Gauhati High Court
Mohan Nath vs The State Of Assam And 3 Ors on 20 June, 2022
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/6
GAHC010050872017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7124/2017
MOHAN NATH
S/O. CHAMIRAN NATH, VILL. BARUABARI, P.O. MORITUNI, DIST. MAJULI,
ASSAM.
VERSUS
THE STATE OF ASSAM and 3 ORS.
REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM, DEPTT. OF
HIGHER EDUCATION, DISPUR, GHY.-06.
2:THE DIRECTOR
HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY.-19.
3:THE PRINCIPAL
RANGACHALI COLLEGE
RANGACHALI
P.O. and DIST. MAJULI
ASSAM.
4:THE GOVERNING BODY OF RANGACHALI COLLEGE
RANGACHALI
REP. BY ITS PRESIDENT
P.O. and DIST. MAJULI
ASSAM
Advocate for the Petitioner : MR. N AHMED
Page No.# 2/6
Advocate for the Respondent : SC, EDUCATION
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
20.06.2022 Heard Mr. A R Sikdar, learned counsel for the petitioner and Mr. K Gogoi, learned Standing counsel, Higher Education Department, Assam for the state respondent Nos. 1 &
2. Also heard Ms. S Doley, learned counsel for the respondent Nos. 3 & 4.
The Petitioner appeared for his final 4 th Semester M.A. Examination in the subject of Assamese in October, 2004 conducted by the Gauhati University, in which result was declared on 18.02.2005 and the petitioner passed the said examination in 2 nd Class securing more than 55% marks.
While the petitioner was studying in the 4 th Semester of his Master Degree in Assamese, the authorities in the Rangachahi College, Majuli of erstwhile district of Jorhat appointed the petitioner as lecturer on temporary basis in Assamese against non- sanctioned post by an order dated 20.09.2004. Pursuant to which, the petitioner joined the said service on 20.09.2004 itself.
It is stated by the petitioner that on completion of his Master Degree in Assamese, the Selection Committee of said Rangachahi College, Majuli in the meeting held on 20.08.2005 unanimously selected and approved the case of the petitioner for his appointment in the Assamese Department as a Lecturer against non-sanctioned post and pursuant to the same the Principal of Rangachahi College, Majuli by order dated 28.08.2005 appointed the petitioner in said service as Lecturer.
The petitioner stated that accordingly he joined his service as a Lecturer in said Rangachahi College, Majuli against non-sanctioned post on 28.08.2005 itself on a consolidated pay and is serving till date.
The State Government in the Higher Education Department on 17.07.2004 issued an Office Memorandum for regularization of services of such Lecturers serving against Page No.# 3/6 non-sanctioned posts in different Grants-in-Aid colleges of the State.
The petitioner is seeking regularization of his service under the provisions of said Office Memorandum dated 17.07.2004 of the State Government in the Higher Education Department as Lecturer of Assamese at Rangachahi College, Majuli, that fell vacant on 10.06.2017 as one Dr. Pikumoni Chetia, Asstt. Professor, Department of Assamese resigned from his service and joined another college, namely, Hem Chandra Dev Goswami College, Nitai Pukhuri, Sivsagar.
The petitioner also placed before the Court that he has passed the State Level Eligibility Test for Lecturership in the year 2014 held on December, 2013. He also stated that pursuant to the Government Circular dated 22.08.2014 relating to information of non- sanctioned teachers appointed prior to 12.10.2004 for regularization of services of teachers of the colleges concerned under Government Office Memorandum dated 17.07.2004, the Governing Body of the respondent college recommended the name of the petitioner in its meeting held on 06.09.2014 for consideration of regularization of his service against vacant sanctioned post of the said college.
Accordingly, the respondent college authorities on 23.09.2014 submitted all the relevant details for consideration of his case for regularization against vacant sanctioned post of Lecturer in Assamese in said Rangachahi College, Majuli before the Director of Higher Education, Assam.
As the respondent authorities did not consider the case of the petitioner for his regularization against the vacant sanctioned post of Lecturer of Assamese in the said Rangachahi College, Majuli inspite of the recommendation submitted by the Governing Body of the said college, the petitioner has preferred this writ petition.
Office Memorandum of the State Government in the Higher Education Department dated 17.07.2004 relates to only those Lecturers, who were appointed against such non- sanctioned post on or before 17.07.2004 and it was issued for specific purpose, as number of such Lecturers brought under the Grants-in-Aid system were left out due to non- availability of sanctioned posts and they continued to serve without any sanctioned posts.
In the case in hand, the petitioner after obtaining Master Degree was appointed by the Managing Committee of the said college only on 28.08.2005, much after coming into Page No.# 4/6 force of the Office Memorandum dated 17.07.2004.
Though, the petitioner was initially appointed by the Managing Committee of the respondent college on 20.09.2004, but at that point of time the petitioner was not a Master Degree holder, as such, at that point of time he did not have the eligibility to be a Lecturer in a Degree College.
Further, the name of the petitioner was not incorporated in the list of non- sanctioned teachers consisting of 354 numbers, in terms of the decision of this Court issued on 14.05.2009 passed in WP(C) No. 1103/2009 and WP(C) No. 724/2009.
Further, a full Bench of this Court in the case of "Mizanur Rahman Vs The State of Assam & Ors", reported in 2012 (1) GLR 520 clarified that benefit of the Office Memorandum dated 17.07.2004 of the State Government in the Higher Education Department is available only to those Lecturers, who were appointed before 17.07.2004 and not to others.
Further, a Division Bench of this Court in the case of "Abdul Wahid Vs The State of Assam and Ors" in Writ Appeal No. 164/2017 decided on 03.04.2018, involving an issue of Lecturer/Assistant Professor (Unreserved) in Political Science at Kharupetia College against an advertisement dated 13.06.2012 viz-a-viz relating to regularization under the said O.M. dated 17.07.2004 reads as follows-
"7. .................On our own, we have also perused the Full Bench decision and find that the said O.M. dated 17.07.2004 was issued to address the problem of an identified group of Lecturers as a one-time measure. In the said case it was noticed that way back in the year 1952, the Government of Assam had brought 52 colleges under the deficit grants-in-aid system. Thereafter, the State stopped sanctioning new posts of Lecturers in the colleges, as a result of which, the Lecturers serving against non-sanctioned posts were unable to have their service regularized. This led to filing of writ petitions before this Court. Pursuant to orders of this Court and since the Government was not in a position to sanction any new posts, a Cabinet Memorandum was prepared on 25.03.2004 to deal with the issue. In the exercise so initiated, the Directorate of Higher Education had prepared a list of 325 teachers working without sanctioned posts. In the Cabinet Memorandum a list of about 322 vacant posts in different deficit colleges was prepared. The Cabinet approved the same on 09.06.2004, whereafter the O.M. dated 17.07.2004 Page No.# 5/6 was issued for adjusting the service of about 300 college Lecturers working against nonsanctioned posts. The Full Bench held that those Lecturers whose cases were not under consideration at the time when the Cabinet decision was taken on 09.06.2004, they cannot claim the benefit of the O.M. dated 17.07.2004, in as much as, the procedure of regularization envisaged in the O.M. dated 17.07.2004 was intended to take care of only about 300 identified college Lecturers and not those who were subsequently appointed after 17.07.2004.
8. In the instant case, although the appellant Abdul Wahid was appointed against a non-sanctioned post on 02.07.2004, i.e., prior to issuance of O.M. dated 17.07.2004, he cannot claim the benefit flowing out of the said Office Memorandum as the same was purpose-specific and was intended to address the problems/issues with regard to an identified group of college Lecturers. The appellant was not one among the group. As held by the Full Bench decision referred to above, the O.M. dated 17.07.2004 was not intended to be a perennial source for regularizing the services of Lecturers. In this respect, the appellant Abdul Wahid cannot claim and/or is not entitled to seek the shelter of the O.M. dated 17.07.2004 for adjustment/regularization of his service.
9. Over and above, when the aforesaid statutory Act and Rules clearly lays down the procedure while making appointment to the post of Lecturer/Assistant Professor, the concerned authorities are statutorily mandated to follow the procedure and are not permitted to seek refuge in a Government Office Memorandum to give any benefit of adjustment/regularization to a college Lecturer working against non-sanctioned post. In this respect also, the O.M. dated 17.07.2004 cannot come to the aid of the appellant although he was appointed against a non-sanctioned post at Kharupetia College prior to 17.07.2004.
10. We find no infirmity in the findings and decision of the learned Single Judge. The present appeal being devoid of merits, stands accordingly dismissed, however, without any order as to cost."
Since the appointment of the petitioner was outside the purview of the Office Memorandum of the State Government in the Higher Education Department dated 17.07.2004 and further, as his name was not incorporated in the list of non-sanctioned teachers consisting of 354 numbers in terms of the decision of this Court by order dated 14.05.2009 passed in WP(C) No. 1103/2009 and WP(C) No. 724/2009, the petitioner is not Page No.# 6/6 entitled to any such benefit of said Office Memorandum dated 17.07.2004 for regularization of his service against sanctioned posts being serving in non-sanctioned post in said Rangachahi College, Majuli.
Accordingly, this writ petition, being devoid of merit stands dismissed.
JUDGE Comparing Assistant