The Gauhati High Court recently upheld the appointment of an Assistant Professor in Assamese at Krishna Kanta Handiqui State Open University (KKHSOU), dismissing a writ petition challenging the selection on grounds of non-submission of No Objection Certificate (NOC) and lack of Open and Distance Learning (ODL) experience. The judgment clarifies that procedural lapses in submitting NOC can be regularized if the candidate submits a resignation undertaking and the college authority facilitates the transition, while desirable qualifications like ODL experience do not render a candidate ineligible.
Background & Facts
The Dispute
The petitioner, Dr. Runmoni Borah Phukan, applied for the post of Assistant Professor in Assamese at KKHSOU pursuant to an advertisement dated 14.08.2020. The Selection Committee recommended three candidates, including the petitioner and respondent No. 8, Dr. Sanjib Borah, who was ultimately appointed vide order dated 20.10.2020. The petitioner challenged the appointment on the grounds that respondent No. 8 did not submit an NOC from his employer, Pragjyotish College, and lacked ODL experience, both of which were allegedly required under the advertisement.
Key Facts
- 14.08.2020: KKHSOU issued an advertisement inviting applications for various teaching posts, including Assistant Professor in Assamese.
- 30.09.2020: The petitioner applied for the post of Assistant Professor in Assamese.
- 09.10.2020: The petitioner appeared for the interview along with eight other shortlisted candidates. The Selection Committee recommended three candidates: Dr. Sanjib Borah (respondent No. 8), the petitioner, and Dr. Pallabika Sarmah.
- 20.10.2020: Respondent No. 8 was appointed as Assistant Professor in Assamese.
- Essential Qualifications: As per the advertisement, candidates required a Master’s degree with at least 55% marks and NET/Ph.D. qualification.
- Desirable Qualifications: The advertisement listed ODL experience, computer knowledge, and proficiency in Assamese and English as desirable qualifications.
- NOC Requirement: The advertisement stated that candidates already in service should apply through the proper channel and produce an NOC at the time of the interview.
- Respondent No. 8’s Position: Respondent No. 8 was serving as an Assistant Professor at Pragjyotish College at the time of application. He did not submit an NOC but provided an undertaking on 09.10.2020 that he would resign from his post upon selection. He secured 372 marks (74.4%), while the petitioner secured 352 marks (70.4%).
Procedural History
- 12.06.2020: The petitioner filed the present writ petition (WP(C)/4740/2020) challenging the appointment of respondent No. 8.
- 31.03.2026: The Gauhati High Court pronounced the judgment dismissing the writ petition.
Relief Sought
The petitioner sought the following reliefs:
- Quashing of the appointment order dated 20.10.2020 appointing respondent No. 8 as Assistant Professor in Assamese.
- Direction to the respondent authorities to appoint the petitioner to the post, as she was placed second in the selection process.
The Legal Issue
The central legal questions before the Court were:
- Whether the non-submission of an NOC by a candidate already employed in a provincialised college renders their candidature ineligible for selection, particularly when the candidate submits an undertaking to resign upon selection and the college authority regularizes the lapse.
- Whether the absence of work experience in ODL, listed as a desirable qualification, disqualifies a candidate from consideration for appointment.
Arguments Presented
For the Petitioner
Mr. R. Phukan, learned counsel for the petitioner, contended the following:
- The advertisement explicitly required candidates already in service to submit an NOC from their employer at the time of the interview. Respondent No. 8 failed to comply with this requirement, rendering his candidature ineligible.
- The advertisement listed ODL experience as a desirable qualification. Respondent No. 8 lacked this experience, as evidenced by his application form, where the relevant column was left blank. Despite this, marks were awarded to him under this head, vitiating the selection process.
- The selection process was conducted in violation of the terms of the advertisement, and respondent No. 8 was unfairly favoured despite not fulfilling the prescribed requirements.
- Reliance was placed on Rakesh Kumar Sharma v. State (NCT of Delhi), Rekha Chaturvedi v. University of Rajasthan, and State of Bihar v. Madhu Kant Ranjan to argue that eligibility conditions must be strictly adhered to as on the cut-off date, and any relaxation without express provision is impermissible.
For the Respondents
Mr. P. J. Phukan, learned Standing Counsel for KKHSOU, submitted the following:
- The requirement of submitting an NOC was directory and not mandatory. The essential qualifications for the post were strictly in terms of the UGC Regulations, and an NOC cannot be treated as a required qualification.
- Respondent No. 8 secured the highest marks (372) in the selection process, while the petitioner secured 352 marks. Respondent No. 8 submitted an undertaking to resign from his post at Pragjyotish College upon selection, which was accepted by the Selection Committee.
- Marks under the “ODL Experience” column were awarded based on oral performance during the interview, without requiring pre-submitted documents, in accordance with established University practice.
- The selection of respondent No. 8 conformed to the advertised criteria, UGC Regulations, and the transparent selection process of the University.
- Reliance was placed on Maharashtra Public Service Commission v. Sandeep Shriram Warde to argue that the prescription of essential and desirable qualifications lies within the exclusive domain of the employer, and desirable qualifications do not confer any automatic right of selection.
Mr. S. N. Baruah, learned counsel for respondent No. 8, endorsed the submissions of the Standing Counsel and further submitted that respondent No. 8 was eligible and participated in the selection process based on his merit, securing the highest marks.
The Court's Analysis
The Court undertook a detailed examination of the distinction between essential and desirable qualifications, the mandatory nature of NOC submission, and the evaluation process for ODL experience.
Essential vs. Desirable Qualifications
The Court observed that essential qualifications are mandatory requirements that a candidate must possess as on the stipulated cut-off date to be eligible for consideration. Non-fulfilment of essential qualifications renders a candidature ineligible. On the other hand, desirable qualifications are additional or preferential attributes intended to assess the comparative merit and suitability of candidates who already meet the essential qualifications. The absence of desirable qualifications does not disqualify a candidate but may affect the weightage accorded during the selection process.
"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."
NOC Requirement: Procedural Lapse vs. Disqualification
The Court noted that the advertisement provided general information that candidates already in service should apply through the proper channel and produce an NOC at the time of the interview. However, the Court distinguished between a procedural lapse and a disqualifying defect. Respondent No. 8, despite not submitting an NOC initially, had verbally informed the Principal of Pragjyotish College about the requirement and subsequently tendered his resignation upon selection. The Governing Body of Pragjyotish College acknowledged the procedural lapse but accepted his resignation, thereby facilitating his appointment at KKHSOU.
The Court relied on the resolution adopted by the Governing Body of Pragjyotish College on 18.12.2020, which noted the violation of service rules by respondent No. 8 but accepted his resignation and authorized his release. The resolution further stated that the matter of his outstanding salary would be addressed later, without impeding his appointment at KKHSOU. The Court concluded that respondent No. 8 acted in good faith and complied with the service rules to the extent possible, and the procedural lapse regarding the NOC was appropriately addressed and regularized by the College Authority.
ODL Experience: Desirable Qualification
The Court observed that ODL experience was listed as a desirable qualification in the advertisement. The Selection Committee awarded marks under this head based on oral performance during the interview, without requiring pre-submitted documents. The Court held that the absence of ODL experience does not render a candidate ineligible, as it is a desirable qualification meant for assessing comparative merit. The Court found no evidence of favoritism or procedural irregularity in the award of marks under this head.
Judicial Review of Selection Process
The Court reiterated the settled legal principle that the determination of essential and desirable qualifications lies within the exclusive domain of the employer. Courts, in exercise of judicial review, cannot sit in appeal over such conditions or re-write the advertisement. The Court relied on Maharashtra Public Service Commission v. Sandeep Shriram Warde, which held that desirable qualifications only give preference and cannot be treated as mandatory eligibility criteria.
"The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide 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."
The Court distinguished the judgments relied upon by the petitioner, noting that the principles laid down in Rakesh Kumar Sharma, Rekha Chaturvedi, and State of Bihar v. Madhu Kant Ranjan pertained to situations where essential qualifications were entirely absent or unlawfully relaxed. In the present case, respondent No. 8 possessed all essential qualifications, and the marks awarded for desirable qualifications were evaluated in accordance with established University practice.
The Verdict
The Gauhati High Court dismissed the writ petition, holding that the selection and appointment of respondent No. 8 were in conformity with the advertised criteria, the norms of KKHSOU, and the applicable service rules. The Court found no merit in the petitioner’s contentions regarding the non-submission of NOC, lack of ODL experience, or alleged favoritism. No costs were awarded.
What This Means For Similar Cases
NOC Requirement: Procedural Compliance Can Be Regularized
- Good Faith and Substantive Compliance: The judgment establishes that if a candidate already in service fails to submit an NOC at the application stage but submits a resignation undertaking upon selection and the college authority regularizes the lapse, the procedural defect does not vitiate the selection. Practitioners should argue that substantive compliance with service rules, rather than rigid adherence to procedural formalities, should be the determining factor.
- College Authority’s Role: The resolution of the Governing Body of Pragjyotish College accepting the resignation of respondent No. 8 despite noting the procedural lapse was crucial. This indicates that college authorities have the discretion to regularize such lapses if the candidate’s career progression is not adversely affected.
Desirable Qualifications Do Not Disqualify
- Merit-Based Evaluation: The Court clarified that desirable qualifications are meant for assessing comparative merit and do not render a candidate ineligible if absent. Marks for desirable qualifications like ODL experience can be awarded based on oral performance and other verifiable inputs during the interview, without requiring pre-submitted documents.
- Employer’s Discretion: The judgment reinforces that the determination of essential and desirable qualifications lies within the exclusive domain of the employer. Courts will not interfere unless there is a clear violation of statutory provisions or principles of natural justice.
Judicial Review Is Limited to Legality, Not Merit
- No Re-Evaluation of Marks: Courts will not re-evaluate the marks awarded during the selection process or substitute their judgment for that of the Selection Committee. The judicial review is limited to examining whether the selection process adhered to the advertised criteria and applicable rules.
- Burden of Proof: The petitioner must establish clear irregularities or favoritism in the selection process. Mere dissatisfaction with the outcome or allegations without substantive evidence will not suffice to set aside the selection.
