Gauhati High Court
Rabin Ch. Sarma And 16 Ors vs The State Of Assam And 3 Ors on 21 July, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/30
GAHC010122722016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7325/2016
RABIN CH. SARMA and 16 ORS
S/O. LT. DHARMA KANTA SARMA, VILL. AGDALA, P.O. BAIHATA
CHARIALI, DIST. KAMRUP, PIN-781381.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION HIGHER
DEPTT., DISPUR, GHY.-781006.
2:THE COMMISSIONER and SECY.
TO THE GOVT. OF ASSAM
PERSONNEL DEPTT.
DISPUR
GHY.-06.
3:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY.-781019.
4:THE COMMISSIONER and SECY.
FINANCE DEPTT.
GOVT. OF ASSAM
DISPUR
GHY.-06
Advocate for the Petitioner : MR.N BARUAH
Advocate for the Respondent :
Page No.# 2/30 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT & ORDER (CAV) Date : 21-07-2022 The issue involved in the instant writ petition pertains to whether the petitioners who have been appointed against non-sanctioned posts and upon being regularized subsequently to sanctioned posts would be entitled to claim seniority from the date of initial appointment to non-sanctioned post.
2. Heard Mr. M. Sharma, the learned counsel for the Petitioners, Mr. K. Gogoi, the learned counsel appearing on behalf of the Respondent No. 1 and 3, Mrs. D.D. Barman, the learned counsel appearing on behalf of the Respondent No. 2 and Mr. R. Borpujari, the learned counsel appearing on behalf of the Respondent No. 4.
3. The facts of the instant case are that the petitioners herein were appointed as lecturers in their respective colleges pursuant to an advertisement, selection process and interview and with necessary approval/concurrence of the governing body of the college. Admittedly the petitioners were appointed against non-sanctioned post. At this stage, it may be relevant herein to note that the Secretary to the Government of Assam, Education Department had issued an Office Memorandum dated 17/7/2004. A perusal of the said Office Memorandum would show that there were more than 300 college teachers found to be in different Degree Colleges(deficit-grant-in-aid-college) Page No.# 3/30 of Assam since 1989 serving for 5 to 14 years without any valid sanctioned posts. These teachers have been serving in the colleges in the consolidated pay allowed by the respective college authorities from their own fund. These teachers were appointed by the respective governing bodies of the Colleges on need basis as per UGC guidelines. Further to that the Government of Assam has also accorded concurrence to the subjects against which these teachers were appointed and these teachers have been performing similar responsibilities like those teachers who have been working against sanctioned posts in the college. Further to that, it has been mentioned that the Government could not sanction any additional post to the deficit-grant-in-aid colleges since 1992. 52 numbers of colleges though were brought under the deficit system of grant-in-aid by the Government since 1992 but the Government had not sanctioned an additional post of lecturers since then over and above originally allocated sanctioned post. Under such circumstances, the college authorities appointed lecturers without valid sanctioned post bearing the additional financial burden. It further appears from the perusal of the Office Memorandum that 140 college teachers serving in different colleges without sanctioned post filed proceedings before this Court. This Court vide order dated 11/2/2003 in W.P.(C) No. 626/2002 and order dated 25/7/2003 in W.P.(C) No. 2368/2002 directed the Government to consider the matter of sanction of post to the college teachers serving without any sanctioned posts. Paragraph 4 along with its sub-paragraphs (a) to (d) being relevant are quoted herein below:-
Page No.# 4/30
"4. The State Govt. is not in a position to sanction any new post for the colleges to accommodate the aforementioned College teachers serving without sanctioned posts. In view of the same and in pursuance to the approval of the cabinet dated 9/6/2004, the following procedure/modalities are hereby prescribed for adjustment of service of College teachers working without sanctioned posts as mentioned above.
"(a) Vacant posts in a particular Deptt. lying in a grants-in-aid College of Assam may be allotted in order of seniority to accommodate teachers in the same College who is working in some other Deptt. without a valid sanctioned post provided that such teachers were appointed by respective G.B. observing due process i.e. advertisement selection and having UGC norms required and if the need for such a post is justified by enrolment in that deptt. of the College etc provided further, the post is not to be considered essential for the Deptt. against which it was originally sanctioned.
(b) In case of any future vacancies of sanctioned posts. In a particular deptt. College teachers working without valid sanctioned post but appointed as per procedure stated at sub-para(a) above are to be adjusted in preference to fresh teachers.
(c) To accommodate the teachers working without a sanctioned post in a college where there is no vacant sanctioned posts or where the number of vacant sanction posts is less than the number of teachers proposed to be adjusted in conformity with this O.M., the Director, Higher Education is authorised to withdraw vacant posts from a deficit-grants-in aid Colleges where student enrolment or other norms do not justify to the total number of sanctioned posts in that Colleges.
The Director, Higher Education will prepare a ist of such vacant withdrawn posts from different colleges giving necessary details. Thereafter he will consider the cases of all those teachers working without sanctioned posts and appointed as per procedure as mentioned at para 4(a) above in order of their seniority of services for adjustment and send such proposal to Govt. for approval. However, if a vacant sanctioned post is available in a particular college for adjustment such post against any eligible teachers working without a sanctioned post in that college, no additional allotment of post will be made to such colleges.
(d) The teachers working under non-sanctioned post who will be adjusted against vacant sanctioned posts will be required to qualify in NET/SLET within 2(two) years if they do no possess the same already, otherwise their services would be discontinued and till then they will be entitled to basic pay only from the date of approval by Director, Higher Page No.# 5/30 Education, Assam."
4. From a perusal of the above quoted portion of the Office Memorandum, which is very pertinent for the disposal of the instant proceedings, it would be seen that the State Government had expressed that it was not in a position to sanction any new posts for the colleges to accommodate the aforementioned college teachers serving without sanctioned posts. However, in view of the approval of the Cabinet dated 9/6/2004 various procedures/modalities were prescribed for adjustment of services of college teachers working without sanctioned post. Sub-Clause (a) of Clause 4 stipulated that vacant post in a particular department lying in a grant-in-aid-college of Assam may be allotted in order of seniority to accommodate teachers in the same college, who were working in some other department without a valid sanctioned post provided that such teachers were appointed by respective Governing Bodies by observing due process i.e. advertisement, selection and having UGC norms required and if the need for such a post is justified by enrollment in the department of the college. It was further mentioned that said adjustment could be made provided that the post which was originally sanctioned in some other department is not considered essential for that department. In terms with Sub-Clause (b) of Clause 4, it was stipulated that in case of any future vacancies of sanctioned posts in a particular department of the college, the teachers working without valid sanctioned post but appointed as per the procedures prescribed in Sub-Clause (a) of Clause 4 are to be adjusted in preference to fresh teachers. Further to that in terms with Sub-Clause (c) in order to accommodate the teachers working without a sanctioned post in a college Page No.# 6/30 where there is no vacant sanctioned post or where the number of vacant sanctioned post is less than the number of teachers proposed to be adjusted in conformity with the O.M. in question, the Director, Higher Education was authorized to withdraw vacant post from deficit-grant-aid-colleges where the students enrollment or other norms do not justify the total number of sanctioned post in that college. It was further mentioned that the Director, Higher Education would prepare a list of such vacant withdrawn post from different colleges giving necessary details. Thereafter he would consider the cases of all those teachers working without sanctioned post and appointed as per procedure as mentioned in Clause 4 (a) in order of their seniority of service for adjustment and send such proposal to the Government for approval. It was further mentioned that if vacant sanctioned post was available in a particular college for adjustment, such post against any eligible teachers working without a sanctioned post in that college, no additional allotment of post will be made to such colleges. Sub-Clause (d) of Clause 4 stipulated that the teachers working in a non-sanctioned post who would be adjusted against vacant sanctioned post would be required to qualify in the NET/SLET within 2 years, if they do not possess the same already. Otherwise their services will be discontinued and till then they would be entitled to basic pay only from the date of approval of the Director, Higher Education, Assam.
5. Therefore, perusal of the Office Memorandum dated 17/7/2004 would shows that the Government of Assam did not create any additional post but in terms to Clause 4 prescribed the manner in which the college teachers appointed to non-
Page No.# 7/30 sanctioned post could be adjusted against post from other department of the same college or future vacancies or post of other deficit-grant-in- aid-colleges where the students enrollment or other norms did not justify the total number of sanctioned post in that college. But the most pertinent aspect of the matter which also needs to be noticed here is that the teachers who were appointed against non sanctioned post were to be adjusted against sanctioned post provided the teachers were appointed by the respective Governing Bodies by observing due process i.e. advertisement, selection and having UGC norms. At this stage, it may also be relevant herein to mention that the University Grants Commission sets out the minimum qualification for appointment of teachers in Universities and Colleges and measures for maintenance of standards.
6. Pursuant to the said Office Memorandum being issued, the Director of Higher Education, Assam had issued a communication dated 20/7/2004 to all the Principals- In- Charge and Secretaries of the Governing Bodies of the deficit-grant-in-aid-colleges of Assam in connection with the accommodation of teachers working against non- sanctioned post in the deficit-grant-in-aid colleges. It appears from the records that the respective Governing Bodies of the Colleges submitted the recommendations in pursuance to the said O.M. dated 17/7/2004. A perusal of Annexure-8 (Colly) to the writ petition shows that various orders have been passed regularizing the services of the petitioners mentioned therein. The records further reveal that on 7 th of August 2015, the Petitioner No. 1 along with another submitted a representation to the Page No.# 8/30 Commissioner and Secretary, Higher Education Department requesting the said authority to count their seniority from the date of joining against the non-sanctioned post or the temporary post so that the teachers can get the facilities of Old Pension Scheme and promotion under Career Advancement Scheme. The record further reveals that on 30.12.2009, a provisional seniority list of lecturers working against non sanctioned post was published. It is the case of the petitioners that the petitioners' seniority should be calculated on the basis of their initial appointment to the non- sanctioned post and not from the date of regularization. It is under such circumstances, that the present writ petition was filed under Article 226 of the Constitution. This Court vide an order dated 5/12/2016 had issued Rule. It appears from the records that the names of the Petitioner Nos. 2, 4, 5, 14 & 15 were struck off by this Court pursuant to orders passed on 12.9.2017 in various Interlocutory Applications.
7. The Respondent No. 3 filed its affidavit-in-opposition. In the said affidavit-in- opposition, it was mentioned that the petitioners were engaged by the respective governing bodies of the colleges on need basis against non sanctioned post without the approval of the Government as per their internal arrangement of their respective Colleges. A total number of 189 colleges were provincialised by the Government w.e.f. 1/12/2005 under the Assam College Employees' (Provincialisation) Act, 2005. Pursuant thereto, in view of the orders dated 11/2/2003 and 25/7/2003 passed in W.P.(C) No.626 of 2002 & W.P.(C) No.2368/2002 respectively, wherein directions were issued Page No.# 9/30 to consider the matter for sanction of post to the college teachers serving against non- sanctioned posts, the Government of Assam, Higher Education Department had issued the Office Memorandum dated 17/7/2004. It was further mentioned that in pursuance to an order dated 14/5/2009 passed in W.P.(C) No. 1103/2009 and W.P.(C) No. 724/2009, a provisional seniority list of teachers have been published in the newspaper "The Assam Tribune" on 8/1/2010 and 9/1/2010. Thereafter final verification, a list of 354 numbers of teachers was submitted to the Government on 22/04/2010. It was mentioned that in compliance to the Government Office Memorandum dated 17/7/2004, the Government of Assam, Higher Education Department after obtaining concurrence of the Finance Department vide their U/O No. FSI160/2005 dated 23/9/2005 had allowed filing up of 187 numbers of vacant sanctioned post of lecturers in different Government grant-in-aid colleges by way of withdrawal for adjusting the services against the vacant sanctioned posts in equal number of lecturers working against non-sanctioned posts subject to the condition as per the Government Office Memorandum dated 17/7/2004. Thereafter 87 numbers of personal posts of lecturers were created by the Government and services of 89 numbers of lecturers working in non-sanctioned post were regularised against the said 87 numbers of personal posts sanctioned subject to the condition as per the Government Office Memorandum dated 17/7/2004. It has been further stated that the services of the petitioners were regularised as per the Government Office Memorandum dated 17/7/2004 and therefore, the Petitioners had accepted the Page No.# 10/30 conditions/procedures/modalities prescribed for adjustments of services of college teachers in the Government Office Memorandum dated 17/7/2004. It was further mentioned that in Assam, Colleges were provincialised as per the Assam College Employees' (Provincialisaton) Act, 2005. The Government had framed the Assam College Employees' (Provincialisaton) Rules, 2010 to regulate the conditions of services in Provincialised Colleges. Neither in the said Act nor in the Rules, there is any provision for regularisation of a lecturer appointed to a non-sanctioned post. Further there is also no provision regarding counting of period spent on irregular appointment i.e. the period spent in the non-sanctioned post/non-existent post. It was mentioned that the petitioners' services were regularized by way of adjustment against valid sanctioned post as per the Office Memorandum dated 17/7/2004. It has been therefore stated in the said affidavit in opposition that the seniority is to be counted from the date of regular appointment and the period spent on irregular appointment against non-existent post or non-sanctioned posts cannot be counted towards seniority. It is the case of the Respondent Department that giving seniority to fixed pay teachers from the date of initial appointment i.e. the period spent in non- existent post would be wrong as an unlawful act or benefit given to anyone cannot be a guiding precedent. It was further mentioned that some lecturers were appointed without requisite norms with fixed pay giving condition that they would get increment benefit from the date of acquiring norms. The petitioners' services were regularized by way of adjustment against the valid sanctioned post as per the O.M. dated 17/7/2004, Page No.# 11/30 which was a one-time decision to adjust the services to address their grievances of only an identified group of college teachers. The regularisation was done on persistent request by such teachers and not to correct irregularities and as such the seniority of such Assistant Professors ought to be counted from the date of appointment against sanctioned posts, provided they had secured qualification as per the UGC norms. Under such circumstances, the Respondent No.3 in their affidavit have stated that no fundamental or constitutional rights of the petitioners have in any manner been affected for which the writ petition ought be dismissed.
8. To the said affidavit in opposition, an affidavit-in-reply has been filed by the petitioners. In the said affidavit-in-reply, it has been mentioned that the petitioners were appointed as lecturers in their respective colleges pursuant to proper advertisement, selection process and interview and with necessary approval/concurrence of the governing bodies of the colleges. At the time of advertisement, the petitioners were otherwise qualified and eligible and found to be most suitable, meritorious by the constituted selection panel for the said purpose and were thereafter appointed and having been working continuously since the date of their initial joining both prior to and post their regularisation. It was also mentioned that the Office Memorandum dated 17/7/2004 nowhere laid down the procedures or modalities for teachers working against non-sanctioned post but rather allows the procedures for absorption of such teachers working against non-sanctioned post in the order of seniority as well as grant of period of 2 years for acquiring the requirement of Page No.# 12/30 NET/SLET by such teachers who have been absorbed against the O.M. dated 17/7/2004.
9. Mr. M. Sharma, the learned counsel for the petitioners submits that the petitioners were appointed as lecturers by the respective governing bodies of the colleges by observing due process i.e. advertisement, selection and having UGC norms as required. The appointments were not illegal but the same were irregular on account of their appointments to the post being not sanctioned. Subsequently by the act of regularisation the procedural irregularities were cured and as such the petitioners were entitled to have their seniority counted from the date of their appointment and not from the date of their regularization. He further submitted that a perusal of the Office Memorandum dated 17/7/2004 would clearly go to so that the Government had duly acknowledged the fact that since 1992 there was no post created which has resulted in the college authorities appointing various lecturers to non-sanctioned post. In order to cure the defect vide the Office memorandum what was done was adjustment against already sanctioned post in different departments of the same colleges, adjustment against future vacancies or adjustment from different grant-in-aid colleges. He therefore, submitted, as the petitioners services were regularized against sanctioned posts which came into being upon adjustment, the petitioners are entitled to seniority from the date of their initial appointment. In that regard, he referred to the judgment of the Constitution Bench of the Supreme Court rendered in the case of Direct Recruits Class II Engineering Officers Association Vs. State of Page No.# 13/30 Maharashtra reported in (1990) 2 SCC 715 and more particularly to paragraph 13, 47A and 47 B.
10. On the other hand, Mr. K. Gogoi, the learned counsel appearing on behalf of the Respondent no. 3 submits that the appointment of the petitioners were irregular which were regularized by various orders of regularization pursuant to the Office Memorandum dated 17/7/2004. Therefore the status of the petitioners' initial appointment were mainly on adhoc appointment as a stop gap arrangement and not made according to the Rules and as such the officiation in such post cannot be taken into account for considering the seniority. He further submitted that this arrangement which was adopted by the State Government on the basis of the Office Memorandum dated 17/7/2004 was a onetime measure adopted in pursuance to the orders dated 11/2/2003 and 25/7/2003 passed in W.P.(C) No.626/2002 and W.P.(C) No.2368/2002 respectively. This one time measure so adopted is not visualized as per the provisions of the Assam College Employees' (Provincialisaton) Act, 2005 as well as the Assam College Employees' (Provincialisaton) Rules, 2010 in as much as in the said Act and the Rules, there is no provision for regularization of non-sanctioned lecturers or such lecturers who were recruited against a non-existent post or a post which have not been sanctioned. He further submitted that the Act and Rules also do not contemplate counting of the period of service spent on irregular appointment i.e the period spent in non-sanctioned post/non-existent post. He has relied upon various judgment of this Court as well as of the Supreme Court to the effect that appointee under Regulation Page No.# 14/30 3(f) is not entitled to seniority w.e.f. from the date of his initial appointment and such appointee appointed on substantive basis and regularize thereafter on the recommendation of the Public Service Commission is entitled to seniority from the date of his substantive appointment/regularisation. In that regard, he relied upon the following judgments of the Division Bench of this Court in the case of
1) Anup Kr. Das(DR) Vs. Sanjib Kakoti (DR) & Ors reported in 2000 (1) GLT 429;
2) Nabin Ch. Bordoloi vs State of Assam and Ors 2003 reported in (2) GLT 147;
(3) Pranjit Kr. Das Vs. State of Assam & Ors. reported in 1995 (1) GLR
229.
11. Referring to the judgment of the Constitution Bench of the Supreme Court rendered in the case of Direct Recruits Class II Engineering Officers Association(supra), the learned counsel submitted that when the initial appointment is only adhoc and not according to Rules and made as a stop- gap arrangement, the officiation in such a post cannot be taken into account for considering the seniority. He further relied upon the judgment of the Supreme Court in the case of Union of India Vs. Sri S.K. Sharma reported in (1992) 2 SCC 728 to the effect that if the initial appointment is not made according to the Rules, subsequent regularisation of his services does not entitle an employee to the benefit of seniority. The seniority has to be reckoned from the date of regular appointment and not to be counted from the Page No.# 15/30 date of any stop gap appointment. Again relying upon another judgment of the Supreme Court in the case of State of West Bengal & Ors. Vs. Aghore Nath Dey and Ors. reported in (1993) 3 SCC 371, the learned counsel submitted that a perusal of paragraph 22 to 25 of the said judgment would clearly show that in terms with the law laid down therein, the petitioners' initial appointment being against non- existing vacancies, the petitioners would not be entitled to the benefit of paragraph 47B of the judgment in the case of Direct Recruits Class II Engineering Officers Association(supra). The learned counsel further relied upon another judgment of the Supreme Court rendered in the case of V. Srinivasan Reddy and Ors. Vs. The Government of A.P. and Ors reported in 1995 Suppl. (1) 572 and referred to paragraph 14, 15, 31 and 32. Further to that the learned counsel while drawing the attention of this court to the order of regularisation of the petitioners further drew the attention to Clause No. 5 of the said orders of regularisation. He submits that the petitioners having given an undertaking that they joined the services of the State Government on or after 1st of Febrary,2005 and shall not be governed by the existing Assam Services (Pension) Rules, 1969 and would be governed by the new Pension Rules formulated in line with the Contributory Pension Scheme of the Government of India and as such the petitioners now cannot claim that they should be given the seniority from the date of their initial appointment so that they can avail the retiral benefits as per the Old Pension Scheme. In that regard, the learned counsel referred to the judgment of the Supreme court rendered in the case of Surender Kr. and Page No.# 16/30 Ors. Vs. Greater Noida Industrial Development Authority and Ors. reported in (2015) 14 SCC 382 and referred to paragraph No. 14 of the said judgment. He also referred to another judgment of the Supreme Court rendered in the case of MP Palanisamy Vs. A. Krishnan reported in (2009) 6 SCC 428 and relied upon paragraph Nos.29 and 30 in support of the proposition that once the regularization orders have been accepted by writ petitioners which were conditional, then it has to be borne in mind that they have accepted the conditions also.
12. From the facts narrated hereinabove and taking into consideration the contentions so made by the learned counsel for the parties, this Court for the purpose of adjudication of the issue involved in the instant proceedings would like to take into consideration the status of the employment of the petitioners prior to being regularized in pursuance to the various orders of regularization enclosed as Annexure- 8 (Colly). The petitioners have enclosed to the writ petition various copies of the advertisements marked as Annexure-3(Colly). From a perusal of the said advertisements, it would be clear that the said advertisements were issued calling for candidates to the post of Lecturer against non-sanctioned post. On the basis of the said advertisements, the petitioners applied and on the basis of the resolutions of the Governing Bodies of the respective Colleges, the petitioners were appointed against non-sanctioned post. The appointment letters of the petitioners are available as Annexure-6(Colly). In some of the appointment letters, it has been mentioned that their appointments were purely temporary and the services of the petitioners may be Page No.# 17/30 terminated at any time without showing any reasons. Therefore, at the time of the petitioners' appointments, they knew it very well that their services were temporary in nature and were appointed against non-sanctioned post.
13. It appears from the records that the petitioners continued to serve in their respective Colleges thereafter without any break. The reason why the office Memorandum dated 17/7/2004 was issued is not disputed, for which it is relevant for the purpose of the instant case to take note of. It appears from the Office Memorandum that there were 300 college teachers found to be serving in different Degree Colleges(deficit-grant-in-aid college) of Assam since 1989 serving for 5 to 14 years without any valid sanctioned posts. It has been admitted in the said Office Memorandum that the said teachers were appointed by the respective Governing Bodies of the Colleges on the need basis as per the UGC guidelines. The Government also accorded concurrence to the subjects against which they were appointed and these teachers have been performing similar responsibilities like those teachers who have been working against sanctioned post in the colleges. It further appears from the Office Memorandum that the Government have not sanctioned any additional post to the deficit grant-in-aid colleges since 1992, although 52 number of colleges were brought under the deficit grant-in-aid by the Government since 1992. It is however, essential to take note of that the Government had not sanctioned any additional post of lecturers since 1992 over and above originally allocated sanctioned post and as a result of which the college authorities appointed lecturers without valid sanctioned Page No.# 18/30 post and beared the additional financial burden. It is the specific case of the petitioners that in pursuance to this Office Memorandum their services have been regularized. So admittedly the petitioners were appointed against non-existing post in so far as the Government is concerned.
14. It further appears from the Office Memorandum that various teachers have approached this Court and this Court vide orders dated 11/2/2003 and 25/3/2003 in W.P.(C) No. 626/2002 and W.P.(C) No. 2368/2002 directed the Government to consider the matter for sanction of the post to the college teachers serving without any sanctioned post. It could therefore be seen that it is at the intervention the of the Court that the Office Memorandum dated 17/7/2004 was issued. A further perusal of the Office Memorandum would show that the State Government had made it clear that the State Government was not in a position to sanction any new post for the colleges to accommodate the college teachers who were serving without sanctioned post. But on account of a cabinet decision being taken on 9/6/2004, certain procedures/modalities were prescribed for adjustment of services of the college teachers working without sanctioned post which has been specifically mentioned in Clause 4 of the Office Memorandum. This aspect of the matter has also been specifically dealt with in the previous paragraphs of the instant judgment. In short the procedures/modalities so prescribed in the Office Memorandum dated 17/7/2004 was adjustment against vacant post in a particular department lying in the same college subject to the college teachers were appointed by observing due process i.e. Page No.# 19/30 advertisement, selection and having UGC norms or adjustment against future vacancies of sanctioned post and preference be given to such college teachers working in non-sanctioned post to fresh teachers or accommodate the teachers working without a sanctioned post by adjusting/withdrawing vacant post from deficit grant-in-aid colleges where students enrollment or other norms do not justify to the total number of sanctioned post in that college. Further to that the teachers working under non-sanctioned post who would be adjusted against the vacant sanctioned post will be required to qualify in the NET/SLET within two years, if they do not possess the same already, otherwise their services would be discontinued and till then they would be entitled to basic pay only from the date of approval of the Director, of Higher Education, Assam.
15. At this stage, it would be further relevant to take note of the affidavit-in- opposition filed by the Respondent No. 3 i.e. the Director of Higher Education, Assam. It has been mentioned that in pursuance to the Office Memorandum dated 17/7/2004, the Government of Assam, Higher Education Department after obtaining concurrence of the Finance Department dated 23/9/2005 had allowed filing up of 187 numbers of vacant sanctioned posts of lecturers in the different grant-in-aid colleges by way of withdrawal or adjusting the services against the vacant sanctioned post in equal number of lecturers working against non-sanctioned post. Another aspect of the matter which also needs to be taken into account, as would be seen from the affidavit-in-opposition, was that 87 number of personal posts of lecturers were created Page No.# 20/30 by the Government and services of 89 numbers of lecturers working against non- sanctioned post were regularized against 87 numbers of personal post subject to the conditions as per the Government Office Memorandum dated 17/7/2004. At this stage, it may be pertinent also to note that the creation of additional personal post was not within the scheme of the Office Memorandum dated 17/7/2004, as the modalities prescribed in the said Office Memorandum was either adjustment against sanctioned post of a different department in the same college or against future vacancies or against sanctioned post in different deficit-grant-in-aid colleges where the students enrollment or other norms do not justify to the total number of sanctioned post in that college. This aspect of the matter would also be further clear from a reading of the orders of regularization which have been enclosed as Annexure-8(Colly) to the writ petition. The details whereof is as under :-
(i) The petitioner No. 1 was regularised by creation of a personal post of Assistant Professor in Economics vide an order dated 24/5/2012. The post in question was created on 19/5/2012.
(ii) The petitioner No. 2 was regularised vide order dated 17/8/2011 against the vacant post converted from the Economics Department.
(iii) The petitioner No. 3 was regularised vide an order dated 29/10/2009 against retiral vacancy arising out of the retirement of Sri Pratap Ch. Das.
(iv) The petitioner No. 4 was regularised against a retiral vacancy arising due to the retirement of one Lohit Ch. Baruah vide an order dated 17/7/2011.
Page No.# 21/30
(v) The petitioner No. 5 was regularised against the retiral vacancy arising pursuant to the retirement of one S.K. Mahbub Rahman on 1/3/2012.
(vi) The petitioner No. 7 was regularised vide an order dated 9/5/2007 against a sanctioned post converted from the Department of Political Science to the Department of Mathematics by order dated 4/7/2006.
(vii) The petitioner No. 9 was regularised against the vacant post converted from the History Department vide an order dated 17/8/2011.
(viii) The petitioner No. 10 was regularised on 8/9/2010 against the vacant post arising pursuant to the retirement of one Chandra Kanta Talukdar.
(ix) The petitioner No. 12 was regularised vide an order dated 1/9/2012 against the retiral vacancy arising out of the retirement of one Radhika Ch. Das.
(x) The petitioner No. 13 was regularised against the converted post from the department of Assamese vide an order dated 8/9/2010.
16. Therefore, it would be seen that it is only upon adjustment by conversion of a post or against a retiral vacancy or against a personal post being created, the services of the petitioners were regularized vide the various orders above mentioned.
17. Now the question therefore arises as to when is the entry of the petitioners into the services of the Government. It is no longer res intergra that the right to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, this right, including the right to salary springs from a valid and legal Page No.# 22/30 appointment to the post. To answer the said question, it is required to take into consideration whether the petitioners' services upon being regularized by various orders Annexure 8(Colly) could be said to be regularizing the irregularity in initial appointment. The Constitution Bench of the Supreme Court in Secretary, State of Karnataka Vs. Umadevi(3) reported in (2006) 4 SCC 1 while distinguishing the concept of regularization with permanence observed that only something i.e. irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that is alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. In paragraph 17 of the said judgment, it was further observed by the Supreme Court that the constitutional scheme of public employment in the country and the Executive or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. It was further observed that the right of the Executive or that of the Court would not extend to the Executive or the Court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory Rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent. Paragraph 15 to 17 of the said judgment is quoted herein below :-
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service Page No.# 23/30 jurisprudence. In State of Mysore v. S.V. Narayanappa11 this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa v. T. Thimmiah12 this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This Court stated: (SCC pp. 416-17, para 26) "Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
16. In B.N. Nagarajan v. State of Karnataka8 this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.
17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an Page No.# 24/30 appointment made after following the due procedure, even though a non- fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent."
18. Now in the backdrop of the above, it can be said that the initial appointments of the petitioners was irregular for want of compliance with one of the elements with the process of selection which does not go to the root of the process, more so when their appointment was to non-sanctioned post. The Supreme Court in the case of State of Bihar & Ors. Vs. Devendra Sharma reported in (2020) 15 SCC 466 observed at paragraph 44 which is quoted herein under :-
"44. In view of the aforesaid judgments, it cannot be said that the appointment of the employees in the present set of appeals were irregular appointments. Such appointments are illegal appointment in terms of the ratio of the Supreme Court judgment in Umadevi (3)13. As such appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. Such appointments were back door entries, an act of nepotism and favouritism and thus from any judicial standards cannot be said to be irregular appointments but are illegal appointments in wholly arbitrary process."
19. In the opinion of this Court the appointments of the petitioners cannot be said to be irregular which could have been regularized stricto sensu speaking. However, the legality of the orders of regularization of the petitioners being not a subject matter of the instant writ petition, this court would not like to further deal with the said aspect of the matter.
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20. Be that as it may, it is pertinent to note that the petitioners therefore, would be deemed to have entered into the services of the Government only by virtue of the orders of regularisation against substantive posts vide the various orders of regularization as already above mentioned. The Supreme Court in the case of Devendra Sharma(supra) while approving the observations of the Full Bench of the Patna High Court in the case of Rita Mishra Vs. Director, Primary Education reported in AIR 1988 Patna 26 which was made to the effect that the right to salary stricto sensu springs from a legal right to validly hold the post for which the salary is claimed and it is a right consequential to a valid appointment to such post; observed that where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. Paragraph Nos. 36 and 37 of the said judgment are quoted herein below:-
"36. We do not find any merit in the said argument. A Full Bench of the High Court in Rita Mishra v. Director, Primary Education26 while dealing with appointment in the Education Department claiming salary despite the fact that letter of appointment was forged, fraudulent or illegal, declined such claim. It was held that the right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is a right consequential to a valid appointment to such post. Therefore, where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.
37. Such judgment of the Full Bench was approved by the three-Judge Bench of this Court in R. Vishwanatha Pillai v. State of Kerala. This Court Page No.# 26/30 held as under:
"17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education26. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (SCC OnLine Pat para 13: AIR p. 32, para 13) '13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it."
21. Therefore, the regularization of the petitioners upon creation/adjustment of sanctioned post has to be the date on which the Petitioners have been legally inducted into the services of the Government inasmuch as when the petitioners were initially appointed they were appointed against non-sanctioned post. Therefore, the question of granting seniority to the Petitioners from the time they were initially appointed to non-sanctioned post does not arise.
22. The above opinion of this Court further stands supported by the recent judgment of the Supreme Court in the case of Nand Kumar Manjhi Vs. State of Bihar and Ors. reported in (2019) 14 SCC 67. In the said case, the Supreme Court while taking into consideration a dispute pertaining to inter se seniority, held that the seniority of the appellants before the Supreme Court can be reckoned only from the date of regularization of their services w.e.f. 3/10/2005 and not from the date of their Page No.# 27/30 initial appointment on 13/4/1998 as claimed by them.
23. Relevant herein to take note of that the appointment of the appellants before the Supreme Court were made beyond the vacancies advertised, which was in contravention to well settled principles of law. The Supreme Court had at paragraph 10.11 to 10.13 taken into consideration that there was a proposal to regularize the services of the appellants therein were initiated, whose appointment were illegal, taking a humanitarian view of the matter since by then the appellants had already served for almost 17 years. In the proposal, it was mentioned that the appointment of the appellants as ACF in 1988 was irregular, however, cancellation of their appointment at that junction would result into further litigation for which the State granted confirmation to the appellants vide the notification dated 4/10/2010 w.e.f. the date of their regularization dated 3/10/2005. It is under such circumstances that in paragraph 10.14 the Supreme Court observed that the appellants therein were not entitled to seniority from the date of their initial appointment but from the date of their regularization in services. Paragraphs 10.11 to 11 of the said judgment is being relevant are quoted herein below:-
"10.11. While the recruitment process pursuant to the 1987 advertisement was underway, the State requested the Commission to forward 13 names from the list against the 1985 advertisement, which stood exhausted. The Commission forwarded the names of the appellants, and some others purportedly from the list prepared pursuant to the 1985 advertisement vide letter dated 20-2-1988. This whole process was completely illegal, as the list of 1985 had got exhausted. 10.12. In 1987, 52 Forest Rangers were promoted as ACFs. Further appointments were made through direct recruitment and promotion in Page No.# 28/30 1990, 1992 and 1995.
10.13. A proposal to regularise the services of the appellants was initiated, taking a humanitarian view of the matter, since by then the appellants had already served for almost 17 years. In the proposal, it was mentioned that the appointment of the appellants as ACFs in 1988 was "irregular". However, the cancellation of the appointments at this juncture would result in further litigation, since it was made on the basis of a letter from the Commission. The proposal was approved by the Governor on 3- 10-2005. The State granted confirmation to the appellants vide Notification dated 4-10-2010 w.e.f. from the date of their regularisation i.e. 3-10-2005.
10.14. The State published the final seniority list on 2-7-2010. The appellants were placed at the bottom of the seniority list at Serial Nos. 321 to 338 i.e. below the 1987 promotees, the direct recruits as well as promotees of 1990, Respondent 10 -- Hemkant Rai, the 1992 promotees, and promotees of 1995 on the basis of the date of regular appointment as ACF.
10.15. The appellants raised objections to their position on the seniority list, and claimed seniority from the date of their initial appointment on 13- 4-1988 and continuous officiation till their regularisation w.e.f. 3-10-2005.
11. In the aforesaid background facts, the Patna High Court was fully justified in dismissing the writ petitions and the letters patent appeals filed by the appellants. The High Court rightly held that the seniority of the appellants can be reckoned only from the date of their regularisation in service w.e.f. 3-10-2005, and not from the date of their initial appointment on 13-4-1988, as claimed by them. The appellants had secured an illegal appointment in 1988 through the backdoor, which was wholly illegal and dehors the statutory rules. Their services came to be regularised only on 3-10-2005. As per Rule 35 of the Bihar Forest Service Rules, 1953 the seniority of officers shall be determined with reference to the date of their substantive appointment to the service. Hence, the claim for seniority from the date of their initial appointment was wholly untenable, misconceived, and contrary to statutory rules."
24. A perusal of the instant facts would also show that the petitioners were appointed against non-sanctioned post, their appointments were illegal, however taking into consideration that various college teachers were working from 5 to 14 Page No.# 29/30 years, a decision was taken by the Government of Assam pursuant to the order passed by this Court vide the Office Memorandum dated 17/7/2004 to regularize the services of various college teachers appointed to non-sanctioned by adjusting against sanctioned post of different department of the same college or future vacancy or sanctioned post of different deficit grant in aid colleges. Further to that the Government also created additional personal post to accommodate such teachers. Under such circumstances, this Court is of the opinion that the ratio laid down by the Supreme Court in Nand Kumar Manjhi(supra) squarely applies to the facts of the instant case. Consequently, the Petitioners shall be entitled to seniority only from the date of their order of regularization and not from the date of their initial appointment in the respective colleges. This Court therefore does not find any merit in the instant writ petition for which the instant writ petition stands dismissed. No costs.
25. It is clarified that the observations made herein above is only in relation to adjudication of the question involved in the instant proceedings and under no circumstances, it should be construed that this Court had dealt with the legality and/or validity of the orders of regularization of the petitioner.
26. It is further clarified that Mr. K. Gogoi, the Standing Counsel for the Higher Education Department had made various submissions relating to the acceptance of the conditional order of regularization by the Petitioners for which the Petitioners were estopped from raising the issue of seniority from their date of initial appointment and their claim to pension as per the Old Pension Scheme. Taking into consideration that Page No.# 30/30 the writ petition has been disposed off on the basis of the above observations, this Court did not find it necessary to deal with the said submissions.
JUDGE Comparing Assistant