Gauhati High Court
Page No.# 1/8 vs Bhaskar Jyoti Sarmah on 25 November, 2024
Page No.# 1/8
GAHC010124082024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/321/2024
THE STATE OF ASSAM AND ANR.
REP BY THE SECRETARY TO THE GOVT OF ASSAM HIGHER EDUCATION
TECHNICAL DEPART,EMT DISPUR, GUWAHATI-06.
2: THE DIRECTOR OF TECHNICAL EDUCATION
ASSAM, KAHILIPARA
GUWAHATI-19
VERSUS
BHASKAR JYOTI SARMAH
SON OF JITENDRA NATH SARMAH, BHAGAWATIPARA, TITABAR, JORHAT-
785630.
2:BARNALI DAS
DAUGHTER OF LATE BIMAL KANTI DAS
SOUTH HAIBAR GAON
LMD ROAD, P.O.- HAIBARGAON
NAGAON- 782002.
3:DR. PARASA HAZARIKA
DAUGHTER OF ARUN CH. HAZARIKA
E-7, CSIR NEIST COLONY
PULIBOR
JORHAT- 785001.
4:MD. IMTIAZ ALAM
SON OF MAHAMMAD ALI
SUNDARBARI NEAR MASJID
HOUSE NO. 22
WARD NO. 2
ASSAM SISHU KALYAN ROAS
JALUKBARI
GUWAHATI- 781014.
Page No.# 2/8
5:ANGSHUMAN GOSWAMI
SON OF MANOJ KUMAR GOSWAMI
TULSI SHARMA PATH
NEAR JONAKI SANGHA SCHOOL
DHALAR SATRA JAIL ROAD
JORHAT- 785001.
6:DR. PRATIBHA BORAH
DAUGHTER OF LATE TULARAM BORAH
FLAT NO. 4A
DIAMOND PLAZA
MALOCUALI TINIALI
JORHAT- 785001
Advocate for the Petitioner : MR. A R TAHBILDAR,
Advocate for the Respondent : MR. S S GOSWAMI, MS. R DEKA
Linked Case : WA/344/2024
THE STATE OF ASSAM AND ANR.
REP BY SECRETARY TO THE GOVT OF ASSAM HIGHER EDUCATION
TECHNICAL DEPTT DISPUR GUWAHATI
2: The Director
HIGHER EDUCATION TECHNICAL DEPTT ASSAM
3: THE DIRECTOR
HIGHER EDUCATION (TECHNICAL) DEPTT.
ASSAM
KAHILIPARA
GUWAHATI- 19.
VERSUS
DIBYAJYOTI BORAH AND 4 ORS.
S/O KAMAL CHANDRA BORAH
VILLAGE- KHANGIA
P.S- PULIBOR
DISTRICT- JORHAT
ASSAM.
2:GOURI GAUTAOM BOTHAKUR
S/O BUDHINDRA NATH BORTHAKUR
VILL.- RAJORIA GAON
MALOU ALI
Page No.# 3/8
P.S. AND DIST.- JORHAT
ASSAM.
3:RUPAM JYOTI NATH
S/O LATE UTSHAV NATH
R/O BARPARA
BONGAIGAON
P.S. AND DIST.- BONGAIGAON
ASSAM.
4:JYOTISHMOY BORAH
S/O LATE DINA KANTA BORAH
R/O HATBOR
P.S.- JAKHALABANDHA
DIST.- NAGAON
ASSAM.
5:DHIRU BARMAN
W/O DIPANKAR MEDHI
R/O KAKOIJANA
BONGAIGAON
P.S.- ABHAYAPURI
DIST.- BONGAIGAON
ASSAM.
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For petitioner(s)/appellant(s) : Mr. A. R. Tahbildar, Advocate
For respondent(s) : Mr. S. S. Goswami, Advocate
Ms. R. Deka, Advocate
Mr. S. Borthakur, Advocate
Mr. D. Gogoi, Advocate
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
25.11.2024
1. Heard Mr. A. R. Tahbildar, learned counsel appearing for the appellants. Also
heard Mr. S. S. Goswami, Mr. S. Borthakur and Mr. D. Gogoi, learned counsel
appearing for the respondents.
2. With the consent of the learned counsel appearing for the parties, these two
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writ appeals have been finally heard at the admission stage itself.
3. In these appeals, the appellants have assailed the impugned judgment dated
16.05.2024, passed by the learned Single Judge in WP(C) Nos. 3770/2021, 5610/2022
and 1162/2023.
Vide the impugned judgment, the learned Single Judge has allowed the above-
referred writ petitions preferred on behalf of the private respondents herein and has
directed the appellants herein (respondents in the said writ petitions) to grant pay
protection to the petitioners and consequently holding the writ petitioners to be
eligible for the benefits under the Career Advancements Scheme from the date of their
initial appointments. The learned Single has also issued a direction to comply with the
order within a period of four months from the date of receipt of a certified copy of the
order.
4. The writ petitioners/private respondents herein approached the writ court with
the grievance that the State Government had illegally denied them pay protection and
the benefits under the Career Advancement Scheme.
5. The brief facts necessary for adjudication of these appeals are that the
respondents/writ petitioners are employed in the Jorhat Institute of Science and
Technology in the district of Jorhat, and the Bineswar Brahma Engineering College in
the district of Kokrajhar. The erstwhile Jorhat Science College in the district of Jorhat
was converted to the Jorhat Institute of Science and Technology vide a notification
dated 18.11.2008 issued by the Higher Education (Technical) Department,
Government of Assam. For Jorhat Institute of Science and Technology and Bineswar
Brahma Engineering College separate societies were formed in the year 2009 through
Memorandum of Association. The said societies were registered under the Societies
Registration Act, 1860 and Regulations were also framed thereunder.
It is to be noticed that the respective Governing Bodies of the said institutions
had adopted most of the Rules and Regulations of the State Government along with
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AICTE and UGC norms and guidelines. Later on, the Higher Education Department,
Government of Assam, created various posts in both the societies vide notifications
dated 20.08.2009 and 05.12.2009, respectively. Thereafter, advertisement was issued
for filling up the posts of Lecturers in various disciplines and other sanctioned posts.
The Selection Committee constituted as per the Regulations of the societies conducted
the selections for the advertised posts and provided appointments to the writ
petitioners/private respondents.
It appears that all the sanctioned posts were not filled in through the said
selection process and, therefore, another advertisement was issued. But this time the
advertisement was issued by the Assam Public Service Commission (APSC) and the
recruitment process was also conducted by the APSC.
6. Later on the Government of Assam, vide notification dated 30.12.2016,
dissolved the above-referred two societies and the administrative control of the said
two institutions was taken over by the State of Assam.
7. However, the cause of action arose to the respondents herein when pay
protection and other benefits under the Career Advancements Scheme were granted
to the employees appointed through the APSC, though prior to dissolution of the
society and taking over of the administrative control of the two societies, but such
benefits were denied to the writ petitioners/respondents herein.
Aggrieved with such denial of pay protection and other benefits, the employees
of the Jorhat Institute of Science and Technology and the Bineswar Brahma
Engineering College approached this court by way of filing the above-referred writ
petitions and the learned Single Judge, after taking into consideration the rival
arguments of the learned counsel for the parties concerned, has allowed the writ
petitions.
The relevant portions of the impugned judgment are extracted hereunder:
"20. There is no manner of doubt that both the educational institutions were at
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the relevant point of time in Society mode. However, it would be relevant to
examine the composition and functioning of such Society. The materials on
record would show that the Governing Body of the Society was constituted by
high officials of the Government of Assam and the Chairman was none other
than the Chief Secretary of the State and all meetings of the Governing Body
were to be presided by the Chief Secretary. The matters relating to appointment,
duties and salaries were all to be done with prior approval of the Government.
The posts for the respective Institutions run by the Society were created by the
Higher Education Department vide Communications to the Accountant General,
Assam. The recruitment in which the petitioners had participated and were
selected were by duly constituted selection committee which were for Gazetted
posts in the Government. The advertisements through which the petitioners
could offer their candidatures and were subsequently appointed were issued by
the Director of Technical Education and the appointments were also made by
the said Department. Therefore, for all practical purpose, the Societies in
question were under the absolute control of the Government. However, the said
aspect may not be of much relevance for the purpose of determining the issue in
the present case.
21. The case of discrimination has been sought to be established between the
petitioners in these cases vis-à-vis certain other recruitees in the said
establishment who were recruited through an advertisement by the APSC. It is
however to be noted is that the process initiated through the APSC were of a
period before taking over of the respective Societies by the Government. The
crucial issue regarding the protection of pay cannot be connected or related to
the agency through which the recruitments were done. After all, the Societies
were admittedly not a private body but were wholly controlled by the
Government and each and every functioning of the Society were to be done only
with prior approval of the Government.
22. Therefore, while the benefit of pay protection has been given to the set of
employees who were inducted through the APSC while the establishments were
still under the Society, such benefits cannot be denied to the petitioners. It has
been brought to the notice of this Court by a note prepared by the Principal
regarding the gross difference of fixation of pay at the time when the
establishments in question were taken over by the Government from the
Society. The protection of pay is a basic right of an employee when he shifts
from one Government Organization to another through proper channel. Further
in the instant case, there was not even any change of the establishment and it
was only a change of the management. As stated above, such change was only
formal in nature as for all practical purposes, the erstwhile Societies were also
wholly controlled and run by the Government.
23. Under the aforesaid facts and circumstances and the discussions made
above, this Court is of the considered opinion that the differentiation of the
petitioners vis-à-vis the candidates who were appointed through the APSC in
the year 2014 which is much before the taking over of the establishment by the
Government in the year 2016 is clearly discriminatory. In any case, the
petitioners cannot be denied the benefits of protection of pay on such taking
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over by the Government even if the aspect of discrimination is overlooked. In the
considered opinion of this Court, claim for a pay protection can be
independently adjudicated and in the instant case such right clearly appears to
have been violated.
24. Consequently, the writ petitions are allowed by directing grant of pay
protections and the consequential holding of the petitioners to be eligible for
Career Advancements Scheme from the date of initial appointment is made out.
Which is to be done expeditiously and in any case, within a period of 4 (four)
months from the date of receipt of a certified copy of the order."
8. Having heard the learned counsel appearing for the parties and after going
through the material available on record, we do not find any good reason to interfere
with the impugned judgment passed by the learned Single Judge, or to take a
different view than the view as has been taken by the learned Single Judge.
9. The learned Single Judge has rightly observed that the Governing Bodies of the
aforesaid societies were constituted by the high-up officials of the Government of
Assam, while the Chief Secretary to the Government of Assam being the Chairman of
the same. The advertised posts had been sanctioned by the State Government and
the advertisement for the posts had been issued by the Director of Technical
Education, Assam. The selections for the posts had been made by the societies
through their respective screening committees and even the appointments were made
by the Director of Technical Education, Assam, with the approval of the State
Government. Looking to the above facts, it cannot be said that the learned Single
Judge has committed any error in concluding that for all practical purpose the
societies in question were under the absolute control of the Government.
The learned Single Judge has also rightly pointed out that the employees, to
whom the benefit of pay protection and other benefits were extended only on the
ground that they were selected by the APSC, were appointed during the existence of
the respective societies, i.e. before taking over of the administrative control of the
respective societies by the Government. The learned Single Judge has also rightly
concluded that the societies were not private bodies but were under the absolute
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control of the Government and, in such circumstances, the differentiation of the writ
petitioners vis-à-vis the candidates appointed though the APSC in the year 2014, i.e.,
much before the taking over of the administrative control of the two institutions by the
Government, is discriminatory and, therefore, the action of the State respondents in
not extending pay protection and other benefits under the Career Advancements
Scheme to the writ petitioners/respondents herein cannot be sustained.
10. In view of the above discussion, we do not find any merit in these appeals and
the same are therefore dismissed.
However, there shall not be any order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
