JUDGMENT Ujjal Bhuyan, J. 1. Heard Ms. D. Borgohain, learned counsel for the petitioners. Also heard Ms. P. Chakraborty, learned Standing Counsel, Education Department and Mr. D. Choudhury, learned counsel appearing for the respondent No. 6. The subject matter of this writ petition is the selection and appointment to two posts of Post Graduate (Subject) teacher, one in Assamese in the Bechamari MI Higher Secondary School, Nagaon and the other in Mathematics in the Abhayeswari HS & MP School, Bongaigaon. 2. The case of the petitioners is that the petitioner No. 1 is working as Assistant teacher in Bechamari MI Higher Secondary School, Nagaon since 30-01-1996. One post of Subject teacher in Assamese in the said school fell vacant on 24-04-1999. The petitioner No. 1 being a post graduate in Assamese and qualified to hold the post of Subject teacher in Assamese, was given additional charge as the Subject teacher in Assamese. The petitioner No. 2 is serving as Assistant teacher in the Abhayeswari HS & MP School, Bongaigaon since 31-03-2001. A post of Subject teacher in Mathematics in the said school fell vacant on 30-03-2003. The petitioner No. 2 being a post graduate in Mathematics and qualified to hold the post of Subject teacher, was given additional charge of subject teacher in Mathematics. 3. An advertisement dated 08-02-2003 was issued for filling up vacant posts of Subject teacher in various higher secondary schools of the State. This advertisement was challenged before this Court by a group of serving Assistant teachers in two writ petitions, viz., WP(C) No. 7933/2003 and W.P. (C) No. 8319/2003. The basic contention raised in the two writ petitions was that the advertisement having been issued on 08-02-2003 and the Assam Secondary Education (Provincialised) Service Rules, 1982 as amended in the year 1997, having held the field at that point of time, the vacancies advertised had to be filled up in accordance with the provisions of the aforesaid Rules. The reason behind the said contention was that under the aforesaid Rules, the serving Assistant teachers were eligible for consideration for appointment as Subject teacher. 4. This Court by the common judgment and order dated 04-01-2005 disposed of the said writ petitions with the direction that the posts advertised should be filled up in accordance with the provisions of the Assam Secondary Education (Provincialised) Service Rules, 1982 (1982 Rules), as amended in the year 1997. 4. This Court by the common judgment and order dated 04-01-2005 disposed of the said writ petitions with the direction that the posts advertised should be filled up in accordance with the provisions of the Assam Secondary Education (Provincialised) Service Rules, 1982 (1982 Rules), as amended in the year 1997. This Court further gave liberty to those Assistant teachers who did not apply earlier, to submit their applications in response to the advertisement issued. 5. Pursuant to the said order of this Court, interview was held on 20-04-2005. Petitioner No. 1 appeared in the said interview. 6. While the aforesaid recruitment process was on, a new advertisement came to be issued on 03-06-2007 to fill up existing vacant posts of Subject teacher in the provincialised higher secondary schools of the State. The total number of posts advertised was 158, which included the post of Subject teacher in Mathematics in the Abhayeswari HS & HP School, Bongaigaon as well as the post of Subject teacher in Assamese in the Bechamari MI HS School, Nagaon. It was further stated that the 158 advertised posts were beyond the posts for which interview was held pursuant to the advertisement dated 08-02-2003. Clauses 4 and 7 (iii) of the advertisement dated 03-06-2007 provided that the selection of candidates would be as per Assam Secondary Education (Provincialised) Service Rules, 2003. 7. It may be mentioned that in the meanwhile the Assam Secondary Education (Provincialised) Service Rules, 2003 was enacted and made effective, repealing the 1982 Rules. 8. Contending that the selection should be on the basis of the 1982 Rules and not as per the Assam Secondary Education (Provincialised) Service Rules, 2003 (2003 Rules), the petitioners moved this Court in W.P.(C) No. 2698/2008. 9. The said writ petition was disposed of by this Court by order dated 25-07-2008. The second paragraph of the said order makes it clear that the petitioners had filed the said writ petition on the apprehension that inspite of the judgment dated 04-01-2005 as referred to above, the authorities were contemplating to select and appoint the Post Graduate teachers in terms of the advertisement dated 08-02-2003 by following the provisions of the 2003 Rules and not by those of the 1982 Rules. 10. 10. The said order reflects that the learned Standing Counsel of the Education Department had assured the Court that the selection process on principle would be guided by the 1982 Rules. This Court closed the proceeding giving liberty to the departmental authorities to complete the selection process expeditiously as five years had passed since the initiation of the selection process. It is thus clear that this Court had passed the order dated 25-07-2008 in the context of the selection process pursuant to the earlier advertisement dated 08-02-2003 and not the one pursuant to the later advertisement dated 03-06-2007. 11. Thereafter, the Secretary to the Government of Assam, Education (Elementary) Department passed an order dated 08-07-2009 purportedly in compliance to the order of this Court dated 25-07-2008. As per the said order, both the petitioners appeared in the interview before the School Selection Committee as per the advertisement dated 03-06-2007. After completion of the selection process, the Selection Committee of the concerned schools forwarded the selection papers to the Director of Secondary Education. It is stated that names of both the petitioners do not appear in the zone of consideration and in the panel of candidates and that they are not covered by the 1982 Rules as the advertisement was made as per the 2003. Therefore, the claim of both the petitioners have been found not tenable and rejected. 12. The contention of the petitioners is that the two vacancies having occurred on 24-04-1999 and 30-03-2003 respectively when the 1982 Rules were in force, those should be filled up in accordance with the 1982 Rules. The insistence on the 1982 Rules is because under Rule 7 thereof, serving graduate teachers having the requisite educational qualification and minimum two years of continuous teaching experience are given priority over other candidates during recruitment to the post of Post Graduate teacher. On the other hand, under Rule 7 of the 2003 Rules, such graduate teachers get preference in selection for appointment to the post of Post Graduate teacher. Thus, under the 1982 Rule, eligible graduate teachers get priority whereas under the 2003 Rules, they get preference. There is also another crucial difference. Under the 1982 Rules, recruitment of Post Graduate teacher is on State level basis to be conducted by the State Level Selection Board. But under the 2003 Rules, such recruitment is school wise to be conducted by the respective School Selection Committees. There is also another crucial difference. Under the 1982 Rules, recruitment of Post Graduate teacher is on State level basis to be conducted by the State Level Selection Board. But under the 2003 Rules, such recruitment is school wise to be conducted by the respective School Selection Committees. Learned Counsel for the petitioners, therefore, submits that the respondents may be directed to fill up the two vacancies as per the 1982 Rules. 13. A counter affidavit has been filed by the Deputy Director of Secondary Education, Assam on 11-08-2010. He has stated that the recruitment process pursuant to the advertisement dated 08-02-2003 is being conducted as per the 1982 Rules and the recruitment process pursuant to the advertisement dated 03-06-2007 as per the 2003 Rules. The interview process pursuant to the advertisement dated 08-02-2003 is still continuing and that the said interview process covers 254 posts of Post Graduate (Subject) teacher. 14. In paragraph 10 of the said affidavit, he has stated that the petitioners had applied pursuant to the advertisement dated 03-06-2007 and appeared before the Selection Committee of the respective schools. Since they obtained poor marks, they did not come within the zone of consideration. This is also reflected in paragraph 11 of the said affidavit. The contentions of the said 2 (two) paragraphs are quoted here under:- 10. That with regard to the statement made in paragraph 8, the deponent states that the petitioner No. 1 and 2 applied for the post in response to the advertisement dated 03-06-2007 and appeared before the respective School Selection Committee for interview and obtained poor marks in Academic performances and interview marks as stipulated in Schedule II of the Assam Secondary Education (Provincialised) Service Rules, 2003 and accordingly their names were not covered within the zone of consideration, whereas candidates securing/obtaining highest marks in interview and academic performance were selected for appointment. 11. That with regard to the statement made in paragraph 9, the deponent states the same is a matter of fact. 11. That with regard to the statement made in paragraph 9, the deponent states the same is a matter of fact. Both the petitioners appeared knowing fully well in the selection process/interview pursuant to the advertisement dated 03-06-2007 and the said advertisement was made as per Assam Secondary Education (Provincialised) Service Rules, 2003 and obtained/secured poor marks in academic performances and interview marks as it is observed that the names of both the petitioners do not appear in the zone of consideration and in the panel of candidates for appointment. 15. The respondent No. 6, who got himself impleaded in the proceeding, is a claimant to the post of Subject teacher of Mathematics in the Abhayeswari H.S. & M.P. School, Bongaigaon, the post claimed by the petitioner No. 2. In his counter affidavit dated 02-12-2009, he has stated that pursuant to the advertisement dated 03-06-2007, he received call letter dated 18-08-2007 and appeared in the interview on 27-08-2007. In paragraph 4 he has stated that he could come to know that he has been selected as his police verification was completed on 18-02-2009. He has also filed an additional affidavit on 15-11-2010 wherein he has annexed a select list dated 31-08-2009 of 127 candidates, in which his name appears at Serial No. 33. 16. Learned Standing Counsel as well as learned Counsel for the respondent No. 6 submit that the two vacancies in question are covered by the advertisement dated 03-06-2007. It was expressly stated in the said advertisement that the selection process would be governed by the provisions of the 2003 Rules. The petitioners had participated in the selection process but could not be successful. Learned Counsels therefore submit that the petitioners are now estopped from contending that the selection should have been under the 1982 Rule and not under the 2003 Rules. They also submit that the petitioners have not challenged the advertisement dated 03-06-2007. Therefore, they seek dismissal of the writ petition. 17. The submissions made by the learned Counsels have been considered. 18. They also submit that the petitioners have not challenged the advertisement dated 03-06-2007. Therefore, they seek dismissal of the writ petition. 17. The submissions made by the learned Counsels have been considered. 18. In the Annexure-2 advertisement dated 03-06-2007, 158 posts of Subject teacher, including the post of Subject teacher in Assamese in the Bechamari MI HS School and the post of Subject teacher in Mathematics in the Abhayeswari HS and MP School, Bongaigaon, were advertised with clear stipulation that these posts were outside the purview of the selection process pursuant to the earlier advertisement dated 08-02-2003. It was also clarified that the selection would be as per the 2003 Rules. 19. The two petitioners had participated in the selection process pursuant to the advertisement dated 03-06-2007 knowing fully well that the selection would be governed by the 2003 Rules. This position therefore renders the argument of the petitioners that the selection should be as per the 1982 Rules and not as per the 2003 Rules rather meaningless and redundant. 20. As a corollary to the above, it can also be said that the petitioners having participated in the selection process pursuant to the advertisement dated 03-06-2007 with their eyes wide open, without challenging the said advertisement, they cannot now turn around and say that the selection process is vitiated because of non-adherence to the 1982 Rules. The two posts in question are included in the advertisement dated 03-06-2007, which clearly stated that selection to the 158 posts covered by the said advertisement would be as per the 2003 Rules. Therefore, the contention of the petitioners that the selection should be as per the 1982 Rules is without any merit and is accordingly rejected. 21. Having said that, the conduct of the State respondents cannot also be glossed over. As noticed in the earlier part of this judgment, petitioner No. 1 had also appeared in the interview held on 20-04-2005 for the post of Subject teacher in Assamese pursuant to the earlier advertisement dated 08-02-2003. As per the departmental affidavit filed on 11-08-2010 referred to above, the said recruitment process has not been completed. As noticed in the earlier part of this judgment, petitioner No. 1 had also appeared in the interview held on 20-04-2005 for the post of Subject teacher in Assamese pursuant to the earlier advertisement dated 08-02-2003. As per the departmental affidavit filed on 11-08-2010 referred to above, the said recruitment process has not been completed. This Court in the order dated 25-07-2008 passed in W.P. (C) No. 2698/2008, with reference to the selection process pursuant to the advertisement dated 08-02-2003, observed that the departmental authorities having regard to the fact that five years had passed from the initiation of the recruitment process, would endeavour to complete the same expeditiously. What was observed by this Court was that the recruitment process in terms of the advertisement dated 08-02-2003 should be completed early. Instead of doing that, the Departmental Secretary passed the order dated 08-07-2009 rejecting the prayer of the petitioners as not tenable. The said order is quoted hereunder in its entirety:- Government of Assam Education (Secondary) Department ORDER Read: The order dated 25-07-2008 passed by the Hon'ble High Court in W.P. (C) No. 2698/2008 of Md. Ismail Hussain and Shri Bipul Kalita vs. State of Assam. Also Read: The report of Director of Secondary Education, Assam vide letter No. GB-EST/DSE/CC/168/2008/77 dated 18-02-2009 and GB-EST/DSE/CC/168/2008/73 dated 25-11-2008. Findings: The petitioner Md. Ismail Hussain has been working as Assistant Teacher in Bechamari MI HS School since 1999. Due to acquiring of Post Graduate Degree in Assamese, he appeared in the interview held in the same school for filling up of Post Graduate Teacher post (Assamese) occurred in Bechamari MI HS School as per advertisement dated 03-06-2007. Another petitioner Shri Bipul Kalita is also a Post Graduate Degree holder Assistant Teacher of Abhayapuri H.S. & M.P. School. He has been working in this school since 23-06-2004. He has taken classes in H.S. + 2 section in Mathematics subject in addition to this duty. It was stated in column 'other criteria' of relevant advertisement that the selection process will be conducted as per Assam Secondary Education (Provincialised) Service Rules, 2003. Subsequently both the petitioners appeared before the school Selection Committee. After completing the process of selection, the Selection Committee of the concerned schools forwarded the same to the Director of Secondary Education, Assam. It was stated in column 'other criteria' of relevant advertisement that the selection process will be conducted as per Assam Secondary Education (Provincialised) Service Rules, 2003. Subsequently both the petitioners appeared before the school Selection Committee. After completing the process of selection, the Selection Committee of the concerned schools forwarded the same to the Director of Secondary Education, Assam. Decision: In view of the facts stated above, it is observed that the names of both the petitioners do not appear in the zone of consideration and in the panel of candidates for appointment and not covered under Rule 7 (C) of Assam Secondary (Provincialised) Service Rules, 1982 for appointment as the advertisement was made as per Assam Secondary (Provincialised) Service Rules, 2003. Therefore, the prayer of both the petitioners is not tenable and it is rejected. This is issued in compliance of the order dated 25-07-2008 passed in W.P.(C) No. 2698/2008. Sd/- A.B. Md. Eunus Secretary to the Govt. of Assam Education (Ele.) Department Dated Dispur the 8th July, 2009. 22. This Court did not ask the Department to pass such order. It appears that the said order was passed on a misreading of the order of this Court dated 25-07-2008. However, the order having been passed, it would now require a closer scrutiny. Though the aforesaid order says that the names of the petitioners do not appear in the zone of consideration and in the panel of selected candidates, nothing is stated as to how they do not come within the zone of consideration. Nothing has been stated about the selection process and as to the candidates who have been selected against the posts in question. The departmental counter affidavit is also vague in this regard. All that it says is that the petitioners had appeared before the Selection Committee of the respective schools pursuant to the advertisement dated 03-06-2007 but since they obtained poor marks, they did not come within the zone of consideration. 23. Considering the above position, this Court by order dated 14-05-2012 directed the learned Standing Counsel to produce the selection record in respect of the two posts in question. Today, when the matter is heard, Ms. P. Chakraborty, learned Standing Counsel submits that the Department has not made available such record. 24. 23. Considering the above position, this Court by order dated 14-05-2012 directed the learned Standing Counsel to produce the selection record in respect of the two posts in question. Today, when the matter is heard, Ms. P. Chakraborty, learned Standing Counsel submits that the Department has not made available such record. 24. Though the contention of the petitioners that the recruitment to the two posts should be governed by the 1982 Rules cannot be accepted and has been rejected for the reasons already indicated, nevertheless, the petitioners are entitled to know as to what happened to their selection pursuant to the advertisement dated 03-06-2007. Petitioner No. 1 is also entitled to know as to what happened to his selection pursuant to the earlier advertisement dated 08-02-2003, the interview for which was held on 20-04-2005. Though no body had asked the Departmental Secretary to pass the order dated 08-07-2009, the same having been passed, it must meet the requisite standard of fairness and transparency. To make matters worse, even the counter affidavit of the department does not disclose the material particulars of the selection. Interestingly, it is in the additional affidavit of the private respondent No. 6 and not in the departmental affidavit that a select list dated 31-08-2009 of 127 candidates containing the name of the respondent No. 6 has been annexed (though the advertisement dated 03-06-2007 was for 158 posts). 25. In view of the above, the order dated 08-07-2009 of the Departmental Secretary (Annexure-5) being devoid of material particulars, is considered to be of no legal consequence. The Departmental Secretary shall now pass a fresh order pertaining to the selection to the posts of Post Graduate teacher in Assamese and Mathematics in the Bechamari M.I.H.S. School, Nagaon and Abhayeswari HS and MP School, Bongaigaon respectively indicating therein the relevant particulars of selection. It should also indicate about the claim of the petitioner No. 1 vis-a-vis the selection process pursuant to the earlier advertisement dated 08-02-2003. Such order shall be passed within a period of 60 days from the date of receipt of a certified copy of this order. Consequent upon the order passed, the appointments to the two posts shall be made. Till then, the interim order passed by this Court on 17-08-2009 directing not to fill up the above two posts shall continue. Such order shall be passed within a period of 60 days from the date of receipt of a certified copy of this order. Consequent upon the order passed, the appointments to the two posts shall be made. Till then, the interim order passed by this Court on 17-08-2009 directing not to fill up the above two posts shall continue. The petitioners shall submit a certified copy of this order before the Departmental Secretary within 2 (two) weeks from today for doing the needful, failing which the interim order dated 17-08-2009 would automatically stand vacated. 26. Writ petition accordingly stands disposed off. No cost.