High Court · 2012

At the very outset, the background facts may be briefly noted. In the deficit colleges of Assam receiving grants-in-aid from th 3. e Government, there are two categories of posts, namely, sanctioned and non-sanc tioned. The former are covered by grants provided by the Government. However, un der the norms prescribed by the University Grants Commission (UGC), colleges are required to have a certain minimum number of posts, which may be beyond the san ctioned posts. As the additional posts are not covered by Government grants, the colleges have been compelled to create non-sanctioned posts out of its own reso urces. Appointments to non-sanctioned posts follow the same pattern as appointme nts to sanctioned posts i.e. by issuance of advertisement and holding of selecti on.

4. Lecturers working against non-sanctioned posts nursed a grievanc e about the uncertainty of their service. In this connection, two writ petitions were filed before this Court, being W.P.(C) Nos.624/2002 and 2362/2002, seeking a direction for regularization of their service. This Court directed considerat ion of their cases by the State Government in an appropriate manner.

5. Following the order of this Court, a cabinet decision was taken for adjustment of the services of college teachers working against non-sanctione d posts. Pursuant thereto, office memorandum dated 17-07-2004 was issued by the Government of Assam in the Education (Higher) Department for allocation of vacan t sanctioned posts of lecturers to the departments of deficit grants-in-aid coll eges where teachers are working without sanctioned posts by way of adjustment an d consequential regularization of service of such teachers against such posts. The office memorandum dated 17-07-2004 prescribes three procedur 6. es for such adjustment which are laid down in Clause 4 thereof. As per the proce dure prescribed in Clause 4(a), vacant posts in a particular department in a gra nts-in-aid college may be allotted in order of seniority to accommodate teachers of the same college who are working in some other department against non-sancti oned posts, provided they were duly selected and appointed by the college Govern ing Body observing due procedure and having UGC norms. This is, however, subject to two conditions, namely, if the need for such post is justified by enrolment in the department and that the post is not considered essential in the departmen t against which it was originally sanctioned.

7. Under Clause 4(b), in case of any future vacancy of sanctioned p ost in a particular department, college teachers working without valid sanctione d post but appointed as per procedure mentioned in Clause 4(a) should be adjuste d in preference to fresh teachers. As per Clause 4(c), if a sanctioned post is not required in a pa 8. rticular college, such post can be withdrawn by the Director of Higher Education from the college in question and allotted to another college where there is req uirement and against such post, adjustment is to be made of college teachers wor king against non-sanctioned posts in conformity with the office memorandum. 9. Alleging non-implementation of Clause 4(c) of the office memoran dum dated 17-07-2004, a large number of lecturers working against non-sanctioned posts, including the petitioners in the two related writ petitions (respondents in the appeals), filed W.P.(C) No.7305/2004. A Single Bench of this Court by th e judgment and order dated 07-04-2005 allowed the writ petition and directed tha t the case of the petitioners should be considered alongwith other similarly sit uated persons strictly in accordance with the parameters, guidelines and procedu re laid down in the office memorandum dated 17-07-2004. Adjustment was directed to be made by maintaining service seniority of the teachers. Relevant portion of the said judgment is as under :- (cid:28)9. In view of the above, the prayer made in this application for implementation of Clause 4(c) of the aforesaid office memorandum dated 17-07-2004 stands allow ed and the case of the petitioners shall be considered alongwith other similarly situated persons strictly in accordance with the parameters, guidelines and pro cedure laid down in the aforesaid office memorandum dated 17-07-2004 which also speaks of maintaining seniority in service. Since the Director of Higher Educati on, Assam has already identified 81 number of posts and his further such exercis e may lead to adjustment of all the Lecturers in future, it is hereby provided t hat whatever necessary follow up action is required to be carried out in the mat ter in terms of the office memorandum dated 17-07-2004 and in terms of this orde r, shall be so taken as expeditiously as possible. It is expected that the Direc tor Higher Education shall not kept the matter unnecessarily pending and shall t ake action promptly. It is made clear that merely because this order has been pa ssed on the basis of the writ petition filed by the petitioners, they will not g et any preference over their seniors who were not party to this proceeding and t hat adjustment shall be made strictly in accordance with the service seniority o f the teachers and other parameters laid down in the said memorandum. (cid:29)

10. When the Assam College Employees (Provincialization) Act, 2005 c ame into force, the State Government took the stand in W.P.(C) No.7657/2005 and other connected cases that in view of Section 3(c) of the Act which provides tha t posts in each provincialized college shall constitute an independent cadre for each category of employees and no inter-cadre transfer from one college to anot her college would be allowed, Clause 4(c) of the office memorandum dated 17-07-2 004 cannot be implemented. Accordingly, another Single Bench of this Court by or der dated 06-06-2006 closed W.P.(C) No.7657/2005 and the other connected cases a s having become infructuous requiring no answer from the Court.

11. In Writ Appeal No.219/2006, a Division Bench of this Court by or der dated 09-02-2009 held that Clause 4(c) of the office memorandum is not in co nflict with the provisions of the Provincialization Act, particularly Section 3( c) thereof. After holding so, the Division Bench held as under :- (cid:28) 17. This now leads us to the grievance of the writ petitioners that the list w as not prepared maintaining the seniority of the college teachers. The office me morandum envisages preparation of the list for adjustment of non-sanctioned post teachers against sanctioned posts maintaining their service seniority. Since th e learned Single Judge has not answered that question, it is hereby provided tha t the authority before passing the final order towards adjustment of the non-san ctioned post teachers shall take into account the grievance of the writ petition ers that, although they are senior to many of the teachers who are sought to be adjusted against sanctioned posts are being deprived of such adjustments. After examining the case of two writ petitioners, if need be, after hearing of the par ties involved, the authority may pass appropriate order. (cid:29)

12. W.P. (C) Nos. 724/2009 and 1103/2009 were filed with the grievan ce against the alleged move of the authorities of the Education Department to pr epare a list towards implementation of Clause 4(c) of the office memorandum with out taking into account the seniority position of the incumbents. The two writ petitions were disposed off by the common judgment and order dated 14-05-2009 by directing that the directions contained in paragraph-17 of the judgment in Writ Appeal No.219/2006 would also govern the case of the writ petitioners. It was a lso provided that before publishing the final list, a provisional list may be pu blished so that if any one has any grievance, they can file their objection befo re finalization of the list. The relevant portion of the order of the learned Si ngle Judge is as under:- (cid:28)7. It has been brought to my notice in the writ proceedings which had given ris e to WA No.219/2006, the present petitioners were party. However, they were not party to the writ appeal. In paragraph 17 of the judgment quoted above, it has b een provided that the authority before passing the final order towards adjustmen t of the non-sanctioned post teachers shall take into account the grievance of t he two writ petitioners that their seniority positions has been ignored.

8. If the present petitioners were party to the writ proceeding which had g iven rise to the writ appeal and even otherwise also it will be appropriate for the authority to take into account the grievance of the petitioners that the lis t which is sought to be drawn, may not be drawn without taking into account the seniority position of different incumbents working in the non-sanctioned post an d falling under Clause 4(c).

9. Considering the matter in its entirety, it is hereby provided that the d irections as contained in paragraph 17 of the aforesaid judgment in writ appeal No.219/2006 shall also govern the case of the petitioners. It is also provided t hat the respondents before publishing the final list, may publish a provisional list indicating the necessary particulars of the teachers and inviting objection s from the teachers working against non-sanctioned posts to have their say in th e matter and after taking into account, the objections, if filed, the authority may draw the final list towards adjustment of non-sanctioned teachers. The entir e exercise may be carried out as expeditiously as possible, preferably within th ree months of receipt of copy of this judgment and order. (cid:29) The present two appeals have been filed by the appellant on the 13. ground that direction to publish provisional list went beyond the direction in W rit Appeal No. 219/2006 and that inviting objections would make the matter compl icated.

14. Appellant was not a party in the two writ petitions but was a pa rty in Writ Appeal No.219/2006. On leave to file appeal being granted, the two a ppeals have been taken up for consideration.

15. We have heard Mr. M.A. Sheikh, learned Counsel for the appellant as well as Mr. A.D. Choudhury, learned Standing Counsel, Education Department a nd Mr. U.K.Nair, learned Counsel for the writ petitioners / respondents. The sequence of events and orders passed by this Court have alre 16. ady been noticed above. The Division Bench in Writ Appeal No.219/2006, after obs erving that the office memorandum envisages preparation of a list for adjustment of non-sanctioned post teachers against sanctioned posts maintaining their serv ice seniority, directed that the authority before passing the final order toward s adjustment of the non-sanctioned post teachers should take into account the gr ievance that seniority of the teachers was not maintained and after examining th e matter, if need be, after hearing the parties, should pass appropriate order.

17. The essence of the Division Bench order was that there should be a fair and proper examination of all claims for adjustment under the office mem orandum by maintaining seniority position. To maintain fairness and transparency , the Division Bench had ordered that if necessary, the parties involved may be heard.

18. A perusal of the impugned judgment of the learned Single Judge w ould indicate that it is in tune with the direction of the Division Bench. Prepa ration of a provisional list and allowing persons with grievance to file objecti ons before finalization of the list would only ensure fairness and transparency in the process. We fail to understand as to how the appellant can be prejudiced by such direction.

19. udgment of the learned Single Judge. We therefore do not find any inconsistency or infirmity in the j

20. ismissed but without any order as to cost. The two writ appeals are without any merit and are accordingly d