A.S. Bopanna, C.J.
1. The appellant is before this Court assailing the order dated 31.8.2017 passed in W.P. (C) No.2751 of 2012.
2. The private respondent herein was before the learned Single Judge assailing the selection of the appellant herein to the post of Assistant Professor pursuant to the advertisement issued on 20.7.2011. The appellant herein was arrayed as Respondent No.5 to the writ petition. The learned Single Judge having referred to the matter in detail and having taken into consideration the assessment of the rival candidates, has arrived at a conclusion that the appellant herein though being inferior has found favour of the official respondents. It is to be noted that the selection of the appellant herein as such has not been set aside. However, while taking note of the orders passed by this Court, in the earlier rounds of litigations in W.P.(C) No.57/2012 and W.P.(C) No.801 of 2012 and, in that light, having found fault with the speaking order dated 30.05.2012 passed by the official respondents, has set aside the said speaking order and has directed reconsideration of the matter on the aspects as referred to by the learned Single Judge in para-23 and 24 of the order. Through the consideration therein, a different criteria under which the merit of the rival candidates is to be considered is ordered.
3. The appellant herein, the selected candidate and who has been given the benefit of the consideration made through the speaking order dated 30.05.2012 which was set aside by the learned Single Judge, is before this court in this intra-court appeal.
4. The private respondent, who was the writ petitioner, though served has not chosen to appear in the present appeal. In that light, having heard Mr. S. Banik, learned counsel for the appellant and Mr. R. Mazumdar, learned Standing Counsel, Higher Education Department, we have perused the appeal papers.
5. To put the matter in perspective, it is necessary to take note of the advertisement under which the process of selection was commenced. Through the advertisement at Annexure-A dated 21.7.2011, applications were invited for the posts of Assistant Professor having the eligibility as per the UGC norms and Regulation 2009. The qualification required is also indicated and the different posts were shown. The appellant and the private respondent herein were the candidates who had applied pursuant thereto for the post of Assistant Professor in Persian, for which one post has been advertised. In the assessment made by the Committee, the appellant herein has secured 63.06 marks, while the private respondent had secured 56.03 marks. It is in that light, the appellant has been selected. The private respondent while assailing the action of the official respondents in assessing the suitability of the appellant had contended that the marks as assigned based on the Regulation 2009, was not justified inasmuch as, Regulation 2010 had come into force, under which a different mode of assessement was required. In that light, it was contended that the marks as assigned to the appellant for the Ph.D was not justified and also the assessment of educational qualification of the appellant was pointed out to faulty and, in that light, a consideration has been sought. Since at the first instance, a consideration at the end of the official respondents was required, a direction has been issued and on such reconsideration, the speaking order dated 30.05.2012 at Annexure-E was passed. The said order at Annexure-E gave rise to the instant round of petition. The learned Single Judge while taking note of the said speaking order dated 30.5.2012, was of the opinion that there is an improper application of mind and, in that light, the learned Single Judge has undertaken the exercise of assessing the rival merits of the appellant and the private respondent herein. In that light, the learned Single Judge has directed the consideration in the following manner, as contained in paragraph-24 of the order, which is as follows :
"24. The matter is thus remitted back and the DHE must re-determine whether:
(i) The recommended candidate was entitled to any marks for his Ph.D. degree, as the same was used as an eligibility qualification to overcome the NET/SLET deficiency;
(ii) The DHE must also examine whether awarding of marks towards teaching experience for Dr. Shahin Ahmed Barbhuiya was justified, when the respondent No.5 served in the A.L. Choudhury College, Algapur, which was provincialised only on 20. 1.2014;
(iii) The result of the respondent No.5 in the matriculation, higher secondary and degree examinations should be examined, to specifically decide whether he satisfied the criteria of good academic record;
(iv) As the DHE had described the respondent No.5 to be the 1st Class 1st position holder, in the impugned speaking order dated 30.5.2012, the authority must verify whether the petitioner was the best amongst a batch of 3 failed students, w ho re-appeared in the MA examination or whether he was the 1st Class 1st amongst a regular batch of MA students.".
6. Insofar as the consideration for entitlement of the marks for the Ph.D degree, the question would be with regard to the appropriate Regulation that is required to be kept in view when such reconsideration is to be made. In this regard, it is noticed that Regulation 2010 had no doubt come into force as on the date when the selection process was completed. The document at Annexure-C dated 13.12.2011 would however disclose that it is only at that point the Director of Higher Education, Assam has addressed the communication to the Principals of all the Colleges directing that a fresh guideline for making for selection of Assistant Professor/Librarian as per UGC guidelines, 2010 be followed. It is no doubt true that by the said communication, it is intimated that the guidelines of 2010 have come into force, however, what is necessary to be taken note is that even prior to the intimation being made, the advertisement which is relevant in the instant case was already made on 21.07.2011. In the said advertisement, it was specifically indicated that the UGC norms as per Regulation 2009 would be the basis. Hence, all applicants who had responded to the said advertisement, which include the appellant and private respondent had on that basis applied and the selection process also had been undertaken. The private respondent having participated in the said process on the said basis, cannot in any event raise a contention with regard to any other regulation being applicable. This is more so in a situation where in addition to the post of Assistant Professor of Persian Language, in respect of all other disciplines, where a consideration was made, the entire selection process was made based on the Regulation 2009.
7. If that be the position, even a reassessment of the rival merits of the appellant and the private respondent will have to be on that basis. While doing so, the other aspects as directed by the learned Single Judge, in any event, will have to be kept in view and the assessment will have to be made. Though having arrived at such conclusion that the assessment in the present case would be as per Regulation 2009, we do not see any reason to set aside the order of the learned Single Judge which has directed reassessment of the candidates for the reason that the learned Single Judge has also taken into consideration all other aspects. Insofar as the teaching experience as claimed by the appellant is concerned, the same would arise for consideration only if the appellant has actually rendered the service in a deficit college. To that extent, though a contention is put forth on behalf of the appellant that the service rendered by him is in a deficit college, there is a finding recorded by the leaned Single Judge that the service as rendered is in a venture college. In fact, that is also an aspect which is required to be noted for a reconsideration, irrespective of the application of either of the Regulations as clarified by us. If the teaching experience is in a deficit college the benefit will be available and not if the service rendered is in a venture college. This aspect of the matter is also required to be taken note. However, the assessment as made by the learned Single Judge with regard to the superiority of the respondent, the same would not stand to reason since, irrespective of the attempt taken to clear a particular exam or a course, the ultimate result would be the marks obtained in the qualifying exam and such marks as obtained would become relevant to consi
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der the same for the purpose of percentile marks to be taken into consideration to assess the inter-se merit. Therefore, to that extent, the competent authority shall keep in mind this aspect of the matter and, in that light, make the reassessment as ordered by the learned Single Judge. 8. Since we do not see any reason to set aside the order in its entirety, the above clarification is made so as to enable the appropriate assessment to be made pursuant to the direction issued by the learned Single Judge. Since, we have through this order not set aside the order of the learned Single Judge, but have made only certain clarification, the benefit as granted to the appellant herein by the learned Single Judge to protect the interest of the appellant herein until the final decision is taken, shall continue to enure in favour of the appellant till such decision is taken. 9. With the above clarification, the instant appeal stands disposed of.