Gauhati High Court
Page No.# 1/26 vs The State Of Assam And 15 Ors on 2 July, 2024
Page No.# 1/26
GAHC010064952020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2089/2020
ARUNAV KAR AND 61 ORS.
S/O- ASHIM KR KAR
R/O- KP ROAD, P.O. AND P.S-DIBRUGARH.
2: DIPANKA KASHYAP BORTHAKUR
S/O- SAMIRON BORTHAKUR
R/O- BAMKUKURA CHOWA GAON
KAKAJAN
JORHAT. P.O- KAKAJAN. PIN-785107
3: PARTHA PRATIM SARMA
S/O BHABENDRA CHANDRA SARMA
R/O VILL. MOURA
P.O- KALAG
P.S. NALBARI
PIN 781351
4: ABHINANDAN BORUAH
S/O PULIN KUMAR BORUAH
R/O BONAI DHANTULA GAON
PO- ROBIGAON
DIST-JORHAT
PIN-785683.
5: SANJUKTA DEKA
D/O NAVA DEKA
R/O VILL AND PO- KAZIPARA
DIST AND P.S- NALBARI
PIN-781341.
6: LIMLEE BEZBARUAH
D/O MUNIN BEZBARUAH
R/O PARIJAT PALACE
HAIBORGAON
Page No.# 2/26
NAGAON
ASSAM
PIN-782002.
7: MOHSINA AFROOZ
D/O MOTIUR RAHMAN
R/O VILLAGE SABAJPUR
PO AND PS MURAJHAR
DISTRICT HOJAI
ASSAM
782439.
8: BIKRAMJIT HAZORIKA
S/O BIREN HAZORIKA
R/O TELGARAM
P.O - KANAIGHAT
DIST- GOLAGHAT
PIN-785699.
9: BHAGYASHREE MAHANTA
D/O MUNIN MAHANTA
R/O MADHABNAGAR
KHANAPARA
HOUSE 204
GUWAHATI
ASSAM.
10: PIYUSHA BORA
D/O POWAL BORA
R/O CHANDAN NAGAR
R.K.B. ROAD
GOLAGHAT-785621
ASSAM.
11: SUKANYA BHUYAN
D/O CHANDAN KUMAR BHUYAN
R/O K.B. ROAD
JORHAT
ASSAM.
12: HIMASRI LAHKAR
D/O PRAMOD CHANDRA LAHKAR
R/O RANGIA
WARD NUMBER 6
NEAR RAILWAY OVERBRIDGE
ASSAM
PIN- 781354
Page No.# 3/26
13: NISHANTA KUMAR BASISTHA
S/O LATE PRAMOD KUMAR SHARMA
R/O PUB SHANTI NAGAR
POWER HOUSE
KAHILIPARA
GUWAHATI 781019.
14: BARNALI SAIKIA
D/O GOURI SANKAR SAIKIA
R/O VILL- SIMLAGURI (UDAY NAGAR)
P.O- SIMLAGURI
PIN- 781313
DIST- BAKSA
STATE- ASSAM
15: SIMANTA CHOUDHURY
S/O JATIN CHOUDHURY
R/O BARBANGKHANDOPARA
PO BARBANG
DIST BARPETA
STATE ASSAM
PIN 781325.
16: MONOWAR HUSSAIN
S/O ABUL KHAYER
VILL -APRUPI
P.O- CHANDMAMA
P.S- KALGACHIA
DIST-BARPETA
ASSAM.
17: ABINASH KASHYAP
S/O DEBA KUMAR SARMAH
R/O MILAN NAGAR
DIBRUGARH
P.O. C.R. BUILDING PIN- 786003.
18: NABANITA ROY
D/O HARENDRA CHANDRA ROY
R/O RUPNAGAR
PO INDRAPUR
SANKARDEV PATH
HOUSE NO.13
GUWAHATI 781032.
19: PINAK JYOTI DEKA
S/O DHIREN CH DEKA
R/O RAMKRISHNA NAGAR
Page No.# 4/26
LICHUBARI
P.O. CINNAMARA
JORHAT -785008.
20: SADDAM HUSSAIN
S/O PARESH ALI
R/O VILLAGE AND PO- MERUATTARY PS-MUKALMUA DIST-NALBARI
781126.
21: RITUPARNA MAZUMDAR
S/O SUREN MAZUMDAR
R/O VILL SINGIA PANIGAON
PO SINGIA
PIN 782140 NAGAON
ASSAM.
22: DEBAHOTI KHOUND
D/O DR. RAJENDRA NATH KHOUND
R/O H.NO-6C
SAMPRITTE PATH
JATIA
KAHILIPARA ROAD
DISPUR-781006.
23: RISHAVI BORTHAKUR
D/O AMAL BORTHAKUR
R/O 4E
PARLAY GREEN APARTMENT
NANDANPUR PATH
JAPORIGOG
GUWAHATI
ASSAM
781005.
24: RITUPON SAIKIA
S/O MR. KRISHNA SAIKIA
R/O BONGALMORA
ISLAMGAON
BIHPURIA
787054
ASSAM.
25: HIMADRI KALITA
S/O PRAMOD CHANDRA KALITA
R/O NEW GUWAHATI RAILWAY COLONY
BAMUNIMAIDAM. GUWAHATI-781021
KAMRUP METRO
ASSAM.
Page No.# 5/26
26: PRANAMI DAS
D/O SUBHASH CHANDRA DAS
R/O BELTOLA SURVEY
GUWAHATI-781028.
27: ANUSUYA SHARMA
D/O NRIPENDRA NATH SHARMA BORTHAKUR
R/O CHIRING CHAPORI ATEICOL LANE DIBRUGARH ASSAM PIN- 786001.
28: ARNABJYOTI SUTRADHAR
S/O GUNAJIT SUTRADHAR
R/O HOUSE NO.21
SHANTI NAGAR PATH
NO.2 MATHGHARIA
NOONMATI
GUWAHATI-781020.
29: LOVITA DEKA
D/O JADAB CHANDRA DEKA
R/O VILL- JAPARKUCHI
P.O.-TERECHIA
DIST- NALBARI
PIN-781334
STATE-ASSAM.
30: SAURAVJYOTI SENCHOWA
S/O PRODIP SENCHOWA
R/O VILL-POHUCHOWA GAON
PO-MAHEEMA
PIN- 785626
DISTRICT-GOLAGHAT
ASSAM.
31: DHANASREE SARMAH
D/O SARAT SARMAH
R/O SARBAIBONDHA
BYPASS
JORHAT
P. O. - JORHAT
PIN- 785001.
32: PARISHMITA GOGOI
D/O DEEPAK GOGOI
R/O ADISRIPUR VILLAGE
TINGKHONG
PO-TINGKHONG
PIN-786612
Page No.# 6/26
DIBRUGARH
ASSAM.
33: PRIYANKA TALUKDAR
D/O HEMANTA TALUKDAR
R/O BASISTHA
GANESHNAGAR
HOUSE NO. 30
GUWAHATI-29.
34: GAYOTREE SARMA
D/O PROBIN CHANDRA SARMA
R/O HAMDOI POOL
GOLAGHAT.
35: MRIGANKA SARMA
S/O KARUNA KANTA SARMAH
R/O HIRAPARA PUBLIC PLAYGROUND
AZARA
GHY-17
KAMRUP (M).
36: KRISHNA KANTA GOGOI
S/O GHANA KANTA GOGOI
R/O KUSHAL PATH
PO- DEMOW.
37: PARTHANA BORUAH
D/O SURESH CHANDRA BORUAH
R/O KOPOHUA GAON
NAZIRA
SIVASAGAR
ASSAM.
38: YUGAL BARMAN
S/O RATNESHWAR BARMAN
R/O BIDYAPUR
NALBARI
39: PANKAJ SARMAH
S/O CHANDRA KANTA SHARMA
R/O DHOKUAKHANA
LAKHIMPUR
PIN-787055
40: KANGKANA HAZARIKA
D/O- TARUN HAZARIKA
R/O- ADABARI
Page No.# 7/26
GUWAHATI
KAMRUP (M)
ASSAM.
41: JAYSHREE TALUKDAR
D/O- KUMUD TALUKDAR
R/O- HOUSE NO 6
SOUTH SARANIA NEAR GANDHI MANDAP
PO - ULUBARI
PS-PALTANBAJAR
GUWAHATI 781007
ASSAM
42: ABINASH DAS
S/O- JATINDRA NATH DAS
R/O- C/O-MUKUL KR CHOUDHURY
VILL-BHAWANIPUR
DIST-BARPETA (ASSAM)
PIN-781352.
43: NABEELA ZARQAA
D/O- SHAHJADA SALEEM
R/O- HOUSE NO. 515
NEAR RLY. GATE 6
A.T. ROAD
KUMARPARA
GUWAHATI 781009
44: NIKHIL SAIKIA
S/O- NARENDRA SAIKIA
R/O- VILL- DARANGIAL GAON
P.O- ALIKUCHI
PIN-782106
NAGAON
ASSAM
45: NAYAN JYOTI DAS
S/O- DIBAKAR DAS
R/O- VILL- BAHARI
P. O.- NIZ BAHARI
DIST- BARPETA
ASSAM. PIN - 781302
46: BHASKAR BORTHAKUR
S/O- PROBIN BORTHAKUR
R/O- VILL- BANGALIGAON (GOJALI)
PO- RAJMAI
DIST- SIVASAGAR
Page No.# 8/26
ASSAM
PIN- 785672
47: NIMISH JYOTI NEOG
S/O- NAKUL CH NEOG
R/O- KATHKOTIAGAON PO GANAKPUKHURI DIST- GOLAGHAT ASSAM
785622
48: YASMINA AZIZ
D/O- AZIZAR RAHMAN
R/O- RAJNAGAR
NEAR UNITED HOSPITAL
CIRCUIT HOUSE ROAD
NALBARI
49: RADHASHREE BORA
D/O- PRASANTA BORA
R/O- B.B ROAD
EAST AMOLAPATTY
NAGAON - 782001
ASSAM
50: SHRUTI SHARMA
D/O- LATE ARUN SHARMA
R/O- GANDHIBASTI
BYELANE-6
GOBINDA ENCLAVE
GHY-3
51: HIMAKSHI DAS
D/O- JOYDEV CHANDRA DAS
R/O-2 NO MATHGHARIA
SANTINAGAR PATH
HOUSE NO 7
GUWAHATI
52: BHASKAR PRATIM BORTHAKUR
S/O- LAKHESWAR BORTHAKUR
R/O- KAMAKHYA GAON
P.O-SILGHAT
NAGAON
ASSAM PIN-782143
53: DULIKA BURAGOHAIN
D/O- LATE RUTU GOHAIN
R/O- CLUB ROAD
NEAR SAIKIA GAS AGENCY
JORHAT
Page No.# 9/26
ASSAM
54: HIMANGSHU DEKA
S/O- ANANTA DEKA
R/O- VILL-KAUREHAGI
PO-JALKHANA
PS-TIHU
DIST-NALBARI
PIN CODE-781374
55: DIPOM BHARALI
S/O- NIPU MONI BHARALI
R/O- GHAR PORA CHUBURI
TEZPUR
ASSAM
56: BUBUMANI KALITA
D/O- JYOTISH KALITA
R/O- VILL-BARBANG
KALITAPARA
PO-BARBANG
DIST-BARPETA
PIN-781325
57: MONSUN MOUT
S/O- BOLI MOUT
R/O- NAMGHARIA ALI
BAILUNG PATHAR VILLAGE
SIVASAGAR
ASSAM P.O.- ARJUNGURI PIN-785697
58: KABITA BORUAH
D/O- NILA KANTA BORUAH
R/O- KACHAMARI DUWARANI GAON
P.O. KACHAMARI
P.S. MERAPANI
DIST. GOLAGHAT
ASSAM
PIN- 785705.
59: SIDDIKA IMANI
D/O LT MAHBUB AHMED CHOUDHURY
R/O HNO.
HATIGAON
GUWAHATI
60: SHAHENAZ SULTANA BEGUM
D/O IDRISH ALI
Page No.# 10/26
R/O MORIGAON
ASSAM
61: PONKUSMRITA PATHAK
D/O DHIREN PATHAK
R/O NANGAL GAON
P.O. BORBHOLA
DISTRICT JORHAT
PIN 785631
62: BITUPAN KAKOTY
S/O NAGEN KAKOTY
R/O KHARZARA
P.O. GOPALBAZAR
NALBARI
ASSAM
PIN-781353
VERSUS
THE STATE OF ASSAM AND 15 ORS.
REP. BY THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM, EDUCATION
(HIGHER) DEPTT., DISPUR, GHY-6
2:THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPTT.
DISPUR
GHY-6
3:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
EDUCATION (HIGHER) DEPTT.
DISPUR
GHY-6
4:DIRECTOR OF TECHNICAL EDUCATION
ASSAM
DIRECTORATE OF TECHNICAL EDUCATION
KAHILIPARA
GHY
ASSAM
PIN- 781019
5:ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REP. BY ITS CHAIRMAN
HAVING ITS H.O. AT NELSON MANDALA MARG
VASANT KUNJ
NEW DELHI- 110070
Page No.# 11/26
6:ASSAM PUBLIC SERVICE COMMISSION
REP. BY ITS CHAIRMAN
JAWAHAR NAGAR
KHANAPARA
GHY
ASSAM
PIN- 781022
7:THE DY. SECRETARY
ASSAM PUBLIC SERVICE COMMISSION
JAWAHAR NAGAR
KHANAPARA
GHY-22
8:THE PRINCIPAL
DHEMAJI POLYTECHNIC
SILAPATHAR
SIMENCHAPORI
DIST.- DHEMAJI
ASSAM
PIN- 787061
9:THE PRINCIPAL
GOLAGHAT POLYTECHNIC
FURKATING
DIST.- GOLAGHAT
PIN- 785610
10:THE PRINCIPAL
SONITPUR POLYTECHNIC
DHEKIAJULI
DIST.- SONITPUR
ASSAM
PIN- 784110
11:THE PRINCIPAL
LAKHIMPUR POLYTECHNIC
BIHPURIA
DIST.- LAKHIMPUR
ASSAM
PIN- 784161
12:THE PRINCIPAL
BAKSA POLYTECHNIC
BELGURIPATHAR
DIST.- BAKSA (BTAD)
ASSAM
Page No.# 12/26
PIN- 781377
13:THE PRINCIPAL
NALBARI POLYTECHNIC
DIST.- NALBARI
ASSAM
PIN- 781335
14:THE PRINCIPAL
KAMRUP POLYTECHNIC
BAIHATACHARIALI
DIST.- KAMRUP (R)
ASSAM
PIN- 781381
15:THE PRINCIPAL
BARPETA POLYTECHNIC
BARPETA TOWN
DIST.- BARPETA
ASSAM
PIN- 781301
16:THE PRINCIPAL
SIVASAGAR POLYTECHNIC
DIMOW
DIST.- SIVASAGAR
ASSAM
PIN- 78705
Advocate for the Petitioner : MR. D DAS SR. ADV
Advocate for the Respondent : SC, APSC
Page No.# 13/26
BEFORE
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
Dates of hearing : 02.02.2024 & 07.02.2024
Date of Judgment : 02.07.2024
J U D G M E N T AND O R D E R
The Government of Assam, in the year 2011, decided to establish 21 new
Polytechnics in 21 districts under the Centrally funded scheme and one new
Polytechnic at Titabor, Jorhat under State funded scheme. Accordingly, 11 new
Polytechnics were established by the year 2016 at Dhemaji, Golaghat, Sonitpur,
Lakhimpur, Goalpara, Baska, Nalbari, Kamrup, Barpeta, Sibsagar and Karimganj.
Thereafter, by a letter, dated 23.12.2016, post of Lecturers in the aforesaid
Polytechnics were created and sanctioned. Consequently, the Assam Public
Service Commission (Commission, in short) made an Advertisement No.05/2017
dated 25.05.2017 inviting applications for filling up of 353 numbers of different
vacant posts in the State Engineering Colleges and Polytechnics of Assam under
the Higher Education (Technical) Department. The last date for submission of
forms in terms of the Advertisement dated 25.05.2017 was 27.06.2017.
The recruitment process pursuant to the Advertisement dated 25.05.2017
was taking time to start and as the State Engineering Colleges and Polytechnics
were facing shortage of lecturers, the concerned authorities decided to
temporarily engage some Guest faculty so that the said institutes can run
properly and the academic sessions do not get affected due to shortage of
regular lecturers. Accordingly, the Director of Technical Education, Assam
Page No.# 14/26
published an Advertisement on 07.07.2018 inviting candidates having
qualifications as per AICTE/UGC norms and as adopted by the Government of
Assam for engagement of Guest Faculties in the new Polytechnics under the
Directorate of Technical Education. The petitioners having requisite qualifications
submitted their applications in terms of the Advertisement, dated 07.07.2018.
The Director of Technical Education, Assam, thereafter shortlisted the
candidates for selection as Guest Faculty in the new Polytechnics under the
Directorate of Technical Education. The names of the petitioners were also
included amongst the shortlisted candidates and accordingly they appeared in
the interview. Thereafter, a final select list was published wherein names of the
petitioners were included. Pursuant to publication of the final select list, the
petitioners were issued letter of engagement in the year 2018 and 2019 to serve
as Guest Faculty. The appointments of the petitioners were for a period of six
months. However, their appointments have been extended from time to time.
2. In the meantime, the Commission decided to hold a screening test
pursuant to the Advertisement dated 25.05.2017 and accordingly, the
Commission published a Notification dated 03.03.2020 for holding Multiple
Choice Type Screening Test (OMR based) from 26.06.2020 to 31.03.2020 as a
process for recruitment to the post of Lecturer (technical and non-technical) and
Librarian in the Polytechnics of Assam under Higher Education (Tech)
Department. As the petitioners, who were appointed in the year 2018 and 2019
as Guest Faculty are being denied to participate in the recruitment process
pursuant to the Advertisement dated 25.05.2017, they are before this Court by
way of the present writ petition.
3. This Court, on 09.03.2022, passed an ad interim order directing that the
Notification dated 03.03.2020 shall not be given effect to.
Page No.# 15/26
4. Heard Mr. D. Das, learned Senior counsel, assisted by Mr. H.K. Nath,
learned counsel for the petitioners. Also heard Mr. K. Gogoi, learned Standing
Counsel, Higher Education Department, Government of Assam for the
respondents No.1, 2, 3, 4, 8 to 16 and Mr. T. J. Mahanta, learned Standing
Counsel, APSC for respondent Nos.6 and 7 as well as Ms. G. Hazarika, learned
counsel for respondent No.5.
5. Mr. D. Das, learned Senior counsel for the petitioners, submits that after
the establishment of 11 new Polytechnics by the year 2016, there were
requirement for running the said Polytechnics and as the post were also created
and sanctioned by the letter, dated 23.12.2016, the Commission published an
Advertisement on 25.05.2017 for filling up 353 numbers of vacant posts in the
Engineering Colleges and Polytechnics of Assam. At the relevant point of time,
the petitioners were not eligible and, therefore, they did not make their
applications pursuant to the Advertisement, dated 25.05.2017. However, as the
recruitment process did not take off for a considerable period of time and as
there were shortage of Lecturers, the authorities decided to temporarily engage
some Guest Faculties to ensure that the said institutes can run properly and
academic sessions do not get disrupted due to shortage of regular Lecturers.
Accordingly, the Director of Technical Education, Assam published an
Advertisement on 07.07.2018 inviting candidates for a walk in interview for
engagement of Guest Faculties in the newly established 11 Polytechnics in
Assam. As the petitioners were qualified by this time, they applied for the post
and on being successful in the recruitment process, they were engaged on
purely temporary basis in terms of the Advertisement, dated 07.07.2018 in the
year 2018 and 2019 to serve as Guest/Part Time Lecturers against the
Page No.# 16/26
sanctioned posts. The initial period of engagement was for a period of six
months. However, the said engagements were extended from time to time till
date. The petitioners were allowed to work as full time employee/Lecturer and
they were allowed to draw regular pay scale.
6. Learned Senior counsel for the petitioners submits that after the
Advertisement, dated 25.05.2017, was made by the Commission, no action was
initiated pursuant to the said advertisement till the year 2020. He also submits
that as the Advertisement dated 25.05.2017 was issued without the eligibility
criteria that the applicants must be permanent resident of Assam, the Director
of Technical Education, Assam by a letter dated 17.10.2019 requested the
Government of Assam to make permanent resident of Assam as the eligibility
criteria for the post of Lecturers in Polytechnics and, accordingly, a request was
made to cancel the Advertisement dated 25.05.2017 as the criteria of
permanent resident of Assam was not included in the Advertisement dated
25.05.2017. He submits that in the Communication dated 17.10.2019, the
respondent No.4 brought in the example of Water Resources Department of
Assam wherein the proof of permanent resident of Assam was made mandatory
for applying for the post of Assistant Engineers in the Water Resources
Department by the Advertisement issued by the Commission on 21.12.2018.
The petitioners were, therefore, under the bona fide belief that the
Advertisement dated 25.05.2017 would be cancelled as done for other similar
posts in other departments of the Government of Assam and a fresh
advertisement would be issued by bringing the criteria of permanent resident of
Assam. However, the Commission, instead, issued the Notification dated
03.03.2020 for holding Multiple Choice Objective Screening test (OMR based)
for recruitment to the post of Lecturer (Non-Technical) and Librarian in
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Polytechnics in Assam under the Higher Education (Technical) Department.
7. Learned Senior counsel for the petitioners submits that the Advertisement
dated 25.05.2017 has been dragging for a long period of time, i.e., three years
and, therefore, such inordinate delay has violated the fundamental rights of the
petitioners and other eligible candidates by denying them the opportunity to
participate in the recruitment process to the post of Lecturer in the 11 new
Polytechnics. The delay in completion of the selection process pursuant to the
Advertisement dated 25.05.2017 depicts a complete failure on the part of the
respondent-authorities and the selection process that lingers on for years can
hardly measure up to the demands of objectivity and fairness. It is also
submitted that under the AICTE Rules, only 10% of the total Faculty can be
absorbed on temporary basis with the AICTE's pay-scale and that too for not
more than one academic session. Therefore, the respondent-authorities
obtained and continued to obtain the permission from the AICTE for continuing
11 Polytechnics only by showing the names of the petitioners and other Guest
Lecturers as Lecturer with regular pay scale which would clearly indicate that
the respondents have been treating the petitioners as permanent Faculties. It is
further submitted that the Government of Assam has already framed the Assam
Engineering Service Recruitment Board Regulations, 2021 (Regulations of 2021
in short) and under the said Regulation, the Assam Engineering Services
Recruitment Board has been constituted as the competent authority to conduct
examinations for recruitment of Lecturers under Higher Education (Technical)
Department. Therefore, the Commission has ceased to have jurisdiction to
conduct examination for recruitment of Lecturer under the Higher Education
(Technical) Department. He, therefore, submits that Advertisement dated
25.05.2017 and the consequent Notification dated 03.03.2020 issued by the
Page No.# 18/26
Commission are liable to be set aside and quashed. He has placed reliance in
the case of Naushad Anwar and others Vs. State of Bihar, reported in
(2014) 11 SCC 203 and in the case of State of Jammu and Kashmir &
others Vs. Saheena Masarat and others, reported in (2021) 13 SCC 304.
8. Mr. K. Gogoi, learned Standing Counsel, Higher Education Department, on
the other hand, submits that after the Advertisement dated 25.05.2017 was
issued by the APSC, as there was some delay in conducting the recruitment
process and as there was shortage of Lecturers, the authorities in the Higher
Education (Technical) Department, decided to temporarily engage some Guest
Faculties so that the said institutes can run properly and the academic sessions
are not affected due to shortage of regular Lecturers. Therefore, the respondent
No.4 published an Advertisement dated 07.07.2018 inviting candidates for a
walk in interview for engagement of Guest Faculties in the newly established 11
Polytechnics in Assam. As the petitioners, by this time, had acquired the
eligibility criteria, they applied in terms of the Advertisement dated 07.07.2018
and finally they were selected for engagement on purely temporary basis in
accordance with the Advertisement dated 07.07.2018 in the newly established
11 numbers of Polytechnics in Assam. He also submits that the engagement
orders of the petitioners clearly specified that services of the Guest Faculties
may be terminated at any time without assigning any reasons therein in case
their performance is found unsatisfactory or regular Faculty is appointed against
the sanctioned post. Further, it was also specified that the engagement is purely
temporary and, therefore, does not confer any right for regularization against
the permanent vacant posts.
9. Learned Standing Counsel, Higher Education Department, submits that
services of the petitioners are governed by the Assam Technical Education
Page No.# 19/26
Service Rules, 1981 and in terms of the said Rules, the post of Lecturer wherein
the petitioners have been temporarily engaged as Guest Faculties, is a direct
recruitment post and the regular appointment to those posts are made through
recommendation of the competent authority, i.e., the Commission. There is no
provision for regularization/absorption of services of temporary employees. He
also submits that at the time of publication of the Advertisement dated
25.05.2017, the petitioners were admittedly not eligible for appointment as per
the terms and conditions of the said Advertisement. The petitioners have
acquired their eligibility criteria only after the last date of submission of
application provided in the Advertisement dated 25.05.2017. Therefore, the
petitioners who are otherwise not eligible to apply for the post which have been
advertised through the Advertisement dated 25.05.2017 are not entitled to
challenge the recruitment process initiated by the Advertisement dated
25.05.2017.
10. Learned Standing Counsel, Higher Education Department, countering the
submission of learned Senior counsel for the petitioners with regard to inclusion
of permanent resident certificate as a mandatory requirement for recruitment to
the post of Lecturer in Polytechnics in connection with the Advertisement dated
25.05.2017 submits that such kind of restrictions based on domicile/resident of
candidate is in violation of the provisions of Article 16 of the Constitution of
India and, therefore, the contention of the learned Senior counsel for the
petitioners is not tenable in the eyes of law. He, therefore, submits that as the
petitioners were not eligible for submission of forms pursuant to the
Advertisement dated 25.05.2017, the petitioners have no legal right to challenge
the Advertisement, dated 25.05.2017, as well as the Notification, dated
03.03.2020. He has placed reliance in the cases of Union of India Vs. Ilmo
Page No.# 20/26
Devi, (2021) AIR SC 4855, State of Gujarat Vs. R.J. Pathan, (2022) 5
SCC 394, Union of India Vs. Mahendra Singh, (2022) 6 SCR 1001,
Sudhir Singh and others Vs. State of UP and others, 2023 SCC Online
1394, State of Bihar and others Vs. Madhu Kant Ranjan, (2022) AIR
(SC) 1310, Chebrolu Leela Prasad Rao Vs. State of Andhra Pradesh and
others, (2021) 11 SCC 401, Satyajit Kumar and others Vs. State of
Jharkhand and others, (2022) 8 JT 50 and Rajesh Pravichandra
Rajyaguru Vs. Gujarat Water Supply and Sewerage Board, (2022) 1
SCT 227.
11. Mr. T.J. Mahanta, learned Standing Counsel, APSC appearing for
respondent Nos.6 and 7 submits that after the Advertisement dated 25.05.2017
was published and due to non-finalisation of syllabus for holding the screening
test of the Higher Education Department, the Commission could not conduct the
screening test in time for filling up of the post of Lecturers (Technical and Non-
Technical) in Polytechnics of Assam. Further, several representations were
received by the Commission regarding introduction of PRC as a criteria for
candidature. After a series of communication made in this regard, the Education
(Technical) Department, Government of Assam by a Communication dated
17.04.2018, informed the Commission that the Government of Assam has
agreed to the proposal for a paper on local language(s) along with the
screening test to protect the interest of indigenous aspiring youths for the posts
of Lecturers in Polytechnics of Assam. Thereafter, on 08.10.2018, the APSC
issued a Notification stating that the Commission has decided to hold written
test for one paper for local language of Assam for recruitment to the post of
Assistant Professor and other staffs of the Government Engineering Colleges
and Polytechnics of Assam under the Higher Education (Technical) Department
Page No.# 21/26
as per approval of the Government of Assam vide letter, dated 17.04.2018.
However, again various communications were made between the Commission
and the Higher Education (Technical) Department seeking clarifications on
various issues like syllabus and other particulars and in these processes, there
was some delay in holding the examination by the Commission as reply was not
received in time from the Government of Assam. Accordingly, on 03.03.2020,
the Commission issued a Notification stating that the Commission will hold
Multiple Choice Objective Type Screening Test (OMR based) from 26.03.2020 to
31.03.2020 for recruitment to the post of Lecturers (Technical and Non-
Technical) for the Polytechnics of Assam. The petitioners have acquired their
eligibility criteria only after the last date of submission of application pursuant to
the Advertisement dated 25.05.2017 and, therefore, they are not eligible to
participate in the selection process pursuant to the Advertisement dated
25.05.2017. The petitioners are appointed as Guest Lecturers only on temporary
basis and, therefore, they have no indefeasible right to get absorbed or
regularize in service. He submits that the recruitment process has been kept on
hold vide the interim order dated 19.03.2020 passed by this Court on the
demand of some ineligible candidates/petitioners and, therefore, the writ
petition deserves to be dismissed. He submits that that it is already a settled
position of law that to be eligible for consideration, one must have possessed
the eligibility criteria on the date of the advertisement and possessing the
eligibility criteria subsequently would be of no avail. In the present case, all the
petitioners were lacking in eligibility criteria as per the Advertisement dated
25.05.2017 and, therefore, the petitioners are not eligible to participate in the
selection process pursuant to the Advertisement dated 25.05.2017.
Page No.# 22/26
12. Learned Standing Counsel also submits that the Assam Engineering
Service Recruitment Board Regulations, 2021 came into effect from 23 rd June,
2021. The Advertisement was made on 25.05.2017 and, therefore, the
Regulation of 2021 has no bearing in the present selection process inasmuch as
once an advertisement has been made in terms of the existing Rules or
Government Orders, selection of candidates must be made in accordance with
the then existing Rules and Government Orders. He also submits that the
petitioners are concerned only with the 113 posts of Lecturer (Technical) in 11
different subjects in Polytechnics of Assam and 86 post of Lecturer (Non-
Technical) in 5 different subjects in Polytechnics of Assam. The petitioners
therefore cannot pray for setting aside the whole Advertisement dated
25.05.2017. He, therefore, submits that there is no merit in the present writ
petition and the same deserves to be dismissed. He has placed reliance on
Pradeep Kumar Rai Vs. Dinesh Kumar Pandey, (2015) 11 SCC 493,
Piyali Debnath Vs. State of Assam and others (WP(C) No.1262/2022),
decided on 21.02.2023, Sourav Saha Vs. State of Assam and others
(WP(C) No.4809/2023), decided on 18.12.2023, Nilakshi Mili (Medak)
Vs. State of Assam and others, reported in 2011(4)GLT 811, Ashok
Kumar Sharma and others Vs. Chander Shekhar and another, reported
in (1997) 4 SCC 18, Madan Mohan Sharma and others Vs. State of
Rajasthan and others, reported in (2008) 3 SCC 724 and N.T. Bevin Katti
and others Vs. Karnataka Public Service Commission and others,
reported in (1990) 3 SCC 157.
13. I have heard learned counsel for the parties.
14. This Court has considered the Advertisement dated 25.05.2017 published
Page No.# 23/26
by the Commission for filling up of various different parts under the State
Engineering Colleges and Polytechnics of Assam under Higher Education
(Technical) Department wherein the last date for filling up of the post is
indicated as 26.07.2017. At the time of issuance of the Advertisement dated
25.05.2017, the petitioners were admittedly not qualified inasmuch as they did
not have the eligibility criteria as provided under the Advertisement, dated
25.05.2017.
15. After the Advertisement, dated 25.05.2017 was issued, it took a
considerable period of time for the Commission to proceed with the recruitment
process in terms of the said advertisement. Further, the respondent-authorities
were also facing difficulties in running the Polytechnics and, therefore, after due
approval from the Government, the Director of Technical Education, issued the
Advertisement, dated 07.07.2018, calling for invitations for engagement of
Guest Faculty in the 11 new Polytechnics in the State of Assam under the
Director of Technical Education. In the meantime, the petitioners had already
qualified and, accordingly, in terms of the Advertisement, dated 07.07.2018,
they made their applications. On scrutiny of the applications, they were found
eligible and their names were shortlisted. Thereafter, the names of the
petitioners were reflected in the list of selected candidates as Guest Faculty.
16. What is noticed in the present writ petition is that after the Advertisement,
dated 25.05.2017, was issued, no further process was taken up for the
recruitment process pursuant to the said Advertisement. It was only after a
lapse of about three years that the Notification, dated 03.03.2020, was issued
by the Commission for holding OMR based Multiple Choice Objective Type
Screening Test from 26.03.2020 to 31.03.2020. During this intervening period,
the petitioners had already qualified for applying for the post so advertised in
Page No.# 24/26
the Advertisement, dated 25.05.2017. Apart from the petitioners herein, a large
number of candidates must have become eligible for appointment to the posts
advertised and as the advertisement has not been acted upon within a
reasonable time but after a delay of about three years, this Court is of the
considered opinion that it would disentitle many eligible candidates to take part
in the recruitment process, who have become eligible in the meantime. This, in
the considered opinion of this Court, would amount to violation of the
fundamental rights of such eligible candidates as guaranteed under Article 16 of
the Constitution of India.
17. The inordinate delay in finalising the selection procedure after the
Advertisement, dated 25.05.2017, was issued is totally undesirable not only
because it violates the fundamental rights of the candidates, who have been
qualified for appointment during the intervening period but also because it
depicts a complete failure on the part of all concerned in regulating the selection
and appointment process.
18. This Court has also taken into consideration the submissions of the learned
Senior counsel for the petitioners that with the framing of the Regulation of
2021, the Assam Engineering Service Recruitment Board has been constituted
as the competent authority to conduct examination for recruitment of Lecturer
under the Higher Education (Technical) Department, Assam and, therefore, the
Commission has ceased to have jurisdiction to conduct selection process for the
staffs of Higher Education (Technical) Department, Assam. What is to be borne
in mind is that the Regulation of 2021 was framed after the Advertisement,
dated 25.05.2017, was published. Therefore, when the Advertisement, dated
25.05.2017, was issued, the Regulation of 2021 was not in existence. Therefore,
this Court is of the considered opinion that the submission of the learned Senior
Page No.# 25/26
counsel for the petitioners holds no water.
19. This Court has also considered the authorities relied upon by the learned
Standing Counsel, Higher Education Department, Government of Assam.
However, this Court is of the considered opinion that the said authorities have
no relevance to the case in hand.
20. This Court, in view of the discussions made here-in-above, is of the
considered opinion that if the selection process, which is yet to take off after the
Advertisement dated 25.05.2017 was published, is allowed to proceed, the same
would violate the fundamental right of all eligible candidates including the
petitioners, who had become eligible thereafter. There is no doubt that the
petitioners were not eligible in terms of the criteria laid down in the
Advertisement, dated 25.05.2017. However, in the meantime, they have become
eligible. If the Commission had proceeded with the recruitment process in due
time, this Court may not have entertained the prayer of the petitioner in the
present writ petition. However, considering the fact that the recruitment process
pursuant to the Advertisement dated 25.05.2017, is yet to take off, till date, the
Advertisement, dated 25.05.2017, is interfered with in so far as it concerns 113
posts of Lecturers (Technical) in different subjects in Polytechnics of Assam and
86 posts of Lecturers (Non-Technical) in five different subjects in the
Polytechnics of Assam.
21. Accordingly, the Advertisement dated 25.05.2017 in so far as it relates to
113 posts of Lecturer (Technical) in 11 different subjects in Polytechnics of
Assam and 86 posts of Lecturer (Non-Technical) in 5 different subjects in
Polytechnics of Assam are set aside and quashed. Consequently, the
Notification, dated 03.03.2020, is also set aside and quashed in so far as it
concerns 113 posts of Lecturer (Technical) in different subjects in Polytechnics
Page No.# 26/26
of Assam and 86 posts of Lecturer (Non-Technical) in 5 different subjects in the
Polytechnics of Assam. The respondents are, however, given the liberty to take
appropriate steps to fill up the 113 posts of Lecturer (Technical) in different
subjects in Polytechnics of Assam and 86 posts of Lecturer (Non-Technical) in 5
different subjects in the Polytechnics of Assam in accordance with the existing
Rules and Regulations.
22. The writ petition is, accordingly, allowed. There shall, however, be no order
as to costs.
JUDGE
Comparing Assistant
