Gauhati High Court
Page No.# 1/2 vs The Krishna Kanta Handiqui State Open … on 31 March, 2026
Page No.# 1/21
GAHC010160792020
2026:GAU-AS:4636
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4740/2020
DR. RUNMONI BORAH PHUKAN
D/O- SRI MUKUL BORAH, R/O- C-102, MEGHMALLAR APARTMENT,
SEWALI PATH, HATIGAON, GHY, KAMRUP (M), ASSAM, 781038
VERSUS
THE KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY AND 9 ORS
REP. BY THE REGISTRAR, UNIVERSITY CITY OFFICE, RESHAM NAGAR,
KHANAPARA, GHY, ASSAM, 781022
2:THE CHANCELLOR
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
HIS EXCELLENCY THE GOVERNOR OF ASSAM
RAJ BHAWAN
KHARGHULI HILLS
GHY
ASSAM
781001
3:THE VICE CHANCELLOR
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
UNIVERSITY CITY OFFICE
RESHAM NAGAR
KHANAPARA
GHY
ASSAM
781022
4:THE BOARD OF MANAGEMENT
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY REP. BY THE VICE
CHANCELLOR
UNIVERSITY CITY OFFICE
RESHAM NAGAR
KHANAPARA
Page No.# 2/21
GHY
ASSAM
781022
5:THE REGISTRAR
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY REP. BY THE
REGISTRAR
UNIVERSITY CITY OFFICE
RESHAM NAGAR
KHANAPARA
GHY
ASSAM
781022
6:THE SELECTION COMMITTEE FOR THE POST OF ASSTT. PROFESSOR
ASSAMESE
REP. BY THE VICE CHANCELLOR AS ITS CHAIRMAN
KRISHNA KANTA HANDIQUI STATE OPEN UNIVERSITY
UNIVERSITY CITY OFFICE
RESHAM NAGAR
KHANAPARA
GHY
ASSAM
781022
7:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HIGHER EDUCATION
DISPUR
GHY-06
8:SANJIB BORAH
S/O- DURLABH BORAH
R/O- SILVER SPRING APARTMENT
BLOCK-3
SAWKUSHI
LOKHRA
P.S. LOKHRA
GHY-40
DIST.- KAMRUP (M)
ASSAM
9:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY
KAMRUP (M)
ASSAM
Page No.# 3/21
10:THE GOVERNING BODY
PRAGJYOTISH COLLEGE
REP. BY ITS PRINCIPAL ANDSECY.
GOVERNING BODY
SANTIPUR
GHY-09
DIST.- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR S N SARMA SENIOR ADVOCATE, MR. R PHUKAN,MR. K
KALITA,MR. D J DAS,MR. R K BORAH
Advocate for the Respondent : SC, HIGHER EDU, MR. D GOSWAMI,MR. S M BARUAH,FOR
CAVEATOR,SC, KKHSOU
:::BEFORE:::
HON’BLE MR. JUSTICE KARDAK ETE
Date on which judgment is reserved : N/A
Date of pronouncement of judgment : 31.03.2026
Whether the pronouncement is of the
Operative part of the judgment : N/AWhether the full judgment has been
Pronounced : YesJudgment & Order (Oral)
Heard Mr. R. Phukan, learned counsel for the petitioner. Also heard Mr. P. J.
Phukan, learned Standing Counsel, KKHSOU for the respondent Nos. 1 to 6; Mr.
A. R. Tahbildar, learned Standing Counsel, Higher Education Department for the
respondent Nos. 7 & 9 and Mr. S. N. Baruah, learned counsel for the respondent
No. 8.
Page No.# 4/21
2. Challenge made in this writ petition is to the appointment of one Dr. Sanjib
Borah, respondent No. 8 herein, as Assistant Professor in Assamese in Krishna
Kanta Handiqui State Open University (hereinafter referred to as “KKHSOU”)
vide order dated 20.10.2020, pursuant to the advertisement dated 14.08.2020
for filling up the posts of Professor, Associate Professor, Assistant Professor and
Assistant Regional Director, including the post of Assistant Professor in
Assamese.
3. The case in brief, is that KKHSOU published an advertisement dated
14.08.2020 inviting applications for the posts of Professor, Associate Professor,
Assistant Professor and Assistant Regional Director, including the post of
Assistant Professor in Assamese in the said University. Pursuant thereto, the
petitioner applied for the post of Assistant Professor in Assamese on
30.09.2020. The petitioner was directed to appear before the Selection
Committee for interview on 09.10.2020. Accordingly, the petitioner appeared in
the interview along with 8 (eight) shortlisted candidates.
4. The Selection Committee, vide its meeting dated 09.10.2020, after taking
into consideration the academic credentials, experience in Open and Distance
Learning (ODL), knowledge of computers and performance in the interview,
recommended 3 (three) candidates, namely, Dr. Sanjib Borah, respondent No. 8
herein, Dr. Runmoni Borah Phukan, the petitioner herein and one Dr. Pallabika
Sarmah. Consequently, respondent No. 8 was appointed as Assistant Professor
in Assamese vide order dated 20.10.2020 issued by the Registrar, KKHSOU.
5. It is the contention of the petitioner that respondent No. 8 did not submit
the required No Objection Certificate (NOC) from the concerned authority,
although respondent No. 8 was working as an Assistant Professor in Assamese
Page No.# 5/21
at Pragjyotish College and submission of such NOC was one of the requirements
in terms of the advertisement. It is contended that respondent No. 8 has no
working experience in ODL, which is one of the prescribed qualifications in the
advertisement; however, marks were awarded to respondent No. 8 for ODL
experience. It is the further contention of the petitioner that respondent No. 8
was selected and appointed by way of favouritism, as the Vice-Chancellor of
KKHSOU allegedly intervened in the selection process to award marks for ODL
experience despite the fact that respondent No. 8 had no such experience.
6. Mr. R. Phukan, learned counsel for the petitioner, submits that the
advertisement clearly stipulated that candidates who were already employed
were required to produce an NOC from their respective employers in original at
the time of the interview. It is undisputed that respondent No. 8 did not produce
any such NOC either at the time of submission of the application or during the
interview. He submits that as per the advertisement, one of the desirable
qualifications was work experience in ODL; however, respondent No. 8 has no
such experience, as is evident from his application form wherein the column
pertaining to ODL experience was left blank. Despite this, the authorities
awarded marks to respondent No. 8 under ODL experience. Therefore, the
entire selection process was conducted in violation of the terms of the
advertisement and as such same is vitiated.
7. He submits that had the authorities adhered to the prescribed requirements
in the selection process by duly considering the requirement of submission of
NOC from the concerned authority and the desirable qualification of work
experience in ODL, the petitioner would have been selected. The respondent
No. 8 has been unfairly favoured despite not fulfilling the requirements of
Page No.# 6/21
submission of NOC and work experience in ODL. He further submits that
respondent No. 8 was, in fact, not eligible to participate in the selection process,
as he lacked the requisite eligibility qualifications. Therefore, it is submitted that
the appointment of respondent No. 8 is liable to be set aside and quashed and
since the petitioner was placed second in the selection, the respondent
authorities may be directed to appoint the petitioner to the post of Assistant
Professor in Assamese.
8. Mr. R. Phukan, learned counsel, while referring to the circular issued by the
Director of Higher Education, Assam, dated 22.06.2017, submits that as per
Rule 24 of the Assam College Employees (Provincialisation) Rules, 2010
(hereinafter referred to as the Rules of 2010), obtaining an NOC for applying for
other jobs is mandatory and the Governing Body is required to issue such NOC
to college employees. Vide communication dated 04.12.2017, the Director of
Higher Education, Assam, intimated all college Principals that no person can
apply for employment elsewhere without obtaining an NOC from the concerned
authority and in the event a teacher applies without such NOC, not only would
his candidature be rejected, but such teacher would also be proceeded
departmentally. However, it was clarified that if a person resigns and thereafter
applies elsewhere, there would be no such bar. He submits that, since the
requirement of obtaining an NOC from the concerned authority is mandatory in
terms of the said rules, the acceptance of the candidature of respondent No. 8
by the respondent authorities is in clear violation of the said rules and is
therefore unsustainable in law.
9. Mr. R. Phukan, learned counsel, in support of his submissions, has placed
reliance on the following judgments:
Page No.# 7/21
(i). Rakesh Kumar Sharma vs. State (NCT OF DELHI) and Ors., reported
in (2013) 11 SCC 58, to project that eligibility conditions must be examined as
on the last date prescribed for receipt of application. In the present case, since
respondent No. 8 did not possess the requisite qualifications as on the last date
for submission of the application, he was not eligible to participate in the
selection process, much less to be considered for appointment.
(ii). Rekha Chaturvedi (Smt) vs. University of Rajasthan & Ors., reported
in 1993 Supp (3) SCC 168 to emphasize that candidates must possess the
prescribed qualifications as on the cut-off date and that any relaxation of such
qualifications, unless expressly provided for, would be impermissible. The
relevant paragraph of the judgment is quoted hereinbelow:
“…11. However, for the reasons which follow, we are not inclined to set aside the
selections in spite of the said illegality. The selected candidates have been working
in the respective posts since February 1985. We are now in January 1993. Almost
eight years have elapsed. There is also no record before us to show as to how the
Selection Committee had proceeded to weigh the respective merits of the
candidates and to relax the minimum qualifications in favour of some in exercise of
the discretionary powers vested in it under the University Ordinance. If the
considerations which weighed with the Committee in relaxing the requisite
qualifications were valid, ‘it would result in injustice to those who have been
selected. We, however, feel it necessary to emphasise and bring to the notice of
the University that the illegal practices in the selection of candidates which have
come to light and which seem to be followed usually at its end must stop
forthwith. it is for this purpose that we lay down the following guidelines for the
future selection process:
A. The University must note that the qualifications it advertises for the posts
should not be at variance with those prescribed by its ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for making
applications for the posts in question, or on the date to be specifically mentioned
in the advertisement/notification for the purpose. The qualifications acquired by
the candidates after the said date should not be taken into consideration, as that
Page No.# 8/21would be arbitrary and result in discrimination. It must be remembered that when
the advertisement/notification represents that the candidates must have the
qualifications in question, with reference to the last date for making the
applications or with reference to the specific date mentioned for the purpose,
those who do not have such qualifications do not apply for the posts even though
they are likely to acquire such qualifications and do acquire them after the said
date. In the circumstances, many who would otherwise be entitled to be
considered and may even be better then those who apply, can have a legitimate
grievance since they are left out of consideration.
C. When the University or its Selection Committee relaxes the minimum required
qualifications, unless it is specifically stated in the advertisement/notification both
that the qualifications will be relaxed and also the conditions on which they will be
relaxed, the relaxation will be illegal.
D. The University/Selection Committee must mention in its proceedings of
selection the reasons for making relaxations, if any, in respect of each of the
candidates in whose favour relaxation is made.
E. The minutes of the meetings of the Selection Committee should be preserved for
a sufficiently long time, and if the selection process is challenged until the
challenge is finally disposed of. An adverse inference is liable to be drawn if the
minutes are destroyed or a plea is taken that they are not available.”
(iii). State of Bihar vs. Madhu Kant Ranjan, reported in AIR 2022 SC 1310,
to project that a candidate must strictly comply with all the conditions and
eligibility criteria stipulated in the advertisement within the prescribed time,
failing which such candidature cannot be considered. The relevant paragraph of
the judgment is quote hereinbelow:
“9. As per the settled proposition of law, a candidate/applicant has to comply with
all the conditions/eligibility criteria as per the advertisement before the cut-off
date mentioned therein unless extended by the recruiting authority. Also, only
those documents, which are submitted alongwith the application form, which are
required to be submitted as per the advertisement have to be considered.
Therefore, when the respondent No.1 – original writ petitioner did not produce the
photocopy of the NCC ‘B’ certificate alongwith the original application as per the
advertisement and the same was submitted after a period of three years from the
Page No.# 9/21cut-off date and that too after the physical test, he was not entitled to the
additional five marks of the NCC ‘B’ certificate. In these circumstances, the Division
Bench of the High Court has erred in directing the appellants to appoint the
respondent No.1 – original writ petitioner on the post of Constable considering the
select list dated 08.09.2007 and allotting five additional marks of NCC ‘B’
certificate.”
10. Per contra, Mr. P. J. Phukan, learned Standing Counsel for the respondent
KKHSOU, submits that information to the effect that those who are already in
service should have to apply through proper channel is merely general
information and not mandatory in nature. The essential qualifications for the
post of Assistant Professor, as well as the conditions of recruitment, are strictly
in terms of the UGC Regulations. The condition regarding NOC from the
employer is directory in nature and not mandatory and in any case, an NOC
from the employer cannot be treated as a required qualification for any eligible
candidate.
11. He submits that, in terms of the selection and interview, respondent No. 8
stood first with a total of 372 marks, while the petitioner secured the second
position with a total of 352 marks. The respondent No. 8 had submitted an
undertaking on 09.10.2020 that he would resign from his post as Assistant
Professor at Pragjyotish College upon selection and appointment at KKHSOU. On
the basis of this undertaking, he was allowed to participate in the interview by
the Selection Committee and considering his merit, he was ranked first. He
further submits that, for coordination and determination of standards in
institutions of higher education, as well as in research, scientific and technical
institutions, the UGC Regulations are applicable for appointments to the post of
Assistant Professor.
12. As regards the marking aspect in the score sheet of the interview, while
Page No.# 10/21
referring to the additional-affidavit filed by the respondent authorities, by way of
clarification, it is submitted that the column “SLM in ODL” refers to Self-Learning
Material prepared by the University for different academic programmes,
commonly referred to as course books in ODL mode. This material includes
content that is self-explanatory, self-contained, self-directed and amenable to
self-evaluation, but does not include textbooks or guidebooks. One SLM is
created for each course, divided into 14-15 units and the University invite
college and university teachers and scholars to contribute to these units. Upon
approval by the Vice-Chancellor, the Dean (Academic Branch) issues formal
letters to the content writers, whose names and designations are listed in the
SLM contributor section and they are compensated on a payment basis. Marks
under the “SLM in ODL” column are awarded based on documents submitted
and verified by the Selection Committee.
13. With respect to the “ODL Experience” column, he submits that it signifies
practical exposure to the Open and Distance Learning system, which provides
flexible learning through print, electronic, online, and occasional face-to-face
interaction. Marks in this column are awarded solely on the basis of oral
performance and responses during the interview, without requiring any pre-
submitted documents or certificates and vary depending on individual
performances. The “Power-point Presentation & Knowledge of Computer”
column evaluates live performance during the interview, including presentation
skills, technical knowledge, online sessions, and related questions. The
“Interview Subject Knowledge and Critical Aptitude” column assesses
candidates’ expertise in their respective subjects, with marks awarded based on
the depth of knowledge, critical thinking and the decisions of the Selection
Committee members.
Page No.# 11/21
14. Mr. P.J. Phukan, learned Standing Counsel, submits that the marking
columns in the interview score sheet, including “SLM in ODL” and “ODL
Experience”, were evaluated on the basis of verified documents and the
candidates’ oral performance, with no pre-submitted certificates or documents
required. He submits that marks were awarded strictly on merit and in
accordance with established University practice. Accordingly, he submits that the
selection of respondent No. 8, who secured the highest marks, fully conformed
to the advertised criteria, the UGC Regulations and the transparent selection
process of the University and that there is no substance in the contention of the
petitioner that the appointment of respondent No. 8 was irregular or that he
was ineligible.
15. In support of his submission Mr. P. J. Phukan, learned Standing Counsel,
KKHSOU has relied on the judgment of the Maharashtra Public Service
Commission vs. Sandeep Shriram Warde and Ors. reported in (2019) 6
SCC 362, to project that the prescription of essential and desirable
qualifications lies within the exclusive domain of the employer and the Court, in
exercise of judicial review, cannot sit in appeal over such conditions. It is further
held that desirable qualifications only give preference and cannot be treated as
mandatory eligibility criteria or give any automatic right of selection. The
relevant paragraph of the judgment is quoted hereinbelow:
“19. The essential qualifications for appointment to a post are for the employer to
decide. The employer may prescribe additional or desirable best to qualifications,
including any grant of preference. It is the employer who is the needs of the
employer and the nature of work. The court cannot lay down the conditions of
eligibility, much less can it delve into the issue with regard to desirable
qualifications being on a par with the essential eligibility by an interpretive re-
writing of the advertisement. Questions of equivalence will also fall outside the
domain of judicial review. If the language of the advertisement and the rules are
Page No.# 12/21clear, the court cannot sit in judgment over the same. If there is an ambiguity in
the advertisement of it is contrary to any rules or law the matter has to go back to
the appointing authority after appropriate orders, to proceed in accordance with
law. In no case can the court, in the garb of judicial review, sit in the chair of the
appointing authority to decide what is best for the employer and interpret the
conditions of the advertisement contrary to the plain language of the same.
13. The preference clause in Clause 4.7 only means that if a candidate with the
required degree qualification and practical experience in the manufacturing and
testing of drugs for stipulated period of years has an additional desirable attribute
of a research experience in a research laboratory, other things being equal,
preference could be given to such a candidate. The term “preference” mentioned in
the advertisement cannot be interpreted to mean that merely because a candidate
may have had the requisite experience of testing in a research and development
laboratory he/she possessed the essential eligibility and had a preferential right to
be considered for appointment.”
16. Mr. S. N. Baruah, learned counsel for respondent No. 8, while endorsing the
submissions of the learned Standing Counsel, Mr. P. J. Phukan, submits that the
respondent No. 8, being eligible, participated in the selection process and based
on his performance in the interview and having secured the highest marks
among the candidates, was recommended and appointed to the post of
Assistant Professor in Assamese. He further submits that, as per the
advertisement, submission of an NOC was not a mandatory requirement, as it
was mentioned only under general information and not as a condition for
eligibility.
17. I have considered the submissions of the learned counsel for the parties
and also perused the materials available on record.
18. An advertisement dated 14.08.2020 was issued by the Registrar inviting
applications for filling up the posts of Professor, Associate Professor, Assistant
Professor and Assistant Regional Director, including the post of Assistant
Page No.# 13/21
Professor in Assamese. Pursuant thereto, respondent No. 8, Dr. Sanjib Borah,
was selected for the said post at KKHSOU on the basis of his performance in the
interview, having secured 74.4 marks (total 372 marks), whereas the writ
petitioner secured 70.4 marks (total 352 marks) and was placed second in order
of merit. It is noted that respondent No. 8 did not submit any NOC from
Pragjyotish College, where he was serving as an Assistant Professor, nor did he
possess work experience in ODL.
19. The issues that needs to be considered is as to whether the NOC from the
concerned authority for candidates already employed in provincialised colleges is
mandatory and whether work experience in ODL, as listed among the desirable
qualifications, is compulsory or not.
20. The essential qualification for the post of Assistant Professor as per the
advertisement dated 14.08.2020 is reproduced hereinunder:
“…6. Assistant Professor
Essential qualification:
A
i) A Master’s Degree with at least 55% marks (or an equivalent grade in a point
scale, wherever grading system is followed) in a concerned/relevant/allied subject
from an Indian University, or an equivalent degree from an accredited foreign
university. The Gazette of India: Extraordinary [Part III-Sec.4].
ii) Besides fulfilling the above qualifications, the candidate must have cleared the
NET conducted by UGC or CSIR, or a similar test accredited by the UGC, like
SLET/SET or who are or have been awarded Ph.D Degree in accordance with the
UGC (Minimum Standards and Procedure for Award of M.Phil/Ph.D Degree)
Regulations, 2009 or 2016 and their amendments from time to time as the case
may be exempted from NET/SLET/SET:
Provided, the candidates registered for Ph.D programme prior to July 11, 2009
Page No.# 14/21shall be governed by the provisions of the then existing Ordinances/Bye-
Laws/Regulations of the Institution awarding the degree and such Ph.D candidates
shall be exempted from the requirements of NET/SLET/SET for recruitment and
appointment of Assistant Professor or equivalent positions in
Universities/Colleges/Institutions subject to the fulfilment of the following
conditions –
a) The Ph.D degree of the candidate has been awarded in a regular mode.
b) The Ph.D thesis has been evaluated by at least two external examiners.
c) An open Ph.D viva-voce of the candidate has been conducted;
d) The candidate has published two research papers from his/her Ph.D work, out
of which at least one is in a referred journal;
e) The candidate has presented at least two papers based on his/her Ph.D work in
conferences/seminars sponsored/funded/supported by the UGC/ICSSR/CSIR or any
similar agency.
The fulfilment of these conditions is to be certified by the Registrar or the Dean
(Academic Affairs) of the University concerned.
Note: NET/SLET/SET shall also not be required for such Masters Programmes in
disciplines for which NET/SLET/SET is not conducted by the UGC, CSIR or similar
test accredited by the UGC, like SLET/SET.
OR
B.
The Ph.D degree obtained from a foreign University/Institution with a ranking
among top %)) in the World University Ranking (at any time) by any one of the
following:
(i) Quacquarelli Symonds (QS), (ii) the Times Higher Education (THE) or (iii) the
Academic Ranking of World Universities (ARWU) of the Sanghai Jiao Tong
University (Sanghai).
Note: The Acamedic score as specified in Appendix II (Table 3A) for Universities,
and Appendix II (Table 3B) for colleges of the UGC Regulations, 2018, shall be
considered for short-listing of the candidates for interview only, and the selections
Page No.# 15/21
shall be based only on the performance in the Interview.
Desirable qualification:
(i). A degree/Diploma in distance education or working experience in distance
education Institution.
(ii). Adequate knowledge of Computer.
(iii). Proficiency in both Assamese and English Languages.
Scale of Pay: Rs. 57,700/- Rs. 1,84,200/- (Academic Level 10)
(Pay to be fixed as per UGC guidelines and fixation formula)
Maximum Age: As per State Government rule.”
21. The advertisement provides, inter alia, general information that candidates
already in service are required to apply through the proper channel. It is further
indicated in the call letter that such employed candidates must produce an
original NOC from their respective employer at the time of the interview.
22. Ordinance No. 8 under Section 23 (1)(d) of The Krishna Kanta Handique
State Open University Act, 2005 (hereinafter referred to As the Act of 2005 in
short), provides the essential and desirable qualification for Lecturer, which is
reproduced hereinunder:
“…3. Lecturer, Assistant Regional Director:
Essential:
i) Consistently good academic records with at least 55% of the marks, or an
equivalent grade of B in the 7 point scale with letter grades O,A,B,C,D,E & F at the
Masters degree level in the relevant subject from an Indian University or an
equivalent degree from a foreign University.
ii) Besides fulfilling the above qualifications candidates should have cleared the
NET for lecturers conducted by UGC, CSIR or similar test accredited by the UGC.
Page No.# 16/21
Desirable:
i) A degree/diploma in Distance Education
ii) Experience of working in Open University/Distance Education System
iii) Working knowledge of Computer.
Provided that relaxation to requirement of NET, marks at master’s level or any
other requirement shall be as per UGC guidelines circulated for the purpose from
time to time.”
23. Considering the distinction between essential and desirable qualifications, it
is clear that an “Essential Qualification” is a mandatory and minimum
requirement prescribed in the advertisement which a candidate must possess as
on the stipulated cut-off date to be eligible for consideration and non-fulfilment
thereof renders the candidature ineligible. On the other hand, a “Desirable
Qualification” is an additional or preferential attribute intended to assess the
comparative merit and suitability of candidates who already meet the essential
qualifications and its absence does not disqualify a candidate but only affects
the extent of weightage that may be accorded during the selection process.
24. In the present case, the essential qualifications listed in the advertisement,
such as the Master’s degree and NET/Ph.D. requirements, determine the
eligibility of a candidate to participate in the selection process. Desirable
qualifications, including working experience in ODL, computer knowledge and
proficiency in Assamese and English, are meant only for merit scoring and do
not render a candidate ineligible if absent. The Selection Committee is
empowered to award marks for such desirable qualifications on the basis of
interview performance, presentation and other relevant inputs and not
necessarily on pre-submitted documentary evidence.
Page No.# 17/21
25. Admittedly, respondent No. 8 did not submit any NOC from Pragjyotish
College, where he was serving as Assistant Professor, nor did he have any prior
experience in ODL. On perusal of the interview score sheet, it is seen that
respondent No. 8 was awarded marks under the “ODL Experience” column,
whereas he was marked zero under “SLM in ODL,” whereas the petitioner has
been awarded marks in “ODL Experience” and full marks in the “SLM in ODL”
category. As submitted by the respondent authorities, marks under “SLM in
ODL” are awarded only upon submission and verification of documents
demonstrating contribution to Self-Learning Material, whereas marks under
“ODL Experience” are based on oral performance, presentation and other
verifiable inputs during the interview, without requiring prior documentary
evidence, in accordance with the established University practice. So even
assuming, for the sake of argument, that marks under “ODL Experience” should
not have been awarded without pre-submitted documents, it is evident that
both SLM contributions and ODL experience are desirable qualifications listed in
the advertisement. Desirable qualifications are meant to assist in assessing
comparative merit and do not render a candidate ineligible. However, the
relevant consideration remains whether the lack of NOC in 2020 constituted a
fatal defect or was adequately addressed through his undertaking of resignation
and communications with the College Authority.
26. Rule 24 of the Rules of 2010 provides that the Governing Body shall issue
NOC to college employees for applying for admission to courses of higher
studies and for other jobs. The Director of Higher Education has clarified that an
employee who has accepted employment by way of direct recruitment in a
provincialised college cannot claim NOC as a matter of right. The Governing
Body or Principal may decline recommendation for NOC if they consider that the
Page No.# 18/21
exit or absence of the teacher will adversely affect students or the academic
functioning of the college. The office will not issue any NOC except when
recommended by the College Authority. It is also further clarified that no
teacher can apply for a job elsewhere without obtaining NOC; if a teacher
applies without NOC, not only will their candidature be rejected, but such
teachers may also be proceeded against departmentally.
27. In the Resolution adopted by the Governing Body of Pragjyotish College, in
the meeting held on 18.12.2020, it has been held as under:
“…Ref. No.: PC/35/2022/1013 Date: 30/09/2022
Extract of Resolution adopted in the Governing Body, Meeting held on 18-12-
2020 at Conference Hall of Pragjyotish College at 11.00 a.m.
Resolution No. 2D:
The GB expresses concern about the violation of service rule by Dr. Sanjib Bora,
an Assistant Professor in the Department of Assamese who has applied for
interview at KKHSOU without taking NOC from the college authority. After
getting selection he has tendered resignation to make him enable to join there.
The GB has resolved to accept his resignation and authorizes the Principal to take
necessary steps for permanent release of Dr. Sanjib Bora from his post and to get
necessary approval from office of the Director for advertisement against this
vacant post. The GB also has resolved not to release his outstanding salary until a
clear directive is given by the DHE regarding the violation of in vogue service
conduct.
Sd/-
President,
Governing Body
Pragjyotish CollegeDr. Manoj Kumar Mahanta
Principal
Page No.# 19/21Pragjyotish College
Principal”
28. Perusal of the records shows that, vide his letter dated 06.11.2020
addressed to the Principal of Pragjyotish College, Santipur, Guwahati,
respondent No. 8 had verbally informed the Principal on 27.08.2020 regarding
the NOC and experience certificate required for applying to the post of Assistant
Professor in the Department of Assamese at KKHSOU and acting on the
Principal’s advice, submitted his application without the NOC. Although he did
not initially provide the NOC, he subsequently tendered his resignation to
comply with the service rules. Further, his communications dated 31.10.2020,
02.11.2020 and 06.11.2020 reflect that he had requested the issuance of the
NOC and release letter. Significantly, the resolution adopted by the Governing
Body of Pragjyotish College in its meeting held on 18.12.2020 acknowledged
this procedural lapse but accepted his resignation to enable him to join
KKHSOU. This clearly reflects that the College Authority, while noting the
irregularity, facilitated the legitimate continuation of his career progression and
did not treat the absence of NOC as a disqualifying factor. The resolution further
shows that the matter of his outstanding salary was reserved for future
direction, without impeding his appointment at KKHSOU. Taken together, these
actions demonstrate that respondent No. 8 acted in good faith, complied with
the service rules to the extent possible and that the procedural lapse regarding
the NOC was appropriately addressed and regularized by the College Authority.
29. On perusal of the case laws cited by the petitioner, this Court finds that
none of the decisions advance the cause of the petitioner, as the observations
and principles therein arise from the specific factual and legal contexts of those
cases. In Rakesh Kumar Sharma (supra) and Rekha Chaturvedi (supra),
Page No.# 20/21
the Hon’ble Supreme Court emphasized that candidates must possess the
prescribed qualifications as on the cut-off date and that any relaxation of
minimum qualifications must be specifically provided for; however, these
decisions dealt with situations where essential qualifications were entirely
absent or unlawfully relaxed. In the present case, respondent No. 8 possessed
all essential qualifications at the relevant time and the marks awarded for
desirable qualifications such as ODL experience were evaluated orally in
accordance with the established University practice, which the Court finds to be
transparent and fair. Similarly, in State of Bihar v. Madhu Kant Ranjan
(supra), the principle applied pertained to strict adherence to documentary
submission for eligibility criteria explicitly prescribed as mandatory. In contrast,
in the instant matter, the submission of NOC and ODL experience were
procedural and desirable qualifications and the University exercised its discretion
consistent with service rules and established selection norms. Accordingly, the
case laws relied upon by the petitioner are distinguishable and do not support
his contention that the appointment of respondent No. 8 was irregular or he
was ineligible.
30. Having regard to the decision in Sandeep Shriram Warde (supra), it is
well-settled that the determination of essential and desirable qualifications is
exclusively within the domain of the employer and the Court cannot alter such
conditions. Desirable qualifications confer preference but do not constitute
mandatory eligibility.
31. Having considered above, it is evident that the respondent No. 8, Dr. Sanjib
Borah, possessed all the essential qualifications prescribed in the advertisement
dated 14.08.2020 for the post of Assistant Professor in Assamese in KKHSOU.
Page No.# 21/21
Although he did not submit a NOC from Pragjyotish College at the time of
applying, he had duly informed the Principal regarding the same, furnished an
undertaking to resign upon selection and thereafter, tendered his resignation.
The Governing Body of Pragjyotish College subsequently acknowledged and
accepted his resignation, thereby facilitating his joining at KKHSOU.
32. With respect to ODL experience, the same is a desirable qualification meant
for assessing comparative merit and not an essential requirement. It is,
therefore, immaterial whether the petitioner or respondent No. 8 was awarded
marks under this head, as the absence or presence of such marks does not
affect eligibility. The marks awarded to respondent No. 8 in this category were
based on his oral performance during the interview and no material has been
brought on record to establish any favoritism or procedural irregularity in that
regard.
33. In light of the above, having considered all the contentions raised by the
petitioner regarding non-submission of NOC, lack of ODL experience and alleged
favoritism, this Court finds no merit in any of these claims. Thus, the selection
and appointment of respondent No. 8 is in conformity with the advertised
criteria, the norms of the University and the applicable service rules and does
not warrant interference by this Court.
34. Accordingly, the writ petition stands dismissed being devoid of merit. No
order as to cost(s).
JUDGE
Comparing Assistant
