Abdul Wahid vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1257 Gua

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GAHC010069642022




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

                                 Case No. : WP(C)/2569/2022

            ABDUL WAHID
            S/O- LT. OSMAN GANI FOKIR, R/O- VILL. MULLAPARA, P.O. JANGALPARA
            IN THE DISTRICT OF DARRANG, ASSAM. PIN- 784115.



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, DEPTT. OF
            EDUCATION (HIGHER), DISPUR, GHY.-06.

            2:THE DIRECTOR OF HIGHER EDUCATION
            ASSAM
             KAHILIPARA
             GHY.-19.

            3:THE PRINCIPAL
             KHARUPETIA COLLEGE
             P.O. KHARUPETIA IN THE DIST. OF DARRANG
            ASSAM. PIN- 784115.

            4:THE PRESIDENT
             GOVERNING BODY
             KHARUPETIA COLLEGE
             P.O.- KHARUPETIA
             DIST. DARRANG (ASSAM) PIN- 784115

Advocate for the Petitioner   : DR. B AHMED

Advocate for the Respondent : SC, HIGHER EDU
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                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 07-04-2022

Heard Dr. B. Ahmed, learned counsel for the petitioner and Also heard Mr. K. Gogoi, learned standing counsel for the Higher Education Department, representing the respondent nos.1 to 3.

2. In view of the order proposed to be passed, issuance of notice on respondent no. 4, i.e. the President of the Governing Body of Kharupetia College is exempted.

3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed, amongst others, for issuance of a writ of mandamus upon the respondent no. 4 to take a decision for regularisation of the service of the petitioner on the basis of the length of service rendered by the petitioner and a further mandamus upon the respondent authorities to regularise the service of the petitioner as an Assistant Professor in Political Science in Kharupetia College by way of adjustment in any of the two vacancies now available in the College.

4. The case of the petitioner is that he is a M.A. in Political Science from Pune University in the year 2002 and pursuant to Special Body resolution dated 28.11.2002, the petitioner was offered appointment as Tutor on 29.11.2002, and accordingly, the petitioner had joined Kharupetia College on 30.11.2002. On 01.04.2004, an advertisement was published in newspaper, Page No.# 3/8

inviting applications to fill up the vacant non-sanctioned post of Lecturer in Political Science in Kharupetia College and after participating in the selection process, on 02.07.2004, the petitioner was appointed as Lecturer (Non- sanctioned) in Political Science in Kharupetia College. The petitioner had joined in the said post on 03.07.2004 and has been rendering service in the said post without any break. The service of the petitioner was not regularised pursuant to policy dated 17.07.2004 by which the Government had decided to fill up the excess and unutilized posts of Assistant Professors in various subjects of several colleges. The petitioner thereafter earned his M.Phil. Degree in Political Science in the year 2008. It is projected that in the subsequent exercise by the Government to regularise service of teachers working in non-sanctioned posts, the name of the petitioner got dropped. However, a vacancy had arisen in the year 2011, due to sudden demise of a lecturer in Political Science in the Kharupetia College. However, instead of adjusting the petitioner in the said post, on receipt of permission from the Higher Education Department, the Principal, Kharupetia College issued an advertisement on 13.06.2012 for filling up the said post. Aggrieved by the issuance of said advertisement, the petitioner had filed a writ petition before this Court, which was registered as W.P.(C) 6227/2012. In the said regard, it is projected by the petitioner that Governing Body of Kharupetia College had assured to the petitioner that they would move the respondent authorities for adjusting the service of the petitioner in the said post. Basing on such assurance, the petitioner had withdrawn his writ petition, which was allowed by order dated 08.10.2013. Consequently, the Managing Committee of Kharupetia College had adopted a resolution dated 06.02.2014 to cancel the herein before referred advertisement. Accordingly, a proposal dated 23.05.2014 was submitted in this regard before the Director of Higher Page No.# 4/8

Education. The Managing Committee had also adopted resolution no. 4 dated 13.06.2014 to regularise the service of the petitioner in the vacant post of Assistant Professor in Political Science. The same was conveyed by the Principal, Kharupetia College to the Director of Higher Education vide letter dated 13.06.2014. On 18.09.2014, the Director of Higher Education had forwarded the proposal before the Commissioner and Secretary to the Government of Assam, Higher Education Department for regularisation of service of the petitioner.

5. One of the applicants for the advertised post of Assistant Professor in Political Science of Kharupetia College had assailed the resolution dated 06.02.2014 of the Managing Committee by filing W.P.(C) 4974/2014. The said writ petition was allowed by order dated 09.11.2016 by setting aside the said resolution. Although the petitioner had assailed the order dated 09.11.2016 by filing W.A. No. 165/2017, the said appeal was dismissed. However, in the meantime, the selection process was over and a list of panel was published on 19.05.2017. The petitioner projects that he was not given any opportunity of participating in the selection process. It is also projected that although the selection process was complete in the year 2017, the post remained vacant as the person whose name appeared at serial number 1 joined in another job and the process was abandoned. Nonetheless, the learned counsel for the petitioner has submitted that the Director of Higher Education, Assam by a letter dated 28.01.2019, had asked all provincialised colleges to send details/ particulars of teachers who are working in non-sanctioned posts, which was pursuant to a meeting of the 'petition committee' of the Assam Legislative Committee and accordingly, the name of the petitioner has been submitted with all relevant documents. However, no decision has been taken in this regard.

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6. The case of the petitioner is that notwithstanding the claim of the petitioner for being appointed in one post of Assistant Professor in Political Science in Kharupetia College, another retirement vacancy had arisen in respect of another post of Assistant Professor in Political Science in Kharupetia College on 31.03.2022. Accordingly, the petitioner has submitted a representation for his service being provincialised by adjustment in the said post. The learned counsel for the petitioner has submitted that if the second post of Assistant Professor in Political Science in the said college is filled up by regular selection process, the petitioner will suffer irreparable injury as he would loose all opportunity to have his service regularised, for which the Government has taken an initiative. It is also submitted that a direction be issued to the respondent authorities to take an appropriate decision and to dispose of his representation for regularisation of his service and till then the respondent authorities should not fill up the post.

7. The learned standing counsel for the Higher Education Department has vehemently opposed the maintainability of this writ petition on the ground of suppression of material fact. It has been submitted that although it has been mentioned in this writ petition that the writ appeal filed by the petitioner was dismissed, but the copy of the order has not been annexed with the intention to suppress material fact. It has been submitted that the Division Bench of this Court had held in the order dated 03.04.2018 in W.A. No. 165/2017 that the policy dated 17.07.2004 cannot be a perennial source of regularisation of service. It was also submitted that the subsequent letter by the Director of Higher Education to the provincialised colleges to send name, particulars and other details of teaching staff who were working in non-

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sanctioned post was not issued pursuant to any decision of the Government in the Higher Education Department.

8. The Court has to agree with the learned standing counsel for the Higher Education Department that the order dated 03.04.2018 in W.A. 165/2017 has been suppressed by the petitioner. The said judgment is a clear authority on the point that the policy/ O.M. dated 17.07.2004 cannot be a perennial source for unabated regularisation of service of those who are working in non-sanctioned post. Therefore, when for one post of Assistant Professor in the Political Department in Kharupetia College, the claim of the petitioner to have his service regularised was rejected by the aforesaid order dated 03.04.2018, no case has been made out by the petitioner to stall the regular selection process for the second post of Assistant Professor in the Political Department in Kharupetia College on similar grounds.

9. Be that as it may, from the contents of the letter no. DHE/CF/ Misc.47/ 2018/544-A dated 30.01.2021 by the Director, Higher Education to the Commissioner and Secretary to the Government of Assam, Higher Education Department on the subject of proceeding of meeting at Committee on Petitions of Assam Legislative Assembly held on 22.12.2020, it is made to appear that the

46th Report of the Committee on Petition, Assam Legislative Assembly, the said committee had resolved to create personal post for regularisation of services of 107 numbers of Assistant Professor working without valid sanctioned posts. It also appears that the decision/ resolution of the said proceeding was followed by a Government letter no. AHE-1046/2019/27 dated 06.01.2021. Thus, if the Page No.# 7/8

name of the petitioner is within the said 107 numbers of posts envisaged by the letter under reference, and if the Government so desires, the petitioner would get the benefit of regularisation of his service by creation of personal post.

10. Therefore, on the ground that the Division Bench of this Court had observed in the order dated 03.04.2018 in W.A. 165/2017, filed by the petitioner that the policy/ O.M. dated 17.07.2004 cannot be a perennial source for regularisation of service of those who are working in non-sanctioned post, the Court is not inclined to admit and/or entertain this writ petition with prayer for regularisation of service of the petitioner as an Assistant Professor in the Political Science Department in Kharupetia College.

11. Nonetheless, the Court hastens to add that this order shall not stand in the way for the respondent authorities to take a decision of whether or not to regularise the service of the petitioner by creating personal post in terms

of 46th Report of the Committee on Petition, Assam Legislative Assembly, wherein the said committee had resolved to create personal post for regularisation of services of 107 numbers of Assistant Professor working without valid sanctioned posts, and to take an appropriate decision thereon.

12. This order shall not preclude the petitioner from participating in the selection process for the post of Assistant Professor in the Political Department in Kharupetia College, if so initiated by the said college, if he is otherwise eligible, and to apply before the competent authority to condone his over-age.

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13. This writ petition stands dismissed with the observations as indicated above. As this writ petition is being dismissed in the motion stage without issuance of any notice on the respondents, we make no comment on the issue raised by the learned standing counsel for the Higher Education Department regarding suppression of material fact on the ground that order dated 03.04.2018 in W.A. No.165/2017.

JUDGE

Comparing Assistant