Gauhati High Court
Page No.# 1/15 vs The State Of Assam And 5 Ors on 20 March, 2023
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/15
GAHC010047292023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1275/2023
MD. ABDUL AZIZ ALI AND 5 ORS
SON OF LATE NURUL ISLAM
RESIDENT OF VILL- 1 NO. MIRIHULA VILLAGE
P.O- MORANHAT
DIBRUGARH
PIN-CODE- 785670
2: MS MANASHREE DUTTA
DAUGHTER OF SHRI BIPIN KUMAR DUTTA
RESIDENT OF NEAR HANUMAN MANDIR
TARAJAN PATH
JORHAT
P.O- JORHAT
P.S- JORHAT
PIN-CODE- 785001
3: ARUP KAR
SON OF LATE ASHIT KAR
RESIDENT OF VILL- 2 NO. KEREKONI
P.O- BHADOI PANCHALI
DIST- DIBRUGARH
PIN-CODE- 786191
4: PRAGYAN JYOTI BORAH
SON OF PRANABJYOTI BORAH
RESIDENT OF VILL- KAKOTIBARI
P.O- KAKOTIBARI
DISTRICT- CHARAIDEO
PIN-CODE- 785691
5: HEMANTA KUMAR PATHAK
SON OF NOGENDRA NATH PATHAK
RESIDENT OF VILL- ULUBAM
P.O- KHETRI
DISTRICT- KAMRUP (M)
Page No.# 2/15
PIN-CODE- 782403
6: ANUP DAS
SON OF TAPAN DAS
RESIDENT OF VILL- PUTHIMARI
P.O- ODALGURI
P.S- PATACHARKUCHI
DISTRICT- BARPETA
PIN-CODE- 781325
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
DEPARTMENT OF HIGHER EDUCATION
DISPUR
GUWAHATI- 781006
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPARTMENT
GOVT. OF ASSAM
DISPUR
GUWAHATI- 781006
3:THE DIRECTOR OF TECHNICAL EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
4:THE ASSAM ENGINEERING SERVICE RECRUITMENT BOARD
ASSAM TEXTILE INSTITUTE CAMPUS
AMBARI
GUWAHATI REPRESENTED BY ITS CHAIRMAN
5:THE ASSAM PUBLIC SERVICE COMMISSION (APSC)
KHANAPARA
GUWAHATI-22 REPRESENTED BY ITS CHAIRMAN OR SECRETARY
6:THE PRINCIPAL
DHEMAJI ENGINEERING COLLEGE
DHEMAJI
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
HIGHER EDU appearing for THE STATE OF ASSAM AND 5 ORS
Page No.# 3/15
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
20-03-2023 Heard Mr. K. N. Choudhury, learned Sr. Counsel, assisted by Mr. S. Hazarika, learned counsel for the petitioners. Also heard Mr. D. Saikia, Learned, Advocate General Assam, assisted by Mr K.Gogoi, landed standing counsel Higher Education, Assam for the respondent Nos. 1 to 4.
Petitioners herein are serving as Assistant Professors of Dhemaji Engineering College, Dhemaji under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 on ad-hoc basis and are aggrieved by the Notice under No. AESRB/023/2022/249 dated 21.02.2023 issued by the Chairman, Assam Engineering Service Recruitment Board, Guwahati inviting online applications in its website https://www.aesrb.in from the permanent residents of Assam having requisite qualification for recruitment to the 46 (forty six) numbers of vacant posts of Assistant Professors in the Government Engineering Colleges under the Higher Education (Technical) Department of Assam stating that those 46 vacant posts as advertised also include the posts in which they are serving in the Dhemaji Engineering College, Dhemaji on ad-hoc basis appointed under Regulation 3(f) of APSC (L&F) Regulations, 1951.
On 13.03.2023, this matter and the other connected matters were heard at motion stage and was fixed on 28.03.2023 for orders. But learned counsels for the petitioners later placed before the Court that 20.03.2023 is the last date of submission of application form pursuant to the impugned advertisement dated 21.02.2023. Hence these matters have listed today for orders.
It is contended by the petitioners that the Dhemaji Engineering College, Dhemaji was newly established and the Director of Technical Education, Assam (hereinafter referred to as the DTE) on 07.02.2020 vide No. 01/2020 in its website https://dte.assam.gov.in issued a notice regarding recruitment for Dhemaji Engineering College, Dhemaji stating that said Engineering College under it shall be made functional from August, 2020. By the said recruitment notice the DTE, Assam on behalf of Higher Education (Technical) Department of the State invited applications from the permanent residents of Assam for appointment to the nineteen posts of Assistant Professor (Technical), eight posts of Assistant Professor (Non-Technical) and six posts of Page No.# 4/15 Senior Instructors, in total 33 posts in the Scale of Pay and Grade Pay as indicated against the respective posts along with usual allowances as admissible under the Rules of the Government of Assam, specifying that those posts will be filled up under said Regulation 3(f) of the APSC (L&F) Regulations, 1951 and further indicating that the appointment shall be purely on ad-hoc basis for a period of 4 (four) months as per said Regulation 3(f) of 1951 APSC Rules.
By the said Recruitment Notice dated 07.02.2020 the DTE, Assam notifying the candidates to apply online in its official website and intimating that online application will start from 10.02.2020 and will remain open till 03.03.2020 and that the candidate must not be less than 21 years and more than 38 years as on 01.01.2020, where upper age limit was relaxed as per existing Government Rules.
Subsequent to that the DTE, Assam again issued an important Notice regarding the said recruitment in said Engineering College, amongst others, clarified that the upper age limit is relaxable to the extent - (i) five years for SC/ST(P)/ST(H) candidates, i.e., upto 43 years; (ii) three years for OBC/ MOBC candidates i.e., upto 41 years and (iii) ten years for Persons with Disability (PwD) candidates i.e., upto 48 years irrespective of SC/ST/OBC and General Category candidates observing that the Rules and Regulations/ Notifications/Orders issued by the Government of Assam from time to time will prevail in case of any discrepancy.
By the said important notice the DTE, Assam notified the reservations for the post of Assistant Professor (Technical) where for the six posts of Assistant Professor (Technical) in Civil Engineering, three were for unreserved candidates, two for OBCs and one for ST(P); for the six posts of Assistant Professor (Technical) in Mechanical Engineering, three were for unreserved candidates, two for OBCs, one for ST(P); for the six posts of Assistant Professor (Technical) in Computer Science Engineering, three were for unreserved candidates, two for OBCs and one for ST(P) and d for the lone post of Assistant Professor (Technical) in Electrical Engineering, it was for unreserved category. The remaining advertised posts of Assistant Professor of Non-Technical and Senior Instructor were earmarked for unreserved category clarifying that reservation of women candidates will be as per prevailing Government Rules.
By the said Important Notice, the DTE, Assam prescribed the Educational Qualifications for each branch of Assistant Professor of Technical and Non-Technical as well as the Senior Instructor for Dhemaji Engineering College, Dhemaji that were advertised on 07.02.2020.
Page No.# 5/15 With regard to the posts of Assistant Professor (Technical and Non-Technical) advertised on 07.02.2020 for ad-hoc recruitment in said Dhemaji Engineering College, Dhemaji; the DTE, Assam on 02.03.2020 notified that all those applicants who had successfully submitted their applications through online, candidature for the post shall be shortlisted on the basis of their performance in the Written Test on the relevant Branch/Subjects having a total numbers of 100 MCQs from the relevant Branch/Subject that shall be for a duration of two hours, where every correct answer will be awarded with four marks and for every wrong answer one mark shall be deducted. In the said Notice dated 02.03.2020 the DTE prescribed the syllabus for the said written test clarifying that the short listed candidates will be called for document verification before final selection.
On 30.07.2020, the DTE, Assam issued a Notice directing the candidates who have filled up their forms for the post advertised on 01.02.2020 for recruitment in said Dhemaji Engineering College, Dhemaji shall have to upload the scanned copies of their relevant documents relating to their academic qualification, permanent resident of Assam etc. by logging into the website of the DTE, Assam observing that only the eligible candidates will be allowed in the recruitment test and that the link for such uploading will be available from 01.08.2020 till 14.08.2020. The DTE, Assam on 18.08.2020 by a Notice further extended the said time period for uploading upto 30.08.2020.
The Written Test for the posts advertised by the DTE, Assam on 07.02.20303 vide Advertisement No.01/2020 for Dhemaji Engineering College, Dhemaji under Regulation 3(f) of said 1951 APSC Regulations were held on 18th, 19th and 20th January, 2021 and the DTE, Assam on 01.02.2021 declared the result of the same by uploading it in its website.
The DTE, Assam in its website on 01.02.2021 issued a Notice attaching two Annexures notifying the Roll Nos. of the shortlisted candidates in the relevant Branches/Subjects for the post of Assistant Professors (Technical and Non-Technical) in Dhemaji Engineering College, Dhemaji and intimating those shortlisted candidates to submit their relevant documents and others in original before the authority concerned on the relevant dates so fixed and notified.
On 03.02.2021, the DTE, Assam issued another notice for recruitment of Faculty attaching two Annexures notifying the additional candidates with their Roll Nos. in the relevant Branches/Subjects for the post of Assistant Professors (Technical and Non-Technical) in said Engineering College, Dhemaji directing those candidates to submit their relevant documents in original and others before the authority concerned on the date so fixed.
Page No.# 6/15 The Commissioner & Secretary to the Government of Assam in the Higher Education Department vide Notification No.ATE.07/2020/Pt/58 dated 17.02.2021 temporarily appointing twenty seven as Assistant Professors, including the petitioners herein, out of which, nineteen in Technical Engineering and eight in Non-Technical, at Dhemaji Engineering College, Dhemaji under said Regulation 3(f) of APSC Rules 1951 in the Pay Scale of Rs. 57,000/- to Rs. 1,82,400/- per month plus other allowances as admissible, for a period of four months only w.e.f., the date of their joining, directing them to join their respective duties within 15 days from the date of issuance of the said Notification.
By notifications dated 04.10.2021, 02.02.2022, 24.03.2022, 06.06.2022, 02.08.2022 and 01.10.2022 services of twenty one Assistant Professors (Technical and Non-Technical) including the petitioners, out of 27 numbers of Assistant Professors of Technical and Non-Technical appointed on ad-hoc basis in said Engineering College at Dhemaji, noted above were extended periodically by the State Government in the Higher Education (Technical) Department under said Regulation 3(f) of said 1951 APSC Regulations. Further, the State Government in the Higher Education (Technical) Department by Notification dated 10.01.2023, extended fifteen such Assistant Professors (Technical and Non-Technical) out of those 27 Assistant Professors, including the petitioners, appointed at said Engineering College, Dhemaji under Regulation 3(f) of said 1951 APSC Regulations on 17.02.2021.
Petitioners submitted that prior to their initial appointment on 17.02.2021, noted above, the State Government in the Higher Education (Technical) Department vide communication No.ATE.187.2015/88 dated 06.02.2020 informed the Accountant General (A&E), Assam about the creation of one hundred and eleven numbers of posts for Dhemaji Engineering College, Dhemaji that had concurrence of the Finance (EC-III) and Finance (SIU) Department by their letters dated 04.02.2020 and 03.02.2020 respectively that includes 27 posts of Assistant Professors, six in Civil Engineering, six in Mechanical Engineering, six in Computer Science and Engineering, one in Electrical Engineering, two each in Physics, Chemistry and Mathematics and one each in English and Humanities/Commerce in the Scale of Pay of Rs.57,000/- to Rs.1,82,400/-.
Petitioners also contended that the State Government in the Higher Education (Technical) Department vide communication No.ATE.07/2020/Pt/59 dated 15.12.2021 issued a Notification approving the ex-post-facto appointment of twenty one Assistant Professors of Technical and Non- Technical, including the petitioners, in Dhemaji Engineering College, Dhemaji appointed under Page No.# 7/15 Regulation 3(f) of APSC (L&F) Regulations 1951 w.e.f., the date of their joining on usual pay and allowances as admissible.
Petitioners submitted that though the advertisement No.01/2020 for recruitment as Assistant Professors of Technical and Non-Technical in Dhemaji Engineering College, Dhemaji was on ad-hoc basis for a period of four months as per Regulation 3(f) of 1951 APSC (L&F) Regulations but they have been appointed after due process of advertisement and selection through written examination, against sanctioned posts, following the reservation policy under the Rules of the Government and as can be seen from the said letter dated 06.02.2020, noted above, where the State Government in the Department of Higher Education (Technical) by aforementioned Notification dated 15.12.2021 approved their appointment ex-post-facto from the date of their joining on usual pay and allowances as admissible, paying them regular Scale of Pay of Rs. 57,000/- to Rs. 1,82,400/- per month with all other allowances as admissible under the Rules from their date of joining and therefore, it can be well determined that appointment of the petitioners on 17.02.2021 were made against permanent sanctioned posts.
Petitioners submitted that earlier the Court by an order dated 24.06.2022 passed in WP(C) No. 4217/2022 (Sri. Rahul Nath and 26 Ors. -Vs- the State of Assam and Ors.) in the interim observed that the posts of the petitioners shall be kept outside the purview of the posts advertised mentioned in the said order and later by a common order dated 29.09.2022 passed in the leading case WP(C) No. 4182/2022 disposed of all those matters as infractuous as during pendency of those writ petitions, the State Government had withdrawn the advertisement challenged in those cases.
Petitioners submitted that having participated in a selection process, they should not be made to undergo another selection process for filing up same vacant post.
Petitioners also stated that the State Government in the Higher Education (Technical) Department vide No. ASE.626/2021/3 dated 15.12.2021 issued an Office Memorandum notifying that any Government employee who has been selected and appointed for any State Government job under Education Department, both teaching and non-teaching is not allowed to apply for any other State level Government Job in the same position/grade up to a maximum of three years and in case it is detected that any such State Government Employee has violated the said O.M., then appropriate departmental action will be taken against the employee concerned, where the said O.M was issued superseding the earlier O.M. communicated vide Memo No. ASE.262/2016 dated Page No.# 8/15 25.06.2016.
Petitioners submitted that in view of such bar imposed by the State Government in the Higher Education (Technical) Department through its said O.M. dated 15.12.2021, they lost their opportunities to apply for any other job in the State Government pursuant to their appointment on 17.02.2021.
Stating that they are the founder Assistant Professors (Technical) of the newly started Dhemaji Engineering College, Dhemaji since its inception and the requirement of their said services being acknowledged by the Government of Assam by way of extending their services from time to time and also by according ex-post-facto approval, but due to said bar imposed by O.M. dated 15.12.2021 most of the petitioners have crossed the upper age limit prescribed for participating in any other Government job in the same grade.
Relying on an additional affidavit filed on 13.03.2023 by petitioners in one of the connected cases in WP(C) No. 1264/2023, the petitioners have submitted that the impugned advertisement under No.AESRB/022/ 2022/248 dated 21.02.2023 issued by the Chairman, Assam Engineering Service Recruitment Board, Guwahati for the sixty one vacant post of Assistant Professors of Government Engineering Colleges of Assam is not sustainable in law.
Placing the provisions of Article 320 of the Constitution of India, petitioners submitted that it is the duty of the Union and State Public Service Commission to conduct examination for appointment to the services of the Union as well as the services of the State as per the provisions of the Article 320. With regard to the direct recruitment of Teachers and Faculties in the Government Engineering Colleges and Engineering Institutes in the State of Assam, petitioners stated that those are regulated by the provisions of the Assam Technical Education Service Rules, 1981. Rule 6 (1) of said 1981 Rules specifically provides that sub-Rule (2) of Rule 11, Direct Recruitment to the cadres as mentioned in sub-Rules (4) and (5) of Rule 5 as provided in said 1981 Rules, shall be made by the Governor on the basis of recommendation by the Commission.
Petitioners contended that by framing the Assam Engineering Service Recruitment Board Regulations, 2021 under the proviso to Article 309 of the Constitution of India, the State Government in the Higher Education (Technical) Department in the case in hand cannot take away the power of the Commission, i.e., the Assam Public Service Commission for direct recruitment to the post of Assistant Professors (Technical and Non-Technical) and Lecturers in Page No.# 9/15 Government Engineering Colleges/Polytechnics of the State, as the case may be.
Relying on the decision of the Hon'ble Apex Court in the cases of Ashok Lanka -Vs- Rishi Dixit, reported in (2005) 5 SCC 598 and Raminder Singh -Vs- State of Punjab, reported in (2016) 16 SCC 95 petitioners submitted that if any advertisement is dehors the Constitution/Statute/Rules, the same is bad in law.
Petitioners have also placed reliance on the judgments of the Hon'ble Apex Court in the cases of Pratap Kishore Panda -Vs- Agni Charan Das, reported in (2015) 17 SCC 789, Pournami Oil Mills -Vs- State of Kerela, reported in 1986 Supp 1 SCC 728, Mukul Saikia -Vs- State of Assam, reported in (2009) 1 SCC 386, Rai Saheb Ram Jawaya Kapur and Others -Vs- State of Punjab, reported in AIR 1955 SC, State of Karnataka -Vs- Uma Devi, reported in (2006) 4 SCC 1.
Relying on a Judgment dated 21.06.2022 passed by a co-ordinate Bench of this Court in WP(C) No.493/2018 (Asomi Gogoi -Vs- State of Assam and 5 Others) petitioners submitted that the appointment of the petitioners though made under Regulation 3(f) of the 1951 APSC (L&F) Regulations but their appointments being followed by advertisement and selection and, through written examination and therefore should be considered as regular appointment against sanctioned posts.
Stating all the above, the petitioners submitted that their appointments cannot be said to be temporary but against permanent and sanctioned post. As such, the petitioners have prayed for issuance of a writ in the nature of Certiorari/Mandamus and/or any other appropriate Writ, order or direction of like nature, as the case may be, amongst others (a) to set aside and quash the impugned Advertisement No.AESRB-01/2023 dated 21.02.2023 issued by the Assam Engineering Service Recruitment Board, to the extent of advertising the vacancy of 8 (eight) Nos. of posts, which the present petitioners are holding as Assistant Professor (Technical) at Dhemaji Engineering College, Dhemaji under Higher Education (Technical) Department of the State, (b) to direct the Respondent authorities not to fill-up the post wherein the present petitioners are being appointed vide its Order dated 17.02.2021 issued by the Higher Education (Technical) Department, Government of Assam for the post of Assistant Professor (Technical) at Dhemaji Engineering College, Dhemaji, where their said appointment subsequently, vide Notification dated 15.12.2021, have been approved from their date of joining, (c) to direct the respondent authorities not to bring the post held by the petitioners under the purview of the impugned Advertisement No.AESRB-01/2023 dated 21.02.2023 and (d) to direct the respondent authorities Page No.# 10/15 to maintain status quo in regards to filing up of the 8 (eight) posts held by the petitioners appointed vide notification dated 17.02.2021.
Petitioners have also prayed for an interim order praying to Pending disposal of the Writ Petition, Your Lordship may kindly be pleaded to stay the recruitment process for the posts wherein the present petitioners are serving as Assistant Professor (Technical) at Dhemaji Engineering College initiated through the impugned Advertisement No.AESRB-01/2023 dated 21.02.2023 issued by the Assam Engineering Service Recruitment Board, Guwahati for the recruitment to the posts of Assistant Professor (Technical) in Government Engineering Colleges of Assam under Higher Education (Technical) Department, Government of Assam till the disposal of this Writ Petition and/or not to fill up the 8 (eight) numbers of posts wherein they are presently serving and/or direct the respondent to maintain Status Quo with regard to the services of the petitioners.
Mr. D. Saikia, learned Advocate General, Assam on behalf of the respondents submitted that with regard to the posts of Assistant Professors (Technical and Non-Technical) on Ad-hoc basis and under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951, advertised on 07.02.2020 issued by the Director of Technical Education, Assam, the petitioners knowing fully well applied for those advertised temporary posts and on their selection, they were accordingly appointed to those temporary posts where their services have been extended from time to time and the last extension was on 10.01.2023 for a period of four months w.e.f. 22.10.2022 under said Regulation 3(f).
Mr. Saikia also submitted that the Notification dated 15.12.2021 issued by the State Government in the Higher Education (Technical) Department vide No. ATE.07/2020/Pt/59 pertains to approval of ex-post-facto appointment of the petitioners as Assistant Professors of Dhemaji Engineering College, Dhemaji appointed under Regulation 3(f) of the APSC (L&F) Regulations, 1951 w.e.f. the date of their joining on usual pay and allowances as admissible, that relates to their ad-hoc/periodical appointment and not with regard to their regular appointment. As such, relying the said Notification dated 15.12.2021, the petitioners cannot claim their ad-hoc appointment made under Regulation 3(f), noted above, as regular appointment to the post of Assistant Professors (Technical) of Dhemaji Engineering College, Dhemaji.
Mr. Saikia, learned Advocate General further submitted that the State can always frame appropriate Regulations and/or Rules following the constitutional provisions for recruitment to the Page No.# 11/15 public posts including the posts under the Technical Education Department of the State, where a duly constituted Board consisting of persons having technical background preferably in the field of Engineering, makes selections for recruitment of Teachers/Faculty Members so as to fill up the vacancies in the Engineering Educational Institutes by conducting the recruitment process in accordance with law and making recommendations for appointment to all categories of posts including Technical posts under Higher Education (Technical) Department and other Administrative Departments of the State that are already notified and to be notified by the Government from time to time.
Relying on the decisions of this Court in the cases of Debabrata Borghain and Others -Vs- State of Assam and Others reported in 1996 (3) GLT 310 (DB), Anup Kumar Das and Another -Vs- Sanjib Kakati and Others, reported in 2000 (1) GLT 429 (DB), Mr. Saikia submitted that as the petitioners' appointment was on ad-hoc basis, for a limited period and under Regulation 3(f) of the APSC (L&F) Regulations, 1951; therefore, the regular posts have to be filled up by regular process of selection under the Statutory Recruitment Rules in force and as applicable.
It is noticed that the 111 Nos. of posts including the 27 posts of Assistant Professors (Technical and Non-Technical) were sanctioned on 06.02.2020 for Dhemaji Engineering College, Dhemaji.
From the contentions made by the petitioners, it is noticed that the Director of Technical Education, Assam on 07.02.2020 issued the advertisement No. 01/2020 for appointment to the posts of Assistant Professors in Dhemaji Engineering College, Dhemaji on ad-hoc basis for a period of four months as per Regulation 3(f) of the APSC (L&F) Regulations, 1951 to make the said Engineering College functional from August, 2020 under the said authority.
Petitioners in their petition have also admitted the fact that Dhemaji Engineering College, Dhemaji is a newly established college and from the contentions made in the additional affidavit relied by them, the petitioners admitted the fact that that prior to the coming into the force of the Assam Engineering Service Recruitment Board Regulations, 2021 w.e.f. 09.07.2021, i.e., from the date of its publication in the Assam Gazette (Extraordinary), the Assam Technical Education Service Rules, 1981, a Statutory Rule framed under Article 309 of the Constitution of India regulating the recruitment and the conditions of service of the persons appointed to the Assam Technical Education Service, including to the posts of Assistant Professor/Lecturer in Government Engineering Colleges of the State are to be filled up by Direct recruitment following the provisions Page No.# 12/15 of said 1981 Rules, more particularly prescribed in Rules 6(1) and 18 of said 1981 Rules, amended from time to time, where selection is to be made by the Assam Public Service Commission by issuing advertisement, by making necessary selection and recommendation, by publishing the select list in the Assam Gazette and such other place as it may consider proper.
In the case in hand, advertisement and selection for appointment of the petitioners as Assistant Professor on ad-hoc basis under Regulation 3(f) of 1951 APSC (L&F) Regulations for a period of four months were made by the Director of Technical Education, Assam who is not the authority under the said 1981 Statutory Rules, noted above, for issuance of such advertisement and making any selection to the post of Assistant Professor (Technical and Non-Technical) in Government Engineering College of the State.
It is an admitted position that when the advertisement for the post of Assistant Professors in the newly established Dhemaji Engineering College, Dhemaji was made by the Director of Technical Education, Assam vide No. 01/2020 on 07.02.2020, it was notified that appointment to those posts shall be made on adhoc basis for a period of four months under Regulation 3(f) of the 1951 APSC (L&F) Regulations, but not under the 1981 Statutory Rules of recruitment to the Technical Service which was in force at that relevant point of time. Petitioners were fully aware of those facts. Moreover, it is not the case of the petitioners that their appointment made on 17.02.2021 were subject to the approval by the said Commission and selection and appointment of the petitioners indicated that their appointments were only pending selection of the candidates to the posts through the usual channel of the Commission from all the sources of recruitment and therefore, petitioners were appointed on adhoc basis. Petitioners were aware the post that was advertised on 07.02.2020 by DTE was for adhoc appointments for a period of four months under Regulation 3(f) of 1951 APSC (L&F) Regulations and not for regular appointment. By such adhoc advertisement for a limited period of four months best candidates for open competitions for the post like Assistant Professor in an Engineering College is hard to get as these posts are with specialisation in technical field.
From the contentions made by the petitioners, it can be seen that to make said Dhemaji Engineering College, Dhemaji functional from August, 2020, the Director of Technical Education, Assam, in spite of said 1981 Statutory Recruitment Rules to the Technical Service being in force instead of following the regular process of recruitment through the Statutory Recruitment Rules, proceeded to fill up the post of Assistant Professor (Technical and Non-Technical) in said newly Page No.# 13/15 established Engineering College by issuing the recruitment notice on 07.02.2020 issued vide advertisement No. 01/2020 resorting to the provisions of the Regulation 3(f) of the APSC (L&F) Regulations, 1951 making such appointment on ad-hoc basis for period of four months as it was necessary in the public interest at the relevant point of time to make appointment to those posts immediately so as to make said Dhemaji Engineering College, Dhemaji functional, where the regular process of selection and appointment by the Commission to those posts will take time or will cause undue delay.
Moreover, petitioners have accepted the terms and conditions of their adhoc appointment as Assistant Professor (Technical) in said newly established Dhemaji Engineering College, Dhemaji made under the provisions of the Regulation 3(f) of the APSC (L&F) Regulations, 1951 for period of four months, issued on 17.02.2021, which was last extended by Notification dated 10.01.2023 for a period of four months w.e.f. 21.02.2023.
Petitioners filed this writ petition on 02.03.2023 and the impugned advertisement was issued on 21.02.2023. On the date of filing of this writ petition, petitioners were no longer in service as the relevant period of four months extended on 10.01.2023 w.e.f 22.10.2022 expired on 21.02.2023. It is well settled that extension of service, lease, settlement etc. can be made only when such service, lease, settlement etc. is in force and not after the period of expiry. Till 13.03.2023, the last date of hearing this matter, services of the petitioners were not extended. It is settled that appointment being purely adhoc and for a limited period, right to remain in the post comes to an end by expiry of the period. [(1992) 4 SCC 33 (Director, Institute of Management, Development, U.P. -Vs- Smt. Pushpa Srivastava].
Petitioners stated that most of them have crossed the upper age limit prescribed for participating in any other Government job in the same grade. But the cause title of this petition clearly reveals that the petitioners have sufficient recruitment age in other Government job in the same grade.
An ad-hoc or stop gap arrangement is an appointment made for a particular end or purpose at hand without resorting to the rules or procedure for making regular appointment [AIR 1962 SC 1288 (Virendra -Vs- State of U.P.)].
It is well settled that an ad-hoc appointment is made pending the filing up a post through the Public Service Commission, which is taking time [AIR 1967 SC 839 (Kelkar -Vs- Chief Page No.# 14/15 Controller)] Appointments made during emergency for a fixed period without consulting Public Service Commission as required by the Recruitment Rules for Regular appointment, such appointee cannot get the benefit of regularisation merely stating that the appointment was otherwise regular, except for deficiency of certain procedural requirement laid down by the Rules.
A Constitution Bench comprising of five Hon'ble Judges of the Hon'ble Apex Court in the case of Govind Dattatray Kelkar -Vs- Chief Controller of Imports & Exports, reported in AIR 1967 SC 839, relating to promotion without recommendation of Public Service Commission and direct recruit through Public Service Commission had laid down that - If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said difference have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification. There can be cases where the differences between the two groups of recruits may not be sufficient to give any preferential treatment to one against the other in the matter of promotions, and, in that event, a court may hold that there is no reasonable nexus between the differences and the recruitment. In short, whether there is a reasonable classification or not depends upon the facts of each case and the circumstances obtaining at the time the recruitment is made. Further, when a State makes a classification between two sources of recruitment, unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by placing the necessary material before the court that the said classification is unreasonable and violative of Article 16 of the Constitution .
Issue Rule, returnable by eight weeks.
As Mr. K. Gogoi accepts notice on behalf of the respondent Nos.1 to 4, no formal notice need be issued to those respondents. Petitioners shall serve requisite extra copies of this writ petition and copy of the additional affidavit with the annexures appended there to Mr. Gogoi within two days from today, with due acknowledgement from him in that regard.
Petitioners shall take steps on the respondent No. 5 by registered post with A/D, providing its correct and proper address with requisite postal stamps within two days from today.
After considering the submission of the petitioners as well as the respondent Nos. 1 to 4 and for the reasons stated above, the interim prayer of the petitioners are rejected.
Page No.# 15/15 However, it is made clear that any appointment to the sanctioned vacant posts of Assistant Professor (Technical) in Dhemaji Engineering College, Dhemaji, to which the petitioners alleged in this petition that on 17.02.2021 they were appointed to those sanctioned posts on adhoc basis, in terms of the selection made on the basis of the impugned advertisement vide Notice under No. AESRB/023/2022/249 dated 21.02.2023 issued by the Chairman, Assam Engineering Service Recruitment Board, Guwahati, shall be subject to the outcome of this writ petition.
List accordingly.
JUDGE Comparing Assistant