Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 5 Ors on 27 January, 2026
Page No.# 1/50
GAHC010012752015
2026:GAU-AS:1262
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2556/2015
DR. MANJIT KUMAR BHATTACHARYYA and 5 ORS,
S/O KABINDRA BHATTACHARYYA R/O JAYANAGAR, 2ND BYE LANE,
HOUSE NO. 31, NEAR NRL PETROL PUMP, P.O. KHANAPARA, GUWAHATI-
781022, DIST. KAMRUP M, ASSAM.
2: DR. SURESH KUMAR NATH
S/O SHRI BHADRESWAR NATH R/O REGISTRAR'S QUARTER
QUARTER NO. 9 ADM
GAUHATI UNIVERSITY
GUWAHATI - 781014
DIST. KAMRUP M
ASSAM.
3: SHRI ABHIJIT BARTHAKUR
S/OLT. GOLAP BARTHAKUR R/O RATNAGIRI PATH
BAMUNIMAIDAM
GUWAHATI- 781021
DIST. KAMURP M
ASSAM.
4: DR. RAHUL MAHANTA
S/O SHRI P MAHANTA R/O D-3
PROFESSORS COLONY
COTTON COLLEGE
DIGHALIPUKHURI
GUWAHATI- 781001
TONM Digitally signed DIST. KAMRUP M
OY
by TONMOY
KALITA ASSAM.
Date: 2026.02.02
KALITA 15:27:36 +05'30'
5: DR. DEBOJIT SARMA
S/O LT. A.K. SARMA R/O HOUSE NO. 6
2ND BYE LANE
BARNACHAL ROAD
BAMUNIMAIDAM
Page No.# 2/50
GUWAHATI - 781021
DIST. KAMRUP M
ASSAM.
6: DR. MAHADEV PATIGIRI
S/OLT. PRABIN PATGIRI
R/O LALITA BUILDING
NAVAGIRI PATH NEAR RED CROSS HOSPITAL
P.O. CHANDMARI
GUWAHATI- 781003
DIST. KAMRUP M
ASSAM
VERSUS
THE STATE OF ASSAM and 5 ORS,
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
HIGHER EDUCATION DEPARTMENT, DISPUR, GUWAHATI- 781006.
2:THE CHIEF SECRETARY TO THE
GOVT. OF ASSAM
DISPUR
GUWAHATI- 781006.
3:THE ADDITIONAL CHIEF SECRETARY TO THE
GOVT. OF ASSAM
HIGHER EDUCATION DEPARTMENT
DISPUR
GUWAHATI-781006.
4:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 781019.
5:THE PRINCIPAL OF COTTON COLLEGE
PANBAZAR
GUWAHATI-781001.
6:COTTON UNIVERSITY
REPRESENTED BY ITS REGISTRAR
ADMINISTRATIVE BUILDING
COTTON UNIVERSITY
HEM BARUAH ROAD
PANBAZAR
GUWAHATI-1
Page No.# 3/50
Advocate for the Petitioner : MR.U K NAIR, MR H K DAS,M KATAKY,MR. M P SARMA,MS.A
CHETRY,MR.J ABEDIN
Advocate for the Respondent : GA, ASSAM, SC, HIGHER EDUCATION,,MR. P D NAIR
Linked Case : WP(C)/3808/2015
DR. AMALENDU CHOUDHURY and 6 ORS
S/O- LT. AJOY KUMAR CHOUDHURY
R/O- PROFESSORS QUARTER
HAFLONG GOVT. COLLEGE
BLOCK- I
UNIT- 6
P.O.- HAFLONG
DIST.- DIMA HASAO
PIN- 788819
ASSAM.
2: SHEKHAR CHAKRABORTY
S/O- SRI SIBO PRASAD CHAKRABORTY
R/O- PROFESSOR'S QUARTER
HAFLONG GOVT. COLLEGE
BLOCK- I
UNIT-3
P.O.- HAFLONG
DIST.- DIMA HASAO
PIN- 788819
ASSAM.
3: DEBBIE PAKHUONGTE
D/O- LT. BUONGA HMAR
R/O- C/O- MRS. C. HMAR
NEAR TAXI STAND
P.O.- HAFLONG
DIST.- DIMA HASAO
PIN- 788819
ASSAM.
4: SARBOJIT THAOSEN
S/O- LT. RINGINON THAOSEN
R/O VILL.- DIBARAI
P.O.- HAFLONG
DIST.- DIMA HASAO
PIN- 788819
Page No.# 4/50
ASSAM.
5: PUNYAMONI BARUAH
D/O- LT. SIROMONI BARUAH
R/O- PROFESSOR'S QUARTER
HAFLONG GOVT. COLLEGE
BLOCK- I
UNIT-II
P.O.- HAFLONG
DIST.- DIMA HASAO
PIN- 788819
ASSAM.
6: VALENTINA BAZELEY
D/O- SRI RANJIT KUMAR DEY
R/O- SUMMIT BUNGALOW
NEAR SYNOD SCHOOL
P.O.- HAFLONG
DIST.- DIMA HASAO
PIN- 788819
ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY- 6.
2:THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM
HIGHER EDUCATION DEPTT.
DISPUR
GHY- 6.
3:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
HIGHER EDUCATION DEPTT.
DISPUR
GHY- 6.
4:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY- 19.
5:THE PRINCIPAL
HAFLONG GOVT. COLLEGE
DIMA HASO DIST.
ASSAM- 788819.
Page No.# 5/50
6:COTTON UNIVERSITY
REPRESENTED BY ITS REGISTRAR
ADMINISTRATIVE BUILDING
COTTON UNIVERSITY
HEM BARUAH ROAD
PANBAZAR
GUWAHATI-1.
------------
Advocate for : MRS. S P NAIR Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS
- B e f o r e-
Hon'ble Mr. Justice Robin Phukan Advocates for the petitioners : Mr. H.K. Das.
Advocates for the respondents : Mr. K. Gogoi, Ms. K. Phukan, Mr. H. Rahman.
Date of hearing :- 09.12.2025.
Date on which judgment is reserved :- 09.12.2025.
Date of pronouncement of judgment :- 27.01.2026.
Whether the pronouncement of is of the :- N/A
operative part of the judgment?
Whether the full judgment has been :- Yes.
pronounced?
Page No.# 6/50
JUDGMENT & ORDER (CAV)
Heard Mr. H.K. Das, learned counsel for the petitioners in both the writ petitions. Also heard Mr. K. Gogoi, learned standing counsel for the Higher Education Department, being respondent No. 1, 3 and 4 in WP(C) No. 2556/2015 & respondent Nos. 2, 3 & 4 in WP(C) No. 3808/2015; Ms. K. Phukan, learned Junior Government Advocate for the respondent No.2 and Mr. H. Rahman, learned counsel appearing on behalf of Mr. P.D. Nair, for respondent No. 6 in WP(C) No. 2556/2015.
2. In these two petitions, i.e. WP(C)/2556/2015 and WP(C)/3808/2015, under Article 226 of the Constitution of India, the petitioners have challenged the impugned portions of the Notification No. AHE.283/2009/Pt-II/48, dated 05.11.2014 (Annexure-16) and Office Memorandum vide No. AHE.283/2009/Pt-II/49 dated 05.11.2014 (Annexure-17) by which, the benefits of reviewed/modified dates for placement in the Senior Grade Scale of Pay and Selection Grade Scale of Pay were granted to the similarly situated Lecturers, but, laid down the condition that the benefits given to those incumbents cannot be treated as precedent and by the other Notification, the Govt. granted CAS promotion to the similarly situated Lecturers after granting Senior Grade Scale of Pay and Selection Grade Scale of Pay, but, laid down the condition that the promotional aspect cannot be treated as precedent and the period spent on ad-hoc shall not be counted towards promotion Page No.# 7/50 under CAS; and also to issue direction to the respondent authorities to review/ modify the placement dates of the petitioners for granting the benefit of Senior Grade Scale of Pay, Selection Grade Scale of Pay and the consequent promotion under CAS, as granted to the similarly situated Lecturers, vide Notifications dated 05.11.2014; and also to issue direction to the respondent authorities to provide the benefits of Senior Grade Scale, Selection Grade Scale and the consequential financial up-gradation and promotion under CAS, as provided to the similarly situated persons in pursuance to the Judgment & Order dated 14.08.2012, passed by the learned Assam Administrative Tribunal in Appeal Case No. 51 ATA/2010;
3. As the issue involved in both the petitions are same and the relief(s) being claimed are same and the parties are also almost the same, and as agreed upon, this Court is inclined to dispose of these batch of petitions by this common judgment and order.
Background Facts:-
4. The background facts, leading to filing of the present writ petitions are adumbrated herein below:-
"The petitioners in WP(C) No. 2556/2015, were initially appointed as Lecturers under Regulation 3(f) of the Assam Public Service Commission (APSC) (Limitation & Functions) Regulations, 1951 in Cotton College and Diphu College. Thereafter, their services were extended from time to time. Subsequently, their services were regularized as Lecturers upon recommendation of the APSC, after the regular selection process. Thereafter, regular appointments were made with effect from the date of Page No.# 8/50 recommendation of APSC.
The University Grant Commission (UGC), in the year 1998, had formulated a scheme, notifying revision of pay scale, minimum qualification for appointments, i.e. Career Advancement Incentive (CAI) etc. Then the Govt. of Assam, in the Education Department, had issued Office Memorandum (O.M.) No. B(2)H.408/99/41, dated 13.01.2000, for implementing the same. As per eligibility criteria of UGC Scheme and OM, dated 13.01.2000, the petitioners became eligible for placement in the Senior Grade Scale on 15.03.2002, 04.09.1998, 27.05.1999, 20.07.2001, 31.08.2000 and 02.09.2000, respectively and in the Selection Grade Scale on 15.03.2007, 04.09.2003, 27.05.2004, 20.07.2006, 31.08.2005 and 02.09.2005, respectively, by counting their past services, under Regulation 3(f) as their Ad-hoc services being continuous over one year without any break. Thus, as per the UGC Scheme and the OM, dated 13.01.2000, the Ad-hoc services are reckonable for placement in the Senior Grade Scale and Selection Grade Scale.
Thereafter, selections for Senior Grade took place and vide Notification No. B(2)H.85/2000/402, dated 24.10.2008, results of the said selection was published, wherein, the respective dates of placement in the Senior Grade Scale of the petitioners were reflected as 25.06.2005, 27.08.2007, 24.09.2006, 24.09.2006, 31.07.2005 and 31.07.2005, which were incorrect dates of placement, without taking past services under Regulation 3(f) though being reckonable as per Clauses 8.0.0. to 8.6.0 (a), (b) and (c) of the UGC Scheme of 1998.
Page No.# 9/50 And the petitioners in WP(C) No. 3808/2015 were initially appointed as Lecturers, under Regulation 3(f) of the Assam Public Service Commission (APSC) (Limitation & Functions) Regulations, 1951 in Diphu College. Thereafter, their services were extended from time to time. Their services were regularized as Lecturers upon recommendation of the APSC, after the regular selection process. Thereafter, the regular appointments were made with effect from the date of recommendation of APSC.
As per eligibility criteria of UGC Scheme and OM, dated 13.01.2000, the petitioners became eligible for placement in the Senior Grade Scale on 05.01.2001, 19.04.2001, 22.05.2001, 05.02.2002, 25.01.2004, 24.02.2005 and 26.03.2007, respectively and in the Selection Grade on 05.01.2006, 19.04.2006, 22.05.2006, 05.02.2007, 25.01.2009, 24.02.2010 and 26.03.2012, respectively, by counting their past services under Regulation 3(f) as their Ad-hoc services were continuous over one year without any break. Thus, as per the UGC Scheme and the O.M. dated 13.01.2000, the Ad-hoc services are recokonable for placement in the Senior Grade Scale and Selection Grade Scale.
The petitioners were granted the respective placements in the Senor Scale Selection Grade, but such placement being made by ignoring the ad hoc services, rendered by the petitioners under Regulation 3(f), the same is clearly not sustainable and is violation of the provisions of the UGC Scheme of 1998.
Because of objections from deprived Lecturers, a Review Selection Board (RSB) was constituted, which took fresh decision Page No.# 10/50 and vide communication dated 22.07.2010, modified (reviewed) dates of placement of some other Lecturers and the Department, vide Notification No. AHE 283/2009/Pt-II/46-A, dated 10.08.2010, notified reviewed dates for placement in the Senior Grade Scale and Selection Grade Scale. But, subsequently, vide another Notification dated 24.09.2010, the reviewed dates were again changed.
Being aggrieved, 4 Nos. of Lecturers approached the Assam Administrative Tribunal (AAT),by filing Appeal Case No. 51 ATA/2010 (Smti. Basanti Medhi & 3 Others) challenging the impugned Notification, dated 24.09.2010 and the Appeal Case was finally decided vide Judgment & Order dated 14.08.2012, whereby, the impugned Notification dated 24.09.2010, was set aside and quashed, thereby, restored the Notification dated 10.08.2010. Thereafter, the State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Higher Education Department, had preferred a writ petition, being WP(C) No. 6845/2013, before this Court, challenging the aforesaid Judgment & Order, dated 14.08.2012, of AAT. The said writ petition was dismissed vide Order dated 18.12.2013, and 2 (Two) months time was allowed to the State Govt. to implement the Judgment & Order dated 14.08.2012, of AAT.
Notably, the petitioners in WP(C) No. 3808/2015 had also preferred one appeal being Appeal Case No. 3ATA/2015, before the learned Assam Administrative Tribunal praying for granting them their respective placements in the Senior Scale as well as Page No.# 11/50 Selection Grade Scale, by reckoning the period of service rendered by them under Regulation 3(f). However, the learned Tribunal, inspite of being apprised of the precedent available in the matter, in a most arbitrary manner proceeded vide order, dated 21.02.2015 ,to dismiss the appeal which is not tenable and cannot be sustained.
Consequently, the Commissioner and Secretary to the Government of Assam, Higher Education Department, vide Notification No. AHE.283/2009/ Pt-II/ 48, dated 05.11.2014, (Annexure-16/pages-73 & 74) allowed the modified dates for providing Senior Grade Scale by reckoning the past Ad-hoc period of those 4 Nos. of petitioners along with 4 other incumbents and Selection Grade Scale of Pay to 4 Nos. of petitioners along with 5 (Five) other incumbents. But, in the last portion of the said Notification, it is mentioned that the benefits given to those incumbents, cannot be treated as precedent. Further, vide another Office Memorandum No. AHE.283/2009/Pt-II/49, dated 05.11.2014, (Annexure-17), allowed promotion under Career Advancement Scheme (CAS) to those similarly situated Lecturers, but surprisingly, in the last portion of the said Notification, it has been pointed out that the said promotional aspect cannot be treated as precedent and the period spent on ad-hoc shall not be counted towards promotion.
It is the contention of the petitioners that the authority cannot treat similarly situated persons in different manner, thereby; the petitioners are aggrieved by the decisions mentioned in the last Page No.# 12/50 portions of the Notification and Office Memorandum, which deny the legitimate rights and dues of the petitioners, i.e. the correct placement dates for grant of Senior Grade Scale, Selection Grade Scale and consequent promotion under CAS as per the OM, dated 13.01.2000, and the UGC Guidelines and as provided to the similarly situated persons vide Notification, dated 05.11.2014 and Office Memorandum dated 05.11.2014 (Annexure-16 & 17)."
5. The respondent No. 4, i.e. the Director Higher Education, Assam has filed affidavit in opposition, wherein a stand has been taken that the petitioners were appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulation, 1951 temporarily as Lecturers for a period for 4 (four) months with effect from the date of their joining. The initial date of joining of the petitioners, under Regulation 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulation, 1951 are as follows:
Sl. Name of the Petitioner Order No. Date
No.
01. Dr. Manjit Kumar B(2)H.242/95/185 14.03.1996
Bhattacharyya
02. Dr.Suresh Kumar Nath B(2)H.346/92/59 03.09.1992
03. Dr. Abhijit Barthakur B(2)H.320/93/58 26.05.1993
04. Dr. Rahul Mahanta B(2)H.242/95/168 19.07.1995
05. Dr. Debojit Sarma B(2)H.206/92/215 30.08.1994
06 Dr. Mahadev Patgiri B(2)H.206/12/215 30.08.1994
And as per the Government Notification No. B(2)H.286/95/Pt-1/16 dated 26.05.2000, the persons who are working as Lecturers, under Regulation Page No.# 13/50 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulation, 1951 shall be deemed to have been regularly appointed to the posts from the dates they were recommended by the Assam Public Service Commission. The date of recommendation by the Assam Public Service Commission of the petitioners are as follows:-
Sl. Name of the Petitioner Order No. Date
No.
01. Dr. Manjit Kumar B(2)H.286/99/97 12.05.2000
Bhattacharyya
02. Dr.Suresh Kumar Nath B(2)H.414/99/23 26.06.2000
03. Dr. Abhijit Barthakur B(2)H.286/99/97 12.05.2000
04. Dr. Rahul Mahanta B(2)H.286/99/109 19.05.2000
05. Dr. Debojit Sarma B(2)H.286/99/97 12.05.2000
06 Dr. Mahadev Patgiri B(2)H.286/99/97 12.05.2000
It is further stated that the services rendered by the petitioners on appointment under Regulation 3(f), is not to be counted for determination of their seniority or granting benefit under career Advancement Scheme (CAS). Counting of the past service under ad hoc nature of appointment could not be provided to the petitioners as they were not appointed on the recommendation of duly constituted Selection Committee and also not by regular selection through the Assam Public Service Commission. And their services are governed by the Rules and Regulations framed by the University Grants Commission (UGC) and the claim made by them are governed by the UGC Notification on Revision of Pay Scales, Minimum Qualification for Appointments of Teachers in Universities, Colleges & Other Measures for the Maintenance of Page No.# 14/50 Standards, 1998. Clause 8.0.0 of UGC Regulation, 1998 deals with counting of past service, which read as under:-
"8.0.0 COUNTING OF PAST SERVICE:
Previous service, without any break as a Lecturer or equivalent, in a University, College, national laboratory, or other scientific organization. E.g. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Grade provided that;
8.2.0 The qualifications for the post were not lower than the qualification prescribed by the UGC for appointment as Lecturers.
8.4.0 The concerned Lecturers possesses the minimum qualification provided by the UGC for appointment as Lecturer.
8.5.0 The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/Central Government /Institutions' regulations.
8.6.0 The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Ad-hoc service of more than one year duration can be counted provided, ..........................
.........................................
(b) The incumbent was appointed on the recommendation of duly constituted Selection Committee."
It is also stated that UGC Regulation, 1998 is mandatory in nature and the Regulation clearly mentioned that the previous/past service can Page No.# 15/50 be counted for placement of Lecturer in Senior Scale/Selection Grade provided that the post was filled in accordance with the prescribed selection procedure, as laid down by the University/State Government/Central Government/Institutions Regulation. The regulations further clearly mentioned that the incumbent was appointed on the recommendation of duly constituted Selection Committee. In the case of the petitioners, the procedure as laid down in the UGC Regulation 1998 is not found to be followed. And that the petitioners were not appointed on the recommendation of the duly constituted Selection Committee and not by the regular selection through Assam Public Service Commission. They were initially appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation and Functions) Regulation 1951, for a period of 4 (four) months. As per the provisions of the UGC Regulation, 1998 they were eligible for CAS promotion/counting the seniority from the date of their regular appointment after recommendation of Assam Public Service Commission, provided fulfillment of the other eligibility criteria, as laid down in the UGC Regulation and Government Guideline and that no case is made out for interference of this Court by invoking extra-ordinary jurisdiction.
6. The respondent No.6, the Registrar of Cotton University has also filed affidavit-in-opposition, wherein it is stated that Clause 8 of the UGC Notification on Revision of Pay Scales, Minimum Qualification for Appointment of Teachers in Universities, Colleges & Other Measures for the Maintenance of Standards, 1998 relied on by the petitioners, lays down certain preconditions for counting the previous service, without any break, as a Lecturer of equivalent for placement of Lecturer in Senior Page No.# 16/50 Grade/Selection Grade. The counting of the previous adhoc service as Lecturer for placement of Lecturer in the Senior Scale / Selection Grade is not automatic, but, is subject to satisfying the preconditions stipulated in the said clause itself, particularly Clause 8.6 thereof. It is also stated that as per Sub-sections (1) and (2) of Section 52 of the said Cotton University Act, 2017, the teachers and staff of the erstwhile Cotton College still constitute a separate cadre with respect to their service conditions at the time of their appointments under the Government of Assam. The matters of service, including promotions, of the teachers and staff of the former Cotton College are decided and directed by the Government of Assam, and the Cotton University and its authorities are merely the executing authorities in respect of the directions so given. The decisions and directions of the Government of Assam, insofar as the employees of erstwhile Cotton College are concerned, are binding upon it, i.e. Cotton University.
7. In WP(C) No. 3808/2015, the respondent No.4 has filed separate affidavit, wherein, it has taken a stand that the petitioners were appointed by the Govt. of Assam, Education Department on ad-hoc basis and with the condition that their appointment is subject to the clearance of NET/SLET, as the case may be, in due course as per U.G.C norms. It is also stated that the Government of Assam in the Education (Higher),had issued an OM dated 10.05.2015, clarifying the services of Assistant Professor/Librarians of provincialized colleges will count towards their seniority from the date of appointment subject to the fulfillment of following three conditions:-
(i) Firstly, they must possess the required U.G.C norms Page No.# 17/50 including NET/ SLET/Ph.D. as the case may be.
(ii) Secondly, they should have been appointed against valid sanctioned posts that were vacant at the time of appointment.
(iii) Thirdly, all the necessary formalities and procedures as stipulated by the Government in respect of their appointment should have been followed.
7.1. Only those Assistant professors/Librarians whose appointment satisfy all the above three conditions would be entitled to seniority from the date of the initial appointment. In case, any Assistant Professors/ Librarians were initially appointed without NET/ SLET or Ph.D. or any other qualification satisfying the required UGC norms, the seniority of such Assistant Professors/Librarians will be counted with effect from the date they secured required qualifications as per U.G.C norms. On the above fact, their regular services will be counted after clearance of required U.G.C norms. As the petitioners did not possess NET/SLET or Ph.D. at the time of appointment, their seniority would be counted from the date of their acquiring the required qualification and from that day they will get the UGC scale of pay and other benefits.
7.2. It is further stated that as per O.M., dated 10.07.2015, counting seniority for Senior Scale of pay and Selection Grade of pay would be eligible after possessing the required U.G.C norms i.e. NET/SLET or Ph.D. and that ATA vide order dated 21.02.2015, in case No. 3ATA/2015, has rightly held that seniority will be counted w.e.f. the date of regularization/substantive appointment, not from the date of his Page No.# 18/50 appointment under Regulation 3(f).
7.3. And in compliance of order dated 14.08.2012, in case No.51 ATA/2010 of the ATA, the Govt. of Assam, Education Department has issued a Notification, dated 05.11.2014, rectifying the dates of senior grade scale and selection grade scale in respect of appellants, where it is clearly mentioned that the benefit arising out of the modified date, as given in the Notification dated 10.07.2010, shall be confined to the lecturers whose names appeared in the said notification and it cannot be cited as a precedent by others. As such, the petitioners cannot take shelter of the said notification to get any undue benefit. Further, it is stated that the petitioners will get the benefit of Senior Grade Scale of Pay, Selection Grade Scale of Pay and any other benefits, if they fulfill the three conditions laid down vide OM, dated 10.07.2015. As such, the claim of the petitioners, to count their ad-hoc services, to give the benefit of Senior Grade Scale of Pay, Selection Grade Scale of Pay is not maintainable and hence the writ petition is devoid of any merits and is liable to be dismissed.
8. In the additional affidavit filed by the respondent No.4, it is stated that petitioners were appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulation, 1951 temporarily as Lecturers for a period for 4 (four) months, with effect from the date of their joining. The initial date of joining of the petitioners under Regulation 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulation, 1951 are as follows:-
Sl. No. Name of the Petitioner Date
Page No.# 19/50
01. Dr. Amalendu Choudhury 05.01.1995
02. Shri Shekhar Chakravarty 09.04.1995
03. Ms. Debbie Pakhuongte 22.05.1995
04. Shri Dinesh Tiwari 05.02.1996
05. Shri Sarobjit Thousen 05.01.1999
06. Ms. Punyamoni Baruah 24.02.1999
07. Ms. Valentina Bezeley 23.03.2001
It is also stated that as per the Government Notification No. B(2)H.286/95/Pt-1/16, dated 26.05.2000, the persons who are working as Lecturers under Regulation 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulation, 1951 shall be deemed to have been regularly appointed to the posts from the dates they were recommended by the Assam Public Service Commission. The date of recommendation by the Assam Public Service Commission of the petitioners are as follows:-
Sl. Name of the Petitioner Recommendation Date No. Notification
01. Dr. Amalendu Choudhury B(2)H.286/99/97 12.05.2000
02. Shri Shekhar Chakravarty B(2)H.286/99/162 21.11.2000
03. Ms. Debbie Pakhuongte B(2)H.286/99/97 12.05.2000
04. Shri Dinesh Tiwari B(2)H.286/99/161 21.11.2000
05. Shri Sarobjit Thousen B(2)H.57/97/Pt/306 30.08.2003
06. Ms. Punyamoni Baruah B(2)H.57/97/Pt/306 30.08.2003
07. Ms. Valentina Bezeley B(2)H.57/97/Pt/306 30.08.2003 It is also stated that since the petitioners were not appointed on the recommendation of the duly constituted Selection Committee and not by the regular selection, through Assam Public Service Commission and as Page No.# 20/50 per the provisions of the UGC Regulation 1998 they were eligible for CAS promotion/counting the seniority from the date of their regular appointment after recommendation of Assam Public Service Commission, provided fulfillment of the other eligibility criteria as laid down in the UGC Regulation and Government Guideline and that no case is made out for interference of this Court by invoking extra-ordinary jurisdiction.
Submissions of learned counsel for the petitioners:-
9. Mr. Das, learned counsel for the petitioners in both the petitions submits that the petitioners were selected for being appointed as Lecturers under Regulation 3(f) of the Assam Public Service Commission (APSC) (Limitation & Functions) Regulations, 1951 in Cotton College and Diphu College and thereafter, their services were extended from time to time and also regularized upon recommendation of the APSC, after the regular selection process. He also submits that the UGC had formulated a scheme in the year 1998, for revision of pay scale, minimum qualification for appointments, i.e. Career Advancement Incentive (CAI) etc. and thereafter, the Govt. of Assam, also issued one Office Memorandum (O.M.) No. B(2)H.408/99/41, dated 13.01.2000, for implementing the same.
9.1. Mr. Das also submits that as per eligibility criteria of UGC Scheme and OM dated 13.01.2000, the petitioners became eligible for placement in the Senior Grade Scale and Selection Grade Scale on different dates, by counting their past services under Regulation 3(f), as their Ad-hoc services being continuous over one year and as per the UGC Scheme and the OM dated 13.01.2000, the Ad-hoc services are reckonable for placement in the Senior Grade Scale and Selection Grade Scale. But, the Page No.# 21/50 benefit of the said scheme was granted to the petitioners without counting their past services under Regulation 3(f) though being reckonable as per Clauses 8.0.0. to 8.6.0 (a), (b) and (c) of the UGC Scheme of 1998.
9.2. Further submission of Mr. Das is that because of objections of some of the deprived Lecturers, a Review Selection Board (RSB) was constituted, which took fresh decision and a Notification No. AHE 283/2009/Pt-II/46-A, dated 10.08.2010, was issued for placement in the Senior Grade Scale and Selection Grade Scale, which was subsequently, withdrawn by another Notification dated 24.09.2010. Thereafter, 4 Nos. of Lecturers had approached the Assam Administrative Tribunal (AAT), by filing Appeal Case No. 51 ATA/2010 (Smti. Basanti Medhi & 3 Others) challenging the impugned Notification dated 24.09.2010 and the Appeal Case was finally decided vide Judgment & Order, dated 14.08.2012, whereby the impugned Notification dated 24.09.2010 was set aside and quashed, thereby, restored the Notification, dated 10.08.2010.
9.3. He further submits that the then Commissioner and Secretary to the Government of Assam, preferred a writ petition, being WP(C) No. 6845/2013, before this Court challenging the aforesaid Judgment & Order dated 14.08.2012 of AAT, which was dismissed vide Order dated 18.12.2013.Thereafter, the Government of Assam, Higher Education Department, vide Notification No. AHE.283/2009/ Pt-II/48, dated 05.11.2014 (Annexure-16) allowed the modified dates for providing Senior Grade Scale by reckoning the past Ad-hoc period of those 4 Nos. of petitioners along with 4 other incumbents and Selection Grade Scale of Pay to 4 Nos. of petitioners along with 5 (Five) other incumbents. But, in Page No.# 22/50 the said Notification, it is also provided that the benefits given to those incumbents cannot be treated as precedent. Thereafter, by another Office Memorandum, dated 05.11.2014, (Annexure-17), allowed promotion under Career Advancement Scheme (CAS) to those similarly situated Lecturers. However, Mr. Das submits that surprisingly, in the last portion of the said Notification, it has been pointed out that the said promotional aspect cannot be treated as precedent and the period spent on ad-hoc shall not be counted towards promotion.
9.4. Lastly, Mr. Das submits that the authority cannot treat similarly situated persons in different manner, and by the impugned Notification and the Office Memorandum, the legitimate rights and dues of the petitioners are denied and being aggrieved, they approached this Court and there is merit in their claims and therefore, Mr. Das has contended to allow these petitions.
9.5. Mr. Das has also referred following decisions in support of his submissions:-
(i) State of Karnataka v. C. Lalitha, reported in (2006) 2 SCC 747;
(ii) Mahatma Gandhi University v. Rincymol Mathew, reported in (2022) 16 SCC 727;
(iii) State of Rajasthan & Others vs. Dharmendra Kumar Jain & Others, reported in 2015 SCC OnLine Raj 8627.
Submissions of learned counsel for the repondents:-
10. Per contra, Mr. Gogoi, learned Standing Counsel for the Page No.# 23/50 respondents has vehemently opposed the petition. Referring to the order of a Co-ordinate Bench of this Court at page 71 of the WP(C) No. 2556/2015, Mr. Gogoi submits that the UGC Regulation have to be followed fully. Referring to Regulation 7.2.0 and also 8.6.0 (b), Mr. Gogoi submits that the petitioners have failed to fulfill the requirement of the said Regulation. Mr. Gogoi has also drawn the attention of this Court to Assam Education Service Rules, 1982 and submits that the petitioners were not selected by the Commission at the time of their initial appointment. Mr. Gogoi also submits that this Court has already dealt with the issue of counting of past services during ad-hoc appointment under Regulation 3(f) and said decisions of this Court was not placed before the Tribunal. Referring to a decision of a Division Bench of this Court in Nabin Ch. Bordoloi vs. State of Assam and Others, reported in 2003(2) GLT 147, Mr. Gogoi submits that in para No. 7 of the said judgment, it has been held that the services rendered by the incumbent who has been appointed in exercise of power under Regulation 3(f) cannot be counted for the purpose of assigning the seniority.
10.1. Mr. Gogoi also submits that the petitioners have failed to fulfill the eligibility criteria and as such they are not legally entitled to the benefit as claimed for and under such circumstances, Mr. Gogoi has contended to dismiss the petition.
10.2. In support of his submission, he has referred following decisions:-
(i) Anup Kumar Das (Dr.) vs. Sanjib
Kakati (Dr.) & Ors, reported in 2000(1) GLT
Page No.# 24/50
429;
(ii) Rashi Mani Mishra and Ors..... vs.
State of Uttar Pradesh and Ors..., reported in 2021 SCC OnLine SC 509;
(iii) Malook Singh and Others vs. State of Punjab and Ors., reported in (2022)17 SCC 765;
(iv) Rajasthan Agricultural University, Bikaner through its Registrar vs. Dr. Zabar Singh Solanki and Others, reported in 2024 SCC OnLine SC 1885; and
(v) State of Maharashtra and Another vs. Tara Ashwin Patel and Others, reported in (2016) 15 SCC 717.
11. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned portions of the Notification No.AHE.283/2009/Pt-II/48, dated 05.11.2014 (Annexure-
16) and Office Memorandum, vide No. AHE.283/2009/ Pt-II/49, dated 05.11.2014 (Annexure-17). Also gone through the decisions referred by Mr. Das, learned counsel for the petitioners and also by Mr. Gogoi, learned standing counsel for the respondent authorities.
Issue before this Court:-
12. In view of the contentions being made in their respective pleading Page No.# 25/50 of the parties and the submissions advanced by their respective counsel, the issue to be addressed by this Court is formulated as under:-
(i) Whether the petitioners are arbitrarily/illegally denied the benefits of ad-hoc services, while the same was granted to some of the similarly situated lecturers and whether their right to equality is violated?
Discussion and Analysis:-
13. From the contentions being made in the respective pleadings of the parties and also from the submissions of learned counsel for both the parties, following facts and circumstances emerges:-
(i) The petitioners in WP(C) No. 2556/2015 and WP(C) No. 3808/2015, were initially appointed as Lecturers under Regulation 3(f) of the Assam Public Service Commission (APSC) (Limitation & Functions) Regulations, 1951 in Cotton College and Diphu College.
(ii) Thereafter, their services were extended from time to time. Their services were regularized as Lecturers upon recommendation of the APSC, after the regular selection process.
(iii) The University Grants Commission (UGC), in the year 1998, had formulated a scheme, notifying revision of pay scale, minimum qualification for appointments, i.e. Career Advancement Incentive (CAI) etc. Page No.# 26/50
(iv) Then the Govt. of Assam, in the Education Department, had issued Office Memorandum (O.M.) No. B(2)H.408/99/41, dated 13.01.2000, for implementing the same.
(v) As per eligibility criteria of UGC Scheme and the OM dated 13.01.2000, the petitioners of WP(C) No. 2556/2015,became eligible for placement in the Senior Grade Scale on 15.03.2002, 04.09.1998, 27.05.1999, 20.07.2001, 31.08.2000 and 02.09.2000, respectively, and in the Selection Grade Scale on 15.03.2007, 04.09.2003, 27.05.2004, 20.07.2006, 31.08.2005 and 02.09.2005, respectively, by counting their past services under Regulation 3(f) as their Ad-
hoc services being continuous over one year without any break.
(vi) And the petitioners in WP(C) No. 3808/2015, became eligible for placement in the Senior Grade Scale on 05.01.2001, 19.04.2001, 22.05.2001, 05.02.2002, 25.01.2004, 24.02.2005 and 26.03.2007, respectively and in the Selection Grade on 05.01.2006, 19.04.2006, 22.05.2006, 05.02.2007, 25.01.2009, 24.02.2010 and 26.03.2012, respectively, by counting their past services, under Regulation 3(f) as their Ad- hoc services were continuous over one year, without any break.
(vii) Thus, as per the UGC Scheme and the OM, dated 13.01.2000, the Ad-hoc services are reckonable for placement in the Senior Grade Scale and Selection Grade Page No.# 27/50 Scale provided that they are selected by a duly constituted Selection Committee.
(viii) Thereafter, vide Notification No. B(2)H.85/2000/402, dated 24.10.2008, results of the said selection was published, indicating the respective dates of placement in the Senior Grade Scale of the petitioners in WP(C) No. 2556/2015 as 25.06.2005, 27.08.2007, 24.09.2006, 24.09.2006, 31.07.2005 and 31.07.2005, which were incorrect as the past services rendered by them under Regulation 3(f), though being reckonable as per Clauses 8.0.0. to 8.6.0 (a),
(b) and (c) of the UGC Scheme of 1998 was not counted.
(ix) The petitioners were granted the respective placements in the Senior Scale Selection Grade, but such placement being made by ignoring the ad hoc services rendered by the petitioners under Regulation 3(f), the same is in contravention of the provisions of the UGC scheme of 1998.
(x) Thereafter, on objection from some of the deprived Lecturers, a Review Selection Board (RSB) was constituted, and vide communication dated 22.07.2010, modified (reviewed) dates of placement of some other Lecturers and the Department vide Notification No. AHE 283/2009/Pt-II/46-A, dated 10.08.2010, notified reviewed dates for placement in the Senior Grade Scale and Selection Grade Scale. But, subsequently, vide another Notification, dated 24.09.2010, the reviewed dates were again changed.
Page No.# 28/50
(xi) Thereafter, 4 Nos. of Lecturers approached the Assam Administrative Tribunal (AAT), by filing Appeal Case No. 51 ATA/2010 (Smti. Basanti Medhi & 3 Others) challenging the impugned Notification dated 24.09.2010 and the AAT vide Judgment & Order dated 14.08.2012, had set aside the impugned Notification dated 24.09.2010,and restored the Notification dated 10.08.2010.
(xii) Thereafter, the respondent No.1 had challenged the decision of AAT, dated 14.08.2012, by filing a writ petition vide WP(C) No. 6845/2013 before this Court, which was dismissed vide Order dated 18.12.2013 and 2 (two) months time was allowed to the State Govt. to implement the Judgment & Order dated 14.08.2012 of AAT.
(xiii) Thereafter, the respondent No. 1 vide Notification No. AHE.283/2009/Pt-II/48, dated 05.11.2014 (Annexure-16) allowed the modified dates for providing Senior Grade Scale by reckoning the past Ad-hoc period of those 4 Nos. of petitioners along with 4 other incumbents and Selection Grade Scale of Pay to 4 Nos. of petitioners along with 5 (Five) other incumbents. But, in the last portion of the said Notification it is mentioned that the benefits given to those incumbents cannot be treated as precedent.
(xiv) Notably, the petitioners in WP(C) No. 3808/2015, had also preferred one appeal, being Appeal Case No. 3ATA/2015 before the Assam Administrative Tribunal praying for granting to them their respective placements in the Senior Page No.# 29/50 Scale as well as Selection Grade by reckoning the period of service rendered by them under Regulation 3(f). However, the Tribunal, inspite of being apprised of the precedent available in the matter, had dismissed the appeal, vide order dated 21.02.2015, in a most arbitrary manner.
(xv) Thereafter, vide another Office Memorandum No. AHE.283/2009/Pt-II/49, dated 05.11.2014, (Annexure-17), allowed promotion under Career Advancement Scheme (CAS) to those similarly situated Lecturers, but surprisingly, in the last portion of the said Notification, it has been pointed out that the said promotional aspect cannot be treated as precedent and the period spent on ad-hoc shall not be counted towards promotion.
(xvi) The respondent authority had treated similarly situated persons in different manner and thereby, deny the legitimate rights and dues of the petitioners, i.e. the correct placement dates for grant of Senior Grade Scale, Selection Grade Scale and consequent promotion under CAS as per the OM dated 13.01.2000 and the UGC Guidelines.
14. In this context, it would be appropriate to peruse the relevant UGC Notification on Revision of Pay Scales, minimum qualification for Appointments of Teachers in Universities, Colleges & other measures for the Maintenance of Standard, 1998.
7.0.0 CAREER ADVANCEMENT Page No.# 30/50 7.1.1 Minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years for those with Ph. D. five years for those with M.Phil, and six years for others at the level of Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade)/Reader, the minimum length of service as Lecturer (Senior Scale) shall be uniformly five years.
7.1.2 For movement into grades of Reader and above, the minimum eligibility criterion would be Ph.D. Those without Ph.D. can go up to the level of Lecturer (Selection Grade).
7.1.3 A Reader with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor.
7.1.4 The Selection Committees for Career
Advancement shall be the same as those for
Direct Recruitment for each category.
7.1.5 The existing scheme of Career Advancement for non academic staff namely, Assistant Director of Physical Education, Assistant.
Registrar, Assistant. Librarian would continue.
7.2.0 LECTURER (SENIOR SCALE) A Lecturer will be eligible for placement in a senior scale through a procedure of selection, if she/he has:
(i) Completed 6 years of service after regular appointment with relaxation of one year and two years, respectively, for those with M.Phil. and Ph.D.
(ii) Participated in one orientation course and one refresher course of approved duration, or engaged in other appropriate Page No.# 31/50 continuing education programmes of comparable quality as may be specified or approved by the University Grants-
Commission. (Those with Ph.D. degree would be exempted from one refreshes course).
(iii) Consistently satisfactory performance appraisal reports, LECTURER (SELECTION GRADE) Lectures in the Senior Scale who do not have a Ph.D. degree or equivalent published work and who do not meet the scholarship and research standards, but fulfill the other criteria given above for the post of Reader and have a good record in teaching and preferably, have contributed in various ways such as to the corporate life of the institution, examination work, or through extension activities, will be placed in the Selection Grade, subject to the recommendations of the Selection Committee which is the same as for promotion to the post of Reader. They will be designated as Lecturers in the Selection Grade. They could offer themselves for fresh assessment after obtaining Ph.D. and/or fulfilling other requirements for promotion as Reader and, if found suitable, could be given the designation of Reader.
8.0.0. COUNTING OF PAST SERVICE Previous service, without any break as a Lecturer or equivalent, in a university, college, national laboratory, or other scientific organizations, e.g. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Page No.# 32/50 Grade provided that:
8.1.0.The post was in an equivalent grade/scale of pay as the post of a Lecturer, 8.2.0. The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer, 8.3.0.The candidates who apply for direct recruitment should apply through proper channels;
8.4.0.The concerned Lecturers possessed the minimum qualifications prescribed by the UGC for appointment as Lecturers;
8.5.0. The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/ Central Government/Institution's regulations; 8.6.0. The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Ad hoc service of more than one year duration can be counted provided -
(a) the ad hoc service was of more than one year duration;
(b) the incumbent was appointed on the recommendation of duly constituted Selection Committed, and
(c) the incumbent was selected to the permanent post in continuation to the ad hoc service, without any break.
15. To dealt with the issue involved in the present petitions with greater precision, the impugned Notification (Annexure-16) and impugned Office Memorandum, dated 5th November (Annexure 17) are Page No.# 33/50 extracted herein below:-
GOVERNMENT OF ASSAM HIGHER EDUCATION DEPARTMENT, DISPUR GUWAHATI-
NOTIFICATION Dated, Dispur the 5th November, 2014 No. AHE.283/2009/Pt-II/48: In pursuance of the Order dated 14-08- 2012 passed by the Assam Administrative Tribunal in Case No STATA 2010 (filed by Smti Basanti Medhi, Shri Hiren Deka, Dr. Savitri Devi and Shri Sankar Haloi), the Governor of Asam is pleased to notify the modified date of Grade Scale and Selection Grade Scale of Pay which were notified vide Notification No. AHC.283/2009/Pt-II/46 dated 10.07.2010 of the following Lecturers:-
Sl. Name of the Lecturers for Senior Modified date No. Grade Scale of Pay of effect
1. Dr. Garima Kalita, Lecturer in 17.09.1994 English, Cotton College, Guwahati
2. Dr. Rakhi Kalita, Lecturer in 01.09.1996 English, Cotton College, Guwahati
3. Smti. Basanti Medhi, Lecturer in 13-06-1998 Philosophy, Cotton College, Guwahati
4. Dr. Sabitri Devi, Lecturer in 08-02-2002 Philosophy, Cotton College, Guwahati
5. Dr. Mina Ram Nath, Lecturer in 28-11-1991 Botany, Cotton College, Guwahati
6. Shri Sankar Haloi, Lecturer in 28-01-2005 Mathematics, Cotton College, Guwahati
7. Dr. Hiren Deka, Lecturer in 09-08-2001 Mathematics, Cotton College, Guwahati
8. Dr. Dipali Khargharia Kalita, 16-01-1991 Lecturer in Physics, Prince of Wales Institute Jorhat Sl. Name of the Lecturers for Selection Modified date No. Grade Scale of Pay of effect
1. Dr. Garima Kalita, Lecturer in 10.09.1998 English, Cotton College, Guwahati Page No.# 34/50
2. Dr. Rakhi Kalita, Lecturer in 01.09.2001 English, Cotton College, Guwahati
3. Ms. Najma Kausar, Lecturer in 17.11.2004 Assamese, Cotton College, Guwahati
4. Smti. Basanti Medhi, Lecturer in 13-06-2003 Philosophy, Cotton College, Guwahati
5. Dr. Sabitri Devi, Lecturer in 08-02-2007 Philosophy, Cotton College, Guwahati
6. Dr. Mina Ram Nath, Lecturer in 28-11-1996 Botany, Cotton College, Guwahati
7. Shri Sankar Haloi, Lecturer in 28-01-2010 Mathematics, Cotton College, Guwahati
8. Dr. Hiren Deka, Lecturer in 09-08-2006 Mathematics, Cotton College, Guwahati
9. Dr. Dipali Khargharia Kalita, 16-01-1996 Lecturer in Physics, Prince of Wales Institute Jorhat The benefit arising out of the modified date as given in the Notification dated 10-07-2010 shall be confined to the Lecturers whose names appeared in the said Notification. It cannot be cited as a precedent by others.
This disposes the order dated 14-08-2012 passed by the Assam Administrative Tribunal in Case No.51 ATA/2010 Sd.-(H. K. Sharma, IAS) Commissioner & Secretary to the Govt. of Assam, Higher Education Department 15.1. And impugned Office Memorandum, dated 5th November (Annexure 17) is extracted herein below:-
GOVERNMENT OF ASSAM HIGHER EDUCATION DEPARTMENT DISPUR GUWAHATI-6 No. AHE.283/2009/Pt-II/49, Dated Dispur the 5"
November, 2014.
OFFICE MEMORANDUM Page No.# 35/50 On being recommended by the State Selection Board (since dissolved), the Government in the Higher Education Department issued an order No.AHE. 283/2009/P1-11/46 dated 10-07-2010 whereby modified dates of effect of Senior Grade Scale of Pay and Selection Grade of Pay in respect of 9 numbers of Lecturers were notified. It came to light of the Government that while notifying the modified dates of Senior Grade Scale of Pay and Selection Grade of Pay the State Selection Board took into consideration the period spent on ad-hoc service under Regulation 3(f) of the APSC Regulations. The Government rectified the error by issuing another Notification against which the Lecturers in question, preferred an appeal in the Assam Administrative Tribunal which was registered as Case No.51ATA/2010. The Learned Assam Administrative Tribunal disposed the Case No.51ATA/2010 on 14-08-2012 whereby it get aside the Notification. The Government in the Higher Education Department restored the actual date of Senior Grade Scale of Pay and Selection Grade Scale of Pay in respect of the Lecturers in compliance to the order of Learned Assam Administrative Tribunal given in Case No.51ATA/2010 on 14-08-2012. The Government has issued another Notification allowing Senior Grade Scale of Pay and Selection Grade Scale of Pay as was recommended by the State Selection Board.
Although the Government in the Higher Education Department has allowed CAS Promotion to the Lecturers, this will not be a principle before the Government neither will it be a precedent. Period spent on ad-hoc basis shall not be counted for giving promotion under CAS.
Sd/-(H. K. Sharma, IAS) Commissioner & Secretary to the Govt. of Assam, Higher Education Department
16. Now, let it be seen what is CAS. In the case of Dr. Zabar Page No.# 36/50 Singh Solanki and Others (supra), while dealing with the scheme and its intended purpose, Hon'ble Supreme Court has held that the CAS was distinct to a general increase or revision in pay-scales. The CAS was intended for a specific purpose i.e., to encourage the teaching staff by offering a higher pay-scale, subject to various conditions. It has also been held that whenever a Scheme/Policy is brought into force, ceteris paribus, the Court could not and would not import something which is not present therein and which may not be proper to be interfered with, especially when it relates to financial matters, where primacy is required to be granted to the pay-master as to what scale was to be granted to the category of staff concerned. By its very nature, such exercise would fall under the realm of policy-formulation. Further, it has been held that the CAS itself envisaged that it was meant for persons who were directly recruited as Assistant Professors. The CAS specifically provided that every Lecturer was to be placed in a senior scale of Rs.3000-5000 if he/she had completed 8 years of service after regular appointment.
17. In the instant case, the petitioners have preferred the present writ petitions with a prayer to reckon their services rendered in ad-hoc capacity, while determining their eligibility for the grant of senior pay- scale under the CAS. While dealing with the issue specifically Hon'ble Supreme Court, in the case of Dr. Zabar Singh Solanki and Others (supra), has held as under:-
29. .............................
.................................
Page No.# 37/50 "In this case, respondents No.1 to 23 9, before their regular appointment as Assistant Professors in the University, served on an ad-hoc basis in other educational institutions and also in the University. These respondents preferred a writ petition with a prayer to reckon their services rendered in such ad-hoc capacity while determining their eligibility for the grant of senior pay-scale under the CAS. The relief claimed was granted by the learned Single Judge and affirmed by the Division Bench relying on the judgment in State of Rajasthan vs. Milap Chand Jain, (2013) 14 SCC 562. This Court, while disposing of Milap Chand Jain (supra), relied on its earlier judgment dated 10.03.2011 in Civil Appeal No.469/2007, entitled State of Rajasthan vs. Dr. Suresh Chand Agrawal, which was dismissed in limine, leaving the question of law open.
Review Petitions (Civil) No.2124-2125/2011 filed in Dr. Suresh Chand Agrawal (supra) were also dismissed by this Court on 14.09.2011. In Milap Chand Jain (supra), the State of Rajasthan had moved this Court in respect of the same impugned order therein, against which appeals stood previously dismissed by this Court.
30. Notably, the State Government vide its Letter dated 20.09.1994, had specifically clarified that the period of ad-hoc service rendered by the respondents/Assistant Professors shall not be counted for giving benefit of senior pay-scale under the CAS. We have already elaborated supra (10) that the CAS is essentially a policy, and as such, the respondents cannot claim, nor would they have any vested right for claiming that the Page No.# 38/50 clauses therein be interpreted in a particular manner. Such an interpretative exercise would have to be left, in the domain of the appellant, subject to the State Government's directives unless patently perverse or arbitrary. The High Court, hence, was not justified in counting of the ad-hoc service rendered by the respondents for reckoning the period of computation as required for applying the CAS."
18. Further, in the case of Nabin Ch. Bordoloi(supra), a Division Bench of this Court has held that the service rendered by any incumbent under the appointment made in exercise of power under Regulation 3(f) of Regulation 1951, cannot be a ground for regularisation of the incumbent on that basis. For the same reason, the services rendered by the incumbent cannot be counted for the purpose of assigning the seniority. The relevant para is extracted herein below:-
"7. The Division Bench of this Court has taken a categorical view that the appointments made under Regulation 3(f) of Regulation 1951, does not authorise the very person to claim regularisation on the basis of appointment made under Regulation 3(f). Thus, in other words, this Court has held that the service rendered by any incumbent under the appointment made in exercise of power under Regulation 3(f) of Regulation 1951, cannot be a ground for regularisation of the incumbent on that basis. For the same reason, the services rendered by the incumbent cannot be counted for the purpose of assigning the seniority."
Page No.# 39/50
19. It is also to be noted here that while dismissing the appeal being Appeal Case No. 3ATA/2015 (Annexure-13), preferred by the petitioners of WP(C) No. 3808/2015, the Assam Administrative Tribunal, while interpreting UGC Regulation 8.6.0 (f) has held that the words used in the said clause are "duly constituted Selection Committee" and duly constituted would mean constituted as per the rules laid down for the selection of lecturer. The rules lay down that the selection of lectures would be done by the APSC. The duly constituted Selection Committee would, therefore, be a Committee that has been constituted for this purpose by the APSC. All these appointments have been made by a Committee constituted by the Government in the Education Department. They have not been made on the basic of recommendations made by a duly constituted Selection Committee. The stipulation laid down by Sub Clause (f) of clause 8.6.0 of the UGC guidelines is, therefore, not fulfilled by these appointees.
19.1. The Tribunal has also dismissed the appeal on another ground i.e. there is a Ruling of the Gauhati High Court which has dealt with this issue specifically in the case of Anup Kumar Das (Supra), wherein this Court has specifically held "the respondent petitioner will be entitled to seniority with effect from the date of his regularization/substantive appointment on 07.04.1987, and not from the date of his appointment under regulation 3(f)".
19.2. Notably, in the case of Anup Kumar Das(supra),so referred by Mr. Gogoi, learned Standing Counsel for the respondents another Division Bench of this Court has held that the services rendered by an incumbent to a post appointed under Regulation 3(f) is not to be Page No.# 40/50 counted for the purpose of seniority. The relevant paragraph is extracted herein below:-
"(9.) It would appear that the instructions provide for regularisation of the appointees made under Regulation 3(a) and 3(f) of the Assam Public Service Commission (Limitations of Functions) Regulation, 1951 within the time limit specified in the Regulation itself. We have carefully examined the provisions of the Regulation of 1951 and we do not find any provision enabling the authority to regularise the services of the 3(f) appointees. The question for application of the Executive Instructions contained in the above circular will arise only when the appointments made under Regulation 3(f) are regularised in accordance with the provisions of the rules, if any. But, in the instant case, there being no provision incorporated in the Regulation to this effect, we are of the definite opinion that the conception of regularisation of the services of the appointees under Regulation 3(f) is also de-hors the rules. We are of the further opinion that when a person is appointed under Regulation 3(f), he has no option but to appear before the Commission for consideration of his case for recommendation when the post is advertised and in the event he is recommended and appointed, he will be entitled to all service benefits with effect from the date of such substantive appointment. The provisions contained in Para-10.2(b) has no application in cases where ad-hoc appointments are made de-hors the rules under Regulation 3(f) and regularised Page No.# 41/50 subsequently. Therefore, the services rendered by an incumbent to a post appointed under Regulation 3(f) is not to be counted for the purpose of seniority."
19.3. It is to be noted here that the petitioners, in both the petitions, have made a specific averment in their petitions in para No. 7, in WP(C) No. 2556/2015 and in para No. 10, in WP(C) No. 3808/2015, that their initial appointment, under Regulation 3(f) were made after a due selection process. However, the respondent No.4 in its affidavit in opposition has refuted the same by stating categorically that the incumbents were not appointed on the recommendation of duly constituted Selection Committee, and the procedure, as laid down in the UGC Regulation, 1998, is found to be not followed as the petitioners were not appointed on the recommendation of the duly constituted Selection Committee and also not by the regular selection through Assam Public Service Commission. It is also stated that the petitioners were initially appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation and Functions) Regulation, 1951 for a period of 4 (four) months, and that as per UGC Regulations, 1998, they were eligible for CAS promotion/counting the seniority from the date of their regular appointment after recommendation of Assam Public Service Commission, provided fulfillment of the other eligibility criteria as laid down in the UGC Regulation and Government Guideline.
19.4. As stated herein above, after the Regulation of the University Grants Commission (UGC), in the year 1998, being notified, formulating Page No.# 42/50 the scheme for revision of pay scale, minimum qualification for appointments, i.e. Career Advancement Incentive (CAI) etc., the Govt. of Assam, in the Education Department, had also issued Office Memorandum (O.M.) No. B(2)H.408/99/41, dated 13.01.2000, for implementing the same. Said O.M. is enclosed as Annexure 7 in W.P.(C) No. 2556/2015 and 6 in W.P.(C) No. 3808/2015, respectively, in both the writ petitions. Clause 1 of the said O.M. provides for recruitment and qualification, which read as under:-
(1) Recruitment and qualifications:- The direct recruitment to the post of Lecturers, Readers and Professors in the Universities and Colleges shall be on the basis of merit through all India advertisement and selections are to be made by the duly constituted Selection Committee, to be set up under the statutes/ordinances of the concerned Universities or under the State Govt. Rules, framed for selection of Lecturers in Colleges. Besides, such appointment would be subject to appropriate Reservation quota, under State Govt. Acts and Rules.
19.5. But, nowhere in the said O.M. counting of ad-hoc service for granting career advancement for placement in senior scale, selection grade is provided.
19.6. Further, from the order of the AAT in Appeal Case No.3 ATA/2015, it appears that while interpreting the word duly constituted selection committee, it had recorded a finding that the rules lay down that the selection of lectures would be done by the APSC. The duly constituted Selection Committee would, therefore, be a Committee that has been constituted for this purpose by the APSC. It has also been Page No.# 43/50 held that the appointments of the appellants (herein the petitioners in WP(C) No. 3808/2015, have been made by a Committee constituted by the Government in the Education Department. They have not been made on the basis of recommendations made by a duly constituted Selection Committee. The stipulation laid down by Sub Clause (f) of clause 8.6.0 of the UGC guidelines is, therefore, not fulfilled by these appointees.
19.7. This finding, however, having not been challenged before any higher forum, has already attained finality. In that view of the matter, the submission of Mr. Das, learned counsel for the petitioners that the petitioners were selected by a duly constituted selection committee, cannot be concurred with, while such contention is specifically refuted in the affidavit by the respondent No.4, in both the petitions.
19.8. It is also to be noted here that Rule 5 of the Assam Education Service Rules, 1982 deals with method of recruitment of Lecturers of Government Degree Colleges and Sub-Rule (1) to Rule 5 provides that recruitment to the posts of Lecturers shall be made by direct recruitment only and Rule 6 provides for direct recruitment to the post of Lecturers shall made by the Government on the basis of recommendation made by the Commission, in accordance with the procedure provided in Sub-Rule (1), which read as under:-
"6. Direct recruitment.
(1) Direct recruitment to the posts mentioned in sub-R. (1) of R. 5 shall be made by the Government on the basis of recommendation made by the Commission in accordance with procedure hereinafter provided -
Page No.# 44/50
(a) Before the end of each year the Government shall make an assessment regarding the likely number of vacancies to be filled up by direct recruitment during the next year and shall intimate the same to the Commission, together with the details about reservation for candidates belonging to Scheduled Castes and Scheduled Tribes or any other category as provided under R. 15.
(b) The Government shall simultaneously request the Commission to recommend a list of candidates for direct recruitment in order of preference.
(c) The Commission may hold such test or
interview as may be considered necessary.
(d) The Commission shall furnish to the
Government a list of candidates
recommended by it in order of preference,
found suitable for direct recruitment. The number of candidates in such a list may be approximately double the number of vacancies.
(e) The Commission shall simultaneously publish the list in the Assam Gazette and such other place as the Commission may consider proper."
19.9. Therefore, the duly constituted Selection Committee, herein this case, is the Committee constituted by the APSC, as per the Assam Education Service Rules, 1982. In the case in hand, admittedly, the Selection Committee, by which the petitioners were selected, is not the Committee constituted under the Rules, 1982.
Page No.# 45/50 19.10. That being so, it cannot be said that the petitioners were selected by a duly constituted Selection Committee, which herein this case is the Committee constituted by the APSC, not by Committee constituted by the Education Department for being selected the petitioners under Regulation 3(f) of the Assam Public Service Commission (Limitation & Functions) Regulations, 1951. For ready reference, said provision is extracted herein below:-
"Regulation - 3.
It shall not be necessary for the Commission to be consulted in matters relating to methods of recruitment to civil services and post or the suitability of the candidates for such appointments, in the following cases, namely -
* * * * *
(f) when an appointment is to be made by direct recruitment to a temporary post created in a service, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in sub-clause 3 of Article 320 of the Constitution."
19.11. In view of above,the submission of Mr. Das, learned counsel for the petitioners, that the petitioners were selected by a duly constituted Selection Committee, left this Court unimpressed. It cannot be accepted that the petitioners have been able to demonstrate that Page No.# 46/50 they were selected by a duly constituted selection committee as per Act and Rules as provided in the Regulation 8.6.0.(b) of the UGC, though they have successfully demonstrated that they have fulfilled the other two criteria, i.e., (a) and (c) of the said Regulation and also the requirement of clause 1 of the O.M., dated 13.01.2000.
20. Mr. Das, however, submits that in the two decisions, i.e., in the case of Nabin Ch. Bordoloi (Supra) and Anup Kumar Das (Supra), counting of ad-hoc service for the purpose of seniority has been dealt with, and the case of the petitioners in these two writ petitions, relate to counting of ad-hoc service for the purpose of granting CAS benefit to them.
20.1. Mr. Gogoi, learned Standing Counsel for the State respondents, however, submits that such a submission is devoid of any force inasmuch as the CAS was formulated to grant the Lecturers (Senior Scale) as per Clause 7.2.0 and Lecturers (Selection Grade) as per the same Clause, and all are based upon seniority.
20.2. There appears to be substance in the submission of Mr. Gogoi, learned Standing Counsel for the State respondents. And a careful perusal of Clause 7.2.0, indicates that the same was formulated to place the lecturers in Senior Scale and in the Selection Grade. Therefore, the submission of Mr. Das, learned counsel for the petitioners, cannot be accepted.
21. This Court has also considered the contention of the petitioners and also submission of their counsel that the authority cannot treat similarly situated persons in different manner. Indisputably, after the Page No.# 47/50 decision of AAT in Appeal Case No. 51 ATA/2010, and the same having been affirmed by this Court in WP(C) No. 6845/2013, the respondent authorities had implemented the same, granting benefit to the appellants of the Appeal Case No. 51 ATA/2010 counting their ad-hoc service period. The decision referred by Mr. Das, learned counsel for the petitioners in C. Lalitha (supra) also fortified the same to some extent.
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
21.1. There is, however, no quarrel about the proposition of law so laid down in the said case. But, in view of well settled proposition of law laid by two Division Bench of this Court in Anup Kumar Das (supra)and also in the case of Nabin Ch. Bordoloi(supra), and also by Hon'ble Supreme Court in the case Dr. Zabbar Singh Solanki and Ors.(supra), this Court is of the view that the Page No.# 48/50 decision of AAT in Appeal Case No. 51 ATA/2010, and the decision of this Court in WP(C) No. 6845/2013, affirming the said decision would not advance the argument of the learned counsel for the petitioners. Moreover, the decision of this Court in W.P.(C) No. 6845/2013, cannot be read as a binding precedent, in view of the fact that the two decisions of Divisions Bench of this Court, were not placed before the learned Single Judge, at the time of deciding the WP(C) No. 6845/2013, and also in view of the proposition of law, laid down by Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680. Therefore, grant of benefit to some of the similarly situated persons, on the strength of the decision of AAT in Appeal Case No. 51ATA/2010, and the same be affirmed in WP(C) No. 6845/2013, cannot be said to be backed by any rule of law and on such count, the respondent authorities, while granting the benefit had rightly recorded in the impugned portion of the Notification, dated 05.11.2014, that the promotional aspect cannot be read as a precedent. It is well settled that if a benefit is irregularily granted to one person or groups, without any legal basis, others cannot claim the same under parity. Reference in this context can be made to a decision of Hon'ble Supreme Court in the case of State of Bihar vs. Kameshwar Prasad Singh, reported in (2000) 9 SCC 94. Reference can also be made to a three Judge Bench decision of Hon'ble Supreme Court in the case of R. Muthukumar vs. Chairman and Managing Directory TANGEDCO, reported in 2022 SCC Online SC 151, wherein it has been held that Article 14 of the Constitution of India does not permit 'negative Page No.# 49/50 equality' meaning as illegal or unjustified benefit given to same cannot be extended to others as a right and as such, to the considered opinion of this Court the proposition of law laid down in the case of C. Lalitha(supra), also would not advance the argument of Mr. Das, learned counsel for the petitioners.
22. This Court has also considered the other points, so raised by Mr. Das, learned counsel for the petitioners and also gone through the decisions referred by him and also considered the submissions advanced by Mr. Gogoi, learned Standing Counsel for the respondent authorities and the decisions referred by him. But, in the view of the finding, so recorded on the core issue, as above, further, directing a discussion to other limbs of argument, so advanced by them, are found to be a futile exercise. There is, however, no quarrel about the proposition of law laid down in the cases referred by learned counsel for both the parties. But, to deal with the issue involved herein these petitions, references to all those decisions are found to be not necessary, except however, what has been discussed herein above.
Conclusion:-
23. Under the given factual and legal matrix, the issue, so formulated herein above, has to be answered in negative and accordingly, the same stands answered.
24. In the result, this Court finds no merit in these petitions. And accordingly, both the writ petitions stand dismissed, leaving the parties Page No.# 50/50 to bear their own costs.
JUDGE Comparing Assistant