Gauhati High Court
Smti Babita Choudhury vs The State Of Assam And Ors on 14 June, 2016
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
(1) WP(C) 3519/2009
Sri Ajit Kumar Sarma,
Son of late Manik Chandra Sarma,
Resident of Nabin-nagar, Zoo Road,
L.K.R.B. Path (Bye lane), House No.3,
Guwahati - 24, District - Kamrup, Assam.
......... Petitioner
-versus-
1. The State of Assam,
Represented by the Commissioner and Secretary
to the Govt. of Assam, Education (Higher) Department,
Assam, Dispur, Guwahati-6.
2. The Deputy Secretary,
to the Govt. of Assam, Education (Higher) Department,
Assam, Dispur, Guwahati-6.
3. The Director of Higher Education,
Assam, Kahilipara, Guwahati-19.
4. The Principal,
Damdama College, Kulhati,
District- Kamrup, Assam.
5. The Deputy Secretary, UGC,
North East Regional Officer (NERO), Guwahati.
......... Respondents
(2) WP(C) 3623/2009 Smt. Bontee Chetia, Lecturer in Sociology, Sadiya College, Sadiya, P.O. Chapakhowa, District- Tinsukia, Assam.
......... Petitioner WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 1 of 12
-versus-
1. The State of Assam, through the Commissioner/Principal Secretary, Higher Education Department, Govt. of Assam, Dispur, Guwahati-6.
2. The Director of Higher Education, Assam, Kahilipara, Guwahati-18.
3. The Treasury Officer, Chapakhowa, Sadiya, District- Tinsukia.
4. The Principal, Sadiya College, Sadiya, P.O. Chapakhowa, District- Tinsukia, Assam.
5. University Grants Commission, through Secretary, New Delhi.
......... Respondents (3) WP(C) 3520/2009 Sri Naba Kumar Talukdar, Son of Sri Bhabendra Nath Talukdar, Resident of Nalbari, Sankarpur, P.O. Chawkbazar, P.S.- Nalbari, District- Nalbari, Assam.
......... Petitioner
-versus-
1. The State of Assam, Represented by the Commissioner and Secretary to the Govt. of Assam, Education (Higher) Department, Assam, Dispur, Guwahati-6.
2. The Deputy Secretary, to the Govt. of Assam, Education (Higher) Department, Assam, Dispur, Guwahati-6.
3. The Director of Higher Education, Assam, Kahilipara, Guwahati-19.
4. The Principal, WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 2 of 12 Nalbari Balika Vidyalaya, P.O. and Dist: Nalbari, Assam.
5. The Deputy Secretary, UGC, North East Regional Officer (NERO), Guwahati.
......... Respondents (4) WP(C) 3457/2009
1. Sri Dharmeswar Barman, Aged about 48 years, son of Sri Golok Ch. Kakati, Resident of village- Chechmukh, P.O. Kulhati, P.S. Hajo in the District of Kamrup.
2. Smti. Aparna Choudhury, Aged about 53 years, wife of Sri Dhan Kumar Mazumdar, Resident of Ananda Nagar, Lalganesh, P.O. Guwahati- 34, P.S. Fatasil Ambari in the District of Kamrup.
3. Sri Tapanjit Rajkonwar, Aged about 51 years, son of late Tarun Chandra Rajkonwar, Resident of Gayantola, P.O. & P.S. Hajo in the District of Kamrup.
4. Sri Hirabati Kalita, Aged about 47 years, wife of Sri Kunjallal Pathak, Resident of House No.8, August Kranti Path, Beltola Bazar Road, P.S. Dispur, Guwahati- 6 in the District of Kamrup.
......... Petitioners
-versus-
1. The State of Assam, Represented by the Principal Secretary to the Govt. of Assam, Education (Higher) Department, Dispur, Guwahati- 6, in the District of Kamrup.
2. The Director of Higher Education Department, Kahilipara, Guwahati-19.
WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 3 of 12
3. The Damdama College, P.O. Kulhati, P.S. Hajo in the District of Kamrup, Represented by the Principal/Secretary of the said College.
4. The Treasury Officer, Kamrup, Guwahati in the District of Kamrup.
5. Union of India represented by the Secretary to the Govt. of India, Ministry of Human Resource Development Department of Education, New Delhi-1.
......... Respondents (5) WP(C) 3761/2009 Sri Hrishikesh Nath Aged about 45 years, son of Sri Kshitish Ch. Nath, Resident of 2nd Link Road, Lane No.14, Silchar-6 In the District of Cachar.
......... Petitioner
-versus-
1. The State of Assam, Represented by the Principal Secretary to the Govt. of Assam, Education (Higher) Department, Dispur, Guwahati- 6, in the District of Kamrup.
2. The Director of Higher Education Department, Kahilipara, Guwahati-19.
3. Madhab Ch. Das College, Sonai, P.O. Sonaimukh, in the District of Cachar, Represented by its Principal/Secretary of the College. ,
4. The Treasury Officer, New Silchar, District- Cachar.
5. Union of India represented by the Secretary to the Govt. of India, Ministry of Human Resource Development Department of Education, New Delhi-1.
......... Respondents WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 4 of 12 (6) WP(C) 3934/2009 Sri Padmeswar Kalita, Son of Late Dharmakanta Kalita Resident of Gopal Bazar (Ratnapur) P.O. Gopal Bazar (Nalbari) District- Nalbari (Assam).
......... Petitioner
-versus-
1. The State of Assam, Represented by the Commissioner Secretary to the Govt. of Assam, Department of Education.
2. The Director of Higher Education Department, Kahilipara, Guwahati-19.
3. The Principal, MNC Balika Mahaviayalaya, Nalbari, District- Nalbari.
4. The Treasury Officer, Nablari, District- Nalbari.
......... Respondents (7) WP(C) 3456/2009 Smti. Babita Choudhury, Aged about 47 years, W/o. Guru Dutta Laskar, Dona Apartment, Flat No.506, J. Baruah Road, Silpukhuri, Guwahati- 3, P.O. Chandmari, in the district of Kamrup (M).
......... Petitioner
-versus-
1. The State of Assam, Represented by the Principal Secretary to the Govt. of Assam, Education (Higher) Department, Dispur, Guwahati- 6, in the District of Kamrup.
2. The Director of Higher Education Department, WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 5 of 12 Kahilipara, Guwahati-19.
3. Radha Gobinda Baruah College, Guwahati- 9, P.S. Fatasil Ambari in the District of Kamrup, represented by the Principal/Secretary of the said College.
4. The Treasury Officer, Kamrup, Guwahati in the District of Kamrup.
5. Union of India represented by the Secretary to the Govt. of India, Ministry of Human Resource Development Department of Education, New Delhi-1.
......... Respondents (8) WP(C) 3663/2009 Radhika Ch. Das, S/o. Late Ramesh Ch. Das, Vill. Gerua, P.O. Gerua, P.S. Hajo, Dist. Kamrup, Assam.
......... Petitioner
-versus-
1. The State of Assam, through the Commissioner and Secretary to the Govt. of Assam, Education (Higher) Department, Dispur, Guwahati- 6.
2. Director of Higher Education, Kahilipara, Guwahati-19.
3. The Principal of Domdoma College, P.O. Kulhati, P.S. Hajo, Dist. Kamrup, Assam.
4. The Treasury Officer, Kamrup, Guwahati in the District of Kamrup, Assam.
5. Union of India represented by the Secretary to the Govt. of India, Ministry of Human Resource Development Department of Education, New Delhi-1.
......... Respondents WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 6 of 12 :: BEFORE ::
HON'BLE MR.JUSTICE MANOJIT BHUYAN Advocate for the petitioners : Mr. A.D. Choudhury, Mr. B. Chakraborty, Mr. L.P. Sharma, Mr. B.K. Bhagawati and Mr. M.R. Choudhury.
Advocate for the respondents : Mr. J. Deka,
Mr. A. Chamuah and
Mr. R.S. Mishra.
Date of hearing and Judgment: 14.06.2016.
JUDGMENT & ORDER
(Oral)
Heard Mr. A.D. Choudhury, learned counsel for the petitioners in WP(C) No.3519/2009 & WP(C) No.3520/2009; Mr. B. Chakraborty, learned counsel for the petitioner in WP(C) No.3623/2009; Mr. L.P. Sharma, learned counsel for the petitioners in WP(C) No.3457/2009, WP(C) No.3761/2009 & WP(C) No.3456/2009; Mr. B.K. Bhagawati, learned counsel for the petitioner in WP(C) No.3934/2009 as well as Mr. M.R. Choudhury, learned counsel representing the petitioner in WP(C) No.3663/2009. Also heard Mr. J. Deka, learned counsel representing the Higher Education Department; Mr. A. Chamuah, learned counsel representing the University Grants Commission (UGC) and Mr. R.S. Mishra, learned counsel representing Respondent No.3 in WP(C) No.3456/2009.
2. As common issues are raised in the aforesaid writ petitions, the same are taken up together and concluded by a common judgment.
3. It is no more res integra that an administrative order must stand or fall on its own merits. It has to be tested on the edifice of the prevalent law including that of the principles of natural justice. All the petitioners are aggrieved by the order dated 29.07.2009 issued under the hand of the Director of Higher Education, Assam, whereby in pursuance of an earlier Notification dated 28.07.2009, the date of effect of approval of appointment was sought to be modified on the terms and conditions stipulated in the said impugned order.
WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 7 of 12 The State respondents have taken a stand that the petitioners will be entitled to enjoy incremental benefit in the UGC scale of pay of `2200-4000 only after obtaining M.Phil/Ph.D Degree or NET/SLET within 8(eight) years, failing which, his/her service will stand discontinued. It was also made clear that the teacher concerned would not be eligible for Senior Scale/Selection Grade Scale of pay until such time they fulfill the conditions as laid- down in the UGC norms. The said order also indicated that necessary action is required to be taken for recovery of the excess amount drawn by the petitioners during the period of service which they had rendered without having the requisite qualification. This order under challenge dated 29.07.2009 has its basis on an earlier order dated 28.07.2009 passed by the Government of Assam in the Education (Higher) Department. As such, it would be necessary to peruse the said Government Order/Notification dated 28.07.2009, which is part of the record in some of the writ petitions.
4. The Notification dated 28.07.2009 came to be issued pursuant to the order dated 22.07.2002 passed by this Court in Writ Appeal No.457/1999. By the said order of 22.07.2002, a direction had been made to the State respondents, more particularly, the Secretary of Higher Education Department and the Director of Higher Education to take up the case of the appellant therein (Shri Ramesh Goswami) and to examine the tenability of his claim for treating him at par with one Smti. Pronoti Talukdar and other similarly situated Lecturers for the purpose of approving his service under the deficit Grants-in-Aid system of the Government and for providing him the revised UGC Scale of pay, as was done in the case of said Smti. Pronoti Talukdar and others. A direction was also made that if the appellant therein i.e. Shri Ramesh Goswami was found entitled to same reliefs, the same be granted to him without further delay. Accordingly, the Government took up the matter and issued the Notification dated 28.07.2009 by not only confining the decision to the appellant in Writ Appeal No.457/1999 but also touching upon the cases of the petitioners herein. By the said Notification dated 28.07.2009, the earlier orders passed by the Government dated 19.05.1992, 24.09.1992 and 27.05.1999, which pertained to allowing entitlement of UGC Scale of pay to the petitioners without having UGC qualification, were modified. The aforesaid order dated 19.05.1992 is enclosed to WP(C) No.3761/2009, whereas the order dated 24.09.1992 is Annexure-5 in WP(C) No.3519/2009. The other order dated 27.05.1999, although not being part of the records, has been produced by Mr. J. Deka, learned counsel representing the Higher Education Department. The modification that was WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 8 of 12 brought about by the Notification dated 28.07.2009 was to the extent that those teachers who were allowed to avail UGC Scale of pay without having UGC qualifications, would now be entitled to enjoy the incremental benefit in the UGC Scale of pay of `2200-4000 only after obtaining M.Phil/Ph.D Degree or NET/SLET within 8 years, failing which, their services will not be continued. It was also made clear that the said teachers would not be eligible for Senior Scale/Selection Grade Scale of pay until they fulfill the conditions as laid down under the UGC norms. Following the said Notification dated 28.07.2009, separate orders dated 29.07.2009 came to be issued against the petitioners, for which they have instituted separate proceedings before the Court.
5. Learned counsel representing the respective petitioners submits that at the time of their initial appointment as Lecturers in their respective colleges, the requirement of M.Phil/Ph.D Degree or NET/SLET was not insisted upon. In fact, their appointments came to be approved by the Government in due course of time and on recommendation of the State Selection Board, they were also granted Selection Grade Scale of pay. Their services also stood confirmed by orders passed by the competent authority. Submission made is that, at this point of time, the order dated 29.07.2009 cannot be made effective qua the petitioners herein. Further, having served for considerable number of years as a College Teacher, the drastic step as contemplated to be taken against the petitioners as in the impugned order dated 29.07.2009, cannot be given legal sanctity as the same would go to deprive and deny them of their fundamental rights as enshrined under Article 14 and 21 of the Constitution of India. Contention is also made that in any view of the matter, the order dated 29.07.2009 cannot stand the scrutiny of law, in that, the same had been rendered in utter violation of the principles of natural justice.
6. Mr. Chamuah, learned counsel representing the University Grants Commission submits that at the time when the petitioners were appointed as Lecturers, they were governed under a set of regulations called The University Grants Commission (Qualifications Required of a Person to be appointed to the Teaching staff of a University or other Institutions Affiliated to it) Regulations, 1982. The minimum qualifications so required, is appended in Schedule II to the said Regulations, 1982. The essential educational requirement for appointment as a College Teacher under the Regulations of 1982 was an M.Phil Degree or a recognized degree beyond Master's level or publication of work showing the capacity of a candidate for independent research work as well as good WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 9 of 12 academic record with at least 2nd Class Master's Degree in a relevant subject from an Indian University or equivalent degree from a foreign University. Mr. Chamuah also submits that under the Explanation to Schedule II thereof, a relaxation is also made that in case of a candidate not holding an M.Phil Degree or a recognized degree beyond Master's Degree level, should possess a high Second Class Master's Degree and 1st Class Degree in (B.A./B.Sc./B.Com) examination. The submission, therefore, is that the petitioners did not have the requisite qualification in terms of the UGC Regulations, 1982 at initial entry into service.
7. Mr. J. Deka, learned counsel representing Higher Education Department makes his submission on the basis of the affidavit filed on behalf of the Director of Higher Education, Assam. As regards the necessary qualification for employment as a College Teacher, the affidavit indicates that the Government of Assam had adopted UGC norms of 55% marks in the Master's Degree only with effect from the year 2003. In so far as the petitioners are concerned, they had admittedly been appointed prior to the year 2003 and it was only on selection made by the State Selection Board that the Government had approved their appointment and thereafter, on the recommendation of the State Selection Board, the petitioners were accorded Senior Grade Scale of pay. It was also indicated in the said affidavit, that it was on the basis of the UGC Regulations, 2009 i.e. University Grants Commission (Minimum Qualifications required for the appointment and Career rd Advancement of Teachers in Universities and Institutions affiliated to it) (3 Amendment), Regulations, 2009 that the impugned order dated 28.07.2009 had been issued. At paragraph 11 of the affidavit, the stand of the State respondents have been clarified to the extent that necessary orders be passed by this Court having regard to the fact that the petitioners were allowed to draw Selection Grade Scale of pay.
8. The aforesaid facts have been noticed. The three orders mentioned in the Notification dated 28.07.2009, being orders dated 19.05.1992, 24.09.1992 and 27.05.1999, may now be taken note of. The first order dated 19.05.1992 is an order approving appointment of the petitioners in the UGC Scale of pay. Each of the names of the petitioners' finds place in the said order dated 19.05.1992. As regards the order dated 24.09.1992, the same is a letter of the Deputy Secretary to the Government of Assam, Education Department, addressed to the Director of Higher Education, Assam, indicating that the appointment of the Lecturers, whose names find place in the list appended WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 10 of 12 thereto, had already been approved as per the prevailing UGC norms and necessary orders in that regard had already been passed by order dated 19.05.1992. In so far as the order dated 27.05.1999 is concerned, this is a case specific order in respect of one Smti. Pronoti Talukdar, described as a Lecturer in Assamese of Puthimari College, whereby her services came to be approved although she was held to be an underqualified Lecturer. The said three orders came to be modified by the general Notification dated 28.07.2009, which was translated to specific orders, as in the orders dated 29.07.2009 passed against the petitioners herein. The significant aspect to be noticed here is that there is no mention of the UGC Regulations of 2009 either in the Notification dated 28.07.2009 or in the subsequent order dated 29.07.2009. In fact, the earlier Notification of 28.07.2009 came about having regard to the order passed by this Court on 22.07.2002 in Writ Appeal No.457/1999. Vidation
9. As the orders under challenge makes no mention of any Regulations issued by the University Grants Commission, as such, the legality and validity of the same are tested on its own merits. Apparently, the change which is sought to be brought in by modifying the earlier orders dated 19.05.1992, 24.09.1992 and 27.05.1999, have been done without taking into confidence the views of the aggrieved teachers i.e. the petitioners herein. Considerable numbers of years as College Teachers have been rendered by the petitioners and during this time their appointments had not only been approved by the competent authority but also their services had been confirmed and they were also made entitled to Scale of pay as per the UGC norms. The impugned order dated 29.07.2009 according to the petitioners, came as a bolt from the blue. They were neither afforded any opportunity of being heard nor given any inkling of the views under contemplation of the State Government touching upon their career prospects. The petitioners acquired vested rights for being entitled to UGC Scale of pay pursuant to various orders passed in their favour, which is now sought to be taken away by means of the order dated 29.07.2009, that too, in utter disregard to their rights and in violation of the principles of natural justice. The approval of their appointments, as now sought to be modified by bringing in a condition that they would be entitled to enjoy incremental benefit in UGC Scale of pay only after obtaining M.Phil/Ph.D Degree or NET/SLET within 8 years, is a decision taken behind the back of the petitioners. The said order dated 29.07.2009 not only limits itself to the conditions enjoined, but also makes it clear that on their failure to secure the qualifications WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 11 of 12 within the period prescribed, their services will stand discontinued. These measures are drastic in nature. It impinges upon the rights of the petitioners, more so, when such decision had been arrived at without affording any opportunity whatsoever to the petitioners of being heard.
10. From the aforesaid discussions, the inevitable conclusion is that the order dated 29.07.2009, being passed in violation of the principles of natural justice and to the utter detriment of the petitioners, cannot stand the scrutiny of law and is liable to be interfered with, which is accordingly done. Accordingly, the impugned order, as it stands, is set aside and the writ petitions are accordingly allowed. No costs.
JUDGE Benoy WP(C) Nos.3519/09, 3623/09, 3520/09, 3457/09, 3761/09, 3934/09, 3456/09, 3663/09 Page 12 of 12