per the revised list so prepared, the inter se merit performance of the three candidates remained the same. The petitioner, being an OBC candidate, deserved to be given preference as per the roster system as had been promised by the advertisement aforementioned. This apart, since the petitioner, as per the advertisement, had a special paper of Cytogenetics in his master degree, the petitioner deserved to be appointed on merit. As per his performance, the petitioner ought to have been placed at SI No. 1 in the merit list. Be that as it may, 'the Special Body of the College, vide its resolution No. 1, adopted, on 21.8.1999, resolved to offer the appointment to Sri Someswar Rao aforementioned against the vacancy caused by the death of Sumit Rao Kakati. The resolution was accordingly sent to the respondent No. 2, namely, Director of Higher Education, Assam, seeking his approval. While sending the resolution, dated 8.10.1999 (Annexure 8 to the, writ petition), it was clearly mentioned that the panel of the three candidates aforementioned, namely, (i) Sri Someswar Rao, (ii) Sri Utpal Choudhury (the petitioner) and (iii) Srimati Neelanjana Baruah stood approved by Special Body in its meeting held on 21.8.1999. The merit list, which included the three candidates aforementioned, was provisionally approved by the Respondent No. 2 vide his letter contained in Memo, dated 2.8.2000 (Annexure B to the writ petition). On the basis of the provisional approval so received, the respondent No. 4, namely, Principal, B. Baruah College vide office order, dated 7.8.2000 (Annexure 9 to the writ petition) appointed Sri Someswar Rao as full-time lecturer in the Botany department of the College directing him to join the post within 15 days from the date of receipt of the appointment letter. Sri Rao aforementioned, however, did not join. On his declining to accept the offer, the offer of appointment ought to have been made to the petitioner inasmuch as he had been placed at Serial No. 2 of the merit list. However, the Special Body in its meeting held, on 29.9.2000, resolved to readvertise the said post of lecturer of Botany and nullify thereby the merit list aforementioned. Thus, the Special Body acted arbitrarily, unreasonably, illegally and with some other motive and it decided to readvertise the post despite the fact that the list had remained valid, notwithstanding the pretext, of the College authorities that the validity of the list stood expired by efflux of time.
3. With the help of the present application made under Article 226 of the Constitution of India, the petitioner has approached this Court seeking issuance of appropriate writ(s) setting aside and quashing, the impugned resolution, dated 29.9.2000, aforementioned, whereby the Special Body decided to readvertise the post of lecturer of Botany in B Baruah College nullifying and cancelling the merit list, which stood approved not only by the Special Body, but also by the Director of Higher Education, and commanding the respondents to make offer of appointment to the petitioner as lecturer in Botany in B. Baruah College.
4. Pending disposal of the writ petition, the petitioner sought directions from this Court, stopping the operation of the impugned resolution, dated 29.9,2000, aforesaid. This Court, while issuing notice of motion, on 6.11.2000, directed, in the interim, that the respondents may proceed with the process of selection, but no appointment should be made without the leave of the Court. The petitioner applied for the post so readvertised and upon interview, the Selection Board prepared a panel of 4 candidates placing the petitioner at Serial No. 4 thereof.
5. The respondents have contested the case by filing their affidavit-in-opposition, their Case being, briefly stated, thus: No guidelines exist in the department of Education for maintaining any roster for reservation. The OBC quota in B. Baruah College already stands filled-up. Though Sri Someswar Rao aforementioned duly received the appointment letter, in question, he neither submitted his joining report within the fixed period nor did he submit anything, in writing, refusing to join the post. The Select List was prepared by the Selection Board on 31.5.1999. As such, the validity of the list expired on 31.5.2000, that is, one year after the date of publication of the list. That is why, the Special Body meeting held, on 29.9.2000, decided to readvertise the post. Thus, the resolution, dated 29.9.2000, was adopted after expiry of the said select list. The College authorities had no obligation to offer appointment to the petitioner since the select list stood expired on 31.5.2000. The post was readvertised on 28.10.2000, the petitioner appeared before the Selection Board for interview without any objection on 27.11.2000 and after conducting a selection process, the Selection Board recommended the names of four candidates placing the petitioner at Serial No, 4 of the merit list. The petitioner has, therefore, no case and the writ petition deserves to be dismissed.
6. I have carefully perused the materials on record. I have heard Mr. B. P. Kataki, learned senior counsel for the petitioner, and Mr. A.K. Bhattacharyya, learned senior counsel appearing on behalf of the respondent No. 4, namely, Principal-cum-Secretary of the Special Body, B. Baruah College. The State respondents have not contested this case and none has appeared on their behalf.
7. Presenting the case, on behalf of the petitioner, Mr. Kataki has submitted that though the selection of principals and lecturers of Government aided colleges is governed by the Assam Education Department Selection Rules, 1981 (hereinafter referred to as '1981 Rules'), the provisions of Assam Aided College Employees Rules, 1960 (hereinafter referred to as '1960 Rules') will be applicable to such selections to the extent that the provisions of 1960 Rules are not inconsistent with the 1981 Rules. Support for this submission is sought to be derived by Mr. Kataki from the case of Narayan Chandra Majumdar v. Director of Higher Education, Assam and Ors., reported in 1995 (1) GLT 232.
8. Mr. Kataki has drawn my attention to the provisions of Rule 4 of 1960 Rules, which relates to the method of recruitment of, principals, professors and lecturers, and has contended that according to Rule 4 (iv), the list of candidates shall, ordinarily, remain valid for a period of one year from the date of selection. Mr. Kataki has, submitted that the date of selection will mean the date on which the selection made by the Selection Board is approved under Rule 4 (iv) of 1960 Rules by Director of Public Instruction, Assam, or under Rule 10 of 1981 Rules by the State Government inasmuch as the selection of lecturers made by Selection Board has no effect until the same receives, according to Mr. Kataki, approval from the authorities concerned, in the case at hand, points out Mr. Kataki, the selection of the candidates made by the Selection Committee, on 31.5.1999, was approved by the Director of Higher Education, provisionally, on 2.8.2000. This means, contends Mr. Kataki, that the list, in question, would remain valid till 1.8.2001. That the governing body of the College concerned also treated the list to have become valid with effect from 2.8.2000 is clear from the fact, submits Mr. Kataki, that the authorities concerned offered appointment to Sri Someswar Rao, the candidate, whose name figured at the top of the selected panel of the candidates, as late as on 7.8.2000, which was long after 31.5.2000, on which date, the list had, according to the respondent No. 4, expired. Having so offered the appointment to Sri Someswar Rao, when Someswar Rao declined the offer and did not join the post, the College authorities, contends Mr. Kataki, ought to have offered the appointment of the post of lecturer in the department of Botany to the petitioner, but instead of doing so, they arbitrarily treated the list as invalid with effect from 31.5.2000, ignoring the fact that they had themselves treated the selected panel as valid on 7.8.2000, i.e., the date when they had issued the offer of appointment to Someswar Rao aforementioned.
9. In support of his submission that the petitioner ought to have been appointed as a lecturer, when Sri Someswar Rao aforementioned had declined the offer, Mr. Kataki has referred to R. S. Mittal v. Union of India, reported in 1995 SCC (Supp) (II) 230.
10. In support of his submission that the list, in question, had remained valid and should be still treated as alive and effective, Mr. Kataki has also referred to Purushottam v. Chairman, MSEB, reported in 1999 (6) SCC 49, and State of U.P. v. Ram Swamp Saroj, reported in 2000 (III) SCC 699.
11. Controverting the above submissions made on behalf of the petitioner, Mr. A. K. Bhattacharyya has submitted that the selection of a lecturer in a Government aided college is primarily governed by three sets of Rules. It is the Assam Aided College Management Rules, 1976 (hereinafter referred to as '1976 Rules') which apply, according to Mr. Bhattacharyya, to the selection and appointment of lecturers in such colleges. In support of this contention, Mr, Bhattacharyya points out that Rule 19(iv) of 1976 Rules empowers the governing body to appoint persons in connection with the affairs of the college. The expression 'affairs of the college' will include, according to Mr. Bhattacharyya, appointment of lecturers in such colleges, but this Rule does not prescribe, points out Mr. Bhattacharyya, the procedure for selection of lecturers of such colleges and the procedure has been laid down, according to Mr. Bhattacharyya, in 1960 Rules.
12. Taking resort to Rule 4(ii) of 1960 Rules, Mr. Bhattacharyya has submitted that under this Rule, well - ahead of each academic year, the Director of Public Instructions shall ascertain from various institutions concerned probable vacancies that are likely to arise during the year for the posts of principals, professors and lecturers and advertise such vacancies in, at least, two newspapers and also in the Assam Gazette and Rule 4(iv) shows that the governing body can appoint a candidate from the select list with prior approval of the Director of Public Instructions. The Director of Public Instructions does not, according to Mr. Bhattacharyya, approves the selection; what he approves, points out Mr. Bhattacherjee, is the appointment. If Rule 4 (v) is properly read, contends Mr. Bhattacharyya, it will become clear that ordinarily, the list shall remain valid for one year from the date of selection. This selection will mean, according to Mr. Bhattacharyya, the date on which the selection is approved by the governing body. In the case at hand, points out Mr. Bhattacharyya, the selection was made by the Selection Board on 31.5.2002 and it was approved by the Special Body of the College on 21.8.1999. Since, according to Mr. Bhattacharyya, no approval of the select list, was required under Rule, 4(iv) aforementioned, the selection, in the instant case, should be treated to have been made on 21.8.1999, i.e., the date on which the selection stood approved by the Governing body of the College. Viewed from this angle, contends Mr. Bhattacharyya, the select list under Rule 4(iv) had expired on 20.8.2000, whereas the present writ petition was filed as late as on 23.10.2000. Thus, the petitioner has approached this Court, according to Mr. Bhattacharyya, long after the select list already stood expired.
13. It is submitted by Mr. Bhattacharyya that it is settled law that in matters of educational institutions. Court should sparingly exercise powers under Article 226. It is also submitted by Mr. Bhattacharyya that colleges are institutes for pursuit of study and, hence, there should always be search for more meritorious candidates and in this view of the matter, once the academic year is over, the college authorities will be within their rights to invite applications from persons, who might have become eligible for selection with the passage of time and in such circumstances, the college authorities may choose not to give appointment to a candidate, who had figured second in the merit list. It is further submitted by Mr. Bhattacharyya that the petitioner cannot demand that though he had stood second in the merit list, he must be given the offer of appointment, it is entirely for the college authorities to decide, contends Mr. Bhattacharyya, if the person coming second in the list of selected candidates should be appointed or not.
14. Mr. Bhattacharyya has also pointed out that the authorities concerned had readvertised the post on 28.10.2000 and the petitioner sought from this Court stay of the selection process, which had commenced with the publication of the advertisement aforementioned. Drawing attention of this Court to the order, dated 6.11.2000, passed in this case, Mr. Bhattacharyya has submitted that this Court declined to stay the process of selection under the second advertisement and allowed the respondents to proceed with the process of selection subject to the condition that no appointment shall be made without the leave of the Court. After this order was passed, points out Mr. Bhattacharyya, the petitioner offered to participate in the second selection process and he was accordingly interviewed, but while so participating in the second selection test, he neither took leave of the Court nor did he inform, while seeking to be re-interviewed, the College authorities that he had already filed the present writ petition. The petitioner has thus,' played, submits Mr. Bhattacharyya, hide and seek with the Court. According to Mr. Bhattacharyya, had the petitioner taken the leave of the Court to participate in the second selection process or had he informed the College authorities that without prejudice to his right under the present writ petition, he is participating in the second selection process, the situation could have been, perhaps, a little different.
15. In the case at hand, points out Mr. Bhattacharyya, the petitioner had the option to seek enforcement of his alleged right by this Court under his present writ petition or compete in the second selection process. According to Mr. Bhattacharyya, since the petitioner chose to participate in the second selection process, he must be treated to have elected to forego his right under the present writ petition and, now, that the petitioner has been placed at serial No. 4 of the second selected list, he cannot come back to the Court seeking enforcement of his right under the first selection list. The doctrine of election is, thus, submits Mr. Bhattacharyya, squarely applicable to the facts of the case at hand and this Court may decline to give any relief to the petitioner inasmuch as he had the right to choose between the two selection processes and having opted to participate in the second selection process, he cannot seek enforcement of his right, if any, under the first selection process.
16. In support of his above contentions, Mr. Bhattacharyya has taken me through Halsburey's Law of England extensively on the subject of approbate and reprobate, he has also referred to R. N. Gosain v. Yash Pal Dhir, reported in (1992) 4 SCC 683, and Prashant Ramchandra Deshpandey v. Maruti Balaram Haibatti, 1995 Supp (2) SCC 539.
17. Reacting to the above submissions made on behalf of the respondents, Mr. Kataki has contended that in the face of the provisions of Rule 10 and particularly of Rule 10(3) of 1981 Rules, the contention of the College authorities that the validity of the select list expired on 31.5.2000 or on 21.8.2000 is not tenable in law inasmuch as the period of validity of one year cannot commence from the date, when the Selection Committee prepared the select list, i.e., 31.5.1999 or from the date, when the Special Body approved the Select list, (i.e., on 21.8.1999), but will commence only from 2.8.2000, when the Director of Higher Education gave his provisional approval to the list so prepared and hence, the validity of the select list would have, at best, expired on 1.8.2001, i.e., long after the petitioner approached this Court on 23.10.2000. Mr. Kataki has also submitted that the doctrine of election has no application to the facts of the present case inasmuch as when the second selection process was not stopped by the Court, the petitioner had no option but to participate in the second selection process. However, by so participating in the second selection process, his right under the first selection process cannot be taken to have got extinguished nor can he be treated to have given up his right, which flows from the first selection.
18. Mr. Kataki contends that the principle of approbate or reprobate is founded on equitable principle and cannot override the legal or constitutional rights of the person concerned. This position is, according to Mr. Kataki, well settled in the face of the law laid down in P. R. Deshpandey v. Maruti Balaram Haibati 1998 (6) SCC 507, which, it may be noted, points out Mr. Kataki, has overruled the decision on the concept of 'approbate or reprobate', which was propounded in R. N. Gosain's case (supra) and relied upon by Mr. Bhattacharyya, and also Prashant Ramchandra Deshpandey (supra), particularly, when the petitioner had never admitted, submits Mr. Kataki, that the second selection process was valid. The petitioner had, reiterates Mr. Kataki, reluctantly participated in the second selection process, because of the refusal of the Court to stay the second selection process, which the College authority had commenced.
19. Upon hearing learned counsel for the parties and upon perusal for the materials on record, what I find to be the admitted case of the parties is thus : The Selection Board prepared the Selection List, in question, on 31.5.1999, the same was approved by the Special Body of the College on 21.8.1999 and it was resolved to appoint Sri Someswar Rao aforementioned, whose name figured at Serial No. 1 of the select list. The respondent No. 2, namely, the Director of Higher Education, approved the list, in question, on 2,8.2000. The College authorities offered the appointment to Sri Someswar Rao aforementioned on 7.8.2000, but he did not join. The Special Body of the College adopted a resolution on 29.9.2000, to re-advertise the post and accordingly the post was re-advertised on 28.10.2002. The petitioner filed this writ application on 23.10.2000. The notice of motion was issued, on 6.11.2002, allowing the authorities concerned to proceed with the selection process following the re-advertisement, but not to make any appointment without leave of the Court.
20. In the face of the above admitted facts, let me, now, consider the merit of this writ petition. While so considering the matter, what may be noticed, at the very outset, is the fact that though the petitioner has contended in the writ petition that being a member of the OBC, he has preferential right over others for appointment to the post aforementioned, this aspect of the matter has not been pressed for by the learned counsel for the petitioner.
21. Though Mr. Bhattacharyya has submitted that under Rule 19(iv), Government Aided Colleges appoint lecturers, the fact remains that 1981 Rules are primarily meant for selection of principals and lecturers of such colleges, whereas 1976 Rules deal with management of such colleges. In matters of selection of principals and lecturers, 1981 Rules will, therefore, have primacy over the other rules. In other words, be it 1960 Rules, and/or 1976 Rules, both these rules have to be lead subject to 1981 Rules. To the extent, therefore, 1960 Rules and/or 1976 Rules are contrary to, or in consistent with, 1981 Rules, it is the 1981 Rules, which will apply in matters of selection of lecturers and principals of Government aided colleges. Moreover, as far as Rule 1976 is concerned, it gives power to the governing body of such colleges to appoint persons connected with the affairs of the college. Rule 19(iv), thus, cover not only appointment of lecturers and principals of such colleges, but also staff and all ancillary appointments of such colleges, whereas 1981 Rules are meant for and govern the selection of lecturers and principals of such colleges and not of others. Viewed from this angle too, 1981 Rules have primacy over the 1976 Rules so far as selection of lectures/ principals of such colleges are concerned. Reference made by Mr. Kataki to the case of Narayan Ch. Majumdar (supra) is not misplaced. Hence, if the 1981 Rules lay down the period of validity of select list of lecturers and/or principals, the same will have primacy over the other set of Rules, which speak of validity of select lists.
22. Keeping in view the above aspects of the matter, let me, first, come to the 1981 Rules. A close examination of 1981 Rules shows that according to Rule 2(iv) the appointing authority will mean governing body of the college in respect of which the vacancy of the post of lecturer and/or Principal has arisen. Rule 6 of 1981 Rules relate to notification of such vacancies. This rules lays down as follows :
'6. At the commencement of every academic year, the Director of Higher Education will ascertain the number of existing and probable vacancies for the posts mentioned in Sub-rule (1) of Rule 3 for the current and the next year and will notify vacancies to the Selection Board by not later than September every year. While doing so the Director shall indicate vacancies required to the filled up from candidates belonging to the Scheduled Tribes (plains). Scheduled Tribes (Hills) Scheduled Castes in accordance with provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, Such communication specifying the required educational qualification, experience, age, nationality and other particulars as are required.' (emphasis is supplied)
23. A bare reading of Rule 6 clearly indicates that the vacancies, which are likely to be available not only in the current year, but also in the next year, are advertised. Hence, if a vacancy is advertised, as has been done, in the instant case, initially, on 19.3.1999, it must be taken to be a vacancy publicized not only for the year 1999 but also for the year 2000. It is Rule 7, which deals with publication of such advertisements by Selection Board.
24. Coming to Rule 10(3), I notice, that it is this sub-rule, which lays down the period of validity of a select list, Sub-rule (3) of Rule 10 reads as follows :
'(3) The list published under this rule shall be valid for a period of one year from the date of its publication, which may further be extended for a period not exceeding one year.' (emphasis is added)
25. A cursory glance at Rule 10(3) shows that the select list shall, unless extended, remain valid for a period of one year from the date of its publication.
26. For the sake of brevity, let me also quote Rule 10(1), which reads, I notice, as follows :
'10. Publication of Selection list, - (1) The Selection Board shall prepare lists of selected candidates for lecturers and principals numbering at least three times of the existing vacancies and shall forward the list so prepared to the Government. The Government may approve the list so prepared by the Selection Board after proper verification or the character and antecedents and publish these lists in the official Gazette. The list of Lecturers should be published subject-wise and the Director of Higher Education shall forward the list of candidates for principals and lecturers, approved by the Government to the Governing Bodies of Aided Colleges.' (emphasis is added)
27. For the publication of select list sent for approval to the Government, 1981 Rules mentions no specific period or time-frame.
28. Rule 11 of 1981 Rules lays down, in no uncertain words, that on publication of results, the concerning authorities shall make appointments only from among the candidates included in the list,
29. In the case at hand, since the authority concerned offered appointment to Sri Someswar Rao aforementioned on receiving approval from respondent No. 2, accorded on 2.8.2000, it logically follows, in the absence of any material showing to the contrary, that the select list stood publicized, at best, on 2.8.2002.
30. On applying the relevant provisions of 1981 Rules to the factual matrix of the present case, it becomes clear that when the post, in question, was, initially, advertised on 19.3.1999, this advertisement was under Rule 7 of 1981 Rules and the selection was accordingly held under Rule 9 thereof. Thereafter, a select list containing three names in order of merit in respect of one existing vacancy in the post of lecturer in the department of Botany was, in consonance with the provisions of Sub-rule (1) of Rule 10, forwarded to the Government. There is nothing on record to show that this list has been published as required under Rule 10(1). However, by order, dated 2.8.2000, when the respondent No. 2 approved the appointment of Someswar Rao, it implied that the select list, in question, received the approval of the authorities concerned, at best, on 2.8.2002. This select list will remain valid under Rule 10(3) till 1.8.2001, i.e., till one year from the date when the list had received approval of the respondents concerned.
31. Moreover, a consolidated reading of the various relevant provisions shows that the select list of lecturers and principals of the Government aided Colleges will, ordinarily, remain valid for a period of one year from the date of its publication. Since under Rule 10(1) of 1981 Rules, the select list needs approval of the Government, the selection by a Selection Board or acceptance of the selection by the Special Body of such a college is ineffective until time the select list receives approval of the Government. Viewed from this angle, the, date of selection will mean the date on which the select list, forwarded to the government, received approval of the authority concerned in terms of Rule 10(1). Looked at from this angle too, it is clear that since the select list, in the present case, received approval of the respondent No. 2 on 2.8.2000, its period of validity cannot commence on 31,5.1999, i.e., the date on which Selection Board had prepared the select list nor can the validity of such list commence w.e.f. 21.8.1999, when the Special Body of the College approved the select list. In no way, therefore, the validity of the select list, in question, can be taken to have commenced on 31.5.1999 or 21.8.1999 as has been contended by the respondents. Thus, the select list remained, as pointed out hereinabove, valid till, at least, 1.8.2001,
32. It is also of immense most importance to note that as per the averments made by the respondent No. 4 in para 9 of their affidavit-in-opposition, the Special Body meeting of the College held on 29.9.2000 decided to re-advertise the post on account of the fact that its validity had expired on 31.5.2000. It is, thus, clear that the only reason, which had prompted the College authorities to resolve to re-advertise the post was the erroneous assumption that the validity of the select list had expired on 31.5.2000. Hence, the submission, now, made, on behalf of the College authorities, that re-advertisement was published in pursuit of better and more meritorious candidates does not hold water, more so, when every academic year produces new candidates, but select list under the rules aforementioned remains valid not for one academic year, but for one year from the date of its publication.
33. It is, therefore, clear that the decision to re-advertise the post was contrary to the Rules mentioned hereinabove.
34. The question, now, which arises for consideration is as to whether the College authorities were bound to offer the appointment to the petitioner, when Sri Someswar Rao aforementioned did not accept the offer of appointment.
35. Notwithstanding the submissions made on behalf of the respondent No. 4, that the governing body may not like to appoint a person, who stands second in the merit list and look for more meritorious candidates, the bottom line is, as has already been indicated above, that the re-advertisement has been made not in pursuit of more meritorious candidates, but on the assumption that the validity of the list stood expired. This apart, the contention of Mr. Bhattacharyya that the College authorities have the discretion of not offering appointment to the person, who stood second in the select list, is not justified in the face of the position of law as discussed hereinbelow.
36. When a panel of select list of candidates is prepared, it is indicative of the fact that each of them is fit to receive the appointment, in question, and the order of selection merely indicates order of preference. Hence, a candidate, such as the petitioner, whose name has been placed at serial No. 2 of the select list, cannot be said to unfit for appointment as a lecturer of Botany. If it were so, his name would not have been figured at all in the select list, in question.
37. What follows from the above discussion is that when a panel of selected candidates is prepared and the vacancy remains unfulfilled on account of the fact that the person to whom appointment has been offered has not accepted the offer, the person, whose name stands included next in the list, cannot be denied appointment without any valid and justified reason. Mere denial to offer appointment to such a candidate, without any justified reason, will be nothing but arbitrary, which law does not permit. The reference made by Mr. Kataki to the case of R. S. Mittal (supra) is not wholly misplaced inasmuch as the Apex Court in this case has laid down as follows :
'Although a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or on its whims decline to make the appointment. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel.' (emphasis is added)
38. Moreover, in the case at hand, submissions made on behalf of the respondents that re-advertisement was aimed at obtaining services of more meritorious person does not cut any ice inasmuch as averments made by the College authorities in para 9 aforementioned eloquently speak that the re-advertisement was resorted to on the assumption that the validity of the select list had expired. If the College authorities were unwilling to appoint the petitioner and they took pretext of the validity of the select list having expired, then, the said pretext is nothing but an arbitrary act of the authorities concerned. In either view of the matter, therefore, the authorities concerned could not have re-advertised the post in the facts and attending circumstances of the case at hand. Had the authorities concerned decided not to fill-up the post at all, then, the situation would have been quite different, but when the authorities decided to fill-up the post, they cannot, in the face of the facts, as discussed above, arbitrarily refuse to appoint the petitioner.
39. Turning to the question raised by Mr. Bhattacharyya as to whether doctrine of election shall debar the petitioner from receiving reliefs in this case, it is pertinent to emphasize, as has been correctly pointed out by Mr. Kataki that the decision in R. N. Gosain's case (supra), which has been relied upon by Mr. Bhattacharyya, stands overruled by the Apex Court in P. R. Deshpande (supra).
40. It may be noted that P, R. Deshpande (supra) arose when, while dealing with an application made under article 136 in the case of Prashant Ramchandra Deshpande v. Maruti Balaram Haibatti, reported in 1995 Supp(s) SCC 539, the Bench, which was in seisin of the case, expressed-disagreement with the law laid down on the principle of 'aprobate and reprobate' in R. N. Gosain's case (supra), which Mr. Bhattacharyya relies upon, and the matter was referred to the larger Bench. The larger Bench of the Apex Court in P. R. Deshpande (supra) while agreeing with the views expressed in Prashant Ramchandra Deshpande (supra), observed, I notice, thus :
'The principle of 'approbate and reprobate' or the law of election, which is the basis of the decision in R. N. Gosain case (supra) cannot, in our opinion, be applied appropriately to preclude this Court from exercising its jurisdiction under Article 136. The doctrine of election is founded on equitable principle that where a person persuades another one to act in a manner to his prejudice and derives any advantage from that then he cannot turn around and claim that he was not liable to perform his part as it was void. It applies where a vendor or a transferor or property tries to take advantage of his own wrong. This principle cannot, in our opinion, be extended to shut out or preclude a person from invoking the constitutional remedy provided to him under Article 136. The law that there is no estoppel against the statute is well settled. Here it is a remedy under the Constitution and no law can be framed much less the principle of election, which can stand in the way of the appellant from invoking the constitutional jurisdiction of this Court. The doctrine of election is based on the rule of estoppel the principle that one cannot approbate or reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel which is a rule in equity. But that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had (vide Black's Law Dictionary, 5th Edn.).
9. It is now trite that the principle of estoppel has no application when statutory rights and liabilities are involved. It cannot implede right of appeal and particularly the constitutional remedy.' (emphasis is added)
41. From a careful reading of the above observations, it becomes clear that there can be no estoppel against the statutory rights and constitutional remedies.
42. In the case at hand, it is of utmost importance to note that in the light of the law laid down by the Apex Court in R. S. Mittal (supra), I have already held that the petitioner had a right, in the face and attending circumstances of the case, to be appointed to the post aforementioned. Against his denial of appointment, he also had the constitutional remedy to approach this Court for exercise of this Court's powers under Article 226 of the Constitution of India. Can the remedy that the Constitution guaranteed to the petitioner be taken away by the principle of 'probate and reprobate' The answer to this question, in the light of the law laid down in P. R. Deshpande (supra), has to be in the negative. It is also worth noticing that College authorities re-advertised the post on 28.10.2000. The petitioner approached this Court on 23.10.2000 and sought stay thereof, but this Court allowed the process of selection to continue subject to the condition that no appointment would be made without leave of this Court.
43. Thus, it was this Court, which left the second selection process on. The petitioner had really no option, but to participate in the second selection process. Strictly speaking, when this Court declined to stay the selection process, the petitioner was left with no choice, but to participate in the second selection process. The petitioner, thus, participated in the second selection process by force of circumstances. This participation of the petitioner in the second selection process cannot be taken to be wilful nor can the same be treated to have extinguished his right to obtain, in this writ petition in respect of the first selection, such remedy, which Constitution provides to him under the law. Viewed from this angle, the contention raised on behalf of the College authorities that by electing to participate in the second selection process, the petitioner shall be deemed to have extinguished his right to agitate his grievances in the present writ petition cannot be accepted.
44. Since the petitioner's right to receive appointment under the first selection process has remained, as indicated hereinabove, intact, the mere fact that he stood, in the second selection process, fourth, in the merit list can have no bearing at all. It is true that in a matter of educational institutions, Courts shall not, normally, interfere, but in a case of present nature, where the petitioner has been denied the right to appointment arbitrarily or on wrong assumption of law, reluctance on the part of the Court to interfere will shake the confidence of the public in the rule of law.
45. I have, therefore, no hesitation in holding that denial to appoint the petitioner as a lecturer was wholly illegal, highly arbitrary and unreasonable and cannot be allowed to stand good on record.
46. In the result and for the reasons discussed above, this writ petition succeeds. The resolution, dated 29.9.2000, of the special body of the College is hereby set aside and quashed and in consequence thereof, all subsequent acts of the respondents including the second advertisement dated 19.9.2000, and the selection list prepared in pursuance thereof, shall stand set aside and quashed. The respondents are hereby directed to take necessary steps and appoint the petitioner in the post of lecturer in the department of Botany of B. Barooah College, Guwahati, within a period of one month from today.
47. With the above observations and directions, this writ petition shall stand disposed of.
48. No order as to costs.