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2020 DIGILAW 269 (GAU)

Sushil Kumar Basumatary v. State Of Assam

2020-02-24

N.KOTISWAR SINGH

body2020
JUDGMENT N Kotiswar Singh, J. - Heard Mr. B. D. Das, learned Senior counsel appearing for the petitioner. Also heard Mr. R. Mazumder, learned Standing counsel, Education (Secondary) Department, appearing for respondent No. 1; Ms. R. B. Bora, learned Standing counsel, Bodoland Territorial Council (BTC), appearing for respondent Nos. 2, 3, 4 and 5 as well as Mr. A. K. Purkayastha, learned counsel appearing for respondent No. 9. 2. In this writ petition, the petitioner has challenged the selection and appointment of respondent No. 9 as Principal of Ramfalbil Higher Secondary School, Serfanguri, Kokrajhar, on regular basis vide the impugned order dated 13.06.2017, issued by the Director of Education, BTC. 3. The petitioner was appointed on 02.02.1981 as an Assistant Teacher in Ramfalbil Higher Secondary School. It is the case of the petitioner that when he was appointed in the aforesaid school, the school had already been provincialised and, thereafter, on the post of the Principal of the school falling vacant, he was appointed as the Principal-in-Charge on 09.08.2012 and he continued to serve in that capacity till the impugned order was issued. 4. The petitioner claims that the appointment of respondent No. 9 as the Principal of the school was made without following the due process as provided under the relevant rules. It is stated that the post of Principal of Ramfalbil Higher Secondary School as well as other provincialised schools were advertised on 30.06.2016 by the office of the Director of Education, BTC, Kokrajhar, and in response to the aforesaid advertisement, the petitioner and others, including the respondent No. 9 applied for the said post. However, the BTC Level Selection Committee, without holding a proper selection process and merely by basing on certain interview held on 18.08.2016, in violation of the relevant rules, selected and appointed the respondent No. 9 to the post of Principal of Ramfalbil Higher Secondary School. 5. Learned Senior counsel appearing for the petitioner submits that perusal of the records would clearly reveal that the BTC level Selection Committee had conducted the interview without following the norms laid down in that regard and the Members of the Selection Committee had assessed the suitability of the candidates on the basis of certain unknown criteria. It is submitted by him that the candidates appearing in the interview had been assessed/given certain gradation, viz., ''F'', ''G'' etc. and there is nothing to explain what these gradations mean. It is submitted by him that the candidates appearing in the interview had been assessed/given certain gradation, viz., ''F'', ''G'' etc. and there is nothing to explain what these gradations mean. 6. It is submitted by the learned Senior counsel that the appointment to the post of Principal of a Higher Secondary School is governed by the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003 (hereinafter referred to as "Service Rules of 2003") as the concerned school is a provincialised school. It is submitted that the procedures for selection of Principal of Higher Secondary School have been elaborately laid down under Rule 13 of the Service Rules of 2003, under which, after issuing the advertisement for the post of Principal and after scrutinizing the eligibility of the candidates, the School Selection Committee is to hold an interview and prepare a panel of names of three candidates for the post of Principal on the basis of three parameters, such as, leadership skills, administrative ability, integrity and commanding personality. After preparation of panel by the School Selection Committee, the same shall be forwarded through the concerned Inspector of Schools to the State Level Selection Board constituted under Rule 16 for its approval and once the same is approved by the Government, necessary appointment order is to be issued. 7. Learned Senior counsel for the petitioner has also submitted that the composition of the School Selection Committee has been provided under Rule 8(4) of the Service Rules of 2003. As per Rule 8(4), the School Selection Committee is to be constituted with the President of the Managing Committee as the Chairman and the Vice-Principal/a Post-Graduate Teacher in case of Higher Secondary School and one parent, to be nominated by the Managing Committee as Members of the School Selection Committee and the Principal of the school shall be the Member Secretary of the School Selection Committee. 8. It is also submitted by the learned Senior counsel for the petitioner that the Assam Secondary Education Department had issued an Office Memorandum dated 26.12.2018 incorporating therein certain guidelines in respect of selection of Principal of provincialised Higher Secondary School. 8. It is also submitted by the learned Senior counsel for the petitioner that the Assam Secondary Education Department had issued an Office Memorandum dated 26.12.2018 incorporating therein certain guidelines in respect of selection of Principal of provincialised Higher Secondary School. The aforesaid revised guidelines provide for awarding of marks to the candidates for the post of Principal on certain parameters, such as, leadership skills, administrative skills, integrity and personality, academic career and experience, which are to be assessed on the basis of the performance of the school in the HSLC Examination, performance of the school/students in the State and the National Level in the academic field, sports, social, cultural events, etc. and also on the basis of Annual Confidential Report for the last 2 years of the candidates, etc. wxyz It is argued by the learned Senior counsel for the petitioner that the intent of laying down the three parameters in the rules was to ensure a transparent and fair selection of the candidates on the basis of the aforementioned parameters. Similarly, the very purpose of introducing the revised guidelines with the provision for awarding marks to the candidates is to make the process of selection more transparent by distinguishing, inter alia, the merit and ability of the candidates to hold the post by awarding marks against the parameters mentioned in the revised guidelines. Therefore, if the rules and the revised guidelines are not followed in a selection process, the very purpose of enacting the rules or issuing the revised guidelines will be frustrated and such selection process cannot be said to be a fair and transparent selection process and cannot be sustained in the eyes of law. zyxw 9. Learned Senior counsel for the petitioner submits that, in the present case, the BTC Level Selection Committee proceeded to make the assessment of the candidates by categorizing the candidates as ''F'' and ''G'' without indicating as to what is meant by ''F'' or what is meant by ''G'' and, as such, it is not clearly comprehensible from the assessment of the candidates made by the BTC Level Selection Committee if all the parameters laid down in the relevant rules had been taken into consideration while categorizing the candidates as ''F'' and ''G'', or on what basis the categorization had been done to assess the merit and ability of the candidates. Accordingly, it is submitted that the aforesaid procedure adopted by the BTC Level Selection Committee cannot be sustained in law and is liable to be set aside and, consequently, the selection and appointment of the respondent No. 9 as the Principal of the School is also liable to be set aside. 10. In order to buttress his aforesaid contention, learned Senior counsel for the petitioner has relied on a judgement of the Hon''ble Supreme Court in the case of Minor A. Peeriakaruppan vs. State of Tamil Nadu, (1971) 1 SCC 38 , wherein the Hon''ble Supreme Court had set aside the impugned selection process holding that the selection process had not been held in accordance with the rules. The Supreme Court had observed that the Selection Committee had taken into consideration irrelevant matters and at the same time failed to take into consideration matters required to be taken into consideration and also had not divided the interview marks under various heads nor were the marks given on itemized basis but the marks were given in a lump. 11. Ms. R. B. Bora, learned Standing counsel, BTC, on the other hand, has submitted that the BTC Level Selection Committee had assessed the candidates in respect of the three parameters, i.e., leadership skills, administrative ability, integrity and commanding personality as provided under Rule 13(2) of the Service Rules of 2003 and, after making comparative assessment by interviewing the candidates, the selection has been made and, therefore, it cannot be said that the said selection procedure is vitiated. 12. Mr. A. K. Purkayastha, learned counsel for the respondent No. 9, by referring to paragraphs 8 and 9 of the affidavit-in-opposition filed by respondent Nos. 2, 3, 4 and 5 has submitted that the petitioner was found to be suffering from various deficiencies on account of his past record. It is submitted by him that the petitioner was lacking coordination with the staff and the public in general, he was weak in administration and there was also complaints against the petitioner in respect of mismanagement of mid-day meals and misappropriation of school fund resulting in irregularity of students and teachers and, as a consequence, performance of the school in the HSLC Examinations slumped. It is also submitted that the respondent No. 9 had already completed 17 years 4 months of service as a subject-teacher and had uniform academic career securing higher percentage of marks and was found to be having a dynamic personality with administrative capability and because of his contribution, the performance of the school had also improved which satisfied the Members of the Interview Board with regard to his performance. Accordingly, it is submitted that since respondent No. 9 was found to be more meritorious in terms of the parameters laid down in the rules, the selection and appointment of respondent No. 9 cannot be faulted with. 13. Learned counsel for respondent No. 9 has also vehemently objected to the writ petition questioning the very maintainability of the writ petition on the ground that the petitioner having applied for the post of Principal of the school and having taken part in the selection process, i.e., interview, and after having failed to get selected, now, cannot turn around and challenge the selection process. It is submitted by him that a candidate who had taken part in the recruitment process cannot turn around later on and challenge the recruitment process and there are catena of decisions to support the contention. In order to bolster his submission, learned counsel has referred to the decision of the Hon''ble Supreme Court in the case of K. A. Nagamani vs. Indian Airlines and Others, (2009) 5 SCC 515 , wherein the Hon''ble Supreme Court had observed in paragraph 54 of the its judgement that the appellant in that case, having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn around and question the very same process, having failed to qualify for the promotion. In the present case also, the petitioner had participated in the selection process without any demur or protest and having failed in the selection process, he cannot be allowed to challenge the same selection process, he submits. 14. Learned counsel for respondent No. 9 has also relied on another decision of the Hon''ble Supreme Court in the case of Madan Lal and Others vs. State of J. and K. and Others, (1995) AIR SC 1088 , wherein the Hon''ble Supreme Court had also held in the same line in paragraph 9 thereof, which is reproduced below: wxyz "9. Learned counsel for respondent No. 9 has also relied on another decision of the Hon''ble Supreme Court in the case of Madan Lal and Others vs. State of J. and K. and Others, (1995) AIR SC 1088 , wherein the Hon''ble Supreme Court had also held in the same line in paragraph 9 thereof, which is reproduced below: wxyz "9. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to re-assess the relative merit of the concerned candidates who had been assessed at the at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee." zyxw 15. Learned counsel for respondent No. 9 has urged that, otherwise also, this Court cannot act as an appellate authority to examine the comparative assessment of the candidates made by the Selection Committee. By relying on the judgement of the Hon''ble Supreme Court in the case of Durga Devi and another vs. State of H.P. and others, (1997) AIR SC 2618 , learned counsel for respondent No. 9 has submitted that in the said case the Tribunal had acted as an appellate authority over the Selection Committee and had quashed the appointment of the appellants in that case by scrutinizing the comparative merits of the candidates and fitness for the post. In Durga Devi (supra), the Hon''ble Supreme Court held in paragraph 4 of the judgement as follows: wxyz "4. In Durga Devi (supra), the Hon''ble Supreme Court held in paragraph 4 of the judgement as follows: wxyz "4. In the instant case, as would be seen from the perusal of the impugned order, the selection of the appellants has been quashed by the Tribunal by itself scrutinizing the comparative merits of the candidates and fitness for the post as if the Tribunal was sitting as an appellate authority over the Selection Committee. The selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of the Selection Committee. The observations of this Court in Dalpat Abasaheb Solunke s case, (1990) AIR SC 434) (supra) are squarely attracted to the facts of the present case. The order of the Tribunal under the circumstances cannot be sustained. The appeal succeeds and is allowed. The impugned order dated 10 th December, 1992 is quashed and the matter is remitted to the Tribunal for a fresh disposal on other points in accordance with the law after hearing the parties." zyxw 16. Learned counsel for the respondent No. 9 submits that in similar line, it was held by the Hon''ble Supreme Court in the case of Dalpat Abasaheb Solunke, etc. etc. vs. Dr. B.S. Mahajan etc. etc., (1990) AIR SC 434 that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The relevant observations of the Hon''ble Supreme Court in Dalpat Abasaheb Solunke (supra) read as follows: wxyz "9. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction." zyxw 17. As regards the allegation of the petitioner that the procedures laid down in Rule 13 of the Service Rules of 2003 were not followed since the School Selection Committee was never constituted to hold the interview and prepare the panel of selected candidates but the selection of the candidates was done by the BTC Level Selection Committee, learned counsel for respondent No. 9 has submitted that such allegation of the petitioner is without any basis for the reason that there is a proviso to Rule 13(5) that if the School Selection Committee fails to prepare the panel of names under sub-rule(2) within 6 months from the date of arising of the vacancy, the State Selection Board shall make the selection and prepare the panel of names following the procedure as laid down under Rule 13. It is also submitted by him that in the present case the vacancy arose sometime in 2012 when the petitioner was allowed to hold the post of Principal-in-Charge but the School Selection Committee did not prepare any panel of names within 6 months from the date of arising of the vacancy in 2012 because of which the BTC Level Selection Committee held the interview in the year 2016 and made the recommendation in the year 2017 and the appointment was made on 13.06.2017. Accordingly, it is submitted that the writ petition is without merit and is liable to be quashed. 18. Accordingly, it is submitted that the writ petition is without merit and is liable to be quashed. 18. Learned counsel for respondent No. 9 has also reiterated the submissions advanced on behalf of the BTC authorities that there were serious allegations against the petitioner about misappropriation of funds and also mismanagement of mid-day meals of the students. It is also submitted that an enquiry was held in that regard and after the enquiry report was submitted before the Director of Education, BTC, the petitioner was placed under suspension with immediate effect vide order dated 10.04.2018. 19. I have considered the rival submissions advanced by the learned counsel for the parties and have perused the materials on record. 20. Having heard the learned counsel for the parties, this Court would like to examine the relevant rules which are applicable for appointment to the post of Principal of Higher Secondary School. 21. As mentioned above, the procedures for selection of Principal of a Higher Secondary School have been laid down in Rule 13 of the Service Rules of 2003, which reads as follows: wxyz "13. Procedure of selection of Principals (1) Before the end of each year, the Member Secretary of the School Selection Committee shall invite applications from the intending eligible candidates through an advertisement to be published at least in two widely circulated local news papers. zyxw wxyz (2) On receipt of applications from the eligible candidates the School Selection Committee constituted under rule 8(4) after scrutiny of the applications, shall hold an interview and prepare a panel of names of three candidates on the basis of qualities such as leadership skills, administrative ability, integrity and commanding personality. zyxw wxyz (3) The panel of names so prepared by the School Selection Committee shall be forwarded through the concerned Inspector of Schools to the State Selection Board constituted under rule 16 for approval. zyxw wxyz (4) After receipt of the panel under sub-rule (3) the State Selection Board shall prepare a Select List equal to the number of vacant posts taking into consideration such as leadership skills, administrative ability, integrity and commanding personality. The panel of names so prepared and recommended by the State Selection Board shall be submitted to the Government, which may after causing such verification as may be deemed necessary, shall accord approval for appointment. The panel of names so prepared and recommended by the State Selection Board shall be submitted to the Government, which may after causing such verification as may be deemed necessary, shall accord approval for appointment. zyxw wxyz (5) The Select List so prepared and approved shall be in force for one year from the date of its approval by the Government. zyxw wxyz Provided that if the School Selection Committee fails to prepare panel of names under sub-rule (2) within 6 months from the date of vacancy arises, the State Selection Board shall make the selection and prepare the panel of names following such procedure as laid down under rule 13." zyxw 22. From the above, what is evident is that before the end of each year the Member Secretary of the School, where vacancy of Principal arises, has to invite applications from intending candidates through advertisement and, on receipt of such applications pursuant to the advertisement, the School Selection Committee has to be constituted under rule 8(4) and the School Selection Committee shall then hold the interview and prepare a panel of names of three candidates on the basis of qualities such as leadership skills, administrative ability, integrity and commanding personality. After preparation of the panel, the same shall be forwarded to the State Selection Board through the concerned Inspector of Schools and, on receipt of such recommendation, the State Selection Board shall prepare a Select List taking into consideration the qualities of the candidates such as leadership skills, administrative ability, integrity and commanding personality. Thereafter, the Select List so prepared by the State Selection Board shall be submitted to the Government for approval and appointment. However, if the School Selection Committee fails to prepare the panel of names as provided under rule 13(2) within a period of 6 months of the date of arising of the vacancy, the State Selection Board shall make the selection and prepare and panel of names and submit the same to the Government for approval as laid down under the proviso to rule 13(5). 23. It is to be noted that in the revised guidelines published by the Assam Secondary Education Department, Government of Assam, vide Office Memorandum dated 26.12.2018 for selection for selection of Principal of a Higher Secondary School, the three parameters, viz., leadership skills, administrative ability, integrity and commanding personality, as provided under Rule 13(4), find place. 23. It is to be noted that in the revised guidelines published by the Assam Secondary Education Department, Government of Assam, vide Office Memorandum dated 26.12.2018 for selection for selection of Principal of a Higher Secondary School, the three parameters, viz., leadership skills, administrative ability, integrity and commanding personality, as provided under Rule 13(4), find place. However, in the aforesaid revised guidelines another two parameters, namely, Academic Career and Experience have been added to the abovementioned three parameters and provisions for awarding of marks against each of such parameters have been also made. The relevant portions of the aforesaid Office Memorandum are reproduced below: 1. Leadership skills - 4 marks Result of HSLC/AHM Examination in case of Graduate teachers and HS Final Examination in case of PostGraduate teacher in the school where he is a teacher (result of preceding year of selection) (Result of compartmental Exam should be excluded) i) Up to 59% pass - 1 mark ii) 60-79% pass - 2 marks iii) 80-89% pass - 3 marks iv) 90% and above - 4 marks 2.Administrative Skills 3 marks a) Award 2 marks (State Award 1, National Award or both State and National Award 2 marks) b) Award, Honours begotten by the School, its students, teachers in Academic, sports, social, cultural events organized in State and National Level by any organization Govt. or private. His participation in academic events/seminars, Articles contributed by him in Magazines and Journals/newspapers/Periodicals on academic matter 1 mark. 3. Integrity and personality 2 marks ACR for last 2 years (preceding the year of selection) i) Good 1 mark ii) Very good and above - 2 marks 4. Academic Career - 15 marks a) HSLC Exam b) HS Final Year Exam c) BA/B.Sc./B.Com Exam d) MA/M.Sc./M.Com Exam 3 rd division - 1 mark 2 nd division - 2 marks 1 st division - 3 marks 3 rd division - 1 mark 2 nd division - 2 marks 1 st division - 3 marks Up to 50% - 1 mark 51-70% - 2 marks And above - 3 marks Up to 59% - 1 mark 60-79% - 2 marks e) B. Ed. Exam 80% and above - 3 marks Up to 50% - 1 mark 51-70% - 2 marks 70% and above - 3 marks 5. Exam 80% and above - 3 marks Up to 50% - 1 mark 51-70% - 2 marks 70% and above - 3 marks 5. Experience 6 marks a) Experience as Graduate teacher b) Experience as Post-Graduate teacher c) Experience as In-Charge Principal 1 mark for every 2 year of experience beyond 17 years of service subject to maximum 3 marks. 1 mark for every 2 year of experience beyond 15 years of service subject to maximum 3 marks. 1 mark for each year of experience subject to maximum 3 marks (i/c Principal should be authorized by DSE to hold the post) 24. From the above, it is seen that the Office Memorandum dated 26.12.2018 lays down a detailed procedure and provision for awarding of marks against each of the Heads/qualities and, in the opinion of this Court, the only purpose of issuing the revised guidelines with the provision for awarding of marks to the candidates against the Heads/qualities is to make the selection process fair and more transparent. Therefore, the aforesaid Office Memorandum has to be read into the Service Rules of 2003 and the same can be said to be a part of the said rules and such revised guidelines mentioned in the Office Memorandum dated 26.12.2018 will have statutory force, which cannot be ignored. 25. This Court is not oblivious of the fact that since the appointment was made in the year 2017 and the aforesaid Office Memorandum was issued only in the year 2018, the question of following the revised guidelines by the BTC Level Selection Committee at the time of making the impugned selection did not arise at all. However, perusal of the records prepared by the BTC Level Selection Committee does not indicate that even the procedure laid down in Service Rules of 2003 had been followed in toto. The Assessment Chart produced before this Court also does not indicate as to how the candidates had been assessed in respect of the parameters, i.e., leadership skills, administrative ability, integrity and commanding personality as provided in the Rules of 2003. It is a settled principle of rule of interpretation that whenever a Statute requires a particular act to be done in a particular manner then such an act has to be done in that manner only and in no other manner [See Interpretation of Statutes by G.P. Singh, IXth Edn. It is a settled principle of rule of interpretation that whenever a Statute requires a particular act to be done in a particular manner then such an act has to be done in that manner only and in no other manner [See Interpretation of Statutes by G.P. Singh, IXth Edn. Page 347, and Baru Ram vs. Parsanni (Smt.) and Ors, (1959) AIR SC 93] . Thus, if certain parameters are laid down under the rules to be applied, the same must be followed. Since the procedures of selection as laid down in the relevant rules had not been followed in the present case, this Court is of the view that the petitioner has been able to make out a case against the respondents. 26. However, the respondent No. 9 has raised a very pertinent objection that the petitioner having taken part in the recruitment process cannot now take a U-turn and challenge the recruitment process. It has also been submitted on behalf of respondent No. 9 that this Court cannot act as an appellate authority to examine the comparative assessment made by the Selection Committee. This Court is of the view that the aforesaid principles cannot be doubted. However, it is to be examined whether the aforesaid principles are applicable in the present case or not. 27. True, the petitioner had participated in the selection process without any demur or protest, but the petitioner, as a candidate for the post, was never informed about the procedure adopted by the interview/selection committee. Obviously, the petitioner must have been expecting that the BTC Level Selection Committee would be abiding by the guidelines and procedures laid down under the Service Rules of 2003. Obviously, the petitioner would not be in a position to ascertain as to what parameters were actually followed by the Selection/Interview Board or the procedure in awarding marks in respect of the various parameters and, therefore, the petitioner cannot be faulted for not raising any objection at the time of interview. 28. It may be also noted that the petitioner is not seeking any re-assessment of his performance vis- -vis the various parameters but he has raised a fundamental issue as to whether the procedure followed by the Selection Committee did conform to the rules. 28. It may be also noted that the petitioner is not seeking any re-assessment of his performance vis- -vis the various parameters but he has raised a fundamental issue as to whether the procedure followed by the Selection Committee did conform to the rules. If the Selection Committee did not adhere to the binding rules while making assessment of the candidates, it goes to the root of the selection process and, as such, the principle relied on by the learned counsel for the respondent No. 9 that the petitioner having taken part in the recruitment process cannot now be allowed to challenge the same cannot be said to be applicable in the present case. The aforesaid principle would be applicable where the candidate knew in advance about the procedure to be adopted in the selection process. At the cost of repetition it may be reiterated that in this writ petition the petitioner is not seeking re-assessment or re-evaluation of the performance already made by the Selection Committee. In fact, what the petitioner is questioning is the method and manner in which the assessment was made without following the procedure laid down in the Rules of 2003. 29. It may be also noted that this Court is not sitting as an appellate authority over the Selection Committee to decide the comparative merit of the candidates. What this Court is seeking to ascertain is whether the Selection Committee had followed the procedure laid down under the relevant rules. This Court, in exercising the power of judicial review, is confining itself only to the extent of examining as to the correctness of the procedure adopted by the Selection Committee and is not examining the correctness or otherwise of the assessment made about the merit of the candidates. This Court is not scrutinizing the quality or correctness of the assessment made by the BTC Level Selection Board but is examining the very basis of the criteria that had been followed in making assessment of the candidates. 30. This Court is not scrutinizing the quality or correctness of the assessment made by the BTC Level Selection Board but is examining the very basis of the criteria that had been followed in making assessment of the candidates. 30. In the opinion of this Court, in terms of the aforesaid decisions of the Hon''ble Supreme Court relied on by the learned counsel for respondent No. 9, the bar comes into operation only when the Court reassess correctness of the assessment of the candidates already made by the BTC Level Selection Committee, but the bar will not come into operation when the Court merely examines the basis of such assessment, to ascertain whether the BTC Level Selection Board had taken into consideration the mandatory and statutory parameters laid down in the rules while making the assessment, or not. 31. Let me now deal with the other contention raised by the learned counsel for the respondent No. 9 that the BTC Level Selection Committee had every authority to make their own assessment and make the selection as provided under the Proviso to sub-rule 5(2) of rule 13 of the Service Rules of 2003 quoted above. However, a closer examination of the aforesaid proviso would make it clear that the said proviso can be invoked only when the School Selection Committee fails to prepare the panel of names under sub-rule (2) within 6 months from the date of arising the vacancy, in which event the State Selection Board shall make the selection. 32. In the opinion of this Court, the aforesaid proviso has to be read in a realistic manner. A vacancy can be said to have arisen when the same is published/notified. Whether or when a vacancy arises is a question of fact which needs to be notified and brought to the knowledge of the public domain. Unless the vacancy is notified, there is no knowing whether any vacancy exists or not. Accordingly, the authority has to notify such a vacancy to indicate that such a vacancy exists. In the present case, the vacancy in question can be said to have arisen only when the said vacancy was advertised in the year 2016. Unless the vacancy is notified, there is no knowing whether any vacancy exists or not. Accordingly, the authority has to notify such a vacancy to indicate that such a vacancy exists. In the present case, the vacancy in question can be said to have arisen only when the said vacancy was advertised in the year 2016. As per the proviso to rule 13(5) of the Service Rules of 2003, it is only when the School Selection Committee fails to prepare the panel of names within 6 months from the date of arising the vacancy that the State Selection Committee can have the jurisdiction to make the selection. In the opinion of this Court, the aforesaid proviso empowering the State Selection Board to make selection has to be understood in the context of sub-rule (2) referred to above. In other words, it is only when the School Selection Committee fails to make the panel of names within 6 months after advertisement and receipt of applications from the eligible candidates, it can be said that the State Selection Board shall have the power to prepare the panel of names and recommend the same for approval of the Government. Viewed in the aforesaid perspective, this Court would hold that once the post was advertised by the District Level authority of the BTC, the School Selection Committee ought to have been constituted as provided under rule 8(4) and, thereafter, the School Selection Committee ought to have held the interview and prepare the panel of names provided under rule 13(2). However, it appears that the School Selection Committee was never constituted. If the School Selection Committee after its constitution fails to make the recommendation within 6 months, the aforesaid proviso can be invoked. If the School Selection Committee had never been constituted, it certainly could not have made the recommendation within 6 months. In that view of the matter, this Court would hold that the selection made by the State Selection Board or by the BTC Level Selection Board cannot be said to be in accordance with the provisions laid down under rule 13 of the Service Rules of 2003. 33. In that view of the matter, this Court would hold that the selection made by the State Selection Board or by the BTC Level Selection Board cannot be said to be in accordance with the provisions laid down under rule 13 of the Service Rules of 2003. 33. This Court also would like to make observation that on perusal of the proceeding of the interview, it is seen that in the Interview Sheet prepared by the BTC Level Selection Committee, wherein assessment of the candidates had been recorded, a candidate, namely, Mritunjoy Brahma has been assessed as ''O'' instead of ''F'' or ''G'' under the Head "Integrity and Commanding Personality". The same has been clarified by the Director of Education, BTC, in his letter dated 21.02.2020 addressed to the learned Standing counsel, BTC, as a typographical mistake. However, this Court finds that the aforesaid clarification is not a clarification at all for the reason that the aforesaid ''O'' is not typed out but a handwritten one and, moreover, even assuming it to be a typographical mistake, it is not mentioned in the letter as to whether the ''O'' represents ''F'' or ''G'', as the case may be. Thus, in the opinion of this Court the aforesaid assessment made by the BTC Level Selection Committee suffers from the vice of non-application of mind. 34. In view of the above, this Court holds that the selection made by the BTC authority cannot be said to be a fair and transparent selection process and the same is also vitiated for the reason that it had not been held in accordance with the relevant rules. Therefore, in the light of the decision of the Hon''ble Supreme Court in Minor A. Peeriakaruppan (supra) the impugned selection process cannot be sustained in law. 35. Accordingly, for the reasons discussed above, the writ petition is allowed. Resultantly, the impugned selection list prepared by the BTC Level Selection Board in its meeting held on 29.04.2017 for appointment of Principal, as far as Ramfalbil Higher Secondary School is concerned, is set aside and, consequently, the impugned order dated 13.06.2017 appointing respondent No. 9 is also set aside. However, this Court is not making any observation as regards the other recommendations made by the BTC Level Selection Committee for the reason that they are not the subject-matter of challenge before this Court. 36. However, this Court is not making any observation as regards the other recommendations made by the BTC Level Selection Committee for the reason that they are not the subject-matter of challenge before this Court. 36. Since the appointment of respondent No. 9 has been set aside, the BTC authorities are directed to start a fresh recruitment process by directing the school in question to constitute a School Selection Committee in terms of Rule 8(4) of the Service Rules of 2003 and to proceed with the selection process as provided under Rule 13. While doing so, the School Selection Committee shall follow the guidelines framed by the State Government as notified under the Office Memorandum dated 26.12.2018 with reference to the various parameters for selection of the candidates and, thereafter, make a fresh appointment to the post of Principal of Ramfalbil Higher Secondary School. However, in order to avoid disruption of administration of the school in question, the Respondent No. 9 will continue to act as the Principal of the school, on purely temporary/in-charge basis till regular appointment is made to the post of Principal in terms of the directions issued above. 37. The aforesaid exercise of initiating a fresh recruitment process for appointment of Principal of the school by constituting the School Selection Committee shall be completed by the BTC authority within a period of three months from the date of receipt of a certified copy of this order. 38. With the above observations and directions the writ petition stands disposed of.