Gauhati High Court
WP(C)/5428/2019 on 8 May, 2025
GAHC010176492019
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT
WP(C) No. 5428/2019
1. Ms. O. Anjana Devi,
D/o Shri O. Churmoni Singha,
Resident of Village-Boaljur, PO-Singari,
Dist.-Cachar, Assam.
2. Ms. Priyanka Hojai,
D/o Shyam Chand Hojai,
Resident of near Ladies Park, Haflong,
PO-Haflong, Dist.-Dima Hasao, Assam.
3. Ms. Anima Das,
D/o Girindra Chandra Das,
Resident of Opposite Iskon Mandir, PO-Haflong,
N.C. Hills District, Dima Hasao, Assam.
......Petitioners.
-Versus-
1. The State of Assam,
Represented by the Chief Secretary to the Govt. of Assam,
Dispur, Guwahati-6.
2. The Commissioner & Secretary to the Govt. of Assam,
Education (Higher) Department,
Dispur, Guwahati-6.
3. The Dima Hasao Autonomous Council,
Represented by the Principal Secretary,
Dima Hasao Autonomous Council, Haflong,
District-N.C. Hills, Assam, Pin-788819.
4. The Principal, Haflong Government College,
Haflong, District-N.C. Hills, Assam, Pin-788819.
5. The Assam Public Service Commission,
WP(C) 5428/2019 Page 1 of 16
Jawaharnagar, Khanapara, Guwahati-22.
(represented by it's Secretary).
......Respondents.
For the Petitioners : Mr. M.K. Choudhury, Sr.Adv.,
Mr. A.U. Ahmed. ......Advocates.
For the Respondents : Mr. K. Gogoi, SC, Higher Edu.,
Mr. R.M. Das,
Mr. R.R. Kaushik, SC, N.C. Hills,
Mr. P.P. Dutta, SC, APSC.
......Advocates.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing : 19.02.2025, 10.03.2025, 19.03.2025 &
25.03.2025
Date of Judgment : 08.05.2025
JUDGMENT AND ORDER
Heard Mr. M.K. Choudhury, learned Senior Counsel, assisted by Mr.
A.U. Ahmed, learned counsel for the petitioners. Also heard Mr. K. Gogoi,
learned standing counsel, Higher Education, appearing for the respondent
No.2, Mr. R.M. Das, learned standing counsel for the respondent No.3,
Mr. R.R. Kaushik, learned standing counsel for the N.C. Hills and Mr. P.P.
Dutta, learned standing counsel for the respondent No.5.
2. In this petition, under Article 226 of the Constitution of India, three
petitioners, namely, Ms. O. Anjana Devi, Ms. Priyanka Hojai and Ms.
Anima Das, have prayed for issuing direction to the respondent
authorities to regularize their services as Lecturers/Assistant Professors in
the department of Physics, History and Zoology, respectively, in Haflong
Government College, by relaxation of Rules as has been done in the case
of similarly situated Lecturers of Government Colleges including Haflong
Government College, vide orders dated 02.06.2006, 27.02.2016 and
12.06.2017 (Annexures-14, 28 and 29), issued by the Higher Education
Department.
3. The background facts leading to filing of the present writ petition is
briefly stated as under:-
"The petitioner No.1 was appointed as Lecturer in the
Department of Physics, the petitioner No.2 was appointed as
Lecturer in the Department of History and the petitioner No.3 was
appointed as Lecturer in the Department of Zoology of Haflong
Government College, under Regulation 3(f) of A.P.S.C. (L&F)
Regulation, 1951 in UGC scale of pay along with many others in
different disciplines, vide Notification dated 23.03.2001 (Annexure-
4). Thereafter, the services of the petitioners were extended from
time to time by the respondent authorities. Thereafter, a selection
process was conducted by APSC, vide advertisement dated
17.05.2001 (Annexure-5) and the petitioners were duly selected by
the APSC, vide select list dated 17.05.2002 (Annexure-6), but, they
could not be regularized as their posts did not cover the
recommendation. The petitioners have qualified in SET and also
completed M.Phil. and they become fully qualified for being
regularized and appointed as Lecturers/Assistant Professors in the
Government Colleges. Thereafter, the N.C. Hills Autonomous
Council also conducted a selection in the month of September,
2005 for fresh appointment or extension of service, wherein the
petitioners were selected for re-engagement on contractual basis
by the Principal Secretary, N.C. Hills Autonomous Council, Haflong,
vide Notifications dated 02.09.2005 and 21.11.2005.
The pleaded case of the petitioners‟ is that the Dima Hasao
Autonomous Council (Erstwhile N.C. Hills Autonomous Council)
wanted regular appointment/regularization of services of the
petitioners and other Lecturers, who have been working under
Regulation 3(f) of the 1951 Regulation or on contractual basis in
sanctioned posts in Haflong Government College and on several
occasions the Council insisted the Government of Assam to
regularize the service by way of relaxation of Rules or by a Cabinet
decision and the Council also requested the Government that since
the services of some lecturers, who were working on contractual
basis at Diphu Government College, have been regularized by way
of Cabinet decision, vide Notifications dated 02.06.2006 (Annexure-
14), 27.02.2016 (Annexure-28) and 12.06.2017 (Annexure-29), the
services of the petitioners in Government Colleges, may also be
regularized by way of a Cabinet decision, but till date the
Government of Assam has not taken any decision in the matter of
regularization of services of the petitioners and their future is
languishing in uncertainty. Being aggrieved, the petitioners have
approached this Court praying the relief as aforesaid."
4. The respondent No.3, Dima Hasao Autonomous Council had filed
affidavit-in-opposition by stating that it is a fact that the Principal
Secretary, North Cachar Hills Autonomous Council, Haflong, vide O.M.
No.AC/NGC/2/2007/50, dated Haflong 13.02.2008, written a letter to the
Commissioner & Secretary to the Govt. of Assam, Education Department,
by referring to the APSC advertisement No.01/2008, dated 24.01.2008,
wherein it is specifically stated that whenever the lecturers were
appointed in the said Government posts, either they do not report at all,
or just after joining they obtained transfer and leave and to solve the
aforesaid problem, the Council took the steps to appoint lecturers, who
are duly qualified for the post of lecturers on contractual basis, so that
the education of the students are not affected for want of lecturers in the
college and therefore, in the said letter, it was requested by the Principal
Secretary, N.C. Hills Autonomous Council to take up the matter with the
Assam Public Service Commission for allowing those lecturers who were
already working on contractual basis to apply for the posts they are
holding on, so that they get the opportunity to appear in the APSC
examinations as a special case, for giving them the scope to compete. It
is also stated that the Principal, Haflong Government College had written
a letter to the Principal Secretary, N.C. Hills Autonomous Council on
02.05.2012, for regularization of services of lecturers in various posts
who are working on contractual basis, yet, N.C. Hills Autonomous Council
is not the authority to regularize their services. It is also stated that the
services of 8 nos. of lecturers in Haflong Government College on
contractual basis having requisite qualification as per UGC norms were
regularized with approval of the State Cabinet. But, the service of the
petitioner Nos.1 and 2 could not be considered due to lack of their
requisite qualification, as required under UGC norms at that time.
5. The respondent No.2, the Commissioner & Secretary to the Govt.
of Assam, Education (Higher) Department has also filed affidavit-in-
opposition, wherein it is stated that the services of employees of the
Government Colleges are governed by Assam Education Service Rules,
1982 and Rule 5 sub-rule (1) of the said Rules, deals with the method of
recruitment, where it is clearly mentioned that Lecturers of Government
Colleges shall be made by direct recruitment. Rule 6 deals with direct
recruitment, where it is clearly mentioned that direct recruitment to the
posts mentioned in the sub-rule (1) of Rule 5, shall be made by the
Government on the basis of recommendation made by the Commission. It
is also stated that the petitioners were appointed vide order dated
23.03.2001, but, they were terminated vide order dated 30.08.2003, vide
Notification No. B(2)H.57/97/Pt/308 and though they appeared in the
selection of APSC and got selected vide letter dated 17.05.2002, they
stood beyond the zone of consideration in respect of specialization,
reservation according to roster points and clearance of backlog and that
in view of the judgment and order dated 05.06.2004, passed in WA
No.31/2004, and along with some other writ appeals, the services of the
petitioners along with others appointed under Regulation 3(f) were
terminated with immediate effect, vide letter dated 25.05.2004, and
thereafter, the petitioners were engaged by the N.C. Hills Autonomous
Council as lecturers on contractual basis, which they could not do as
Education is not a transferred subject to Autonomous Council.
6. It is also stated that 8 nos. of college teachers of Haflong
Government College and 3 nos. of Diphu Government College were
regularized through a Cabinet decision, vide Notification
Nos.AHE.95/2011/360, dated 27.02.2016 and AHE.174/2006/52, dated
12.06.2017, and that the petitioners cannot claim negative discrimination
qua the persons who have been regularized on the basis of Cabinet
decision without following the Rules and Procedure applicable to the
Government Colleges prescribed under recruitment procedure, under
Articles 14 and 16 of the Constitution of India and that the Assam
Education Service Rules, 1982 lays down the procedure to be followed for
making appointment to the post of Lecturers/Assistant Professors in
Government Colleges and the respondent authorities cannot give a go by
to the statutory provisions.
7. The respondent No.3 had filed additional affidavit, wherein it is
stated that as per O.M. dated 31.12.1996 and 25.05.1996 and the
Notification dated 15.02.2005, the Department of Education has been
brought under the administrative control of North Cachar Hills
Autonomous Council and as such, the N.C. Hills Autonomous Council is
empowered to issue appointment.
8. Mr. Choudhury, learned Senior counsel for the petitioners submits
that the petitioners herein are discriminated by the respondent
authorities, specially by respondent No.2 by not regularizing their
services, though they possessed the requisite qualification for being
appointed as Lecturers/Assistant Professors in the Government Colleges
of Assam. Mr. Choudhury further submits that though the respondent
No.2 had taken a stand in the affidavit-in-opposition that the petitioners
cannot claim negative equality, as 8 nos. of college teachers of Haflong
Government College and 3 nos. of teachers of Diphu Government College
were regularized through Cabinet decision, yet, before taking such a
stand, the respondent No.2 has to admit that they have committed
mistake and the benefit of which the present petitioners cannot derive.
But, nowhere in the affidavit-in-opposition, has the respondent No.2
admitted that they had by mistake given such benefit to 8 nos. of
Lecturers of Haflong Government College and 3 nos. of Lecturers of
Diphu Government College and as such, the stand taken by the
respondent No.2 is not sustainable.
8.1 Further, Mr. Choudhury submits that the respondent No.3 has
appointed the petitioners on contractual basis and their services have
been extended for 5 years since the year 2023 and that their future is
languishing in uncertainty even though they rendered services in the said
Government College since the year 2001 and under such circumstances,
Mr. Choudhury submits that like the 8 nos. of teachers of Haflong
Government College and 3 nos. of teachers of Diphu Government
College, whose services have been regularized through a Cabinet
decision, the services of the petitioners may also be regularized through a
Cabinet decision and the petitioners are also entitled to said benefit and
therefore, it is contended to dispose of this writ petition by directing the
respondent authorities to regularize the services of the petitioners.
8.2 In support of his submission, Mr. Choudhury has referred to a
decision of Hon‟ble Supreme Court in the case of State of Assam &
Anr. v. Raghava Rajgopalachari, reported in 1967 SCC OnLine SC
1 and contended that the respondent to a writ petition cannot be allowed
to attack its own order as a respondent. Referring to another decision of
Hon‟ble Supreme Court in the case of Basawaraj & Anr. v. Special
Land Acquisition Officer, reported in (2013) 14 SCC 81, Mr.
Choudhury submits that it is well-settled that Article 14 of the
Constitution of India is not meant to perpetuate illegality or fraud, even
by extending the wrong decisions made in other cases. The said provision
does not envisage negative equality, but, has only a positive aspect.
Thus, if some other similarly situated persons have been granted some
relief/benefit inadvertently or by mistake, such an order does not confer
any legal right on others to get the same relief as well, but, unless the
State respondents admits in affidavit-in-opposition that they had
committed some wrong, they cannot apply the principle of negative
equality and they cannot review their own order or cancel it. But, Mr.
Chaudhury submits, the same is not the case here. The respondent No.2,
nowhere in its affidavit-in-opposition had admitted that they had
mistakenly given the said benefit to some other candidates while
regularizing their services through Cabinet decision.
9. Per contra, Mr. Gogoi, learned standing counsel for the Higher
Education Department submits that the petitioners have prayed for
regularization of their services by relaxing the Rule and that the Rule 5
and 6 of the Assam Education Service Rules, 1982 are applicable in this
case and that by invoking the jurisdiction under Article 226 of the
Constitution of India, this Court is not empowered to issue direction for
relaxation of the said Rule for regularization of services of the petitioners.
Mr. Gogoi further submits that the N.C. Hills Autonomous Council has no
authority to appoint teachers on contractual basis as education is not a
transferred subject and that the petitioners were released on 25.05.2004,
pursuant to order of this Court in WA No.31/2004 and that the petitioners
did not fulfilled the prescribed norms, for which their services could not
be regularized and the Court cannot travel beyond the rules and norms
and in paragraph Nos.15, 16 and 17 of the affidavit-in-opposition, it has
categorically mentioned that it is not open for the respondent authorities
to give a go by to the statutory provisions and that though some of the
lecturers of Government Colleges were given the benefit of regularization,
on the basis of Cabinet decision, yet, the petitioners cannot claim
negative equality. Under such circumstances, Mr. Gogoi contended to
dismiss the petition.
10. Mr. Gogoi has also referred to a decision of Hon‟ble Supreme Court
in the case of R. Muthukumar & Ors. v. The Chairman and
Managing Director TANGEDCO & Ors., reported in 2022 LiveLaw
(SC) 140, specially in paragraph No.24, to contend that there is no
negative equality in the country‟s Constitutional lore. Mr. Gogoi further
submits that though the petitioners have been working for a long period
on contractual basis, they have not acquired any legal right to be
appointed in the respective posts on regular basis and in support of his
submission; he has referred to a decision of Hon‟ble Supreme Court in
the case of Ganesh Digamber Jambhrunkar & Ors. vs. State of
Maharashtra & Ors., reported in 2023 SCC OnLine SC 1417.
Referring to another decision of Hon‟ble Supreme Court in the case of
Union of India & Ors. vs. Mahendra Singh, reported in
MANU/SC/0919/2022, Mr. Gogoi submits that it is well settled statutory
principle that if a statute provides for a thing to be done in a particular
manner, then it has to be done in that manner and not in other manner.
11. On the other hand, Mr. R.M. Das, learned counsel for the
respondent No.3 submits that Education is a transferred subject and on
such count, respondent No.3 can appoint lecturers on contractual basis
for running the college as some candidates were granted the benefit of
regularization through Cabinet decision, the case of the petitioners may
be considered.
12. Mr. P.P. Dutta, learned counsel for the respondent No.5, however,
subscribed the submission so advanced by Mr. Gogoi, learned standing
counsel for the Higher Education Department.
13. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the petition and the documents
placed on record and also perused the decision referred by learned
Advocates of both the parties.
14. The basic facts here in this case are not in dispute. Initially the
petitioners were appointed as Lecturers in the Haflong Government
College, vide Notification dated 23.03.2001 issued by the Deputy
Secretary to the Govt. of Assam, Education (Higher) Department. Initially
the petitioners did not possess the requisite qualification for being
regularization of their services. But, subsequently, the petitioner No.1 and
2 had acquired their qualification and passed the SET examination and
the petitioner No.3 had obtained M. Phil. degree also. It is not in dispute
that now they are fully qualified for being appointed as
Lecturers/Assistant Professors in regular manner in Haflong Government
College.
15. They have also appeared in the interview conducted by the
respondent No.5 and they had got selection, but their services could not
be regularized at that time as they stood beyond the zone of
consideration in respect of specialization/reservation according to roster
points and clearance of backlog. Thereafter, in view of order of this Court
in WA No.31/2004, vide order dated 05.06.2004, the petitioners were
released. But, thereafter, the petitioners were engaged by the N.C. Hills
Autonomous Council as lecturers on contractual basis and they are
working in that capacity till date.
16. Further, from the additional affidavit filed by the respondent No.3 it
appears that as per Office memorandum issued by the Government of
Assam in Hill Area Department vide notification No. HAD. 57/95/309
dated 31.12.1996 and No. HAD.57/95/268 dated 25.05.1996 and
Education Department, Government of Assam Notification No.
B(2)H.412/2003/Pt/25 dated 15.02.2005, the Department of Education
has been brought under the administrative control of N.C. Hills
Autonomous Council and as such, the respondent No.3 is empowered to
engage lecturers. This averment in the additional affidavit is not disputed
by the respondent No.2 and as such, the contention made by Mr. Gogoi is
a misleading statement, which fails to mandate acceptance of this court.
17. It also appears that the respondent No.3 had written a letter to the
APSC for regularization of the services of the petitioners, vide letter dated
13.02.2008, and also to the Commissioner & Secretary to the Govt. of
Assam, Education Department and that the persons who were working
already on contractual basis may be allowed to apply for the posts they
are holding and to get opportunity to appear in the examination
conducted by the respondent No.5 as a special case for giving them a
scope to compete.
18. It is also not in dispute that 8 nos. of contractual Lecturers of
Haflong Government College and 3 nos. of contractual Lecturers of Diphu
Government College were regularized through a Cabinet decision, vide
Notifications dated 02.06.2006, 27.02.2016 and 12.06.2017 (Annexures-
14, 28 and 29, respectively). Though, the respondent No.2 had taken a
stand that the petitioners are not entitled to negative equality, yet, the
fact remains that nowhere in the affidavit-in-opposition, the respondent
No.2 had admitted that they have committed any mistake by regularizing
services of those 8 nos. of contractual Lecturers of Haflong Government
College and 3 nos. of contractual Lecturers of Diphu Government College.
Without there being any such admission that it had committed mistake,
the respondent No.2 cannot claim that such negative equality cannot be
claimed by the petitioners. In that view of the matter, the submission of
Mr. Choudhury, learned Senior Counsel for the petitioners appears to be
justified and the decisions referred by him in the case of Basawaraj
(supra), also strengthen his submission.
19. Further, it appears that the respondent No.2 in its own affidavit
admitted having regularized 8 nos. of contractual Lecturers of Haflong
Government College and 3 nos. contractual Lecturers of Diphu
Government College by way of Cabinet decision, vide Notification dated
27.02.2016 and 12.06.2017. In view of above, the stand so taken by the
respondent No.2 that the petitioners are not entitled to claim negative
equality is not at all sustainable. Being similarly situated with the said 8
nos. of contractual Lecturers of Haflong Government College and 3 nos.
of contractual Lecturers of Diphu Government College, the present
petitioners are also entitled to similar benefit, in view of Articles 14 and
16 of the Constitution of India. Mr. Choudhury, learned Senior Counsel
for the petitioners, had rightly pointed it out in his argument and the case
law, referred by him, also strengthened his submission.
20. It is also not in dispute that the petitioners have been working
since 2001 as contractual Lecturers in Haflong Government College. They
possess all requisite qualification for being appointed as regular Lecturer
in Halflong Government College or in any other Government Colleges of
Assam. They have dedicated 24 years of their life in serving as
contractual lecturers. At the fag end of their service career, they have to
leave the College with empty hand having dedicated the golden period of
their life.
21. It is true that as held in the case of Ganesh Digamber
Jambhrunkar & Ors.(supra) the petitioners herein this case have not
acquired any right for regularization having appointed on contractual
basis and rendering their services for long period. But, facts of the said
case are completely distinguishable from the facts herein this case. In
that case the issue was of absorption and there was no scheme for
regularization also. This is not the fact situation in the present case.
22. In this context it is worth mentioning that Hon‟ble Supreme Court in the
case of Sheo Narain Nagar and Others Vs. State of Uttar Pradesh
and Another, reported in (2018) 13 SCC 432,has emphasised that
incumbents should be appointed on regular basis as per rules, it cannot be in
exploitative terms and forms. It has been observed in paragraph No. „7‟ has
held as under:-
"7. When we consider the prevailing scenario, it is
painful to note that the decision in Umadevi(3)4 has
not been properly understood and rather wrongly
applied by various State Governments. We have called
for the data in the instant case to ensure as to how
many employees were working on contract basis or ad
hoc basis or daily-wage basis in different State
departments. We can take judicial notice that widely
aforesaid practice is being continued. Though this
Court has emphasised that incumbents should be
appointed on regular basis as per rules, but new
devise of making appointment on contract basis has
been adopted, employment is offered on daily-wage
basis, etc. in exploitative forms. This situation was
not envisaged by Umadevi(3)4. The prime intendment of
the decision was that the employment process should
be by fair means and not by back door entry and in
the available pay scale. That spirit of the
Umadevi(3)4 has been ignored and conveniently
overlooked by various State Governments/authorities.
We regretfully make the observation that Umadevi(3)4
has not been implemented in its true spirit and has
not been followed in its pith and substance. It is
being used only as a tool for not regularising the
services of incumbents. They are being continued in
service without payment of due salary for which they
are entitled on the basis of Articles 14, 16 read
with Article 34(1)(d) of the Constitution of India as
if they have no constitutional protection as
envisaged in D.S. Nakara V. Union of India8, from
cradle to grave. In heydays of life they are serving
on exploitative terms with no guarantee of livelihood
to be continued and in old age they are going to be
destituted, there being no provision for pension,
retiral benefits, etc. There is clear contravention
of constitutional provisions and aspiration of
downtrodden class. They do have equal rights and to
make them equals they require protection and cannot
be dealt with arbitarily. The kind of treatment meted
out is not only bad but equally unconstitutional and
is denial of rights. We have to strike a balance to
really implement the ideology of Umadevi(3)4. Thus,
the time has come to stop the situation where
Umadevi(3)4 can be permitted to be flouted, whereas,
this Court has interdicted such employment way back
in the year 2006. The employment cannot be on
exploitative terms, whereas Umadevi(3)4 laid down
that there should not be back door entry and every
post should be filled by regular employment, but a
new device has been adopted for making appointment on
payment of paltry system on contract/ad hoc basis or
otherwise. This kind of action is not permissible
when we consider the pith and substance of true
spirit in Umadevi(3)4." 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."
23. Again, in the case of The State of Karnatak and Others vs.
C. Lalitha, reported in (2006) 2 SCC 747, it has been held
that service jurisprudence evolved by Hon‟ble Supreme Court from time
to time postulates that all persons similarly situated should be treated
similarly.
24. Thus, drawing premises from the discourse made herein above,
and also having regards to the facts and circumstances on the record,
this Court is of the considered opinion that the petitioners have
succeeded in establishing a case for interference of this Court. Being
similarly situated with the said 8 nos. of contractual Lecturers of Haflong
Government College and 3 nos. of contractual Lecturers of Diphu
Government College, whose services were regularized on the basis of
Cabinet decisions, vide Notifications dated 02.06.2006, 27.02.2016 and
12.06.2017 (Annexures-14, 28 and 29, respectively), the present
petitioners are also entitled to similar benefit, in view of Articles 14 and
16 of the Constitution of India. In the given facts and circumstances on
the record, this Court finds sufficient merit in this petition and
accordingly, the same stands allowed.
25. The respondent No.2, by a mandamus of this Court, is directed to
place the matter of the present petitioners, before the State Cabinet for
its kind consideration, for regularization of their services, as done in the
case of 8 nos. of contractual Lecturers of Haflong Government College,
and 3 nos. of contractual Lecturers of Diphu Government College, vide
Notifications dated 02.06.2006, 27.02.2016 and 12.06.2017 (Annexures-
14, 28 and 29, respectively). The aforesaid exercise has to be carried out
within a period of 3(three) months from the date of receipt of a certified
copy of this order. The petitioners shall obtain a certified copy of this
order and place the same before the respondent authorities within a
period of 1(one) week from today.
26. In terms of above, the writ petition stands disposed of.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
