Gauhati High Court
Page No.# 1/34 vs Page No.# 3/34 on 25 February, 2025
Page No.# 1/34
GAHC010029242025
2025:GAU-AS:1978-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/47/2025
DR BIPLAB SINGHA
S/O MATHURA SINGHA, R/O HATIRPATH, VILLAGE NEW BHAKATPUR,
SILCHAR, P.O. BHAKATPUR, DISTRICT CACHAR, ASSAM, PIN 788005,
ASSAM
2: RAHUL AMIN REZA
SON OF ASADDAR ALI
RESIDENT OF VILLAGE SRIKONA PART-1
P.O. SREEKONA
DISTRICT- CACHAR
PIN- 788026
ASSAM.
3: ANGARAJ DAS
SON OF SRI CHABIRANJAN DAS
R/O WARD NO. 2
PATHSHALA
P.O. PATHSALA
DISTRICT- PATHSHALA
PIN- 781325
ASSAM.
4: SMT. DARSHANA SAIKIA
D/O- LT. NOMOL SAIKIA
R/O- VILL. SONARI GAON
P.O. MORIGAON
DIST.- MORIGAON
PIN- 782105
ASSAM.
5: NABARUN CHAKRABORTY
S/O- SUKHMOY CHAKRAVARTY
R/O- MADHURI NIWAS
JURIA NAMGHAR ROAD
Page No.# 2/34
BORPOTHAR
TINSUKIA
PIN- 786125
ASSAM
6: HARUN-AL RASHID MD. GHALIB
S/O IZZAT ALI KHAN
R/O AZAD NAGAR
CHOTAHAIBAR
NAGAON
PIN- 782003
ASSAM.
7: SMT. MARAM SMRITI BORUAH
SON OF BIRENDRA NATH BORUAH
RESIDENT OF NAMGHAR PATH
DAKHINGAON
KAHILIPARA
GUWAHATI
PIN- 781019
ASSAM
8: SAIFUDDIN AHMED
S/O- SRI JOYNAL ABEDIN SK.
R/O- VILL.- SAGOLIA PART-II
P.O. SAGOLIA
P.S. GOLAKGANJ
DIST- DHUBRI
ASSAM.
9: SMT. PALLAVI DAS
D/O- SRI PRAFULLA KUMAR DAS
R/O H.NO. 4
GANESHGURI
HENGRABARI ROAD
DIST- KAMRUP(M)
PIN- 781006
ASSAM.
10: 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
Page No.# 3/34
THE STATE OF ASSAM AND ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
OF HIGHER EDUCATION, GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-
6, ASSAM
2:THE DIRECTOR OF TECHNICAL EDUCATION
DIRECTORATE OF TECHNICAL EDUCATION
KAHILIPARA GUWAHATI 781019
ASSAM
3:THE ASSAM PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS CHAIRMAN AND HAVING ITS OFFICE AT JAWAHAR
NAGAR GUWAHATI ASSAM 781022
4:THE PRINCIPAL
BARAK VALLEY ENGINEERING COLLEGE NIRALA
KARIMGANJ ASSAM 788701
5:THE REGISTRAR
ASSAM SCIENCE AND TECHNOLOGY UNIVERSITY
JALUKBARI GUWAHATI 781013 ASSA
Advocate for the Petitioner : MR. M SARMA, MR. C PAUL,MR K P PATHAK
Advocate for the Respondent : , SC, HIGHER EDU,SC, APSC
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 14.02.2025
Date of Judgment & Order : 25.02.2025
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair, J.)
Heard Mr. K. P. Pathak, learned senior counsel, assisted by Mr. M.
Sarma, learned counsel, appearing on behalf of the appellants. Also heard
Mr. K. Gogoi, learned standing counsel, Higher Education Department; and
Mr. T. J. Mahanta, learned senior counsel, assisted by Ms. P. Sarma, learned
counsel; appearing on behalf of their respective respondents.
Page No.# 4/34
2. The appellants, herein, by way of instituting the present intra-Court
appeal, have presented a challenge to a judgment & order, dated
07.02.2025, passed by the learned Single Judge in WP(c)8073/2019,
rejecting the claim of the appellants for having the contractual appointment
effected in their cases, regularized against the sanctioned posts so
available.
3. The brief facts requisite for adjudication of the issues arising in the
present intra-Court appeal, is noticed, as under:
On the establishment of the Barak Valley Engineering College,
Karimganj; the Government vide a communication, dated 19.08.2009,
created 50 posts in various categories including 37 posts of
Lecturers[rechristened as Assistant Professors(Technical)]. The
Government, thereafter, arrived at a decision to populate the post of
Assistant Professors (Technical) with necessary staff by recruiting the same
on contractual basis pending regular selection in the matter.
Accordingly, the Director, Technical Education, Assam, issued an
advertisement, dated 24.12.2016, inviting applications from candidates
having AICTE/UGC norms, as adopted by the Government of Assam, for
engagement as Guest/Part-Time Faculty at the level of Professor, Associate
Professor and Assistant Professor in Barak Valley Engineering College,
Karimganj.
The said recruitment was required to be so made by way of evaluating
the candidates through a walk-in-interview. The appellants, herein, being
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eligible, had submitted their respective applications for being considered for
recruitment as Guest/Part-Time Faculty pursuant to the said advertisement,
dated 24.12.2016. On conclusion of the said recruitment process, a select
list was prepared and published vide Notice, dated 01.02.2017, by the
Director, Technical Education, Assam.
In pursuance of selection of the appellants, herein, they were issued
with individual engagement letters engaging them as Guest/Part-Time
Faculty in various Departments.
In terms of the said engagement letter, dated 08.02.2017, the
appellants, herein, were to report for joining in their respective service on
01.04.2017, and further, the engagement so effected, was initially for a
period of 6 months from the date of reporting, with provision for renewal as
per the requirement of the Department. It was further stipulated that the
engagement so effected, shall not be claimed for regular appointment.
Thereafter, the Government in the Higher Education Department, vide
communication, dated 13.02.2017, conveyed its approval towards the
engagement of Guest/Part Time Faculty in 11 new Polytechnics and Barak
Valley Engineering College, Karimganj, from 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."
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The appellants, herein, have projected that in terms of the engagement
letters so issued to them, they had joined their respective service w.e.f.
01.04.2017. Pursuant to the joining of the appellants, herein, w.e.f.
01.04.2017, within a period of less than 2 months; on a requisition so
made by the Higher Education Department; the Assam Public Service
Commission(APSC) issued an advertisement, dated 25.05.2017, inviting
applications, amongst others, for filling up of 66(sixty six) posts of
Assistant Professors(Technical) in 9(nine) different subjects in various
Engineering Colleges of the State.
It is the projection of the appellants, herein, that the posts so
advertised includes the posts they were so recruited against in pursuance
of the advertisement, dated 24.12.2016. It is seen that in pursuance of the
representations so made by the appellants, herein, in the matter; the
Director, Higher Education Department, had written to the authorities of the
Assam Public Service Commission(APSC), for grant of weightage to the
Guest/Part Time Faculty like the appellants, herein, in the recruitment so
initiated vide the advertisement, dated 25.05.2017. However, it is
contended by the appellants that no such weightage so given to them.
The recruitment process was, thereafter, carried forward by the Assam
Public Service Commission(APSC) and Notifications came to be issued in
the matter, laying down the syllabus and thereafter, fixing dates for various
segments of the recruitment process.
The initial engagement of the appellants, herein, were being extended
from time to time and in the extension so granted, vide an order, dated
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26.09.2019; certain conditions came to be so incorporated in the said
order. In the order, dated 26.09.2019, while extending the contractual
engagement of the appellants, herein, the conditions so incorporated, being
relevant, are extracted hereinbelow:
"1. The engagement is valid up to 31st December, 2019.
2. The monthly remuneration of the Guest/Part Time Faculties may be disbursed through
Treasury as online salary bill being @ Rs.400/- per hour in accordance to Govt. Notification
Νο TΕC.107/99/Pt-1/3 dated 01.02.2011.
3. The Guest/Part Time Faculties shall have to perform academic activities such as
preparation of the Lecture notes in PPT/PDF format, question papers, mentoring students
etc. as may be assigned by the Principal/Higher Authorities in addition to their regular
classroom activities.
4. Service of the Guest/Part Time Faculties may be terminated at any time without
assigning any reason there to, in case performance is found unsatisfactory or regular
faculty is appointed against the sanctioned post. The performance of the Guest/Part Time
Faculties may be monitored by a Performance Monitoring Committee.
5. Guest/Part Time Faculties shall avail holidays as applicable to the Institutes and may
avail casual leaves on prior permission of the concerned Principal, However, no special
leaves such as study Leave, Maternity Leave, Child Care Leave, Medical Leave and earn
leave etc. will be allowed.
6. The engagement is purely temporary and therefore doesn't confer him/her any right for
regularization against the permanent vacant posts. The Govt. will also have no liability for
his/her job continuity."
The appellants, herein, in view of the existence of a clause in the orders
extending their contractual appointment to the effect that their service was
permissible to be terminated at any point of time without assigning any
reasons thereto, and also being aggrieved by the advertisement, dated
25.05.2017, to the extent that the said advertisement also mandates a
recruitment against the posts to which they were also recruited by
following a due process of selection; approached the writ Court by way of
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instituting a writ petition being WP(c)8073/2019. The learned Single Judge
while issuing notice in the said writ petition, noticing the submissions made
on behalf of the petitioners, therein, that if the posts so advertised vide the
advertisement, dated 25.05.2017, are filled up on regular basis; the said
writ petition would become virtually infructuous, was pleased, vide order,
dated 04.11.2019, in the interim, to direct that the service of the
petitioners, therein, may not be disturbed without special leave of this
Court.
Upon the respondents filing their responses in the matter;
WP(c)8073/2019 was taken-up for final consideration by the learned Single
Judge. On such consideration being so made; the learned Single Judge was
pleased vide order, dated 07.02.2025, to reject the claim of the petitioners,
therein (appellants, herein), for a direction upon the respondent authorities
for regularization of their service. Accordingly, the said writ petition came
to be dismissed.
4. Being aggrieved, the appellants, herein, have instituted the present
intra-Court appeal before this Court.
5. Mr. Pathak, learned senior counsel for the appellants, herein, has
submitted that the Barak Valley Engineering College, Karimganj, having
been so established and the posts being created in the said College, there
being a need to receive AICTE approval; the respondent authorities arrived
at a decision to populate the said College with necessary staff and
accordingly, it was decided that the posts, in question, would be initially
filled-up on contractual basis. Accordingly, the advertisement, dated
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24.12.2016, came to be issued inviting applications for engagement as
Guest/Part-Time Faculty from candidates fulfilling the AICTE/UGC norms for
the posts, involved. The learned senior counsel has further contended that
the appellants, herein, who fulfilled the requisite AICTE/UGC norms, had
submitted their respective applications and after being so interviewed in a
walk-in-interview by a Board consisting of eminent personalities; a select
list came to be so published in the matter by the Director, Technical
Education, including therein, the names of the appellants, herein, against
various Departments, for which, they were so selected.
6. It was projected by Mr. Pathak, learned senior counsel, that on such
selection being effected, the appellants, herein, were issued with
engagement orders, dated 08.02.2017, and such engagement as
Guest/Part-Time Faculty was against the posts so sanctioned in Barak
Valley Engineering College, Karimganj, in the Departments concerned by
the Government vide the communication, dated 19.08.2009. Although the
appellants, herein, were in terms of the original decision only required to
work in the said College for a period of 3 hours, it is the contention of Mr.
Pathak, learned senior counsel, that the appellants, herein, were on their
engagement, required to discharge duties as regular Professors in the said
College.
7. Mr. Pathak, learned senior counsel, by referring to the materials
available on record, has submitted that at the time of their joining in
service; the appellants, herein, were required by the respondent authorities
to submit their educational certificates with further stipulation that it would
not be permissible to the appellants, herein, to pursue employment in other
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institutions and/or seek any other employment during their rendition of
duties as Guest/Part-Time Faculty in Barak Valley Engineering College,
Karimganj. The learned senior counsel has projected that the appellants,
herein, in view of the fact that their educational certificates were being
retained by the respondent authorities, were not in a position to submit
their applications in pursuance of the advertisement, dated 25.05.2017. It
was also projected that the respondents had held-out assurances to the
appellants, herein, that their service on contractual basis would be
extended from time to time and would be, thereafter, regularized by way of
absorption against the posts against which they were so rendering their
respective service.
8. Mr. Pathak, learned senior counsel, has further submitted that the
respondents in the Higher Education Department had also approached the
authorities of the Assam Public Service Commission(APSC) requesting for
grant of weightage for the service being rendered by them as Guest/Part-
Time Faculty in Barak Valley Engineering College, Karimganj, in the
recruitment process being so held in pursuance of the issuance of the
advertisement, dated 25.05.2017. However, it is contended that in the
subsequent Notifications so issued by the Assam Public Service
Commission(APSC) pertaining to the mode of selection, in question; no
such weightage was extended to the appellants, herein. The learned senior
counsel has submitted that subsequent to the advertisement, dated
25.05.2017, and on creation of the Assam Engineering Service Recruitment
Board; the said Board had issued a fresh advertisement on 21.02.2023,
inviting applications from eligible candidates for recruitment against
61(sixty one) posts of Assistant Professors existing in various Engineering
Colleges of the State. The learned senior counsel has further submitted
Page No.# 11/34
that the some of the appellants, herein, had participated in the said
recruitment process so initiated in pursuance of the advertisement, dated
21.02.2023, in view of the fact that there was a stipulation made in the
said advertisement that the posts of Assistant Professors (Technical) so
advertised, were the posts which had become vacant after 25.05.2017, and
not advertised by the Assam Public Service Commission(APSC) and which
were free from any legal issues.
9. Mr. Pathak, learned senior counsel, has also submitted that the
prescription as made in the advertisement, dated 21.02.2023, would go to
reveal that the Government had recognized that there was a right accruing
in favour of the appellants, herein, in view of the procedure adopted for
their recruitment and subsequent engagement as Guest/Part-Time Faculty
Assistant Professors(Technical) in Barak Valley Engineering College,
Karimganj, which was contended by the learned senior counsel for the
appellants, herein, to be a substantive one.
10. Mr. Pathak, learned senior counsel, has submitted that the Cabinet in
its meeting held on 24.09.2024, on consideration of a proposal for change
of the nomenclature of the Part-Time Faculty and Guest Faculty, engaged in
various Polytechnic Colleges and Government Engineering Colleges across
the State of Assam, as contractual faculty; had decided that those faculties
would be engaged on adhoc basis against the sanctioned posts in
accordance with the principles outlined in Regulation 3(f) of the Assam
Public Service Commission (Limitation and Functions) Regulation, 1951, as
per the extant Rules as applicable for appointments in Government
Engineering Colleges and Polytechnic Colleges of the State. The learned
Page No.# 12/34
senior counsel has submitted that the decision of the Cabinet towards
engagement of persons like the appellants, herein, under Regulation 3(f) of
the said Regulation of 1951; demonstrates that the respondent authorities
had appreciated the fact that the appellants, herein, were discharging
duties similar in nature to that required to be discharged by regular
incumbents in the posts, in question, and accordingly, in the event, the
appellants, herein, were so engaged under Regulation 3(f) of the said
Regulation of 1951; the service of the appellants, herein, in terms of the
practice so followed, would be liable to be subsequently regularized.
11. Mr. Pathak, learned senior counsel, has submitted that in pursuance
of the recruitment process as carried-out vide the advertisement, dated
25.05.2017, being taken to its logical conclusion and a select list being
published; the respondent authorities had pursuant to the passing of the
judgment & order, dated 07.02.2025, by the learned Single Judge in
WP(c)8073/2019, in an arbitrary manner, released the appellants, herein,
from their respective engagements as Guest/Part-Time Faculty in Barak
Valley Engineering College, Karimganj.
12. Mr. Pathak, learned senior counsel, in support of his submissions, has
relied upon the following decisions of the Hon'ble Supreme Court:
(i). State of Karnataka & ors. v. M. L. Kesari & ors. , reported in (2010) 9
SCC 247;
(ii). Jaggo v. Union of India & ors., reported in 2024 SCC Online SC 3826;
(iii). Vinod Kumar v. Union of India, reported in (2024) 9 SCC 327;
(iv). G. Kulanchiyappan v. Vice Chancellor, Indian Maritime University ECR
Road & anr., reported in 2024 SCC Online Mad. 6134;
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(v). Union of India represented by Government of Puducherry & anr. v.
K. Velajagan & ors., [order, dated 04.02.2025, in SLP(c) Nos.
2868/2018]; and
(vi). State of Punjab & ors. v. Jagjit Singh & ors., reported in (2017) 1 SCC
148.
13. In the above premises, Mr. Pathak, learned senior counsel for the
appellants, herein, has submitted that this Court would be pleased to
interfere with the judgment & order, dated 07.02.2025, passed by the
learned Single Judge in WP(c)8073/2019, and direct the respondent
authorities to reinstate the appellants, herein, in their engagement as
Guest/Part-Time Faculty in Barak Valley Engineering College, Karimganj,
with further direction to consider the cases of the appellants for
regularization by holding that their initial recruitment being so made by
way of a due process of selection; the same be treated to be a regular
selection for the purpose and they be held to be regular entrants to the
cadre.
14. Per contra, Mr. Gogoi, learned standing counsel, Higher Education
Department, has submitted that the recruitment to the various posts
existing in the Government Engineering Colleges of the State, is governed
by the provisions of the "Assam Technical Education Service Rules, 1981".
The learned standing counsel has further submitted that in terms of the
provisions of the Rules of 1981, the direct recruitment to the posts so
covered by the said Rules of 1981, till 2021, was to be made by the Assam
Public Service Commission(APSC). The learned standing counsel has also
submitted that in view of the need so existing for conducting courses in
Barak Valley Engineering College, Karimganj, on its establishment; the
Government had decided to initially man the posts so created by way of
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recruiting incumbents against such posts, as Guest/Part-Time Faculty. The
learned standing counsel has submitted that the Government while
granting approval for engagement of Guest/Part-Time Faculty in Barak
Valley Engineering College, Karimganj, had vide communication, dated
13.02.2017, clearly stipulated that the appointments so effected, would be
purely temporary till regular appointment of faculty is so effected against
the created posts.
15. Mr. Gogoi, learned standing counsel, Higher Education Department,
has submitted that the engagement orders issued to the appellants, herein,
also mandated that the same would not be permitted to be claimed by
them, for regular appointment. The learned standing counsel has further
submitted that engagement of the Guest/Part-Time Faculty in Barak Valley
Engineering College, Karimganj, was so made, by clearly stipulating the
same from the initial stage. The learned standing counsel has also
submitted that even in the advertisement, in question, it was stipulated
that the applications were being invited thereby only for recruitment as
Guest/Part-Time Faculty. Accordingly, the learned standing counsel, Higher
Education Department, by referring to the contentions so raised by the
appellants, herein, has submitted that it was also understood by the
appellants that they were recruited only as Guest/Part-Time Faculty in
Barak Valley Engineering College, Karimganj.
16. By referring to the submissions made by Mr. Pathak, learned senior
counsel, that the educational certificates of the appellants, herein, were
retained by the respondents, and accordingly, they were not in a position to
participate in the recruitment process so initiated vide the advertisement,
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dated 25.05.2017, Mr. Gogoi, learned standing counsel, Higher Education
Department, has clarified that the certificates were so required to be
submitted by the appellants only for the purpose of verification of the same
and after completion of the verification process, the educational certificates
were returned to the appellants, herein. Mr. Gogoi, has submitted that the
contention of the appellants, herein, that the educational certificates were
so retained by the respondents; would also not merit an acceptance from
the fact that some of the appellants, herein, had participated in the
recruitment process so initiated vide the advertisement, dated 21.02.2023.
However, those appellants were not successful therein.
17. Mr. Gogoi, learned standing counsel, Higher Education Department,
has further submitted that the appellants, herein, had been so engaged on
contractual basis as Guest/Part-Time Faculty with effect from the month of
April, 2017. However, the Assam Public Service Commission(APSC) had
immediately, thereafter, basing on a requisition so made in this connection
by the Higher Education Department, issued an advertisement for
recruitment against the posts of Assistant Professors(Technical) and
Assistant Professors (Non-Technical) in various Engineering Colleges of the
State, including the posts so held by the appellants, herein. In view of the
above position, Mr. Gogoi, learned standing counsel, Higher Education
Department, has submitted that it is not a case wherein the appellants,
herein, had continued in their service for a long time without a process of
direct recruitment against the posts held by the appellants, herein, on
contractual basis, being not initiated by the recruiting agency.
18. Mr. Gogoi, learned standing counsel, Higher Education Department,
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by referring to the judgment & order, dated 16.05.2024, passed by the
learned Single Judge in WP(c)6005/2021; wherein, the recruitment process
initiated in pursuance of the advertisement, dated 25.05.2017, was in
question; has submitted that the learned Single Judge upon considering the
materials coming on record, had directed the authorities of the Assam
Public Service Commission(APSC) to conclude the recruitment process and
publish the select list against the posts of Assistant Professors(Technical) so
advertised vide the advertisement, dated 25.05.2017. Mr. Gogoi has further
submitted that the said process has been completed and the
advertisement, dated 25.05.2017, has been taken to its logical conclusion.
19. Mr. Gogoi, learned standing counsel, Higher Education Department, in
support of his submissions, has placed reliance on the decision of the
Hon'ble Supreme Court in the case of Ganesh Digamber Jambhrunkar &
ors. v. State of Maharashtra & ors., reported in 2023 SCC Online SC 1417.
The learned standing counsel by further placing reliance on the decision of
the Hon'ble Supreme Court in the case of State of Karnataka v. Uma
Devi(3), reported in (2006) 4 SCC 1, and in the case of M. L.
Kesari(supra), has submitted that the appellants, herein, do not fulfill the
requisite eligibility criteria for availing the exemptions so granted for
regularization of irregular appointees, in-as-much as, the continuation of
the appellants, herein, was in terms of the interim directions passed by the
learned Single Judge, vide order, dated 04.11.2019, in WP(c)8073/2019.
Further, the appellants, herein, have also not completed 10 years of service
on the date when they had instituted the WP(c)8073/2019. Accordingly, the
learned standing counsel has submitted that the decisions of the Hon'ble
Supreme Court rendered in the case of Uma Devi(3) [supra] and M. L.
Kesari(supra); would not be applicable to the case of the appellants,
Page No.# 17/34
herein.
20. In the above premises, Mr. Gogoi, learned standing counsel, Higher
Education Department, has submitted that the learned Single Judge on
consideration of all the relevant aspects of the matter, having concluded
that the appellants are not entitled for a direction for regularization of their
service by way of absorption; the said conclusion and the judgment &
order, dated 07.02.2025, passed by the learned Single Judge in
WP(c)8073/2019, would not call for any interference by this Court.
21. We have heard the learned counsels appearing for the parties and
also perused the materials available on record.
22. On the establishment of the Barak Valley Engineering College,
Karimganj, and the Government creating posts for operationalization of the
said College; a decision was arrived at by the respondent authorities to
carry-out a process of recruitment against the posts so created by way of
engaging against the posts of Lecturers so created, persons, as Guest/ Part
Time Faculty. Accordingly, an advertisement was issued on 25.12.2016,
with the projection made therein that the engagement so being made, is of
Guest/Part Time Faculty.
23. The appellants, herein, had submitted their respective applications in
pursuance of the said advertisement, dated 25.12.2016, by understanding
the fact that the engagement so being made, is made as Guest/Part Time
Faculty and not on regular basis. Thereafter, by way of following a process
of selection; a select list being prepared and the names of the appellants,
Page No.# 18/34
being so included therein, they were issued with an engagement order on
08.02.2017, engaging them against the posts sanctioned in their respective
Departments as Guest/Part Time Faculty. The engagement of the
appellants, herein, was initially so made for a period of 6 months with the
stipulation that it would be renewed as per the requirement of the
Department. However, it was specified that the engagement shall not be
claimed for regular appointment. The said engagement was to come into
effect w.e.f. 01.04.2017. The Government, thereafter, conveyed its
approval to the engagement of Guest/Part Time Faculty in Barak Valley
Engineering College, Karimganj, vide a communication, dated 13.02.2017,
and therein, stipulated that the appointment so made is on temporary basis
till regular appointment of faculties is so made against the posts so
created. The appellants, herein, with open eyes, had accepted the terms
and conditions of their such engagement and joined their respective service
as Guest/Part Time Faculty.
24. The Higher Education Department, thereafter, issued a requisition to
the Assam Public Service Commission(APSC) for recruitment against 66
posts of Assistant Professors (Technical) so available in 9(nine) different
subjects in various Engineering Colleges of the State including the posts so
held by the appellants, herein, existing in Barak Valley Engineering College,
Karimganj. After initiation of the said recruitment process by the Assam
Public Service Commission(APSC); the Higher Education Department had
also written to the authorities of the Assam Public Service
Commission(APSC) for grant of weightage to the persons engaged as
Guest/Part Time Faculty in Barak Valley Engineering College, Karimganj, in
the recruitment process so initiated vide the advertisement, dated
25.05.2017. The said step taken by the authorities of the Higher Education
Page No.# 19/34
Department reveals that the Government had not construed the
engagement of the appellants to have been so made on substantive basis.
However, as contended by the appellants, herein, in the subsequent
Notifications issued by the Assam Public Service Commission(APSC)
towards laying down the manner and method for carrying-out a
recruitment process in pursuance of the said advertisement, dated
25.05.2017, and of the various stages of the recruitment process; no
weightage was so given to the persons so engaged as Guest/Part Time
Faculty in Barak Valley Engineering College, Karimganj.
25. Being aggrieved; the appellants, herein, had instituted
WP(c)8073/2019, before the writ Court and this Court, while issuing notice
in the matter, vide order, dated 04.11.2019, was pleased to pass an interim
direction to the effect that the service of the appellants, herein, be not
disturbed without special leave of this Court. The appellants, accordingly,
continued in their respective service under the cover of the said interim
directions passed by the writ Court vide order, dated 04.11.2019, in
WP(c)8073/2019.
26. Mr. Pathak, learned senior counsel appearing for the appellants,
herein, has submitted that in view of the fact that the appellants were
required to submit their educational qualification certificates prior to joining
their respective engagements so effected in their cases w.e.f. 01.04.2017,
as Guest/Part Time Faculty in Barak Valley Engineering College, Karimganj,
and further, the undertaking so made by them in the matter to the effect
that they would not, during the period of engagement in the said College,
also work in other institutions and/or seek for better avenues of
Page No.# 20/34
employment, were not in a position to submit their respective applications
in pursuance of the said advertisement, dated 25.05.2017.
27. The above contention of Mr. Pathak, learned senior counsel, was,
however, disputed by Mr. Gogoi, learned standing counsel, Higher Education
Department, and it was contended that the educational qualification
certificates of the appellants, herein, were so required to be submitted for
the purpose of verification and on completion of such verification, the
educational certificates were returned to the appellants, herein.
28. The recruitment process, as initiated, vide the advertisement, dated
25.05.2017, was, however, assailed by a set of petitioners by way of
instituting before the writ Court, a writ petition being WP(c)6005/2021, and
this Court was in sessin of the matter.
29. At this stage, it is to be noted that the service conditions of persons
engaged in the Engineering Colleges of the State, is governed by the
provisions of the Assam Technical Education Service Rules, 1981. In terms
of the provisions of Section 11 of the said Rules of 1981, the selection for
recruitment against the post of Faculty, was to be so made by the Assam
Public Service Commission (APSC).
30. The respondent authorities, thereafter, created the Assam Engineering
Service Recruitment Board and the recruitment of the Faculty of the
Engineering Colleges was brought within the purview of the said Board and
amendments, in this connection, also came to be made in the Rules of
Page No.# 21/34
1981. Accordingly, the said Board on 21.02.2023, issued an advertisement
for carrying-out a process of recruitment of Assistant Professors (Technical)
in various Engineering Colleges of the State. The appellants, herein,
contend that some of the appellants had participated in the said
recruitment process so held, in-as-much as, the posts so advertised in
terms of the provisions of Clause 21 of the said advertisement, dated
21.02.2023, was specified to be the posts which had become vacant after
25.05.2017, and not advertised by the Assam Public Service
Commission(APSC) and free from any legal issues. However, it is stated at
the Bar that the participating appellants did not come-out successful in the
said recruitment process so carried-out in pursuance of the advertisement,
dated 21.02.2023.
31. Mr. Pathak, learned senior counsel, by projecting that the appellants,
herein, having been so recruited in pursuance of a selection undertaken by
the respondent Department, wherein, in addition to reckoning the marks
secured by the appellants in the required Degree; they were also subjected
to an oral interview conducted by a selection committee consisting of
eminent personalities, has contended that in view of the fact that the
appellants, herein, had been so recruited in pursuance of a recruitment
process which process mirrored, the recruitment process so required to be
carried-out in the matter by the authorities of the Assam Public Service
Commission(APSC) and their such engagement being against sanctioned
posts; it has to be construed that the recruitment of the appellants, herein,
was so effected by the respondent Department on regular basis. It was
further projected that the appellants, herein, on their engagement as
Guest/Part Time Faculty, were projected before the AICTE authorities for
receiving the necessary approval for operationalization of the Barak Valley
Page No.# 22/34
Engineering College, Karimganj. It was, accordingly, submitted by Mr.
Pathak, learned senior counsel, that the respondents ought not to have
placed a requisition before the Assam Public Service Commission(APSC) for
the same very posts against which they were so recruited in the said
College. It was further submitted that the recruitment of the appellants,
herein, as Guest/Part Time Faculty in Barak Valley Engineering College,
Karimganj, was not an illegal one. However, it was contended that the
same may be denoted to be an irregular one.
32. The above contention of Mr. Pathak, learned counsel for the
appellants, herein, has to be examined from the point of view of the
disclosure made in the advertisement, dated 25.12.2016, wherein, it was
projected that the said recruitment process was only for the purpose of
recruiting candidates as Guest/Part Time Faculty in Barak Valley
Engineering College, Karimganj. The same being the projection; it cannot
be ruled-out that many candidates who would have been otherwise
qualified for offering their candidature for recruitment as Assistant
Professors(Technical) against the posts of faculty created in Barak Valley
Engineering College, Karimganj; may have not submitted their respective
applications given the fact that such recruitment was only, a stop-gap
arrangement.
33. In the case on hand, further, it has to be noted that after the
engagement of the appellants, herein, as Guest/Part Time Faculty, w.e.f.
01.04.2017, in Barak Valley Engineering College, Karimganj; the recruiting
authority, had, within a period of about 2(two) months, thereafter, issued
the advertisement, dated 25.05.2017, inviting applications for filling-up of
Page No.# 23/34
posts including the posts of Assistant Professors (Technical) available in
9(nine) different subjects in various Engineering Colleges of the State
including the posts so created in Barak Valley Engineering College,
Karimganj. Accordingly, in the case on hand, it cannot be said that there
was no existence of any Rules governing the recruitment to the posts of
Assistant Professors(Technical) created in the said College and/or that the
recruiting authority had caused prolonged delay in issuing advertisement
for effecting recruitment on regular basis against the posts so created in
Barak Valley Engineering College, Karimganj.
34. Accordingly, the service of the appellants, herein, in Barak Valley
Engineering College, Karimganj, before being so protected by the interim
order passed by the writ Court in the proceeding of WP(c)8073/2019, was,
for a period of around 2 years or less. Further, the materials brought on
record does not disclose that the appellants, herein, were, in any manner,
prevented from submitting their respective applications in pursuance of the
advertisement, dated 25.05.2017, and the feeble plea so raised in the
hearing by Mr. Pathak, of the appellants, herein, being so prevented on
account of the educational certificates being retained by the departmental
authorities, was categorically denied by the respondents, herein; it has to
be held that the appellants had missed an opportunity for having their
cases considered for recruitment on regular basis against the posts of
faculty as created in the Barak Valley Engineering College, Karimganj.
35. The delay in conclusion of the recruitment process in pursuance of the
advertisement, dated 25.05.2017, was on account of the proceedings
instituted before the writ Court in the proceeding of WP(c)6005/2021.
Page No.# 24/34
However, on the irregularities so noticed in the recruitment process being
remedied by the Assam Public Service Commission(APSC) authorities; the
writ Court, vide judgment & order, dated 16.05.2024, as passed in
WP(c)6005/2021, had directed the Assam Public Service
Commission(APSC) authorities to take the said recruitment process to its
logical conclusion. Accordingly, the Assam Public Service
Commission(APSC) had proceeded with the matter and had published the
select list for the post of Assistant Professors(Technical) so advertised vide
the advertisement, dated 25.05.2017.
36. It is to be noted that the directions passed by this Court vide
judgment & order, dated, dated 16.05.2024, in WP(c)6005/2021, in the
absence of a challenge being presented to it, has attained its finality.
37. In the above backdrop of the said developments taking place in the
matter after the institution of the writ petition being WP(c)8073/2019, by
the appellants, herein; it is to be noted that the appellants only on account
of being so recruited as Guest/Part Time Faculty, cannot present a claim for
being absorbed against the said posts by virtue of their such selection
which was nothing but a stop-gap arrangement for filling up of the posts of
Faculty as created in Barak Valley Engineering College, Karimganj, pending
a regular selection which has now been so concluded in terms of the
directions by the writ Court in WP(c)6005/2021.
38. Further, the claim of the appellants, herein, for being regularized
against the posts, for which, they were so engaged as Guest/Part Time
Faculty in Barak Valley Engineering College, Karimganj; would also not
Page No.# 25/34
merit acceptance, in-as-much as, such a recruitment as noticed
hereinabove, was only as a stop-gap arrangement till the posts are so put
up for regular recruitment. In the event, the appellants, herein, were, in
any manner, prevented from participating in the recruitment process so
initiated vide the advertisement, dated 25.05.2017; it was well within their
rights to have approached the writ Court by way of an appropriate
application, praying for a direction to also consider their respective cases.
The projection as made by the appellants, herein, that they were being
assured by the respondent authorities that their cases would be considered
for absorption/regularization against the posts held by them; would also
not merit acceptance, in-as-much as, no material in this connection, has
been brought on record by the appellants, herein. Further, the materials
that are available on record, would go to demonstrate that the respondents
had taken a decision to provide for weightage to the service so rendered by
the appellants, herein, as Guest/Part Time Faculty in Barak Valley
Engineering College, Karimganj, in the recruitment process as held in
pursuance of the advertisement, dated 25.05.2017, which demonstrates
that the authorities had not construed the engagements made in respect of
the appellants, to have been so made on substantive basis. Further, it is
seen that there was a move on the part of the respondent authorities to
engage the appellants, herein, on adhoc basis, by following the provisions
of Regulation 3(f) of the Assam Public Service Commission (Limitation and
Functions) Regulation, 1951, which again was not for the purpose of the
regularization of their respective service but was, with a view to provide
better emoluments.
39. Having noticed the above position; the decisions as relied upon by Mr.
Pathak, learned senior counsel, is being noticed.
Page No.# 26/34
40. Mr. Pathak, learned senior counsel appearing for the appellants,
herein, had relied upon the judgment of the Hon'ble Supreme Court in the
case of M. L. Kesari(supra). The Hon'ble Supreme Court in the case of M. L.
Kesari(supra), had considered the exception as provided in paragraph No.
53 of the case of Uma Devi(3)[supra]. On examining the exception as
provided in paragraph No. 53; it was held by the Hon'ble Supreme Court
that the regularization as enunciated in the case of Uma Devi(3)[supra];
was with the pre-condition that the employee concerned must have worked
for 10 years or more in duly sanctioned post without the benefit of
protection of interim order by any Court or Tribunal. Further, the
appointment of such employee should not be illegal even if irregular. Even if
it is considered that the appointment of the appellants, herein, are
irregular, it cannot be said that they have met the other condition of having
rendered 10 years of service in a sanctioned post without the benefit of
protection of interim order by any Court or Tribunal. The appellants, herein,
were so continuing in their respective service in terms of the interim
directions passed by the writ Court vide order, dated 04.11.2019, in
WP(c)8073/2019. Accordingly, the decision of the Hon'ble Supreme Court in
the case of M. L. Kesari(supra) would not advance the case of the
appellants, herein.
41. The reliance placed by Mr. Pathak, learned senior counsel, in the case
of Jaggo(supra), would also not advance the case of the appellants, herein,
in-as-much as, the facts involved in the said case is clearly distinguishable
from the facts involved in the present proceeding. The employees involved
in the decision of the Hon'ble Supreme Court in the case of Jaggo(supra),
were engaged on part-time/adhoc basis since long as Safaiwalas and were
primarily responsible for cleaning the office premises of the Central Water
Page No.# 27/34
Commission. The Hon'ble Supreme Court on noticing that the employees
involved, therein, had rendered long and uninterrupted service for the
periods extending well beyond 10 years, it was held that their cases cannot
be brushed aside merely by labelling their initial appointment as part-time
or casual. Basing on the said premises, the Hon'ble Supreme Court had
proceeded to direct for regularization of their respective service. The cases
of the appellants, herein, are clearly distinguishable from that of the
employees involved in the decision of Jaggo(supra), in-as-much as, in
reality; the appellants, herein, can be said to have rendered their service
for a period of around 2 months after their engagement as Guest/Part Time
Faculty in Barak Valley Engineering College, Karimganj, before the
recruiting authority had issued advertisements for effecting recruitment
against the posts of Assistant Professors (Technical) including the posts so
held by the appellants, herein. Further, the appellants, herein, had
approached the writ Court by way of instituting a writ petition being
WP(c)8073/2019 within a period of 2 years from their such engagement
and thereafter, had continued in their respective service basing on the
protection granted by the writ Court in the proceeding of WP(c)8073/2019.
42. The Hon'ble Supreme Court in its decision in the case of Vinod
Kumar(supra), had noticed the distinctive characteristics of the service
rendered by the appellants, therein. The said characteristics was noted by
the Hon'ble Supreme Court, in the said judgment, as under:
"4. The appellants have approached this Court arguing that the High Court erred in
its judgment by failing to recognise the substantive nature of their duties, which align
with regular employment rather than the temporary or scheme-based roles they were
originally appointed for. Furthermore, their promotion by a regularly constituted
Departmental Promotional Committee, the selection process they underwent, and the
continuous nature of their service for over a quarter of a century underscored their
argument for regularisation and that the High Court has incorrectly applied the
principles from the case of Umadevi (3)² to their situation.
Page No.# 28/34
5. Having heard the arguments of both the sides, this Court believes that the essence
of employment and the rights thereof cannot be merely determined by the initial terms
of appointment when the actual course of employment has evolved significantly over
time. The continuous service of the appellants in the capacities of regular employees,
performing duties indistinguishable from those in permanent posts, and their
selection through a process that mirrors that of regular recruitment, constitute a
substantive departure from the temporary and scheme-specific nature of their initial
engagement. Moreover, the appellants' promotion process was conducted and overseen
by a Departmental Promotional Committee and their sustained service for more than
25 years without any indication of the temporary nature of their roles being
reaffirmed or the duration of such temporary engagement being specified, merits a
reconsideration of their employment status."
43. Having noticed the distinctive characteristics of the service rendered
by the appellants, therein; the Hon'ble Supreme Court had proceeded to
uphold their claim for regularization of their respective service and passed
directions, in this connection. The facts so involved in the present case, is
clearly distinguishable from the facts involved in the case of Vinod
Kumar(supra).The appellants, herein, had not rendered service for 10
years and further, in pursuance of the order, dated 04.11.2019, passed in
WP(C)8073/2019; they had been continuing in their respective service
under protection of the interim directions so passed in their favour. Further,
the recruiting authority proximate to the engagement of the appellants,
herein, as Guest/Part-Time Faculty in the College, in question; had issued
advertisement for initiation of a process for appointment on regular basis
against the posts held by the appellants. Accordingly, we are of the
considered view that the decision of the Hon'ble Supreme Court in the case
of Vinod Kumar(supra), would not advance the case of the appellants,
herein.
44. The Division Bench of the High Court of Madras in the case of G.
Kulanchiyappan(supra), on noticing that the appellant, therein, was
recruited pursuant to a due process of selection and on the date of
Page No.# 29/34
selection of the appellant; there was no Recruitment Rules governing the
manner of recruitment to the post involved; proceeded to hold that in
absence of a Recruitment Rules, it was open for the authorities to evolve a
proper methodology for recruitment. Basing on the said conclusion, the
High Court of Madras, proceeded to direct for regularization of the service
of the appellant, therein. Given the facts involved in the present
proceedings, as noticed hereinabove; the facts involved in the case of G.
Kulanchiyappan(supra) is clearly distinguishable and in our considered
view, the said decision would also not advance the case of the appellants,
herein.
45. The reliance placed by Mr. Pathak, learned senior counsel, on the
decision of the Hon'ble Supreme Court in the case of K. Velajagan & ors.
(supra), is now being considered. A perusal of the said decision, would go
to reveal that at the time of engagement of the employees involved,
therein, on adhoc basis, there was no Rules framed for the purpose of
recruitment to the posts existing in the institution concerned. The said Rule
had come after the recruitment of the employees involved, therein, had
occasioned. The said aspect of the matter was duly noticed by the Hon'ble
Supreme Court and by reckoning the said position and also, the earlier
directions passed by the High Court of Judicature of Madras for
regularization of the employees so engaged on adhoc basis against the
posts of Lecturers in the institution involved; the Hon'ble Supreme Court
had proceeded to direct for the regularization of the service of the said
employees before it.
46. In the case on hand, the recruitment to the post of Assistant
Page No.# 30/34
Professors(Technical) in Barak Valley Engineering College, Karimganj, is
governed by the Assam Technical Education Service Rules, 1981, and
further, after the engagement of the appellants, herein, it is seen that the
recruiting authority without further delay, had advertised the said posts
vide the advertisement, dated 25.05.2017, as well as the said recruiting
authority had issued a further advertisement in the year 2023 for the
purpose of effecting recruitment against similar posts. Accordingly, the
facts involved in the present case being distinguishable, we are of the
considered view that the decision of the Hon'ble Supreme Court in the case
of K. Velajagan(supra), would not advance the case of the appellants,
herein.
47. At this stage, the reliance placed by Mr. Pathak, learned senior
counsel, on the decision of the Hon'ble Supreme Court in the case of Jagjit
Singh(supra), is being considered. The Hon'ble Supreme Court in the said
case, had laid down a proposition that temporary employees engaged,
would be entitled to draw their wages at the minimum of the pay scale
authorized to the regular employees holding the same posts. Neither, in the
writ petition being WP(C)8073/2019, a prayer was so made for grant of a
higher pay scale to the appellants, herein, nor, any such prayer was made
in the present proceedings. Accordingly, the said decision in the case of
Jagjit Singh(supra), would not mandate a consideration in the present
proceedings.
48. Having drawn the above conclusions with regard to the case laws
cited by Mr. Pathak, learned senior counsel for the appellants, herein; the
case laws as cited by Mr. Gogoi, learned standing counsel, Higher Education
Page No.# 31/34
Department, is now being examined.
49. Mr. Gogoi, learned standing counsel, Higher Education Department,
has placed reliance upon the decision of the Hon'ble Supreme Court in the
case of Uma Devi(3)[supra] and it was contended that the benefit of the
exception as provided in paragraph No. 53 of the said decision; would not
be attracted in the case of the appellants, herein, in-as-much as, they have
not fulfilled the pre-condition of having discharged continuous service
against a sanctioned post for a period of 10 years without the benefit of
any interim protection granted by any Court or Tribunal.
50. Mr. Gogoi, learned standing counsel, Higher Education Department,
has, thereafter, placed reliance upon the decision of the Hon'ble Supreme
Court rendered in the case of Ganesh Digamber Jambhrunkar(supra). A
perusal of the decision would go to reveal that the Hon'ble Supreme Court
in the said decision after noticing its decision in the case of Sheo Narain
Nagar & ors. v. State of U.P. & ors. , reported in (2018) 13 SCC 432, had
drawn the following conclusions:
"3. The issue with which we are concerned in this petition is as to whether by working
for a long period of time on contractual basis, the petitioners have acquired any
vested legal right to be appointed in the respective posts on regular basis.
4. We appreciate the argument of the petitioners that they have given best part of
their life for the said college but so far as law is concerned, we do not find their
continuous working has created any legal right in their favour to be absorbed. In the
event there was any scheme for such regularization, they could have availed of such
scheme but in this case, there seems to be none. We are also apprised that some of the
petitioners have applied for appointment through the current recruitment process.
The High Court has rejected their claim mainly on the ground that they have no right
to seek regularization of their service. We do not think any different view can be
taken."
Page No.# 32/34
51. The decision of the Hon'ble Supreme Court in Ganesh Digamber
Jambhrunkar(supra), in our considered view, applies with all force to the
facts involved in the present proceeding. Accordingly, it has to be concluded
that the appellants, herein, only by way of having rendered service as
Guest/Part Time Faculty, for a period of less than 10 years and that too,
under the protection of the orders of the writ Court and also on account of
the fact that the regular recruitment process so initiated, on account of
pendency of proceedings pending before the writ Court, could not be taken
to its logical conclusion; cannot claim to have been vested with any legal
right for being absorbed/regularized against the posts they were so
engaged as Guest/Part Time Faculty in Barak Valley Engineering College,
Karimganj.
52. Having drawn the above conclusions; we would now proceed to
examine the judgment & order, dated 07.02.2025, passed by the learned
Single Judge in WP(c)8073/2019. The learned Single Judge after noticing
the facts as well as the submissions made by the learned counsels
appearing for the parties to the proceeding, had recorded a finding to the
effect that the appellants, herein, in pursuance of the issuance of the
advertisement, dated 25.05.2017, had not participated in the recruitment
process and had put the same to challenge in the proceeding of
WP(c)8073/2019. The learned Single Judge had also noted that a co-
ordinate Bench in the case of Nityananda Pait & 18 ors. v. State of Assam
& ors.[WP(c)6005/2021]; having directed the respondent authorities to
take the recruitment process initiated in pursuance of the advertisement,
dated 25.05.2017, to its logical conclusion and the same having been so
done; in the absence of a challenge to the judgment & order, dated
16.05.2024, passed in WP(c)6005/2021, held that the challenge to the
Page No.# 33/34
advertisement, dated 25.05.2017, by the appellants, herein, would not be
maintainable.
53. The learned Single Judge by recording a finding to the effect that the
appointment of the appellants, herein, can be said to be an irregular
appointment, applied the decision of the Hon'ble Supreme Court rendered
in the case of M. L. Kesari(supra) and Uma Devi(3)[supra], to the facts of
the case and concluded that the appellants, herein, having not fulfilled the
pre-conditions mandated for grant of exception as carved-out in paragraph
No. 53 of the decision of Uma Devi(3)[supra]; it would not be permissible
for the appellants, herein, to claim regularization of their service by
absorption on the ground of they having worked as Guest/Part Time Faculty
in Barak Valley Engineering College, Karimganj.
54. Having recorded the said findings, the learned Single Judge, had,
thereafter, drawn the following conclusions:
"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."
55. On a close perusal of the judgment & order, dated 07.02.2025,
passed by the learned Single Judge in WP(c)8073/2019, in the light of the
conclusions drawn by us, hereinabove, in the present order; we are of the
Page No.# 34/34
considered view that the findings and conclusions as recorded by the
learned Single Judge, vide the judgment & order, dated 07.02.2025, in
WP(c)8073/2019, would not call for any interference.
56. Accordingly, in view of the above discussions; we are of the
considered view that the present writ appeal is bereft of any merit and
consequently, the same stands dismissed. However, there shall be no order
as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
