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WP(C) No.1967 of 2012 Page 1 of 25
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
WP(C) No.1967 of 2012
Dr. Rajashree Singh Acharjee
............ Petitioner
- Versus –
The State of Assam and others
........ Respondents
B E F O R E HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
For the petitioner: Dr. B. Ahmed, Adv
For the respondents: Mr. K.P. Sarma, Sr. Adv
Mr. A.C. Sarma, Sr. Adv
Mr. N.J. Khataniar, Adv
Date of Hearing : 09.06.2017.
Date of Judgment: 29.08.2017.
JUDGMENT & ORDER (CAV)
Heard Dr. B. Ahmed, learned counsel for the petitioner, Mr. K.P.
Sarma, learned senior counsel appearing for the respondent No.5, Mr. A.C.
Sarma, learned counsel appearing for the respondent Nos. 3 and 4 and Mr.
N.J. Khataniar, learned counsel appearing for the respondent Nos. 1 and 2.
2. The petitioner who has the qualification of a Post Graduate degree in
M.Sc in the Anthropology having a specialization in Prehistoric Archeology and
subsequently having obtained the PhD degree on 03.01.2011, was engaged
as a Guest Lecturer in the Anthropology Department of the respondent
Pragjyotish College. The period of such engagement is as follows:-
WP(C) No.1967 of 2012 Page 2 of 25
Sl No
Academic Session
Period of Service as allowed for Guest Faculty
Period of service rendered as Guest
Faculty
Remarks
1 2000-2001 01.08.2000 to 31.01.2001 01.08.2000 to 28.02.2001
2 2001-2002 01.08.2001 to 28.02.2002 01.08.2001 to 28.02.2002
3 2002-2003 01.08.2002 to 28.02.2003 01.08.2002 to 28.02.2003
4 2003-2004 01.08.2003 to 28.02.2004 01.08.2003 to 28.02.2004
5 2004-2005 01.08.2004 to 28.02.2005 01.08.2004 to 28.02.2005
6 2005-2006 01.08.2005 to 28.02.2006 01.01.2006 to 28.02.2006 On Maternity leave from
8/05 to 12/05, but attended
classes as and when required
by HOD
7 2006-2007 01.08.2006 to 28.02.2007 01.08.2006 to 28.02.2007
8 2007-2008 01.05.2007 to 28.02.2008 01.05.2007 to 28.02.2008
9 2008-2009 01.05.2008 to 28.02.2009 01.05.2008 to 28.02.2009
10 2009-2010 01.05.2009 to 28.02.2010 01.05.2009 to 28.02.2010
11 2010-2011 01.05.2010 to 28.02.2011 01.05.2010 to 30.06.2010 On Maternity leave from
August 2010, but attended
classes as and when required
by HOD
12 2011-2012 01.05.2011 to 31.12.2011 01.05.2011 to 31.12.2011
3. On the other hand, the respondent No.5 also has the qualification of a
Post Graduate Degree MSc in Anthropology having specialization in Physical
Anthropology and subsequently obtained her PhD Degree on 01.01.2007. The
respondent No.5 was initially appointed as a Part Time Lecturer in the
Department of Anthropology of the Pragjyotish College. As per the letter
WP(C) No.1967 of 2012 Page 3 of 25
dated 17.09.1998 of the Principal of the College, it is stated that the
appointment of the respondent No.5 was made on the basis of her application
dated 16.09.1998. Subsequently, by another order of 19.08.1999, the
respondent No.5 was again appointed as a Part Time Lecturer in the
Department of Anthropology w.e.f. 20.08.1999 to 21.12.1999. Thereafter, by
a letter dated 01.08.2000, the respondent No.5 was further appointed as a
Part Time Lecturer w.e.f. 01.08.2000.
4. The respondent No.5 made an application dated 27.012011 to the
Principal of the Pragjyotish College making a request that the service of the
respondent No.5 be extended from February onwards of that year. In the said
application, the respondent No.5 stated that she had been serving as a Guest
Faculty in the Department of Anthropology of the College since 1997-1998,
when the subject Anthropology was first introduced at the degree level. In the
said application, there was an endorsement by the Principal of the College
that the respondent No.5 be allowed to work as a Guest Faculty.
5. This Court is of the view that sanctioning of a post is within the
administrative realm of the authority and in will be inappropriate for this Court
in exercise of its power under Article 226 of the Constitution of India to issue
a direction to the respondent authorities to sanction such post.
6. On 21.06.2000, an advertisement was issued under the signature of
the Principal-in-Charge of the Pragjyotish College, inviting applications from
interested candidates possessing UGC norms for, amongst others, one post of
Anthropology (Open), which was a non-sanctioned post. Pursuant to the said
advertisement, a selection process was held and in the said selection process,
the petitioner had obtained 46 marks in total whereas on the other hand, the
respondent No.5 by participating in the same selection process had obtained
WP(C) No.1967 of 2012 Page 4 of 25
43 marks. In the said comparative statement, it was stated that the petitioner
had the special paper of Pre-Historic Archeology, whereas the respondent
No.5 had special paper of Physical Anthropology. Similarly, the special paper
of the other candidates had also been stated, wherein certain candidates had
Pre-Historic Archeology, some had Physical Anthropology, while some others
had Social Anthropology.
7. From the said comparative statement, it can be ascertained that in the
aforesaid recruitment process, all candidates irrespective of their special
papers, were eligible to participate and had in fact participated. In the said
selection process, one Chitralekha Baruah, having obtained 68 marks was
declared to have been in the first position, one Chandana Sarma, having
obtained 67 marks, was declared to have been in the second position and one
Pahari Gogoi having obtained 63 marks was declared to have been in the third
position. Accordingly, the selection committee had submitted a report that the
committee had unanimously recommended the following candidates in order
of merit:-
(i) Ms. Chitralekha Baruah
(ii) Ms. Chandana Sarma
(ii i) Ms. Pahari Gogoi.
8. It is stated that out of the three candidates, who were recommended
in order of merit, none of the three candidates had joined their service.
Consequent thereof, both the petitioner as well as the respondent No.5
continued in their respective service in the Pragjyotish College in the manner
in which they were appointed.
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9. As can be noticed from the aforesaid advertisement of 2000, firstly
there was no sanctioned post in the department of Anthropology and
secondly, at that relevant point of time, the College authorities were of the
view that the non-sanctioned post can be filled up by any candidate having a
Post Graduate degree in Anthropology, irrespective of their subject of
specialization.
10. As the situation stood thus, the Governing Body of the Pragjyotish
College had adopted a resolution dated 31.05.2011 being the resolution No.9.
By the said resolution, the Governing Body had resolved that the post of
Lecturer in the Department of Commerce of the College is lying vacant on the
retirement of the earlier incumbent, namely Professor Bhadreshwar Mali on
28.02.2006. Accordingly, it was resolved that the said post be converted to a
part in the Department of Anthropology and on being converted, it be given
to the respondent No.5 Dr. Mayuri Borkataky, who was said to be the senior
most teacher in the Department on having completed 13 years of service and
further it was also resolved to regularize the service of Dr. Mayuri Borkataky
as a whole time lecturer in the Department of Anthropology w.e.f. 2001.
11. The said resolution No.9 of the Governing Body dated 31.05.2011 has
been assailed in this writ petition by the writ petitioner ostensively on the
ground that the writ petitioner was also one such similarly situated Lecturer in
the Department of Anthropology of the Pragjyotish College when the said
resolution was taken and therefore, the writ petitioner also had a legal right to
be considered along with the respondent No.5.
12. It is the further case of the writ petitioner that by the said resolution
of 31.05.2011, the Governing Body having converted a post in the
Department of Commerce to that in the Department of Anthropology, the
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entire procedure of such conversion is guided by the provision of an Office
Memorandum dated 17.07.2004. It is the case of the petitioner that while
adopting the said resolution of 31.05.2011, the prescribed procedure
contained in the Office Memorandum of 17.07.2004, which was approved by
this Court in several of its judgments pertaining to the said Office
Memorandum dated 17.07.2004, had not been followed.
13. It is the further case of the writ petitioner that the post in the
Department of Commerce on being converted to a post in the Department of
Anthropology, the same should have been considered as an open category
post and not confined to the special paper of Physical Anthropology.
14. Mr. K.P. Sarma, learned senior counsel appearing on behalf of the
respondent No.5 on the other hand firstly raises a question of maintainability
of the writ petition on the ground that there is an Executive Council resolution
of the Gauhati University bearing No.ECRs No.2002/2/17(10) dated
05.02.2000, by which permission was granted for the second year and TDC
Part-I Arts for Anthropology in the Pragjyotish College for the session 1998-99
on the condition that the college appoints a whole time teacher with
specialization in Physical Anthropology, to be followed by specialization in Pre
Historic Archeology and therefore as the petitioner does not have a
specialization in Physical Anthropology, she does not have a locus-standi for
maintaining the writ petition.
15. A preliminary objection has also been raised by stating that the writ
petitioner while she was provisionally selected for award of Doctoral
Fellowship for one year on 01.06.2001, had wrongly stated that she did not
receive any financial assistance/fellowship from any other source except one
that had already been disclosed by her. The respondent No.5 raises an
WP(C) No.1967 of 2012 Page 7 of 25
assertion that during the said period of time, the petitioner was receiving
some kind of salary from the college authorities and therefore, the aforesaid
statement was incorrect. It was submitted that in such view of the matter, the
petitioner had not approached this Court with clean hands and as such, the
writ petition ought not to be entertained. It is stated that the petitioner had
suppressed the aforesaid facts in the writ petition and therefore, for the said
reason also, the writ petition is not maintainable. It is also stated that the
petitioner while working as a Research Officer, had also incorrectly stated that
she was not receiving any financial assistance.
16. Mr. A.C Sarma, learned senior counsel appearing for the College
authorities has taken a stand that although the writ petitioner had relied upon
certain Office Memorandum and other documents and also certain judgments
of this Court, but such plea had not been taken in the writ petition and
therefore, the writ petitioner has proceeded in the matter beyond the
pleadings.
17. Dr. B. Ahmed, learned counsel for the petitioner by referring to the
Clause-4 of the Office Memorandum dated 17.07.2004, submits that the
Office Memorandum provides for a particular procedure by which such
conversion of posts are required to be made and that the procedure adopted
by the Governing Body of the Pragjyotish College in the instant case is not in
conformity with the said procedure as prescribed in the Office Memorandum.
Dr. Ahmed, learned counsel for the petitioner further refers to certain
judgments and orders of this Court passed in various writ petitions while
dealing with the aforesaid Office Memorandum dated 17.07.2004.
18. Dr. Ahmed, learned counsel for the petitioner refers to the judgment
and order dated 07.04.2005 in WP(C) No.7305/2004, wherein in paragraph-4,
an apprehension expressed by the petitioner therein had been recorded that
WP(C) No.1967 of 2012 Page 8 of 25
the things are being manipulated in such a manner so that the real intent and
purpose for which the office memorandum was issued are frustrated and the
deserving Lecturers are kept out for the purview of consideration for
adjustment against sanctioned posts. The said writ petition was disposed of
by providing that the petitioners in the said writ petition shall be considered
along with other similarly situated candidates strictly in accordance with the
provision of Clause-4(c) of the Office Memorandum dated 17.07.2004.
Dr. Ahmed, learned counsel for the petitioner further refers to a
judgment and order dated 06.06.2006 in WP(C) No.7290/2005, wherein this
Court was of the view that Clause-4(c) of the Office Memorandum dated
17.07.2004 cannot be implemented in view of the provisions of the Assam
College Employees Provincialisation Act, 2005 (in short the Act of 2005). On
an appeal being preferred against the said judgment and order, the Division
Bench of this Court in its judgment and order dated 09.02.2009 in Writ Appeal
No.219/2006 had held that there is no conflict between Clause-4(c) of the
Office Memorandum and Section 3(c) of the 2005 Act and provided that the
authorities before passing the final order towards adjustment of the non-
sanctioned post, shall take into consideration the grievances of the writ
petitioners therein.
Reference is also made to the judgment and order dated 10.02.2012
of the Division Bench of this Court in Cont.Cas(C) No.396/2010, wherein by
referring to Clause-4C of the Office Memorandum dated 17.07.2004, it had
been provided that the departmental authority was required under the said
clause to prepare a list of such vacant withdrawn post from different colleges
by giving the necessary details and thereafter consider the cases of all those
teachers, who are working without sanctioned post in order of their seniority
in service and send such proposal to the Government for approval. It was
WP(C) No.1967 of 2012 Page 9 of 25
further provided that while doing so, the process prescribed by Clause-4(c) of
the Office Memorandum dated 17.07.2004 has to be followed.
Dr. Ahmed, learned counsel for the petitioner again refers to another
judgment and order dated 07.01.2010 in WP(C) No.1632/2009, wherein this
Court had directed the respondent authorities to consider the cases of the
petitioners therein along with other similarly situated teachers for
regularization/adjustment in terms of the Office Memorandum dated
17.07.2004. Dr. Ahmed, also refers to a Full Bench decision of this Court in
M izanur Rahman and others –vs- State of Assam and others, reported
in (2012) 1 GLT 520.
19. Mr. K.P. Sarma, learned senior counsel appearing for the respondent
No.5 on the other hand by referring to a resolution of the Executive Council of
the Guwahati University dated 05.02.2000, submits that the permission for
the second year TDC Part-I Arts was granted to the Pragjyotish College for
the Session 1998-99, wherein one of the condition was that the college must
have a whole time teacher with specialization in Physical Anthropology to be
followed by specialization in Pre-Historic Archaeology. By referring to the said
resolution of the Executive Council, the learned senior counsel takes a stand
that the concerned post for which the conversion had been made by the
resolution dated 31.05.2011, pertains only to the specialization in Physical
Anthropology. As the writ petitioner admittedly has the specialized paper in
Pre-Historic Archaeology, therefore, the writ petitioner is not entitled to be
considered for such converted post and as such, no legal right of the
petitioner has been violated by the resolution of 31.05.2011 and as a
consequence, the writ petitioner has no locus-standi to assail the resolution
dated 31.05.2011.
WP(C) No.1967 of 2012 Page 10 of 25
20. Mr. K.P. Sarma, learned senior counsel refers to a decision of the
Hon’ble Supreme Court rendered in J. Ranga Swamy –vs- Government of
Andhra Pradesh and others, reported in AIR 1990 SC 535, wherein the
Hon’ble Supreme Court was of the view that when the required qualification
was a doctorate in Nuclear Physics, a mere diploma in Radiological Physics
from the Bhabha Atomic Research Centre cannot be construed to be the
relevant qualification and accordingly concluded that a person having a such
diploma cannot claim a legal right to the concerned post.
21. The learned senior counsel also relies upon the decision of the Hon’ble
Supreme Court rendered in Jasbhai Motibhai Desai –vs_ Roshan Kumar,
Haji Bashir Ahmed and others, reported in (1976)1 SCC 671, wherein in
paragraph-37, it had been held that in the context of locus-standi to apply for
a writ of certiorari, an applicant may ordinarily fall in any of these categories:
(i) person aggrieved; (ii) stranger; (iii) busybody or meddlesome interloper
and that the test for determination would be whether the applicant is a
person, whose legal right has been infringed. By relying upon the said
decision of the Apex Court, the learned senior counsel substantiates his
submission that as the legal right of the petitioner had not been violated,
therefore, the writ petition is not maintainable.
22. The learned senior counsel for the respondent No.5 further submits
that the petitioner in this writ petition seeks to enforce the Office
Memorandum dated 17.07.2004 and in this respect by relying upon the
decision of the Hon’ble Supreme Court rendered in J.R Raghupathy etc –
vs- State of A.P and others, reported in AIR 1988 SC 1681, wherein in
paragraph-18 it had been provided that it is a settled position that mandamus
does not lie to enforce departmental manuals or instructions not having any
WP(C) No.1967 of 2012 Page 11 of 25
statutory force, submits that the petitioner in this writ petition cannot seek for
a direction to enforce the Office Memorandum dated 17.07.2004.
23. The learned senior counsel for the respondent No.5 also makes a
submission that the appointment of the respondent No.5 in the Pragjyotish
College had been made by following the due procedure of law and to that
effect the learned senior counsel refers to the selection process that was
initiated by the advertisement dated 21.06.2000 and accordingly submits that
therefore, there was a substantial compliance of the required procedure in the
appointment of the respondent No.5.
24. Considered the rival submissions of the parties. The core issue to be
decided in this writ petition on the basis of the aforesaid submissions would
be as to whether the procedure adopted by the Governing Body of the
respondent college is inconformity with the required procedure for conversion
of a post as provided in the Office Memorandum dated 17.07.2004 and also
the different pronouncements of this Court made while considering the said
Office Memorandum.
25. Although several statements of facts and submissions had been made,
which may be at a slight variance and conflict with each other, this Court
deems it appropriate that all such statements of facts and submissions need
not be taken into consideration for deciding the aforesaid issue and only such
relevant statements of facts and submissions be taken into consideration,
which would enable this Court to arrive at its adjudication.
26. Before going into the question as to whether the relevant procedure
had been followed while converting the post in the Pragjyotish College from
the Department of Commerce to Department of Anthropology, this Court also
deems it appropriate that the preliminary objection raised by the respondent
No.5 be addressed at the first instance.
WP(C) No.1967 of 2012 Page 12 of 25
27. With regard to the preliminary objection raised by the respondent No.5
that the writ petitioner while pursuing her PhD degree and functioning as a
Research Officer, had made certain incorrect and misleading statements to
the effect that although she was receiving certain remuneration from certain
quarters and that the writ petitioner had withheld the said information from
the authorities concerned, the statement of the respondent No.5 in the
affidavit in opposition is of relevance. In the affidavit in opposition of the
respondent No.5, in paragraph-3 (B)(ii)(a), the relevant Clause-5 of the
undertaking given by the writ petitioner to the Indian Council of Social Science
and Research on 14.04.2011 is quoted. As per the said undertaking, the
petitioner had certified that she is not receiving any financial
assistance/fellowship or scholarship from any other source except one already
disclosed by her in the application form. The said undertaking relates to the
petitioner not receiving any financial assistance/fellowship/scholarship from
any other source and the said undertaking does not relate to the petitioner
receiving some remuneration for any service that she may have rendered
before any other authority. Therefore, the objection of the respondent No.5
that the petitioner was receiving certain remuneration for certain services she
had rendered before any authority, cannot be a reason to arrive at a
conclusion that the petitioner had wrongly certified before the concerned
authority by that aforesaid certificate, which is quoted in paragraph-
3(B)(ii)(a).
28. Raising such preliminary issue that the petitioner had made incorrect
statement before the authorities conducting the PhD course or the
engagement of the petitioner as a Research Officer, reference had also been
made in paragraph-3(B)(ii)(b) that the ground of fellowship amount of
WP(C) No.1967 of 2012 Page 13 of 25
Rs.2500/- per month for 12 months and the contingency grant of Rs.5000/-
per annum sanctioned vide letter dated 04.09.2011 of the Deputy Director of
Indian Council of Social Science and Research Officer was made subject to a
condition that the petitioner shall not accept or hold any appointment or
receive any emolument salary, stipend etc. Nothing had been brought on
record to substantiate that after the said letter dated 04.09.2011, the
petitioner had held any appointment or had received any emolument, salary,
stipend etc.
29. For both the aforesaid reasons, the objection raised against the
maintainability of the writ petition on the ground that the petitioner had
received financial benefits during her tenure as Research Officer and PhD
course and by not disclosing the same, the petitioner had withheld relevant
information from this Court, is found to be unacceptable.
30. Mr. K.P. Sarma, learned senior counsel also by referring to paragraph-
4-f of the affidavit in opposition, submits that the petitioner worked as a
Research Officer at a fixed pay of Rs.8000/- per month in the Women Studies
Research Centre of Guwahati University and she had worked in the said post
from 07.06.2005 to October, 2006. Accordingly, a case is being sought to be
made out that the work of Research Officer was a full time job and the
petitioner was not supposed to work simultaneously in any other institution or
college and draw salary. The aforesaid event, even if it had taken place, was
a matter between the college authorities and the petitioner at that relevant
point of time or between the petitioner and the authorities of the Guwahati
University where she was undertaking the work of such Research Officer and
the same does not have any material bearing on the issues in this writ
petition, wherein the question for determination is whether the Governing
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Body had followed the due procedure of law while undertaking the resolution
dated 31.05.2011.
31. In order to dismiss a writ petition on a question of maintainability on
the ground that certain information had been withheld, the consideration
would be as to whether such information is relevant and material for the
purpose of determining the issue in the writ petition. An event that might
have taken place in the past, which may not have any relevancy in
determining the issue, cannot be considered to be a relevant information and
not stating such information cannot render a writ petition to be non-
maintainable.
32. On the other question of maintainability that the writ petitioner does
not have a legal right inasmuch as, she does not have the specialized paper in
Physical Anthropology and she is having a speciality only in Pre-Historic
Archaeology, it is seen that the basis of such contention raised by the
respondent No.5 is the Executive Council’s resolution of the Guwahati
University dated 05.02.2000. The said resolution is the sole basis of the
respondent No.5 to substantiate that the post under conversion is to be filled
up only by a candidate having Physical Anthropology as specialization and by
no one else.
33. On a perusal of the said resolution dated 05.02.2000, it is noticed that
the said resolution of the Executive Council was for the purpose of granting
Second Year TDC Part-I Arts permission to the Pragjyotish college for the
general course in Anthropology for the Session 1998-99 and it provides that
such permission was granted on the condition that the college engages a
whole time teacher with specialization in Physical Anthropology to be followed
by specialization in Pre-Historic Archaeology.
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34. But the aforesaid resolution of the Executive Council also has to be
examined in the backdrop of the advertisement issued by the authorities in
the Pragjyotish College dated 21.06.2000. From the said advertisement, it is
seen that the college authorities had advertised for applications from
interested candidates for, amongst others, one post in the Department of
Anthropology, which was non-sanctioned. In the advertisement, it was
specifically provided that the post would be open, meaning thereby that no
such specialization has been insisted upon in the advertisement. It is further
noticed that the advertisement is dated 21.06.2000, whereas the resolution of
the Executive Council of the Guwahati University is dated 05.02.2000, in other
words, the advertisement is subsequent. As the advertisement is subsequent,
it is not understood as to why the said advertisement, if it is pursuant to a
resolution of the Executive Council dated 05.02.2000, did not contain a clause
that the concerned post would be confined to a specialization in Physical
Anthropology. Further, it is also noticed that pursuant to the said
advertisement of 21.06.2000, a recruitment process was initiated, wherein
both the petitioner and the respondent No.5 had participated. Nothing is
revealed from the record that the respondent No.5 at that stage, while she
had participated pursuant to the advertisement dated 21.06.2000, had
brought it to the notice of the college authorities that the concerned
recruitment process should be confined only to the specialized paper of
Physical Anthropology. The respondent No.5 having willingly participated in
the said selection process, which was against an open post and not confined
to Physical Anthropology, it cannot be said with certainty that on the
conversion of the post by the resolution dated 31.05.2011, the post ought to
have been confined only for the specialized paper in Physical Anthropology.
WP(C) No.1967 of 2012 Page 16 of 25
35. In such view of the matter, further examination would be required to
be done by the respondent authorities as to whether the post on being
converted would be confined only in respect of candidates having
specialization in Physical Anthropology or the same would be open for all
category of persons having a Post Graduate degree in Anthropology.
36. In the view of such indeterminable position as regards the
confinement of the converted post to only those candidates having specialized
paper in Physical Anthropology, it cannot be said with certainty at this stage
that the said converted post would be confined only to Physical Anthropology
and therefore, the writ petitioner does not have any locus-standi to challenge
the resolution. In such view of the matter, this Court is disinclined to accept
the preliminary objection of the respondent No.5 against the maintainability of
the writ petition on the ground that the writ petitioner does not have the
specialized paper of Physical Anthropology.
37. Now coming to the issue at hand as to whether the resolution of the
Governing Body dated 31.05.2011 had been made by following the due
procedure of law, the provisions of the Office Memorandum dated
17.07.2004, providing for conversion of post, would be relevant.
38. Dr. B. Ahmed, learned counsel for the petitioner by relying upon the
Office Memorandum dated 17.07.2004, brings it to the notice of the court that
as per paragraph-4 of the said Office Memorandum, there was a cabinet
decision dated 09.06.2004 for rationalisation of posts in a given college,
whereby in the event any post is available in excess in a particular
department, the same can be brought and adjusted against another
department, where there are requirements of post.
WP(C) No.1967 of 2012 Page 17 of 25
39. From a reading of the Office Memorandum, it is seen that the said
rationalisation is required inasmuch as, some departments of the colleges are
hving lesser number of posts than required and on the other hand, other
departments are having more number of posts than required and at the same
time, the Government authorities are not in a position to sanction any further
and additional posts in the college. Clause-4-(a) of the said Office
Memorandum provides that a vacant post in a particular department may be
allotted to some other department in the same college, in order of seniority,
provided that such teachers were appointed by the respective Governing Body
by observing due process of advertisement and selection and having UGC
norms, wherever required and further if the need of such a post is justified by
the enrolment of the students in that department of the college. Clause-4C
further provides that in order to accommodate the teachers working without a
sanctioned post in a college, the Director of Higher Education, Assam is the
authorized authority to do the needful to withdraw a vacant post from a given
department and adjust it against another department. The said clause further
provides that the Director of Higher Education will prepare a list of such
vacant withdrawn posts from different colleges by giving necessary details
and thereafter he will consider the cases of all those teachers working without
sanctioned post and appoint as per procedure of advertisement and seniority,
in order of their seniority for the purpose of adjustment and further sent such
proposal to the Government for approval.
40. Therefore, from a plain reading of the Office Memorandum dated
17.07.2004, it is apparent that the conversion of posts are required to be
done by following a definite procedure. The first and foremost requirement of
the procedure is that the converted posts are to be filled up by such teachers,
WP(C) No.1967 of 2012 Page 18 of 25
in order of seniority, who had been appointed by the respective Governing
Body by following the procedure of advertisement and selection and further
having UGC norms as required. The second requirement of the procedure is
that in conformity with the Office Memorandum dated 17.07.2004, the
Director of Higher Education is the authority which is authorized to withdraw
the vacant post from a deficit grants-in-aid college, where the enrolment of
students justifies such conversion. Further, the Director of Higher Education is
required to prepare a list of such vacant withdrawn posts from different
colleges and thereafter consider the cases of all such teachers working in non-
sanctioned posts and appoint as per procedure in order of their seniority and
upon undertaking the aforesaid exercise, the Director is required to send the
proposal to the Government for its approval.
41. The aforesaid procedure prescribed in the Office Memorandum dated
17.07.2004 clearly indicates that the process for conversion and the resultant
filling up of the converted post is to be done and undertaken by the Director
of Higher Education, Assam. Thereafter, upon undertaking the procedure, the
result of the same be sent to the Government for its approval. The aforesaid
procedure had also been affirmed by various pronouncements of this Court in
the judgments referred herein above.
(i) In the judgment and order dated 07.05.2005 in WP(C) No.730/2005, this Court had provided that in implementing the Clause-4C of the Office Memorandum dated 17.07.2004, the cases of the petitioners therein shall be considered along with other similarly situated persons strictly in accordance with the para-meters/guidelines and procedures laid down in the Office Memorandum dated 17.07.2004.
(ii) Although in its judgment and order dated 06.06.2006 in WP(C) No.7290/2005, the learned Single Judge of this Court had provided that Clause-4(c) of the Office Memorandum dated 17.07.2004 cannot be implemented, but on appeal, the Division
WP(C) No.1967 of 2012 Page 19 of 25
Bench by its judgment and order dated 09.02.2009 in Writ Appeal No.219/2006 had held that there is no conflict between the Clause-4(c) of the Office Memorandum dated 17.07.2004 and Section 3(c) of the 2005 Act and accordingly provided that the authorities before passing final order towards the adjustment of the non-sanctioned post, shall also taken into account the grievances of the writ petitioners therein.
(iii) In another Division Bench judgment dated 10.02.2012 of this Court in Cont.Cas(C) No.396/2010, it had been specifically provided that in Clause-4(c) of the Office Memorandum dated 17.07.2004, the departmental authorities was required to prepare a list of such vacant withdrawn posts from the different colleges and adopt the process prescribed in Clause-4(c) of the Office Memorandum dated 17.07.2004.
(iv) Again in the judgment and order dated 07.01.2010 in WP(C) No.1632/2009, this Court again provided that the respondent authorities are directed to consider the cases of the petitioners therein along with similarly placed teachers for regularization/adjustment in terms of the Office Memorandum dated 17.07.2004 and upon considering that they have fulfilled the conditions prescribed in the said Office Memorandum dated 17.07.2004, necessary orders be passed.
42. On a conjoint reading of the aforesaid judgments and orders of this
Court, it is apparently clear that while undertaking the procedure for
conversion of a post, the procedure prescribed in the Office Memorandum
dated 17.07.2004 is mandatorily required to be followed. In other words, in
the event, any authority undertakes the process of conversion, by following a
procedure other than the procedure prescribed in the Office Memorandum
dated 17.07.2004, such procedure would be ultra-virus and unsustainable in
the eye of law.
43. When the resolution dated 31.05.2011 of the Governing Body of the
respondent Pragjyotish College is examined in context of the procedure
prescribed in the Office Memorandum dated 17.07.2004 as well as various
judgments pronounced by this Court as stated hereinabove, it is noticed that
WP(C) No.1967 of 2012 Page 20 of 25
the required procedure had not been followed. The resolution dated
31.05.2011 provides for three aspects i.e firstly, the post from Department of
Commerce be converted to that in the Department of Anthropology, secondly,
the respondent No.5 be adjusted/regularized against the said post on being
converted and thirdly, the service of the respondent No.5 be accordingly
regularized. The said resolution of 31.05.2011 makes it apparently clear that
the entire procedure for conversion/adjustment/regularization and further
confirmation of the regularization had been made by the Governing Body of
the respondent Pragjyotish College and there is no involvement of the
Director of Higher Education in the said process. Subsequent, communications
reveal that after the said resolution adopted by the Governing Body of the
college was sent to the Director as well as to the Government for its approval
and accordingly approval was granted.
44. In the considered view of this Court, the said procedure of the
Governing Body undertaking to convert the post and regularizing one of the
incumbent teacher and subsequently confirming the regularization is not the
procedure contemplated in the Office Memorandum dated 17.07.2004 nor the
same is in conformity with what had been provided in the various judgments
pronounced by this Court, as referred above. In such view of the matter, this
Court is of the view that the resolution dated 31.05.2011 is not sustainable as
the required procedure of law had not been followed.
45. Further, one of the contentions raised by the learned senior counsel
for the respondent No.5 is that the Office Memorandum dated 17.07.2004 is
in the nature of an Executive instruction and as such, the same is not
enforceable in a Court of law. To that effect, the learned senior counsel for
the respondent No.5 has relied upon a decision of the Hon’ble Supreme Court
WP(C) No.1967 of 2012 Page 21 of 25
rendered in J.R. Raghupathy etc –vs- State of A.P and others, reported
in AIR 1988 SC 1681. Accordingly, the learned senior counsel by relying
upon paragraph-18 of the said judgment, wherein it is provided that “it is well
settled that mandamus does not lie to enforce departmental manuals or
instructions not having any statutory force, which do not give rise to any legal
right in favour of the petitioner” submits that the writ petitioner cannot seek
for an enforcement of the Office Memorandum of 17.07.2004.
46. In the instant case, it is noticed that the purport of this writ petition
more particularly by referring to the prayer made therein, is that the
petitioner seeks for a writ in the nature of certiorari for setting aside the
resolution of the Governing Body dated 31.05.2011. The petitioner is not
seeking any writ in the nature of mandamus to enforce any right under the
Office Memorandum dated 17.07.2004.
47. By further referring to paragraph-18 of the said judgment of the
Hon’ble Supreme Court, it is noticed that in the said paragraph, the law on the
subject as stated in Durga Das Basu’s Administrative Law, 2nd Edition had also
been quoted. The quotation from the said book although in the first
paragraph provides that administrative instruction, rules or manuals, which
have no statutory force, are not enforceable in a Court of law, but at the
same time, the second paragraph provides that “Even though a non-statutory
rule, bye-law or instructions may be changed by the authority, who made it,
without any formality and it cannot ordinarily be enforced through a Court of
law, the party aggrieved by its non-enforcement may, nevertheless, get relief
under Art.226 of the Constitution where the non-observance of the non-
statutory rule or practice would result in arbitrariness or absence of fairplay or
WP(C) No.1967 of 2012 Page 22 of 25
discrimination, particularly where the authority making such non-statutory rule
or the like comes within the definition of ‘State’ under Art.12.”
48. A reading of the said passage would show that a petition under Article
226 of the Constitution of India would be maintainable, where non
observance of a non-statutory rule or practice would result in arbitrariness or
absence of fair play or discrimination. In the instant case, the petitioner seeks
for setting aside the resolution of the Governing Body dated 31.05.2011 on
the ground that the same had been made without following the due
procedure prescribed by law resulting in arbitrariness and not for the purpose
of enforcing any legal right of the petitioner that may flow from the Office
memorandum dated 17.07.2004. In such view of the matter, as laid down by
the Hon’ble Supreme Court in paragraph-18 of the said judgment, this writ
petition cannot be rejected on a premise that the petitioner seeks to enforce a
non-statutory Office Memorandum.
49. With regard to the submission of Mr. A.C Sarma, learned senior
counsel appearing for the respondent Pragjyotish College authority that the
petitioner had not taken any plea as regards the procedure contained in the
Office Memorandum dated 17.07.2004, it is noticed from paragraph-26 of the
writ petition, which refers to the Office Memorandum dated 17.07.2004, that
the procedure therein was not followed in the instant case. The law of
pleadings does not require that the entire argument raised in the proceeding
has to be stated in detail. A mere reference or an indication of the plea that is
to be taken amounts to a sufficient compliance of the requirements of the law
of pleading. In such view of the matter, the submission of the learned senior
counsel for the College authorities is found to be unacceptable. Further,
reference to the specific judgments of a Court of law which are to be relied
WP(C) No.1967 of 2012 Page 23 of 25
upon in order to substantiate such plea, are not required to be incorporated in
the pleadings as the same are provisions of law.
50. As the resolution of the Governing Body dated 31.05.2011 has been
declared to be unsustainable, this Court is of the view that the interest of
justice of the parties would be met if the matter is directed to be proceeded
afresh by the competent authority authorized under the law.
51. Accordingly, it is directed that the Director of Higher Education, Assam
shall undertake a procedure to initiate the conversion of the post in the
Department of Commerce in the Pragjyotish College for the purpose of it
being converted to a post in the Department of Anthropology. Upon doing the
needful for converting the post, the Director shall invite a proposal from the
Governing Body of the College justifying such conversion on the basis of the
enrolment of the students in the respective departments. On being so done,
the Director shall consider the cases of all such eligible lecturers in the
Department of Anthropology in the Pragjyotish College for being
appointed/regularized against the said converted post. Upon considering the
respective particulars of the eligible candidates, the Director shall form an
opinion as to which of the candidate would be suitable, eligible and entitled
for the purpose.
52. In this writ petition, several allegations and counter allegations had
been made by the writ petitioner and the respondent No.5 against each other
indicating as to why the other is not entitled to be regularized against the
converted post and also as to why the respective candidates themselves are
entitled for such regularization. Such allegation ranges from the manner in
which the respective candidates were appointed and also as to their conduct
in receiving financial benefits while undergoing their respective course in PhD
WP(C) No.1967 of 2012 Page 24 of 25
and other research works. If the Director feels it appropriate, the Director
may go into such question as regards the allegations and counter allegations
and form an opinion of his own. But, however, the Director while arriving at a
final conclusion as to who amongst the respective candidates is entitled to be
regularized, shall strictly follow the requirement of the Office Memorandum
dated 17.07.2004 as well as the various pronouncements of this Court in the
judgments referred hereinabove. One of the core features of the provisions of
the various pronouncements of this Court is that while giving the
consideration, all such eligible candidates are required to be considered and
the consideration cannot remain confined to one or a few preferred
candidates.
53. While arriving at its decision, the Director shall also give a due
consideration as to whether the converted post is to be filled up by a
candidate from Pre-Historic Archaeology or it be made open to the candidates
having their specialization in any one of the special papers. In doing so, the
Director shall also keep in mind that by an advertisement dated 21.06.2000,
the college authorities had advertised for one post in Anthropology at its non-
sanctioned stage, which was kept open for all categories. In the said context,
the Director shall also examine the relevance of the resolution of the
Executive Council of the Guwahati University dated 05.02.2000. By following
the aforesaid procedure, the Director of Higher Education shall initiate the
proceeding of conversion of the post in the Pragjyotish College from the
Department of Commerce to that of the Department of Anthropology and
bring the same to its logical end.
WP(C) No.1967 of 2012 Page 25 of 25
54. The aforesaid exercise be carried out preferably within a period of four
months from the date of receipt of a certified copy of this judgment and
order.
55. It is provided that till the aforesaid process is brought to its logical end
and the appropriate candidate is either appointed or regularized, the
respondent No.5, who is presently serving as the Lecturer in Anthropology in
the Pragjyotish College, shall continue to do so in the same manner as she is
presently doing.
In terms of the above, the writ petition stands disposed of.
JUDGE
Alam