Page No.# 1/ vs The State Of Assam And 4 Ors
2025 Latest Caselaw 2921 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 4 Ors on 7 February, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                 Page No.# 1/11

GAHC010268362019




                                                           2025:GAU-AS:1256

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

                        Case No. : WP(C)/8073/2019

         RAHUL AMIN REZA AND 15 ORS.
         SON OF ASADDAR ALI, RESIDENT OF VILLAGE SRIKONA PART-1, P.O.
         SREEKONA, DISTRICT- CACHAR, PIN- 788026, ASSAM.

         2: ANGARAJ DAS
          SON OF SRI CHABIRANJAN DAS
          R/O WARD NO. 2
          PATHSHALA
          P.O. PATHSALA
          DISTRICT- PATHSHALA
          PIN- 781325
         ASSAM.

         3: GAYATRI GHOSH
          31 YEARS
          D/ORANADHIR GHOSH
          R/O- HOUSE NO. 47 SHREEHATTA PALLY
          NATIONAL HIGHWAY
          SILCHAR
         TOWN-SILCHAR
          PIN- 788005
         ASSAM.

         4: BIPLAB SINGHA
          S/O- MATHURA SINGHA
          R/O- HATIRPATH
         VILL.- NEW BHAKATPUR
          SILCHAR
          P.O. BHAKATPUR
          DIST- CACHAR
          PIN- 788005
         ASSAM.

         5: LACHIT DUTTA
                                 Page No.# 2/11

SON OF LOHIT DUTTA
R/O- NO. 1 MOTIA
BORBALI
N. LAKHIMPUR
PIN- 784163
ASSAM.

6: SMT. DARSHANA SAIKIA
 D/O- LT. NOMOL SAIKIA
 R/O- VILL. SONARI GAON
 P.O. MORIGAON
 DIST.- MORIGAON
 PIN- 782105
ASSAM.

7: NABARUN CHAKRABORTY
 S/O- SUKHMOY CHAKRAVARTY
 R/O- MADHURI NIWAS
 JURIA NAMGHAR ROAD
 BORPOTHAR
TINSUKIA
 PIN- 786125
ASSAM.

8: SMT. SWAPNA BHARALI
 SON OF KANAK CHANDRA BHARALI
 RESIDENT OF PURABI NAGAR
 P.O.- CHANGSARI
 DISTRICT- KAMRUP
 PIN- 781101
ASSAM.

9: HARUN-AL RASHID MD. GHALIB
 S/O IZZAT ALI KHAN
 R/O AZAD NAGAR
 CHOTAHAIBAR
 NAGAON
 PIN- 782003
ASSAM.

10: SMT. MARAM SMRITI BORUAH
 SON OF BIRENDRA NATH BORUAH
 RESIDENT OF NAMGHAR PATH
 DAKHINGAON
 KAHILIPARA
 GUWAHATI
 PIN- 781019
ASSAM.
                                                        Page No.# 3/11


11: SAIFUDDIN AHMED
 S/O- SRI JOYNAL ABEDIN SK.
R/O- VILL.- SAGOLIA PART-II
 P.O. SAGOLIA
 P.S. GOLAKGANJ
 DIST- DHUBRI
ASSAM.

12: SMT. PALAVI DAS
 D/O- SRI PRAFULLA KUMAR DAS
 R/O H.NO. 4
 GANESHGURI
 HENGRABARI ROAD
 DIST- KAMRUP(M)
 PIN- 781006
ASSAM.

13: SAHARUL ALOM BARLASKAR
 SON OF LT. K.R. BARLASKAR
 R/O- VILL. SAT KARA KANDI
 P.O. SAT KARA KANDI
 DIST- CACHAR
 PIN- 788013
ASSAM

VERSUS

THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMM. AND SECY., DEPTT. OF HIGHER EDUCATION, GOVT.
OF ASSAM, DISPUR, GHY.- 06, ASSAM.

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

3:THE ASSAM PUBLIC SERVICE COMMISSION
 REP. BY ITS CHAIRMAN AND HAVING ITS OFFICE AT JAWAHAR NAGAR
 GUWAHATI-22
ASSAM.

4:THE PRINCIPAL
 BARAK VALLEY ENGINEERING COLLEGE
 NIRALA
 KARIMGANJ- 788701
ASSAM.
                                                                       Page No.# 4/11


              5:THE REGISTRAR
              ASSAM SCIENCE AND TECHNOLOGY UNIVERSITY
               JALUKBARI
               GHY.- 13
              ASSAM

For the petitioners            : Mr. K.P.Pathak, Sr. Advocate.
                                Mr. M.Sharma,    Advocate.
For the respondent Higher

Education Department           : Mr. K.Gogoi, SC
For the respondent APSC        : Ms. P.Sharma, Advocate
Date of hearing                 : 04.02.2025
Date of Judgment                : 07.02.2025


                                    BEFORE
                  HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                            JUDGMENT AND ORDER (CAV)

1. Heard Mr. K.P.Pathak, learned Senior Counsel assisted by Mr. M.Sharma, learned counsel for the petitioners. Also heard Mr. K.Gogoi, learned counsel for the Higher Education Department. Ms. P.Sharma, learned counsel appears on behalf of Mr. T.J.Mahanta, learned Senior Counsel for the Assam Public Service Commission (APSC).

2. The petitioners who are Guest/Part-Time Assistant Professors (Technical) in the Barak Valley Engineering College, have prayed for setting aside the Advertisement dated 25.05.2017 and the consequential notifications dated 25.09.2018, 08.10.2018, 30.09.2019 and 15.10.2019, by which applications were invited for regular appointment to the post of Assistant Professors (Technical) in the Barak Valley Engineering College, Karimganj. The petitioners ground of challenge is that they are currently working against sanctioned posts of Assistant Professors (Technical) in the said College and as such, their services as Guest/Part-Time Assistant Professors (Technical) should be absorbed.

3. The case of the petitioners is that pursuant to an Advertisement dated 24.12.2016, inviting applicants for engagement as Guest/Part-Time Faculty Members in the Barak Valley Engineering College, Karimganj, the petitioners took part in the selection process for filing up the vacant posts of Assistant Page No.# 5/11

Professor (Technical). The petitioners having been selected, a select list was submitted to the Higher Education Department, Government of Assam for their appointment. The Joint Secretary to the Government of Assam, Higher Education Department, thereafter issued letter dated 13.02.2017 to the Director of Technical Education, Assam, conveying the approval of the Government for appointment of Guest/Part-Time Assistant Professors in the Barak Valley Engineering College, Karimganj from 1st April, 2017 onwards, subject to the following conditions:-

i. Appointment should be purely temporary basis till regular appointment of faculties against created posts.

ii. Salary/remuneration should be fixed pay only. iii. All the existing procedures, if any, should be strictly followed for appointment of the guest/part-time faculties.

4. Subsequent to the above letter dated 13.02.2017, the petitioners were appointed as Guest/Part-Time Faculty Members in the month of February, 2017 w.e.f. 01.04.2017, vide their engagement letters, one of which is reproduced herein below as follows:

            "Sub :        Engagement as Guest/ Part-Time Faculty.
            Mr. A. Das,

On compliance and submission of undertaking as per Letter No.TE(E)A-

1/2016/499 Dated 01.02.2017, this letter of engagement is issued to you to serve as Guest/ Part-Time Faculty against the post sanctioned vide Govt. Letter No. ATE.239/2008/5 Dated 19.08.2009 in Electronics & Communication Engineering Department at Barak Valley Engineering College, Karimganj with a monthly fixed remuneration of Rs.30,000/-. You are to report to the office of the undersigned on 01.04.2017 positively for undertaking your duties of engagement for commencement of academic session at Barak Valley Engineering College, Karimganj as directed. This engagement is initially for a period of six months from the date of reporting and may be renewed as per requirement of the Department. However, this engagement shall not be claimed for regular appointment."

5. The respondents thereafter issued another advertisement dated Page No.# 6/11

25.05.2017, for filling up the vacant posts of Assistant Professor (Technical) on regular basis.

6. The petitioners' counsel submits that subsequent to the Advertisement dated 25.05.2017, the respondents issued Notifications dated 25.09.2018, 08.10.2018, 30.09.2019 and 15.10.2019, which provided the syllabus for the examination to be held for regular appointment to the post of Assistant Professor (Technical) and the marks to be awarded. However, in the above notifications, no weightage had been provided for the past services of Guest/Part-Time Assistant Professors and as such, the said Notifications have also been put to challenge by the petitioners.

7. The learned counsel for the petitioners submits that besides the petitioners being engaged against the vacant sanctioned posts in the newly established Barak Valley Engineering College, Karimganj, the petitioners' original certificates were kept as a bond by the office of the Respondent No. 2, to ensure that the petitioners did not migrate to any other technical institute. Further, the petitioners were made to work for 8 hours a day, which was against Government Notifications requiring Guest/Part-Time Assistant Professors to work only for three hours per day. He also submits that if the petitioners are now made to take part in the selection process, they would be at a disadvantage, as younger persons who have just finished their academic courses would have a better chance for selection and appointment to the vacant sanctioned posts. He also submits that the petitioners were not allowed to go on study leave to better themselves during their engagement period. He submits that the respondents should have taken steps to absorb the services of the petitioners, instead of issuing an advertisement for filling up the posts on regular basis.

8. The learned Senior Counsel has relied on various Judgments in support of his submissions that the petitioners' services should be absorbed, which are as follows:

1. 2024 SCC Online Sc 3826 ( Jaggo -vs- Union of India & Ors).

2. 2010 (9) scc 247 (State of Karnataka -vs- M.L.Kesari)

3. 2024 (9) SCC 327 ( Vinod Kumar vs- Union of India)

4. 2017 (1) SCC 148 (State of Punjabvs- Jagjit Singh)

5. 2024 SCC Online Mad.6134 (G.Kulanchiyappan vs- vice Chancellor Page No.# 7/11

Indian Maritime University, ECR Road.

9. Mr. K.Gogoi, learned counsel for the State respondents submits that as per the Assam Technical Education Services Rules 1981 (hereinafter referred to as 1981 Rules'), the selection of the candidates to the posts of Assistant Professor/ Lecturers (Technical) was to be conducted by the Assam Public Service Commission ( APSC) . However, in the case of the petitioners, the petitioners' selection had been made on the basis of a Selection Committee constituted by the Director, Technical Education and not by the APSC. He further submits that the 1981 Rules was amended in the year 2020, wherein, the selection process of candidates was to be conducted by the Assam Engineering Services Recruitment Board instead of the ASPC. Mr. K.Gogoi further submits that the petitioners services cannot be regularised/ absorbed in terms of the judgment of the Supreme Court in the case of State of Karnataka -vs- Umadevi (3) reported in 2006 (4) SCC 1 and in the case of State of Karnataka & Ors vs- M.L.Kesari & Ors, reported in 2010 (9 ) SCC 247.

10. Mr. K.Gogoi also submits that a similar matter has been dismissed by this Court vide Judgment and Order passed in WP (C)/159/2025( Pramila Kumari Prajapati & 34 Ors. vs- State of Assam & Ors). He submits that the only difference between the present case and WP (C)/159/2025, is the fact that the present case relates to the engagement of Guest/Part-Time Lecturer /Assistant Professor (Technical) in the Barak Valley Engineering College, while in the WP (C)/159/2025, the petitioners therein had been engaged as Guest /Part-Time Lecturers (Technical and Non-Technical) in different Polytechnics in Assam.

11. The counsel for the respondents further submits that the selection process pertaining to the regular appointment of Assistant Professor ( Technical) in the Barak Valley Engineering Colleges has already been completed by the selection process held in pursuance to the Advertisement dated 25.05.2017. The same had been done in terms of the Judgment and order dated 16.05.2024 passed by a Co-ordinate Bench of this Court in the case of Nitya Nanda Pait and 18 Ors -vs- The State of Assam & Ors., WP(C) No. 6005/2021.

12. I have heard the learned counsels for the parties.

13. As can been seen from the pleadings and from the submissions made by the counsels for the parties, the petitioners had been selected by a Selection Committee constituted by the Director of Technical Education instead of the APSC, as was required under the 1981 Rules. The petitioners had been engaged/appointed as Guest/Part-Time Assistant Professor (Technical) in Page No.# 8/11

February, 2017 w.e.f. 1st April 2017. Even before expiry of two months, the State respondents issued an Advertisement dated 25.05.2017, for filling up the vacant sanctioned posts of Assistant Professor/ Lecturer (Technical) in the Barak Valley Engineering College on regular basis. Various Notifications were issued by the APSC giving the syllabus for the examination to be held for the post of Assistant Professor (Technical) and the marks that were to be awarded. Instead of participating in the selection process, the petitioners had however put the Advertisement dated 25.05.2017 and the Notifications dated 25.09.2018, 08.10.2018, 30.09.2019 and 15.10.2019 to challenge, only on the ground that their services were liable to be absorbed.

14. This Court passed an interim order dated 04.12.2019 while issuing notice in this case, wherein it was directed that the services of the petitioners should not be disturbed without the leave of the Court. As such, the petitioners are still in service on the basis of the interim order till today.

15. In the case of Nitya Nanda Pait (supra), a Co-ordinate Bench of this Court, vide judgment and order dated 16.05.2024, had allowed the selection process for filling up the vacant posts of Assistant Professors (Technical) on regular basis in terms of the same advertisement dated 25.05.2017, to be taken to its logical conclusion. Consequent to the above judgment and order dated 16.05.2024 passed in WP(C) 6005/2021, the selection and appointments to the post of Assistant Professor (Technical) on regular basis has been made. As such, if the petitioners want to still maintain their challenge to the advertisement dated 25.05.2017 and the subsequent notifications made in relation to the said advertisement, they would have to challenge the judgment passed in WP(C) 6005/2021 before the Division Bench of this Court and by impleading the successful candidates, who have been selected as Assistant Professor (Technical). There is another aspect of the matter that has to be considered. This Court, vide an interim order dated 04.11.2019, had while issuing notice, directed that the services of the petitioners were not to be disturbed without the specific leave of the Court. As can be seen from the above interim order passed by this Court on 04.11.2019, the petitioners have continued to be in service under the protection of the interim order passed by this Court.

16. The petitioners' selection process was made de hors the 1981 Rules, as the selection process had been conducted by a Selection Committee constituted by the Director, Technical Education and not by the APSC. Thus, the appointment of the petitioners can be said to be an irregular appointment. The Page No.# 9/11

petitioners' prayer for absorption of their service can only mean that their service as Guest/Part-Time Faculty members should be regularised. As such, the petitioners' service would have to fulfil the conditions required in paragraph-53 of the judgment in Uma Devi (3), to consider their cases for regularisation.

17. In the case of Umadevi (3) (supra), which was decided on 10.04.2006, the Supreme Court has held that a temporary, contractual, casual or daily wage employees does not have a legal right to be made permanent, unless they have been appointed in terms of the relevant Rules or in adherence to Article 14 & 16 of the Constitution. However, the Supreme Court in paragraph No. 53 of Uma Devi (3) (supra), had directed the Union of India, the State Governments and their instrumentalities to take steps for regularization as a "one-time measure", the services of irregularly appointed persons, who had worked for 10 years or more in duly sanctioned posts, but not under the cover of the orders of the Courts or of Tribunals. Paragraph No. 53 of the judgment of the Supreme Court in Uma Devi (3) (supra) was thereafter clarified by the Supreme Court in the case of M.L. Kesari (supra), wherein it held that an exception to the general principles against the regularization was allowed in Uma Devi (3) (supra), if the following conditions were fulfilled.

"(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) the appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned post, but had been selected without undergoing the process of open competitive selection, such Page No.# 10/11

appointments are considered to be irregular".

18. The petitioners' case for regularization does not come within the conditions laid down by the Supreme Court in Umadevi (3) (supra) and M.L. Kesari (supra), wherein an employee could be considered for regularisation, as a one-time measure, if he had worked for 10 years or more in a duly sanctioned post, without the benefit or protection of an interim order of any Court or Tribunal. In the present case, the petitioners are still working as Guest/Part Time Assistant Professors (Technical) on the basis of the protection given vide interim order dated 04.11.2019. When the Constitution Bench of the Supreme Court in Umadevi (3) (supra) does not allow for counting of the services of temporary, contractual employees under the protection of an order of a Court for the purposes of regularisation, the petitioners cannot claim regularization by absorption, on the ground that they have worked continuously as Guest/Part-Time Assistant Professors (Technical) for the period beyond the requirement of the State respondents. The petitioners should have participated in the selection process pursuant to the advertisement dated 25.05.2017, inasmuch as, on the date of issuance of the said advertisement dated 25.05.2017, the petitioners had not even completed 2 months of service as Guest/Part-Time Faculty members.

19. In the case of Jaggo vs. Union of India & Ors., reported in 2024 SC OnLine SC 3826, the Supreme Court has held that where appointments were not illegal but possibly irregular, and where employees had served continuously against the backdrop of sanctioned posts for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous and unblemished service, performing tasks inherently required on a regular basis can over time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization. In terms of the above case, Courts must look beyond the surface levels and consider the realities of continuous long term employment.

20. In the case of Vinod Kumar & Ors. vs Union of India & Ors., reported in (2024) 9 SCC 327 and in the case of G. Kulanchiyappan vs. Vice Chancellor Indian Mritime University, ECR Road & Anr., reported in 2024 SCC OnLine Mad 6134, the Supreme Court had relied upon para 53 of the judgment of the Supreme Court in Uma Devi (3) (supra) and held that the State Government and their instrumentalities should take steps to regularize Page No.# 11/11

the services of the irregularly appointed persons, who had worked for 10 years or more in duly sanctioned posts, but not under the cover of the orders of the Courts or of Tribunals.

21. In the case of Jagjit Singh (supra), the Supreme Court had held that the principle of equal pay for equal work constituted a clear and unambiguous right in every employee, whether engaged on regular or temporary basis.

22. The petitioners' prayer for absorption of their service implies that they have prayed for regularisation of their service. However, in view of the reasons stated in the foregoing paragraphs, the petitioners' services cannot be regularised by way of absorption. Further no challenge can be made to the advertisement dated 25.05.2017 and the subsequent notifications before this Court, as a Co-ordinate Bench had allowed the selection and appointment of Assistant Professors (Technical) in the Engineering Colleges of Assam, vide Judgment and order dated 16.05.2024 passed in WP(C) No. 6005/2021.

23. Due to the reasons stated above, this Court does not find any ground to exercise its discretion in this case. Accordingly, writ petition stands dismissed.

JUDGE

Comparing Assistant