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.

WP(C) No.1967 of 2012 Page 5 of 25

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

WP(C) No.1967 of 2012 Page 6 of 25

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

WP(C) No.1967 of 2012 Page 14 of 25

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.

WP(C) No.1967 of 2012 Page 15 of 25

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

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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