Judgment · High Court · 2012

Bihpuria College (college) was initially brought under the defic it system and thereafter provincialised on 01-12-2005. However, the service of t he petitioner was not regularized. Consequently, he continued to render service as Lecturer of Philosophy in the college against a non-sanctioned post. The peti tioner is aggrieved as because his service has not been regularized by the autho rity on the ground that he does not possess the prevalent UGC norms. [4] At the time of his appointment, the petitioner had post graduate degree (MA) in Philosophy securing 52.62% marks, which was above the then preva lent norm of 52.50% marks in the minimum as prescribed by the University Grants Commission (UGC). Thereafter, the UGC decided to enhance the minimum qualifying marks to 55% marks in Master degree. Following the same, the Government of Assam in the Education Department took a decision on 30-12-1988 prescribing the minim um educational qualification for appointment as Lecturer as 55% in the Master de gree. The said decision dated 30-12-1988 was made effective from the date of iss uance of the letter. Though the petitioner was appointed on 08-12-1988 prior to the said date and possessed 52.62% marks in post graduation, which was the requi site UGC norms at that point of time, his service was not regularized. [5] The State framed office memorandum dated 17-07-2004 to provide f or allocation of vacant sanctioned posts of Lecturer to the departments of defic it grants-in-aid colleges where teachers are working without sanctioned posts by way of re-adjustment and consequential regularization of their services. Follow ing a Division Bench judgment of this Court dated 14-05-2009 passed in W.P(C) No s. 724 and 1103 of 2009, filed by a group of Lecturers seeking regularization in terms of the office memorandum dated 17-07-2004, the Director of Higher Educati on, Assam prepared a provisional seniority list dated 30-12-2009 of Lecturers wo rking against non-sanctioned posts for regularization. In the said list, the pet itioner’s name figured at Sl. No. 1. But in-spite of that, his service was not r egularized. [6] Feeling aggrieved, the petitioner is before the Court seeking a direction upon the respondents to regularize his service in terms of the provisi onal seniority list dated 30-12-2009. [7] The respondent No. 3, Director of Higher Education has filed his counter affidavit. In his counter affidavit, the respondent No. 3 has referred to the office memorandum dated 17-07-2004. According to the respondent No. 3, as per Clause-4(a) thereof, the Lecturers seeking regularization must have the req uisite UGC norm as on the date of regularization, which in the present case is m inimum 55% marks in Master degree. As the petitioner does not have the aforesaid minimum marks, his service cannot be regularized. [8] Mr. N. Dutta, learned Sr. counsel submits that reference to the office memorandum dated 17-07-2004 is wholly unnecessary. All that the petitione r seeks is regularization of his service. In view of the fact that on the date o f his recruitment and appointment, the petitioner had fulfilled the then prevale nt UGC norms and that the subsequent enhancement of UGC norms to minimum 55% mar ks came into effect from 30-12-1988, the latter would not be applicable to the p etitioner. Referring to the case of Md. Saiful Islam Vrs. State of Assam and Ors ; reported in (2010) 6 GLR 1, learned Sr. counsel submits that from a perusal of the said judgment rendered by a Division Bench of this Court, it is evident tha t the Government of Assam had taken a decision that enhanced UGC norms would not be applicable to the existing lecturers who were appointed on or before 15-12-1 988. Such Lecturers would be entitled to relaxation of the norms to 52.50% marks in the Master degree. The Division Bench held the fixation of the said cut off date cannot be said to be arbitrary. The Division Bench further noted that the G overnment took the decision to give the benefit of UGC scale of pay to those Lec turers who had joined service on or before 15-12-1988. Therefore, he contends th at the petitioner having admittedly joined on 10-12-1988, would be entitled to t he UGC scale of pay and regularization of his service. On the other hand, Mr. M. R. Pathak, learned standing counsel, E [9] ducation Department referring to the affidavit of the Director of Higher Educati on submits that the case of the petitioner would have to considered in the light of the office memorandum dated 17-07-2004 which does not provide for any relaxa tion of the existing UGC norms, which is 55% marks in the minimum in Master degr ee. As the petitioner does not have the minimum marks as prescribed by the UGC, his case was, therefore, rejected by the department. [10] The submissions of the learned counsels have been considered. [11] There is no dispute to the fact that the petitioner was appointe d as Lecturer pursuant to a selection process and that he had joined on 10-12-19 88. At that time, the prescribed UGC norm was 52.50% marks in Master degree, whi ch the petitioner possessed. As has been noticed by this Court in Md. Saiful Isl am(supra), the Government had taken a decision to exempt the existing Lecturers appointed on or before 15-12-1988 from the requirement of the higher qualificati on of having 55% marks in Master degree for grant of UGC scale of pay. If that b e so, there can be no justifiable reason to deny the benefit of UGC scale to the petitioner, who had joined prior to 15-12-1988 and possessed the UGC norms prev alent at that point of time. [12] The hurdle, it appears, is because the respondents had considere d the case of petitioner on the basis of the office memorandum dated 17-07-2004. As has already been noticed above, the Government of Assam in the Education (Hi gher) Department had issued the office memorandum dated 17-07-2004 for regulariz ation of the services of the Lecturers working against non-sanctioned posts by w ay of re-adjustment. As per Clause 4(a) of the said office memorandum, vacant po st in a particular department of a college may be allocated in order of seniorit y to accommodate a teacher of the same college who is working in some other depa rtment without a valid sanctioned post, provided such a teacher is appointed by the governing body following due procedure, having the requisite UGC norms. This Court in the judgment and order dated 14-05-2009 referred t [13] o above directed the Education Department to prepare a provisional list of such teachers and thereafter to make a final list for their regularization. In terms of such direction, the Director of Higher Education, Assam prepared a provisiona l list dated 30-12-2009, wherein the name of the petitioner appeared at Sl. No. 1. The relevant particulars of the petitioner as appearing in the said seniority list are as under:

#1. Date of advertisement : 01-11-1988

#2. Date of Interview : 28-11-1988

#3. Date of G.B. Resolution : 05-12-1988

#4. Date of appointment : 08-12-1988

#5. Date of Joining : 10-12-1988

#6. NET/SLET/M. Phil/Ph.D obtained : M. Phil.

#7. Percentage of marks in Master Degree

#8. Remarks : :

52.62% No UGC Norms lection and appointment were prior to 15-12-1988. From the above particulars, it is clear that the petitioner’s se [14] However, in the final list dated 22-04-2010, the petitioner is e xcluded. As is evident from the counter affidavit, the reason for such exclusion is that the petitioner does not have the UGC norms as on 17-07-2004, the date o f issuance of the office memorandum, on the strength of which regularization was considered by the authorities. [15] A closure look at the said office memorandum dated 17-07-2004, p articularly Clause-4(a) thereof, would indicate that the requirement is that app ointment should be against a non-sanctioned post by following the due procedure and having the UGC norms required. In the opinion of the Court, the term (cid:28)UGC no rms required (cid:29) would mean the UGC norms prevalent as on the date of selection and appointment. In the case of the petitioner, as has already been noticed, he was appointed on 08-12-1988 and joined on 10-12-1988. At that time, the UGC norm wa s 52.5% minimum marks in Master degree. The petitioner had 52.62% marks in his M aster degree. The Government had already taken a decision that the higher norms of having minimum 55% marks in the Master degree would not be made applicable to the existing Lecturers who were appointed on or before 15-12-1988 and they woul d be entitled to relaxation of the norms to 52.5% marks in Master degree. Simil ar benefit has already been extended a number of Lecturers similarly placed like the petitioner, which would be evident from the judgment in Md. Saiful Islam(su pra) itself. [16] In view of above, this Court is satisfied that the petitioner ha s made out a case for a direction to the respondents, more particularly the resp ondent Nos. 1 and 3, to regularize his service as Lecturer of Philosophy in the Bihpuria College, Lakhimpur. [17] [18] Ordered accordingly. Such direction be carried out within a period of two months from the date of receipt of a certified copy of this order. [19] No cost.