The Gauhati High Court reaffirms that, in the absence of explicit statutory prohibition, a select list including lower-ranked candidates may be acted upon when higher-ranked candidates withdraw from consideration before appointment. The judgment clarifies the interplay between executive instructions and statutory provisions, upholding existing precedent, and firmly establishes binding authority on public appointment processes in Assam’s provincialised colleges.
Summary
| Category | Data |
|---|---|
| Case Name | WP(C)/4237/2022 of Swarnajyoti Das Vs The State of Assam and 3 Ors. |
| CNR | GAHC010123872022 |
| Date of Registration | 22-06-2022 |
| Decision Date | 31-10-2025 |
| Disposal Nature | Disposed Of |
| Judgment Author | Hon’ble Mr. Justice Nelson Sailo |
| Court | Gauhati High Court |
| Bench | Single Judge Bench |
| Precedent Value | Binding within Assam |
| Overrules / Affirms |
|
| Type of Law | Service Law (Public Appointments; Provincialised College Appointments) |
| Questions of Law | Whether, in the absence of statutory bar, a candidate placed lower in the merit list may be appointed to a post when higher-ranked candidates withdraw before appointment? |
| Ratio Decidendi |
The Court held that neither the Assam College Employees (Provincialisation) Act, 2005, nor the corresponding 2010 Rules, prohibit the preparation or use of a panel/select list up to at least the third candidate when done pursuant to specific executive instructions. Where higher-ranked candidates in the selection process withdraw, the next eligible candidate in order can be considered for appointment. Executive instructions—unless contrary to statute—may be given effect. Application of the Fiscal Responsibility and Budget Management Act (FRBM Act), 2005, to limit select lists only to vacancies actually notified should not be stretched beyond its fiscal objectives. The Court distinguished other Supreme Court authorities prohibiting panel/waiting lists on ground of specific statutory bars in those cases, which did not exist here. Thus, approval and appointment of the third candidate was directed. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court |
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| Facts as Summarised by the Court | An Assistant Professor (Political Science, reserved SC) post was advertised in 2017. The first-ranked candidate declined appointment; the second-ranked candidate failed to provide NOC and withdrew his claim after interim court intervention. The petitioner (ranked third) was recommended by the Governing Body for appointment, but the Authority refused, citing bar on panel lists. The petitioner sought judicial intervention for appointment as per selection process and prior executive communication. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts and public authorities in Assam, specifically in matters of provincialised college appointments and similar executive instructions. |
| Persuasive For | Other High Courts (where statutes are similarly silent), public educational institutions, and state public service appointments in analogous situations. |
| Follows |
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| Distinguishes |
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What’s New / What Lawyers Should Note
- The judgment clarifies that, where the governing statute and rules are silent, and executive instructions explicitly permit, panel/select lists up to the third candidate may be prepared and acted upon.
- Absence of a statutory prohibition against panel lists permits authorities (and courts) to follow executive instructions, provided selection and recommendation procedures are otherwise lawful.
- The objectives of the FRBM Act (fiscal discipline) cannot be expanded to indirectly prohibit panel lists or otherwise restrict appointments in areas unrelated to fiscal management.
- Distinguishes Supreme Court decisions where legislative bar existed—the present case applies where there is no such bar, thereby providing a carve-out from blanket application of pan-India “no waiting list” rulings.
- The government cannot approbate and reprobate: after having issued executive instructions allowing a panel list, it cannot later deny appointments on the ground that such lists are impermissible without clear statutory authority to the contrary.
- Lawyers may cite this authority within Assam to defend similar appointments from panel/waiting lists where statutes do not bar such procedure.
Summary of Legal Reasoning
- Statutory Interpretation: The Court examined Section 6 of the Assam College Employees (Provincialisation) Act, 2005 and Rules 5 & 7 of the Assam College Employees (Provincialisation) Rules, 2010. It found no prohibition against preparing/selecting from a panel list (including more names than vacancies), especially if there are enabling executive instructions.
- Executive Instructions: The Director of Higher Education’s letter dated 27.06.2017 specifically permitted preparation of select lists up to the third candidate to avoid repeated advertisements. The Court found this instruction valid as it was not contrary to statute.
- Application of FRBM Act: The Court held that the Fiscal Responsibility and Budget Management Act, 2005, is aimed at fiscal prudence and cannot be interpreted to bar select/panel lists in faculty appointments.
- Distinction from Supreme Court Rulings: The Court distinguished authorities cited by the State (e.g., Vallampati Sathish Babu, Karunesh Kumar) as those concerned cases where statutes explicitly barred waiting lists, which is not the case here.
- Precedents Relied Upon: The Court relied upon Dr. Ajit Kr. Baruah (2013) and Arijita Paul (2019), both Division Bench/Single Judge decisions of the Gauhati High Court, upholding validity of panel/select lists in similar contexts where the law is silent.
- Approbation and Reprobation Principle: Having permitted the panel list in executive instructions, the respondent-authority could not now claim it was invalid—such contradictory public stances are legally impermissible.
- Remedy Ordered: The Court directed the appointing authority to process the petitioner’s appointment within six weeks in terms of the Governing Body’s resolution.
Arguments by the Parties
Petitioner:
- The advertisement and selection process was conducted per statute and with prior permission, which allowed select list preparation up to the third candidate.
- The two higher-ranked candidates either declined or withdrew, putting the petitioner next in line for appointment.
- There is no statutory bar against panel or select lists, and the executive instruction (Director’s letter) provided for such a procedure.
- The FRBM Act is not applicable to appointment procedures in this context.
- Relied on Gauhati High Court decisions: Dr. Ajit Kr. Baruah (2013), Arijita Paul (2019).
Respondents (State/Director, Higher Education):
- There is no provision in the 2005 Act or 2010 Rules for panel or waiting lists; only names equal to the announced vacancies can be on a select list.
- After withdrawal of higher-ranked candidates, fresh selection should be held, not appointment of further ranked candidates.
- The Director’s previous instructions cannot override statutory provisions.
- Relied on Supreme Court authorities prohibiting panel/waiting lists: Vallampati Sathish Babu (AIR 2022 SC 2949), Karunesh Kumar (AIR 2023 SC 52), Employees’ State Insurance Corp. (2022) 11 SCC 392, etc.
Respondent (College Governing Body):
- Adopted the State’s arguments.
- Action taken only because the petitioner’s name was the next eligible as per the previously issued executive instruction.
- Highlighted that a similar process was successfully followed for another advertised post (Zoology).
Factual Background
The case concerned appointment to the post of Assistant Professor (Political Science, reserved for SC) at Sonari College, Assam, advertised in July 2017. Three candidates were shortlisted; the top-ranked candidate declined the offer, while the second-ranked candidate could not provide the required NOC and later withdrew his claim via pending litigation. The Governing Body of the College recommended the third-ranked candidate (petitioner) for appointment, following explicit executive instructions to prepare a select list up to three names. Authorities declined to appoint the petitioner, citing lack of provision for panel lists, leading to the present writ petition.
Statutory Analysis
- Assam College Employees (Provincialisation) Act, 2005, Section 6: Empowers Director to appoint on Governing Body’s recommendation as per rules/procedure in force.
- Rules of 2010, Rules 5 & 7: Outlines selection by a duly constituted committee and recommendation by the Governing Body; no prohibition on panel/select list.
- FRBM Act, 2005: Intended to ensure fiscal discipline; should not be interpreted to indirectly restrict appointment or preparation of select lists in college appointments when not expressly stated.
- The Court found no statutory bar in the Act/Rules against panel lists or appointing lower-ranked candidates when higher ones withdraw.
Alert Indicators
- ✔ Precedent Followed – Judgment affirms existing Gauhati High Court precedents (e.g., Dr. Ajit Kr. Baruah, Arijita Paul) and clarifies application where statutes are silent on select/panel lists.