Inumoni Gogoi vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1607 Gua

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GAHC010185082018




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

                               Case No. : WP(C)/5824/2018

            INUMONI GOGOI
            R/O MORAPUKHURI GAON
            P.O. DEORAJA MAIDAM
            P.S. AMGURI
            DIST. SIBSAGAR, 785680.



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            DEPARTMENT OF EDUCATION,
            DISPUR, GUWAHATI- 781006.

            2:THE DIRECTOR OF HIGHER EDUCATION

             KAHILIPARA
             GUWAHATI -19

            3:THE PRINCIPAL
             KAKOJAN COLLEGE
            JORHAT
             ASSAM- 785001

            4:THE GOVERNING BODY OF KAKOJAN COLLEGE

             REP. BY ITS PRESIDENT KAKOJAN COLLEGE
             JOHRAT- 785001

Advocate for the Petitioner   : MR. S S GOSWAMI

Advocate for the Respondent : SC, HIGHER EDU

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 13-05-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. SS Goswami, learned counsel for the petitioner, Mr. K Gogoi, learned counsel for the respondents No. 1 and 2 being the authorities in the Higher Education Department of the Government of Assam and Mr. PG Bhagwati, learned counsel for the respondents No. 3 and 4 being the authorities in the Governing Body of Kakojan College, Jorhat.

2. The petitioner participated in a selection process pursuant to an advertisement dated 05.07.2006 in the news paper 'Amar Akhom' issued by the Principal of Kakojan College, Jorhat, whereby candidatures were invited for a walk-in-interview against certain non-sanction posts of Lecturer, amongst others, for one post of Lecturer in Education. The petitioner participated in the selection process and a selection was held by the Selection Committee constituted for the purpose. The Selection Committee recommended the petitioner at Serial No. 1 in order of merit for appointment to the post of Lecturer in the Education Department of Kakojan College. In response thereof, the Principal of Kakojan College appointed the petitioner as a Lecturer in the Department of Education in a non-sanctioned post. The order of appointment specified that the appointment is purely temporary and subject to the approval of the Governing Body of Kakojan College. Accordingly, the petitioner accepted the appointment and joined the service.

3. As provided in the order of appointment, the Governing Body of Kakojan College in its resolution of 14.08.2006 had approved the appointment of the Page No.# 3/7

petitioner. By a subsequent resolution of 20.04.2013 of the Governing Body of Kakojan College, the services of the petitioner was extended considering her satisfactory service in the Department by further providing that in the event of any vacancy in any sanctioned post, the college authorities would forward a proposal to the Director of Higher Education, Assam for her regularization.

4. The petitioner continued to serve as the Lecturer in the Education Department of the Kakojan College pursuant to her extended service as per the resolution dated 20.04.2013. We have to understand that after the resolution of the Governing Body dated 20.04.2013, the appointment and engagement of the petitioner as a Lecturer in the Education Department would now be governed by the said resolution and we cannot again fall back to the initial order of appointment, which provided that the appointment would be purely temporary in nature.

5. By the resolution of 20.04.2013, it is apparent that there was an implied modification in the terms of the appointment of the petitioner. Be that as it may, as provided in the resolution dated 20.04.2013, the authorities in the Governing Body of Kakojan College had forwarded a proposal to the Director of Higher Education, Assam for its decision and approval to regularize the petitioner against any vacancy in any sanctioned post that may subsequently arise.

6. By another communication dated 06.04.2017, the Principal of Kakojan College again communicated with the Director of Higher Education, Assam reiterating that there is another proposal of the Governing Body dated 16.02.2016 for regularizing the service against any sanctioned vacant post that may arise. For the purpose, necessary documents etc in respect of the petitioner was also submitted to the Director of Higher Education, Assam.

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7. In the circumstance, the present writ petition is instituted for a direction to the respondent authorities to regularize the service of the petitioner.

8. The respondents through the Director of Higher Education, Assam has filed an affidavit in opposition dated 02.01.2020, wherein in page 4 Annexure-1 thereof an Office Memorandum dated 12.10.2004 had been annexed. Clause-2 of the said Office Memorandum dated 12.10.2004 provides that henceforth no college under the deficit grants in aid shall engage any person for teaching or non teaching purpose where no sanctioned post exists for the purpose. By relying on the said Office Memorandum a stand is taken that the appointment of the petitioner as a Lecturer in the Department of Education in the year 2006 was contrary to the provision of the Office Memorandum dated 12.10.2004 and as such, the petitioner would have no subsisting legal right to be regularized.

9. We understand that the Office Memorandum dated 12.10.2004 contains a decision of the authorities in the Higher Education Department that no teaching or non teaching staffs would be appointed where sanctioned posts are not available.

10. But apart from being provided, a decision also requires an implementation. In the instant case, no material is made available that the said decision was informed to the authorities in the Kakojan college and in spite of it being informed, the Kakojan college had appointed the petitioner against the non-sanctioned post. If yes, no material is also made available as to what action the Higher Education Department has taken against the Kakojan College.

11. It is a settled position of law that any order or decision is also required to be communicated and implemented and a decision merely kept in the file would not have its effect.

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12. Reference is also made by Mr. K Gogoi, learned counsel for the Higher Education Department to an order dated 24.04.2017 in WP(C) No. 2320/2017, wherein notice was taken of an earlier Office Memorandum dated 07.07.2004, which provided for a decision of the authorities in the Higher Education Department to regularize as a onetime measure the services of 300 Lecturers serving in various colleges in Assam against non sanctioned posts as a onetime measure. It is stated that through various judicial pronouncements, the said decision had been given its approval and also implemented and further the said decision contains that no further person who may be working against non sanctioned posts would be regularized.

13. We are in agreement with the judgment dated 24.04.2017 in WP(C) No. 2320/2017 relied upon by the learned counsel for the Higher Education Department. But in the instant case, it is not the case of the petitioner that he is seeking a regularization pursuant to the Office Memorandum dated 07.07.2004. The factual matrix leading to this writ petition is substantially different from the facts leading to the Office Memorandum dated 07.07.2004. The petitioner was appointed by following a procedure of selection and was appointed initially on a purely temporary basis. The temporary engagement continued to exist and was not brought to an end. Thereafter, by the resolution dated 20.04.2013, the Governing Body took a decision to extend the services of the petitioner and with a further provision that the service of the petitioner would be regularized in any future sanctioned vacant post and for the purpose a proposal was also forwarded to the Director of Higher Education, Assam. Subsequent thereto, a reiterated proposal was also send by the communication dated 06.04.2017.

14. In the aforesaid circumstance, Mr. SS Goswami, learned counsel for the petitioner by referring to the Annexure-1 page 10 of the affidavit in reply Page No.# 6/7

submits that the Principal of Kakojan College by a communication dated 23.02.2016 had in fact submitted a proposal for approval of the appointment and regularization of the petitioner against a vacant post in the Department of Education in the Kakojan College which had already been identified.

15. As the appointment of the petitioner stood impliedly modified by the resolution dated 20.04.2013 by extending it on an indefinite basis with a further proposal that her case for regularization will be considered against any future vacant sanctioned post and in furtherance thereof, a proposal had been submitted to the Director of Higher Education, Assam, we are of the view that a legal right has accrued in favour of the petitioner for a consideration of the proposal made by the Principal of Kakojan College in the communication dated 23.02.2016 as well as 06.04.2017 and to pass a reasoned order thereon.

16. Mr. K Gogoi, learned counsel for the Higher Education Department contends that the reasoned order may be passed by the Commissioner and Secretary to the Government of Assam in the Higher Education Department.

17. If it is so, let the Director of Higher Education, Assam transmit the two aforementioned proposals to the Commissioner and Secretary of the Higher Education Department and the Commissioner and Secretary may pass a reasoned order thereof. In doing so, the Commissioner and Secretary shall take note of the resolution of the Governing Body of Kakojan College dated 20.04.2013 whereby impliedly the service condition of the petitioner stood modified and secondly also the conduct of the authorities in the Higher Education Department as well as the authorities of the Kakojan College, which apparently leads to a legal right in favour of the petitioner on the principle of legitimate expectation. The decision be taken independently of the final outcome of the Office Memorandum dated 07.07.2014 without making any Page No.# 7/7

reference thereto as the claim of the petitioner is unconnected with the process initiated under the said memorandum. The reasoned order be passed within a period of two months from the date of receipt of a certified copy of this order.

18. The Commissioner and Secretary shall also take note of that in the year 2017 a sanctioned post in the Department of Education in Kakojan College had fallen vacant and the same is presently vacant and the petitioner is in fact now working against the said post.

19. Further note be also taken of the proposition laid down by the Supreme Court in Civil Appeal No. 3922-3925 (Somesh Thapliyal and another -vs- Vice Chancellor, HNB Garhwal University and another) dated 03.09.2021, wherein in paragraph 49, it had been held as under:-

"49. In our considered view, once the appellants have gone through the process of selection provided under the scheme of the Act 1973 regardless of the fact whether the post is temporary

or permanent in nature, at least their appointment is substantive in character and could be made permanent as and when the post is permanently sanctioned by the competent authority."

20. The Commissioner and Secretary while considering the case of the petitioner shall also take note of the aforesaid proposition laid down by the Supreme Court in the aforementioned judgment in its actual spirit.

The writ petition is allowed to the extent indicated above.

JUDGE

Comparing Assistant