Also heard Mr. A. Lal v. No. 2

It may be stated that after this Court disposed of writ petition being C.R.No.1214/1994 on 27.11.2002, the petitioner had submitted a copy of th e aforesaid judgment and requested the respondents authorities to do the needful in compliance of the direction issued by this Court. [10] Thereafter, the Director of Higher Education, Government of Assa m, wrote to the Commissioner & Secretary to the Government of Assam i.e. respond ent No.1 stating that the petitioner was wrongly terminated from service and the college authorities having realised their mistake and rectified the same by re instating him in service, requested the respondent No.1 to pass necessary orders for directing the college authorities to make payment of salary of the petition er in the scale of pay of Rs.1785-4200 p.m. with other allowances as admissible under the rules in compliance with the direction of this Court. It appears that pursuant to it the State Government also subsequently directed the Director of Higher Education, Assam on 27.11.2003 to issue necessary direction to the Govern ing Body of the College where the petitioner is serving for immediate release o f the salary due to the petitioner, who was the seniormost lecturer in English o f the college in terms of the order passed by this Court in C.R.No.1214/1994 ou t of the grants-in-aid allocation of fund to the college. The aforesaid letter w as written by the Joint Secretary to the Government of Assam to the Director o f Higher Education, Assam vide letter No.B(2) H.338/2002/29 dated 27.11.2003, wh ich has been annexed as Annexure-12 to the writ petition. Thereafter, the Direct or of Higher Education, Assam in turn wrote to the Principal of the Mandia Ancha lik College on 08.12.2003 to release the salaries due to the petitioner in terms of the order of this Court passed in C.R.No.1214/1994. [11] It seems that the Governing Body of the College after receiving such instruction from the authorities took a decision on 26.12.2003 to pay the p etitioner his salary as directed by the Court @ Rs.300/- per month from 1.2.199 4 to 19.7.1998 and at the existing state pay scale (revised from time to time) w .e.f. 20.7.98. It seems, however, the aforesaid decision of the State authoriti [12] es as well as the Governing Body of the College to make payment of the salary to the petitioner at the existing State pay scale as stated above, did not materia lize because of the subsequent litigation initiated by Sahajan Ali, who was appo inted in place of the petitioner, as stated above. Even though the proceeding initiated by Sahajan Ali by filing wr [13] it petition, being W.P(C) No.3687 of 2004 culminated in the closure of the matte r by a Division Bench of this Court vide order dated 17.3.2007 passed in W.A. No .54 of 2005, as regards the petitioner, the direction issued earlier by this Cou rt in C.R.No.1214/1994 was reiterated in the said Writ Appeal as discussed above . [14] As we have seen, the State authorities as well as the Governing Body of the College had already taken a decision to comply with the direction of this Court passed in C.R.No.1214/1994. To that extent, there is no dispute. [15] However, what has happened is that during this time, the Governm ent of Assam issued an Office memorandum dated 6.7.2005 by which the State Gover nment decided to adopt the State revised pay scale of 1996 to the under-qualifi ed teachers serving in the deficit College (under grants-in-aid system) of the S tate. [16] The aforesaid Office Memorandum dated 6.7.2005 provided that the State Government had been considering the question of adoption of the State rev ised pay scale of 1996 to the under-qualified teachers(175 in number, obtaining below 55% marks in concerned subject as per U.G.C scheme) serving against sancti oned posts in deficit colleges of the State drawing 3 tier pay benefits, i.e. R s. 2200/- (U.G.C fixed), Rs.1785/- (State pay fixed) and State time pay scale of Rs.1785-4200/- prior to 1.1.1996 and after consideration of all aspects in the matter, the Government decided to order that 1996 state revised pay scale of Rs .5725-175-6600-250-7350-EB-250-8100-325-11025-400-11825/- shall be applicable t o all the three categories w.e.f. 1.1.96 notionally with current benefits w.e.f.

1.4.05 without any arrear on the following conditions:- This pay scale benefit will be confined to the 175 number of teachers on (cid:28)(i) ly. (ii) Under no circumstances under-qualified teachers(below 55% marks or as presc ribed by the U.G.C from time to time) shall be recruited in future, in the defi cit Colleges. (iii) The under-qualified teachers shall be entitled to get the benefit of U.G.C . pay scale, with prospective effect from the relevant date, in future, subject to the prior approval of the Finance Department, only after acquiring Ph.D./M.Ph il Degree as per UGC Scheme. (cid:29) [17] It has been stated that the present respondents No.5 and 6, who were stated to be junior to the petitioner have been given the benefits of the a foresaid Office Memorandum dated 6.7.2005 but it was not extended to the petitio ner. Subsequent to the disposal of the W.A. No.54 of 2005 vide order dated 17.3.2007 as stated above, the Governing Body of the College on the basis of their resolution taken on 18.5.2007 requested the Government to create a sanc tioned post of Lecturer in English in the Department of English to accommodate t he petitioner in compliance with the direction of this Court passed in C.R.No.12 14/1994 read with W.A. No.54 of 2005, as stated above. [18] However, the respondent No.1 issued the order dated 3.11.2007 wh ich is challenged herein by which it was decided not to create any post primaril y on the ground that the petitioner does not have the UGC norms and the Finance Department had not been made a party respondent in the earlier writ petition and also that the Finance Department would not agree to accommodate the petitioner and others reasons as we shall be discussing and the accordingly decided not to create any post and decline to confer the benefits of the aforesaid Office Memo randum dated 6.7.2005 to the petitioner. [19] Learned counsel for the petitioner has assailed the aforesaid or der dated 3.11.07 in the present writ petition on the grounds, inter alia, that the aforesaid order was not issued by proper application of mind and also by not involving the concerned authorities, more particularly, the Finance Department while issuing the aforesaid order. [20] The learned counsel for the petitioner submits that the fact tha t the petitioner is the seniormost amongst the contending parties, i.e. the pe titioner and respondents No. 5 and 6, has not been properly considered while iss uing the aforesaid impugned order. The learned counsel for the petitioner has d rawn attention to the affidavit-in-opposition filed by the Principal, Mandia An chalik College in connection with C.R No.1214/94. In paragraph 8 of the said aff idavit annexed as Annexure-9 to this writ petition, the College authority had c learly admitted that the writ petitioner is senior in service from the date of his initial appointment by the Governing Body to the respondents No.5 and 6, Ha bil Uddin Ahmed and Altab Hussain respectively, and also Sahajan Ali. We are n ot concerned with Sahajan Ali, inasmuch as there is no conflict of interest w ith the petitioner and that of Sahajan Ali, who apparently fulfils the qualif ication under the UGC norms and is not similarly situated with the petitioner or the respondents No.5 and 6, who all are under-qualified teachers. [21] We are concerned with the claim of the petitioners vis-à-vis the respondent Nos. 5 and 6 who are similarly situated as the petitioner, as far a s the qualifications are concerned, though they are admittedly junior to the pet itioner. [22] The learned counsel for the petitioner has also stated that the proposal of the college authority for giving the pay scale as mentioned in te rms of the Government order dated 6.7.2005 to the petitioner was never placed be fore the Finance Department by the Education Department and the respondent No.1 rather than placing the matter before the Finance Department for their necessary consideration and approval had drawn a presumption on behalf of the Finance Dep artment that the Finance Department would not have approved the claim of the pet itioner. [23] The learned counsel for the petitioner has also assailed the afo resaid order dated 3.11.07 as unreasonable as regards the stand taken by the res pondent No.1 that the Finance Department has not been impleaded in the writ peti tion and also the reasons given that even though the resolution for giving the p ay scale to the petitioner was adopted by the Governing Body of the College, it is difficult to move the Finance Department for creation of a post for the purpo se of accommodating the petitioner as he is not qualified under the UGC norms an d already there is a bar on future appointment in excess of 175 posts under qual ified teachers which had been already accommodated. Ms. P.Chakraborty, learned counsel for the respondent No.2 on [24] the other hand submits that in the office memorandum dated 6.7.2005 which provid es for revised pay scale for the unqualified teachers, it has been clearly provi ded that this benefits will be confined only to 175 teachers which includes 2(t wo) sanctioned posts of Lecturers in English of Mandia Anchalik College. She su bmits that there is no provision for creation of any additional post. According to her, the aforesaid 175 teachers have been already given the benefit under the aforesaid office memorandum including the 2 respondents i.e. respondents No.5 a nd 6 from the same college and since the Government cannot go beyond the sanctio ned number of post of 175 stipulated under the aforesaid memorandum, the case of the petitioner cannot be considered. The learned counsel also submitted that th e authorities have to strictly comply with the UGC norms as mentioned in the afo resaid office memorandum and since the petitioner does not possesses the qualifi cations as per U.G.C norms, the case of the petitioner can not be considered. [25] The learned counsel has also submitted that the Finance Departme nt had to consider only those cases which were recommended by the Education Depa rtment and since the name of the petitioner was not recommended by the Education Department at the relevant time, his case was not considered, and it cannot be considered now, since there is no other available post in excess to 175 posts a s mentioned above. Accordingly, the learned counsel submits that there is no ill egality in the impugned order. Mr. A. Malique, learned counsel for the respondent No. 4, howeve [26] r submits that the college authorities have already forwarded the name of the pe titioner to the concerned authorities of the State Government for consideration for giving him the pay scale as per the Government order dated 20.7.1998 and th e aforesaid office memorandum dated 6.7.2005 and as such, the college has done what is required to be done. The learned counsel also has stated that the petiti oner is senior to respondents No.5 and 6 and the college authorities would abide by whatever decision the State authorities may take as regards the entitlement of the petitioner in terms of the office memorandum dated 6.7.05 and the college authorities have no objection if the State authorities confers the benefits of the office memorandum dated 6.7.05 to the petitioner by creating an additional p ost. [27] the available records. From the above discussions, the following facts emerge : [28] (i) The petitioner is senior to the Respondents No.5 and 6. The peti tioner was appointed on 2.8.1993 as a Lecturer in English on the basis of the Re solution of the Governing Body of the College held on 1.8.93. I have heard the contentions of the parties and also considered Even though the respondents No.5 and 6 were also appointed on 2 .8.1993 on the basis of an earlier Resolution taken on the same day on 1.8.93, t hey subsequently joined service on 13.8.93 and 7.8.93 respectively. The fact tha t the petitioner is senior to the respondents No.5 and 6 has been already admitt ed by the Governing Body of the College and also not disputed by the State autho rities. In other words, the fact that the petitioner is senior to the respondent s No.5 and 6 had been admitted by the State respondents also on an earlier occas ion. The respondents No. 5 and 6 have not also disputed it. [ii] Even though the petitioner was initially removed from service by the Governing Body of the College, the Governing Body of the College realising their mistake reinstated him in service vide their Resolution dated 5.9.1998. [iii] This Court in C.R.No.1214/1994 taking into consideration that th e petitioner had been wrongly terminated and also the respondents No.5 and 6, wh o were similarly situated with the present petitioner were given the pay scale f or the under-qualified teachers as per the Government order dated 20.7.1998, dir ected the authorities concerned to take a decision regarding the entitlement of the petitioner. The aforesaid direction was also reiterated in W.A. No.54 of 20 05 by order passed on 17.3.2007.The State authorities had already taken a decis ion to comply with the direction of this Court passed in C.R.No.1214/1994 and ac cordingly, instructed the Governing Body of the College to make payment of salar y to the petitioner as directed by this Court in the aforesaid writ petition bei ng C.R.No.1214/1994. Accordingly, the Governing Body of the College took the dec ision to pay to the petitioner his due salary including the Government scale. [iv] Therefore, in view of the above, the fact that the College autho rities as well as the State authorities had decided to give the State pay scal e as prevailing/applicable prior to the Office Memorandum dated 6.7.2005 cannot be doubted. [v] Even though the decision was taken by the Governing Body of the College as directed by the State authorities, the actual payment of the Governme nt pay scale was not made to the petitioner. [vi] In the meantime, there was revision of the aforesaid Government scale and the Government took a decision to revise the pay scale as per the Offi ce Memorandum dated 6.7.2005, however, with certain conditions including the fac t that the revised pay scale will be given only to 175 number of teachers. Ultimately, the Government took the decision as regards the enti [vii] tlement of the Government pay scale to the petitioner vide order dated 3.11.2007 by which the Government decided not to give the revised pay scale to the petiti oner for the reasons stated in the said order, which is under challenge. [29] A perusal of the aforesaid order dated 3.11.2007 which is challe nged herein indicates that the Government took the decision not to confer the be nefits of the aforesaid Office Memorandum dated 6.7.2005 to the petitioner prima rily, on the following grounds:- (a) The respondents No.5 and 6 would have priority over the petitioner. It was stated that since respondents No.5 and 6 were appointed on 2 .8.93 as per resolution No.3 of the Governing Body of the College held on 1.8.93 , the petitioner who was also appointed on the same day on 2.8.93 as per resolut ion No.4 of the Governing Body of the College, the sequence of which would indic ate that priority was given to the respondents No.5 and 6 over the petitioner. Accordingly, in view of the above, even if the name of the petitioner had been f orwarded along with respondents No.5 and 6, it is not certain whether his case w ould have been considered by the Finance Department for giving benefits under th e aforesaid Office Memorandum dated 6.7.2005. (b) Since the Finance Department had fixed the number of ben eficiaries at 175 and since the aforesaid respondents No.5 and 6 had already bee n included from the Mandia Anchalik College, the inclusion of the petitioner wou ld have led to increase of the number to 176, which would not be permissible un der the aforesaid Office Memorandum dated 6.7.2005. Since the petitioner is without UGC norms, even though t he Governing Body of the College had recommended for creation of a post, the sam e would not have been possible as the post has to be sanctioned as per the norms (c) and regulations laid down by the UGC. (d) Since the Finance Department had not been impleaded in t he writ petition and as the power of creation of post and filling up a post lies with the Finance Department after getting full justification of the need of the post based on the demand of the students enrollment in a particular college and as per norms, it is not possible to accommodate the case of the petitioner. The refore, the Finance Department would not agree to accommodate an under-qualified teacher. [30] A close scrutiny of the impugned order 3.11.2007 shows that the observations made in the said impugned order and the reasons given for rejecting the claim of the petitioner does not seem to be consistent and also not tenable .

3.11.07 that :- It is stated in page No.3 of the aforesaid impugned order dated (cid:28)Whereas on close examination of para 6 of the Judgment and Order dated 27.11.2007 passed in Civil Rule No.1214/94 revealed that since Respondent No. 5 Md. Habib Uddin Admed & Respondent No. Altab Hussain both being accommodated in the State revised pay scale of 1996 as under-qualified lecturers serving in defi cit college under Grant-in-aid(now provincialised), the petitioner Addus Sattar Ahmed also being under-qualified should have been included in State revised pay scale of 1996 but for wrongful termination of Abdus Sattar Ahmed by the Govern ing Body. Where it is difficult to say whether his name would have been co nsidered since the O.M. dated 6.7.07 of Finance Department has considered only 2(two) sanctioned posts of Lecturer in English at that point of time for Mandia Anchalik College. (cid:29) Thus, the authorities seem to be taking the stand that had the p etitioner not been wrongly terminated, he would have been included in the State revised scale of 1996. However, having taken that view, the authorities still de cided not to give the benefit of the Office Memorandum dated 6.7.2005 to the pet itioner on the grounds discussed above. Firstly, we deal with the ground as to the priority or seniority . The authority through the impugned order 3.11.2007 seems to suggest that the p etitioner is junior to the respondents No.5 and 6 by virtue of being appointed o n the basis of a resolution subsequently taken. Even though the resolution to ap point the petitioner might have been subsequently taken, the fact remains that t he petitioner was already serving in the said College and the petitioner joined on the same date of his appointment i.e. on 2.8.1993. Even though the respondents No.5 and 6 were appointed on the sam e day i.e. 2.8.93, they joined service subsequently to the petitioner. According ly, the college authorities had always treated the petitioner to be senior to th e respondents No.5 and 6 as discussed above. The State authorities themselves a lso never questioned the seniority of the petitioner and in fact, in the letter dated 27.11.2002 written by the Joint Secretary to the Government of Assam to th e Director of Higher Education, Assam for complying with the order of this Court passed by in C.R.No.1214/1994, it has been clearly stated that the petitioner i s the seniormost Lecturer in English of the college. In course of the hearing also, the learned counsel appearing for the college authorities has admitted that the petitioner is senior to the respo ndents No.5 and 6. The respondents No.5 and 6 have not filed any affidavit-in-op position denying the stand of the petitioner that he is senior to them. In view of the above stated position, the observation of the State respondents suggestin g that respondents No.5 and 6 are senior to the petitioner, is not called for. T herefore, it would be arbitrary and unreasonable to deny the same benefit which was conferred to juniors. [31] It is not also explained as to why the name of the petitioner wa s not included amongst the 175 under qualified Lecturers at all for the grant of the aforesaid benefit conferred under Office Memorandum dated 6.7.2005. This Court by an order dated 27.11.2002 had already directed the respondents which included the State respondents to take a decision as regards the entitlement of the scale of pay sanctioned for the under-qualified teachers conferred by the earlier Government order dated 20.7.98. The aforesaid direction was reiterated in the order dated 6.1.05 passed in W.P(C) No.3687 of 2004 filed by Sahajan Ali as stated above, which was again reiterated by the Division Benc h of this Court vide order dated 17.3.2007. Therefore, before the Office Memorandum dated 6.7.2005 was issue d, there were as many as two directions of this Court passed in C.R.No.1214/1994 on 27.11.2002 and W.P(C) No.3687 of 2004 on 6.1.2005 directing the authorities including the State authorities to take a decision about the entitlement of the petitioner of the State pay scale for the under-qualified teachers as prevailin g before the Office Memorandum dated 6.7.2005. In fact, as discussed above, the College authorities and the State authorities had decided to comply with the ord er of this Court issued in C.R.No.1214/1994. Having decided to do so, the petiti oner would be entitled to enjoy the State pay scale as existing then. Accordingl y, his case would be covered by the subsequent Office Memorandum dated 6.7.2005. Therefore, the authorities including the State authorities had a duty to cons ider the case of the petitioner after the Office Memorandum dated 6.7.2005 was i ssued. However, it seems only the case of the respondents No.5 and 6 were consid ered by excluding the case of the petitioner. There was no fault on the part of the petitioner, rather, it was the lapses on the part of the authorities which failed to consider the case of the petitioner for the grant of the benefits unde r Office Memorandum dated 6.7.2005. As such, the decision taken by the authoriti es that already two teachers from the Mandia Anchalik College had already been a ccommodated and there cannot be more than 175 teachers cannot be accepted. If 17 5 teachers, who were similarly situated as the petitioner, were given the benefi ts without considering the claim of the petitioner, it was not the fault of the petitioner. It is the duty of the respondents to take necessary steps for confe rring the benefits to the petitioner under the aforesaid Office Memorandum dated

6.7.2005, and if necessary, to create a supernumerary post to that effect. It may be also relevant to mention that the first paragraph of t he Office Memorandum dated 6.7.2005 suggests that the number of under qualified teachers is 175. Therefore, if the petitioner was already reinstated in service before 2005, which had been done vide Resolution dated 5.9.1998 and not denied b y any authority, the petitioner should have been included within the aforesaid 1 75 number of under qualified teachers. If he was not counted as one of the said 175 under qualified teachers, it was not the fault of the petitioner. Therefore, the petitioner could not be left out. [32] The other reason cited by the State authorities in the aforesai d impugned order 3.11.2007 that, creation of post for the purpose of accommodati ng the petitioner is not possible as he is without UGC norms cannot be accepted for the very reason that the aforesaid Office Memorandum dated 6.7.2005 was spec ifically meant for those teachers who were under-qualified and who do not posse ss the qualification as per UGC norms. Therefore, refusing to create any post f or the purpose of accommodating the petitioner on the ground that he is without UGC norms is also not tenable, as the petitioner is otherwise covered by the sai d Office Memorandum dated 6.7.2005. The reason assigned in the aforesaid impugned order that the Fin ance Department was not impleaded as a party in the earlier writ petition and th e power of creation and filling up of post lies with the Finance Department also cannot be accepted inasmuch as it is an internal arrangement of the State autho rities. The prime responsibility of granting benefits under the Office Memorandu m dated 6.7.2005 lies on the administrative department i.e. the Education Depart ment and if it is found that the petitioner is entitled to get the benefit under the Office Memorandum dated 6.7.2005, the administrative department has to take necessary steps in consultation with the Finance Department in that regard. [33] The impugned order dated 3.11.2007 also stated that since Office Memorandum dated 6.7.2005 clearly provided that under no circumstances under qu alified teachers shall be recruited in future in deficit College, it would not b e possible to increase the number of sanctioned post from 175 to 176 to accommod ate the petitioner. It may be stated that the case of the petitioner is not of a fresh appointment. He had been already appointed and working since 1993 and ha d been reinstated to service in the year 1998 after unfair removal. Hence, this argument does not hold water to deny the petitioner the benefit under the Office Memorandum dated 6.7.2005. [34] From the above, this Court is of the opinion that the petitioner should be counted as one of the 175 under qualified teachers and as he was ent itled to the State pay scale as prevailing before the issue of the Office Memora ndum dated 6.7.2005 and he is eligible for the benefit conferred by the Office M emorandum dated 6.7.2005, and as his two juniors have been already given the sai d benefits, the petitioner would be also entitled to get the benefit under the a foresaid Office Memorandum dated 6.7.2005. On the other hand, if the petitioner is not counted to be one of the 175 under qualified teachers, the State authorit ies have to make necessary arrangement, including creation of an additional post to accommodate the petitioner for the grant of the revised pay scale. It may be stated that when the Director of Higher Education, Ass [35] am wrote to the Respondent No.1 on 29.4.2003 for complying with the judgment and order dated 27.11.2002 passed in C.R. No.1214 of 1994, it was stated that since the College authorities had admitted that the petitioner was wrongfully kept ou t and discriminated against, and (cid:28)one should not be punished for others misdeeds (cid:29), the State Government agreed to the same. Accordingly, the State Government ha d issued necessary direction at that time for compliance of the Court’s order. This Court is of the view that the State authorities should apply the same princ iple that (cid:28)one should not be punished for others misdeeds (cid:29) in the present situat ion also while considering the claim of the petitioner under the Office Memorand um dated 6.7.2005. [36] In view of the above, this Court is of the opinion that denial o f the benefits of the Office Memorandum dated 6.7.2005 to the petitioner by the aforesaid impugned order dated 3.11.07 is not tenable and accordingly, the afore said impugned order dated 3.11.07 is set aside. The State respondents are again directed to consider the case of the petitioner taking into consideration that he is the senior most Lecturer in English amongst the under-qualified teachers i n the Mandia Anchalik College in the subject of English before the Office Memora ndum dated 6.7.2005 was issued, and as he had a right to the benefits under the Government pay scale as per Government order dated 20.7.1998, he would be entitl ed to the revised pay scale given under the Office Memorandum dated 6.7.2005, mo re particularly, when his juniors who are similarly situated, viz., respondents No.5 and 6 have already been given the said benefits. Since the petitioner is se nior to respondents No.5 and 6, if the State government is to restrict the numbe r of teachers to 175 for the purpose of granting the benefits under the Office M emorandum dated 6.7.2005, benefit given to one the of the respondents No.5 and 6 under the aforesaid Office Memorandum dated 6.7.2005 has to be revoked. However , this Court is of the view that after about 7 years of the enjoyment of the afo resaid benefits under the Office Memorandum dated 6.7.2005, it may not be approp riate at this stage to deprive any of the respondents No.5 and 6 of the benefits conferred under Office Memorandum dated 6.7.2005, since they are also eligible for the benefit. Therefore, the respondents concerned are directed to create a s upernumerary additional post, if required, for granting the benefits to the peti tioner under the aforesaid Office Memorandum dated 6.7.2005. The aforesaid entire exercise shall be undertaken by the Respon dents concerned within a period of one month from the date of receipt of a cert ified copy of this order. The petitioner is to furnish a certified copy of this order to t he authorities. d directions given above. No order as to costs. The writ petition stands allowed in terms of the observations an