Rofiqul Islam vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2442 Gua

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GAHC010160082021




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/5304/2021

         ROFIQUL ISLAM
         S/O- LT. JONAB ALI, VILL- PAJABANDHA, P.O. TUKURA, P.S. AGIA, DIST.-
         GOALPARA, PIN- 783126



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE CHIEF SECY, GOVT. OF ASSAM, DISPUR, GHY-06

         2:THE COMM. AND SECY.
         TO THE GOVT. OF ASSAM
          EDUCATION (HIGHER) DEPTT.
          DISPUR
          GHY-06

         3:THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM
          FINANCE DEPTT.
          DISPUR
          GHY-06

         4:THE DIRECTOR OF HIGHER EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19

         5:THE PRINCIPAL CUM- SECY.
          HABRAGHAT MAHAVIDYALAYA
          KRISNAI
          DIST.- GOALPARA
         ASSAM
          PIN- 783126
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            6:THE GOVERNING BODY
             HABRAGHAT MAHAVIDYALAYA
             KRISNAI
             REP. BY ITS PRESIDENT
             DIST.- GOALPARA
            ASSAM
             PIN- 78312

Advocate for the Petitioner   : MR. M U MONDAL

Advocate for the Respondent : SC, HIGHER EDU




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                      JUDGMENT

Date : 06-10-2021

Heard Mr. S.N. Sarma, learned senior counsel for the petitioner. Also heard Mr. P. Saikia, learned counsel for the respondent No.1 being represented by the Chief Secretary to the Govt. of Assam, Mr. S. Bhuyan, learned counsel for the respondents No.2 and 4 being the authorities under the Higher Education Department and Mr. B. Gogoi, learned counsel for the respondent No.3 being the authorities under the Finance Department of the Govt. of Assam.

2. Considering the nature of the order proposed to be passed, notice need not be issued to the respondent No. 5 & 6 as by this order we would require the Director of Higher Education to pass a reasoned order and if the Director in his wisdom if deems appropriate may issue notice to the respondents No.5 and 6 if they are required to be heard in the matter.

3. The petitioner is an M.Phil by qualification and was appointed as a lecturer in the Department of English in the Habraghat Mahavidyalaya in the Goalpara district on 20.07.2005 as per the resolution of the governing body of the college dated 18.05.2005. The appointment order of the petitioner provides that it is on a contractual basis, but the fact remains that the petitioner is continuing to Page No.# 3/4

serve as such till date. It is also stated that the petitioner is working against a sanctioned vacant post in Habraghat Mahavidyalaya, but because of the initial nature of his appointment which is stated to be a contractual appointment, the petitioner had not been regularized in his service. Over the passage of time, the petitioner is disadvantaged to an extent that although at the time of his initial appointment he had all the required qualification for the post of lecturer in English, but in the meantime due to the subsequent changes in the required qualification, he may not be eligible for a direct recruitment and the petitioner as well is also aged about 46 years as of now.

4. Considering both the aspects, the only option remains for the petitioner would to be regularized in his service. The petitioner may have been appointed on a contractual basis initially but a contractual appointment is always understood to be for a given period of time as time is always the essence of a contract. The continuation of more than 14 years till date do not indicate that there is an essence of time in the engagement of the petitioner. Be that as it may, the petitioner is stated to be working against a sanctioned vacant post and he had served for more than 14 years. Even if we go by the spirit of the law laid down by the Supreme Court in Secretary, State Of Karnataka and Ors., -vs- Umadevi And Others reported in (2006) 4 SCC 1, a legal right has accrued to the petitioner for being considered to be regularized in his service.

5. In the circumstance, the petitioner, apart, from his earlier representations had also submitted a representation dated 16.01.2020 before the Director of Higher Education, Assam claiming regularization in service.

6. We are of the view that in the factual circumstance in which the petitioner was appointed and is serving as a lecturer/Assistant Professor in English in the Habraghat Mahavidyalaya, a legal right has accrued in favour of the petitioner Page No.# 4/4

for an appropriate consideration by the Director of Higher Education towards his claim for regularisation as indicated above.

7. In view of the above, interest of justice will be met on a direction to the Director of Higher Education to consider the representation dated 16.01.2020 and pass a reasoned order thereof.

8. Although paragraph-53 of Secretary, State Of Karnataka and Ors., -vs- Umadevi (supra) as submitted by Mr. B. Gogoi, may not be applicable but we are of the view that atleast the spirit of the said judgment is required to be given a consideration. A question would arise that if the petitioner was appointed against a sanctioned vacant post and due procedure was followed at the time of his appointment, whether the appointment can still be considered to be an appointment on a contractual basis instead of regular appointment, even after 16 years of being appointed.

9. The reasoned order to be passed within a period of two months from the date of receipt of the certified copy of the order.

Writ petition stands disposed of.

JUDGE

Comparing Assistant