Where a recruitment process is kept alive through continuous litigation and candidates from a common merit list are appointed pursuant to court orders, the doctrine of 'fence-sitter' does not apply to a higher-ranked candidate who timely seeks the benefit of the established selection process.

JUDGMENT :

KARDAK ETE, J.

Heard Ms. B. Das, learned counsel for the petitioner and also heard Mr. P.P. Dutta, learned standing counsel, Secondary Education Department, appearing for the respondent Nos.1—3. None appears for the respondent Nos.4 and 5, despite service of notice.

2. This writ petition has been instituted seeking a direction to the respondent authorities to appoint the petitioner against the 1^st vacant Grade-IV post in terms of the selection and recommendation dated 07.11.2012, pursuant to the advertisement issued by the Principal-cum-Member Secretary, Alitangonia Osmania H.S. School, Nagaon.

3. The case of the petitioner in brief, is that he passed Higher Secondary Examination in the year 2012 under Assam Higher Secondary Education Council, Guwahati. Pursuant to the advertisement issued by the Principal- cum-Member Secretary, Alitangonia Osmania H.S. School, Nagaon, published in a local daily newspaper in the year 2012, inviting applications from the eligible candidates for filling up of 2(two) nos. of vacant posts of Grade-IV in the said school, the petitioner applied for the said post. The petitioner along with 23 other candidates participated in the selection process. A select list was prepared by the Selection Board of Alitangonia Osmania H.S. School, Nagaon, on 07.11.2012 showing 24 candidates including the petitioner.

4. In the aforesaid selection process, the petitioner secured 82.75 marks and one Md. Mustak Ahmed secured 81.5 marks. Thus, the petitioner stood 1^st position and Md. Mustak Ahmed stood 2^nd position as per the merit-cum-selection list.

5. Some persons and Md. Mustak Ahmed approached this Court by filing writ petitions, being WP(C) No.5796/2013 and WP(C) No.7288/2015, challenging the selection process on the ground that the School Management and Development Committee (SMDC), which was responsible for initiating and conducting recruitment process, had illegally selected the President of the said Committee who was not a senior citizen as required under the Rules. The writ petitions were disposed of on 19.11.2019. This Court has held that the proceeding of the Selection Committee for appointment of 2(two) Grade-IV posts cannot be said to be vitiated merely because the President of the School Management and Development Committee was illegally appointed as he did not take part in the said recruitment process and the proceedings of the Committee. That apart, no other issue has been raised to indicate any irregularity in the proceeding of the said Committee in recommending the persons for appointment to the Grade-IV posts in the said school and thereby directing the respondent authorities to bring aforesaid recruitment process to its logical end by passing appropriate orders and to complete the process within a period of 2(two) months.

6. After series of litigation including the writ proceedings and the subsequent contempt petition, one Md. Mustak Ahmed has been appointed in the 2^nd vacant post of Grade-IV as he stood 2^nd in the merit-cum-selection list.

7. It is the contention of the learned counsel for the petitioner Ms. Das that the selection and recommendation having been made after due selection process pursuant to the advertisement issued by the competent authority and this Court having been already directed to bring the aforesaid selection process to its logical conclusion, not appointing the petitioner to the post of Grade-IV in the 1^st vacant post of Grade-IV pursuant to the due selection process, is arbitrary and illegal. Therefore, the respond