Abdul Motalib vs The State Of Assam And 4 Ors
2022 Latest Caselaw 1031 Gua

                                                                  Page No.# 1/7

GAHC010260622017




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

                           Case No. : WP(C)/4253/2017

         ABDUL MOTALIB
         S/O MD. CHAND MIA, VILL-LENGRIBORI, PO-SAHARIAGAON, DIST.
         MORIGAON, ASSAM



         VERSUS

         THE STATE OF ASSAM and 4 ORS.
         REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         EDUCATION HIGHER DEPTT., DISPUR, GUWAHATI-6

         2:THE COMMISSIONER and SECRETARY TO THE GOVT OF ASSAM
          HIGHER EDUCATION DEPTT.
          DISPUR
          GUWAHATI-6

         3:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
          HIGHER EDUCATION DEPTT.
          DISPUR
          GUWAHATI-6

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

         5:THE PRINCIPAL

          HAJI ANFOR ALI COLLEGE
          DABOKA
          PO-DABOKA
          DIST. HOJAI
          ASSA
                                                                      Page No.# 2/7


Advocate for the Petitioner   : MR.A K AZAD

Advocate for the Respondent : SC, HIGHER EDUCATION




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                       JUDGMENT

Date : 24-03-2022

Heard Mr. R. Singha, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned counsel for the respondents No. 1, 2, 3 and 4 being the authorities under the Higher Education Department of the Government of Assam and Mr. A.M. Ahmed, learned counsel for the respondent No.5 being the Principal, Haji Anfor Ali College.

2. The petitioner was appointed as a lecturer in the subject Education in the Haji Anfor Ali College, Dabaka, Nagaon as per the resolution No.1 of the governing body of the college in its meeting held on 20.08.1998. Accordingly, the petitioner joined as a lecturer on 25.08.1998. It is also stated that the petitioner was appointed pursuant to some advertisement, interview and selection although we have not verified the same aspect.

3. The fact remains is that when the petitioner was appointed there was no sanctioned post of lecturer in the subject Education in the college concerned. But nevertheless the petitioner continued to serve in it. The authorities in the Higher Education Department of the Government of Assam had come across similar situation in many other colleges where lecturers were working against the non-sanctioned post. The said consideration resulted in the OM.

B(2)H.97/2003/98 dated 17th July, 2004.

Paragraph-4 of the O.M dated 17.07.2004 is extracted below:-

Page No.# 3/7

"The State Govt. is not in a position to sanction any new post for the colleges to accommodate the aforementioned college teachers serving without sanctioned posts. In view of the same and in pursuance to the approval of the cabinet dt. 9.6.2004, the following procedure/modalities are hereby prescribed for adjustment of service of college teachers working without sanction posts as mentioned above.

(a) Vacant posts in a particular deptt. lying in a grants-in-aid college of Assam may be allotted in order of seniority to accommodate teachers in the same college who is working in some other deptt. Without a valid sanctioned post provided that such teacher was appointed by respective G.B. observing due procedure i.e. advertisement selection and having UGC norms required and if the need for such a post is justified by enrolment in that Deptt. of the college etc provided further, the post is not be considered essential for the deptt. against which it was originally sanctioned."

4. A reading of the provision of Clause 4(a) of the OM dated 17.07.2004 makes it discernible that there was a decision by the authorities in the Government of Assam in the Higher Education Department to accommodate such category of lecturers who are working against the non-sanctioned post for the purpose of regularization to be made against any other valid and vacant sanctioned post that may be available in the same college in respect of any other department and such accommodation is to be made in order of seniority amongst the lecturers who are working against the non-sanctioned post in the colleges concerned. Be that as it may, the process ultimately culminated in a list of 354 numbers of lecturers being prepared by the authorities in the Higher Education Department. It is also stated that the list of 354 number of lecturers so prepared was also placed before the Full Bench of this Court in Mizanor Rahman and Ors -vs- State of Assam and Ors., reported in 2012(1) GLT 520 which was decided on 07.02.2012.

5. It is also stated that the Full Bench of this Court had accepted the list of 354 lecturers placed before it and was also pleased to observe that no further lecturer would be accommodated in the process. It has also been brought to the Page No.# 4/7

notice of the Court that in WA 165/2017 the Division Bench also took a similar view that the benefits flowing out of the OM dated 17.07.2004 was specific and any other lecturer who was not a part of the list so prepared may not be entitled to the benefits under the OM dated 17.07.2004.

6. In the instant case, it is stated that at the relevant point of time when the list of 354 numbers of lecturers were prepared which was accepted by this Court in the aforesaid two proceedings, there were certain allegation against the petitioner during his service period as a lecturer in the Haji Anfor Ali College against the non-sanctioned post. It is stated that as because of such allegation that existed against the petitioner, his name was not considered for being accepted in the list of 354 lecturers or to that extent that the petitioner would also be entitled to the benefits under the OM dated 17.07.2004. If the petitioner was not considered for being included in the list pursuant to the OM dated 17.07.2004 as because at that relevant point of time when the consideration was undertaken there were allegations against the petitioner, we are of the view that the same could not have been a reason not to consider the claim of the petitioner. If there were allegations, the principle of procedure as provided by the Supreme Court in Union of India -vs- K.V. Jankiraman reported in AIR 1991 SC 2020 wherein, the method of sealed cover procedure was recognized by the Court would be applicable. Be that as it may, the authorities in the Haji Anfor Ali College by a communication dated 01.04.2013 made to the Director of Higher Education, Assam made a request to include the name of the petitioner Abdul Motalib to be included in the scheme as per OM dated 17.07.2004. To that extent, there is also a certificate issued by the Principal of Haji Anfor Ali College. The Director of Higher Education, Assam in response thereof by a communication dated 08.05.2013 addressed to the Commissioner Page No.# 5/7

& Secretary to the Government of Assam in the Higher Education Department by narrating the facts in detail made a request that necessary permission be granted to include the name of the petitioner for the purpose of regularization of his service which was against the non-sanctioned post. In further consideration thereof, the Deputy Secretary to the Government of Assam in the Higher Education Department by the communication dated 30.05.2013 had informed the Director of Higher Education, Assam that the Government in the Higher Education Department was pleased to grant permission to include the petitioner as a lecturer in the Education department of Haji Anfor Ali College in the list of lecturers working against the non-sanctioned post for the purpose of regularization. The relevant portion of the communication of the Deputy Secretary dated 30.05.2013 is extracted herein below:-

"In inviting a reference to the above, I am directed to say that Govt. in Higher Education Department is pleased to allow permission to include the name of Abdul Motalib Lecturer in Education Department of Haji Anfor Ali College in the list of non sanction College teacher prepared for regularization of service at the office of the Directorate of Higher Education as proposed since the incumbent has been working as non sanction teacher with effect from 28.08.1998."

7. This petition is instituted by the petitioner claiming a legal right to be regularized as per the communication of the Deputy Secretary in the Higher Education Department dated 30.05.2013.

8. Mr. K. Gogoi, learned counsel for the Higher Education Department has raised an objection that the petitioner was working against a post for which there was no government concurrence and therefore no legal right flows in his favour for the purpose of regularization, but the said aspect was not taken note of by the Deputy Secretary while issuing the communication dated 30.05.2013. We are not expressing any view on the objection raised by Mr. K. Gogoi, learned Page No.# 6/7

counsel, but once there is a communication by the Deputy Secretary to the Government of Assam communicating the view of the Government to regularize the petitioner, we are of the view that unless there is other appropriate orders by any other higher authority taking a contrary view from the view taken in the communication dated 30.05.2013, such objection raised by the learned standing counsel at this stage cannot be sustained. On the other hand, we also do not express the view that if otherwise the petitioner is ineligible for being regularized, the authorities would be bound to regularize the petitioner as per the communication dated 30.05.2013.

9. Considering the matter in its entirety, we remand the matter to the Principal Secretary to the Government of Assam in the Higher Education Department to examine the entire matter as indicated above and pass a reasoned order thereof.

10. The reasoned order to be passed by taking note of the communication dated 30.05.2013 of the Deputy Secretary as well as the objection raised by Mr. K. Gogoi, learned counsel for the Higher Education Department as to why the petitioner is ineligible for being regularized.

11. Mr. R. Singha, learned counsel raises certain further issues that he was appointed by following due procedure of law. If any such issue sought to be raised would be relevant, the Principal Secretary may also give hearing to the petitioner to produce any such material that he may desire to produce before passing the reasoned order.

12. The reasoned order to be passed within a period of two months from the date of receipt of the certified copy of the order. In doing so, it is further provided that the Principal Secretary shall not construe that this is a direction to Page No.# 7/7

regularize the petitioner but construe it to be a direction to examine the claim and by taking note of the relevant provision of law including the two judgments as referred above to pass a reasoned order.

Writ petition stands disposed of in the above terms.

Interim order, if any, passed earlier stands vacated.

JUDGE

Comparing Assistant