High Court · 2009

In W P (C) No.964/09, Sri Satyendra Nath Kalita challenges the Governing Body’s resolution dated 19.12.2007, whereby the services of Dr. Pradip Kr. Sarm a was resolved to be regularized in the third regular vacancy of the college whi ch arose on 31.8.2007, as another regular lecturer Dr. Runu Devi’s lien period e xpired, by contending that formal effect to his regularization given on 18.8.200 3 is yet to be given.

2.2. Smti Dipika Kalita in W P (C) No.3599/05 sought payment of her regular s alary and in W P (C) No.1161/09, she sought implementation of the Governing Body ’s resolution dated 10.8.2003 for regularization of her service.

3. Since the facts in all the cases under consideration are interlinked and pertain to regularization of services of lecturers in 3 regular vacancies in th e Zoology Department of Bajali College and common arguments have been advanced b y all the learned counsels, the cases are disposed of by this common order.

4. t from the W P (C) No.6430/03. The facts, necessary for consideration of the submissions, are culled ou

4.1. Sri Pradip Kr. Sarma and Ms. Dipika Deka Kalita were inducted on 22.12.1 997 as lecturers in non-sanctioned posts in Zoology Department of Bajali College pursuant to a selection process. Smti Dipika Deka Kalita joined the post in the forenoon and Sri Pradip Kr. Sarma joined in the afternoon of 22.12.1997. On 17. 7.2000, Sri Satyendra Nath Kalita also joined as a lecturer in a non-sanctioned post in the Zoology Department of the College.

5. During the study leave of regular lecturer Bhagaban Sarma between 1.4.20 00 to 31.3.2002, Sri Pradip Kr. Sarma was permitted temporarily to serve against the said leave vacancy only for the purpose of getting higher emolument during the leave period. In the year 2001, Sri Pradip Kr. Sarma obtained his Ph.D. Degr ee. As Ph.D. is considered alternate qualification in the absence of NET/SLET, h e became qualified to be appointed as a regular lecturer in college. Another lecturer of the college Dr. R N Das also went on study lien and 5.1. in the said vacancy, Dipika Deka Kalita was permitted to function during the lie n period by the College. The regular lecturer Dr. R N Das did not return back to join the college and on expiry of his lien period on 14.6.2003, the 1st regular vacancy in the Zoology Department became available. Similarly another regular lecturer Dr. A Rahman also went on study lien 5.2. from 28.7.2000 and in his lien vacancy, Sri Satyendra Nath Kalita was permitted to function and since Dr. Rahman did not rejoin his post after expiry of the lie n period on 28.7.2003, a 2nd regular vacancy of lecturer became available in the college.

6. The decision of the College to appoint respondent Nos.5 and 6 in the abo ve lien vacancies was subject to approval. Subsequently by orders dated 21.8.200 0 and 30.10.2000 issued by the Director of Higher Education (hereinafter referre d to as ’the DHE’), approval to the lien appointment of the two incumbents namel y Dipika Kalita and Satyendra Nath Kalita, was granted subject to the following terms and conditions: (cid:28)1. The appointment of the concerned incumbent would be subjected to clearing of the NET/SLET and till that he/she would be treated as probationers and liable t o be discharged if he/she failed to obtain clearance of NET/SLET. 2. The incumbent concerned will draw at the minimum of scale in Rs.8000/- P.M. d uring probationery period and other allowances as admissible under rules as stat ed above (cid:29).

7. By the impugned resolution dated 10.8.2003, Smti Dipika Deka Kalita who served between 17.8.2000 and 14.6.2003 in the lien vacancy of Dr. R N Das, was r egularized in the 1st regular vacancy which became available on 14.6.2003.

7.1. Similarly Sri Satyendra Nath Kalita, worked in the lien vacancy of Dr. A Rahman between 28.7.2000 to July 2003 was resolved to be accommodate in the 2nd vacancy occurring on 28.7.2000, after the expiry of Dr. Rahman’s lien period by the impugned resolution dated 10.8.2003 of the Governing Body.

8. As consideration for regularization against the two vacant posts were co nsidered only for Dipika Deka Kalita and Satyendra Nath Kalita and not for Pradi p Kr. Sarma, the other lecturer working similarly in non-sanctioned posts, Pradi p Kr. Sarma filed the W P (C) No.6430/03 to challenge the said resolution/order, where the two regularized incumbents were arrayed as respondent Nos.5 and 6 res pectively.

9. The impugned resolution dated 10.8.2003 was supported by the Bajali Coll ege authorities by contending that since only one regular lecturer of the Zoolog y Department has specialization in ’Entomology’ and it is was considered desirab le to have more lecturers with the specialization of ’Entomology’, the two of th e three serving lecturers in non-sanctioned posts, who had specialization in ’En tomology’, were considered for appointment in the two vacancies of Dr. R N Das a nd Dr. A Rahman, whose lien period expired and who did not rejoin the college a fter their lien period.

9.1. The college tried to support the non-consideration of the case of Pradip Kr. Sarma by contending that he had specialization in ’Fishery’ and since regul arly appointed lecturer with ’Fishery’ specialization was available, the case of Pradip Kr. Sarma was not considered.

9.2. The DHE filed 3 counter affidavits in W P (C) No.6430/03. In the first c ounter affidavit filed on 29.1.2004, the regularization of the two incumbents wa s sought to be supported on the ground that the Governing Body of the College co nsidered for regularization of the two incumbents Dipika Deka Kalita and Satyend ra Nath Kalita, as they working in the lien vacancies of Dr. R N das and Dr. A R ahman.

9.3. It may be recorded, however, that at the time when the impugned resoluti on dated 10.8.2003 was passed by the Governing Body of the College, the lien per iod of the two regular lecturer was already over and therefore, the services of the two incumbents cannot be said to be continuing on the date of the Governing Body’s resolution. On the resolution date, the position of respondent Nos.5 and 6 were just the same as was in the case of Pradip Kr. Sarma i.e. all three were lecturers working in non-sanctioned posts. In the subsequent two additional affidavits filed by the DHE on 18.7.200 9.4. 6 and 25.7.2006, the Director of Higher Education supported the regularization o f Dipika Deka Kalita and Satyendra Nath Kalita on the basis of their respective specialization in the field of ’Entomology’.

10. Challenging the regularization of respondent Nos.5 and 6, Mr. S N Sarma, learned senior counsel contends that Pradip Kr. Sarma having joined on 23.12.19 97 as a lecturer in a non-sanctioned post (on the same day as respondent No.5 Di pika Deka Kalita), has to be considered as senior in service to respondent No.6 Satyendra Nath Kalita who was appointed as a lecturer only on 17.7.2000. Accordi ngly, the learned senior counsel contends that Pradip Kr. Sarma being senior to Satyendra nath Kalita (respondent No.6), should not have been disregarded at the time of consideration of regularization.

10.1. The learned counsel submits that on the date of the resolution dated 10. 8.2003, neither of the two private respondents resolved to be regularized, were in possession of the essential qualification of NET/SLET or Ph.D. and according ly they could not have been considered eligible for being regularized against a regular vacancy of lecturer.

10.2. It is further contended by Mr. Sarma that in terms of the circular dated 2.7.1991 issued by the Director of Public Instruction (DPI) to all the Colleges , it was made clear that if a lecturer working in a non-sanctioned post is to be regularized in a regular vacancy which becomes available in a Department, only such lecturer working in a non-sanctioned post with satisfactory performance rec ord and possession of ’required norms’, should be considered for appointment and he submits that since the two incumbents did not fulfill the ’required norms’, they could not have been regularized in the regular vacancies. The learned counsel further submits that on the relevant date of resolut 10.3. ion i.e. on 10.8.2003, the two incumbents were not discharging service against l ien vacancies as the lien period of the two regular lecturers were already over on 14.6.2003 and 28.7.2003 respectively and under such circumstances, the two in cumbents, who were regularized, were in the same position as that of Pradip Kr. Sarma, meaning thereby, all three were working against non-sanctioned post of le cturer and the case of the writ petitioner could not be ignored for regularizati on.

10.4. Mr. Sarma also contends that the issue of specialization in ’Entomology’ cannot have a bearing on the matter of regularization in as much as, the studen ts of the college were receiving the services of lecturers with specialization i n ’Entomology’ and under such circumstances, prior consideration on the basis of specialization and ignoring the claim of the petitioner because of his ’Fishery ’ specialization, was not at all justified in law.

10.5. It is also pointed out that Dr. R N Das had specialized in ’Cell Biology ’ and only Dr. A Rahman specialized in ’Entomology’ and in their regular vacanci es, there could not have been any justification to appoint two incumbents both s pecializing in ’Entomology’, as this would smack of arbitrariness and would resu lt in denial of regularization to a senior lecturer.

10.6. Finally the learned senior counsel relied upon the Supreme Court decisio n in the case of Commissioner of Police vs. Gordhandas Bhanji, reported in AIR 1 952 SC 16 and in the case of Mohinder Singh Gill Vs. The Chief Election Commissi oner reported in (1978) 1 SCC 405, to contend that in the resolution dated 10.8. 2003, nothing was recorded about preferring two incumbents for regularization on the basis of their specialization and as such, the support for their regulariza tion cannot not now be justified on the basis of explanation later given through counter affidavits filed by the respondents. Mr. M R Pathak, learned standing counsel for the Education Department su 11. bmits that the DHE being the Approving Authority, considered granting of approva l to the regularization of the respondent Nos.5 and 6, only on the basis of the explanation furnished by the College that the two incumbents were working in the lien vacancies of Dr. R N Das and Dr. A Rahman, (the two regular lecturers) and that the college needed the services of regular lecturers who had specializatio n in ’Entomology’. However, Mr. Pathak agrees that the specialization aspect of the respondent Nos.5 and 6 is not reflected, in the impugned resolution dated 10 .8.2003 taken by the Governing Body of the College.

11.1. Mr. Pathak also refers to the Office Memorandum dated 17.7.2004 prescrib ing regularization on the basis of seniority of the serving lecturers against no n-sanctioned post and contends that on the date of the impugned resolution dated 10.8.2003, there was no prescription of seniority criterion by the State, for r egularization.

12. Mr. C Choudhury, learned counsel representing the College submits that o nly one regular lecturer with specialization in ’Entomology’ was available and s ince the respondent Nos.5 and 6 with specialization in ’Entomology’ were working against non-sanctioned posts, they were considered for regularization, in the t wo vacancies caused due to non-return of Dr. R N Das and Dr. A Rahman. Mr. Choud hury also submits that subsequently in the 3rd regular vacancy, petitioner Pradi p Kr. Sarma was considered for regularization.

13. Mr. T J Mahanta, learned counsel representing the respondent No.5, Dipik a Deka Kalita submits that she joined in the College in the forenoon of 23.12.19 97, on the same day as the writ petitioner Pradip Kr. Sarma, who joined in the a fternoon and as such it is contended by Mr. Mahanta that there can be no objecti on by the writ petitioner who is contended to be junior, to the resolution adopt ed by the College Authorities to regularize the service of respondent No.5 in on e of the regular vacancies.

14. Mr. I Choudhury, learned counsel representing the respondent No.6, Satye ndra Nath Kalita submits that although he was appointed against a non-sanctioned post later than the writ petitioner and the respondent No.5, he submits that he was rightly preferred for regularization in the first regular vacancies by virt ue of his specialization in ’Entomology’ and the his regularization has to be co nsidered as the right decision by the College Authorities, keeping in mind the i nterest of the students of the college.

15. Having considered the submissions made by the learned counsels, it may n ow be appropriate to consider carefully the impugned resolution dated 10.8.2003, whereby the services of the private respondent Nos.5 and 6 were resolved to be regularized. The said resolution clearly shows that two of the Members of the Go verning Body gave dissenting notes, as the College did not consider regularizati on on the basis of seniority of the 3 contending lecturers. The Ph.D. qualificat ion of the writ petitioner has also been mentioned in the dissenting note of one of the Member, which would make the writ petitioner eligible for regular appoin tment although he did not have NET/SLET qualification. But despite being the onl y one of the three with requisite qualification, the petitioner was not consider ed during the impugned deliberation made on 10.8.2003.

16. There is no doubt that the writ petitioner is senior to the respondent N o.6, Satyendra Nath Kalita who was considered for regularization along with the respondent No.5, Dipika Deka Kalita who joined the College on the same date as t he writ petitioner. Therefore, it is apparent that the seniority of the writ pet itioner was ignored at the time of regularization.

17. At the time of passing of the impugned resolution dated 10.8.2003, the c ircular dated 2.7.1991 (Annexure IV) issued by the DPI was applicable. In the sa id circular it was clearly prescribed that whenever a regular sanctioned post be come vacant in a Department, preference should be given to those teachers, who a re already working against non-sanctioned post in the Department. But this is su bject to (cid:28)possession of required norms (cid:29). In the instant case, the private respondents on the date of resolution d id not fulfill the (cid:28)required norms (cid:29), in as much as, they did not have the NET/SL ET or Ph. D. qualification, whereas the petitioner securing the Ph. D. qualifica tion in 2001, fulfilled the (cid:28)required (cid:29) norms for appointment as a regular lectur er. Under such circumstances, the regularization of the private respondent Nos.5 and 6 by the impugned resolution dated 10.8.2003 is clearly seen to be inconsistent with the requirement of the circular dated 2nd July 1991. At the same time, non -consideration of the writ petitioner’s candidature is also found to be in breac h of the said circular dated 2nd July 1991.

18. The impugned resolution dated 10.8.2003 of the Governing Body did not re fer to the field of specialization of the respondent Nos.5 & 6, who were preferr ed for regularization and yet justification is now sought to be given that they were considered (by ignoring the writ petitioner) for regularization on the basi s of their specialization in ’Entomology’. As there was no recording of speciali zation of the private respondents at the time of passing of the impugned resolut ion, the reference now to their respective specialization, in my view appears to be an attempt to justify what was unjustified in law.

18.1. The decision of the Apex Court in Commissioner of Police (Supra) and Moh inder Singh Gill (Supra) clearly applies here as, there can be no justification to allow explanation to be furnished subsequently by the respondents through aff idavits to Court, to justify the impugned to justify the impugned resolution. It has been clearly held in Mohinder Singh Gill (Supra) that (cid:28)when the statutory functionary makes an order based on certain grounds, its val idity must be judged by the reasons so mentioned and cannot be supplemented by f resh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out (cid:29).

19. Regularization order in favour of respondent Nos.5 and 6 is also sought to be justified by stating that on the date of the impugned resolution dated 10. 8.2003, they were working against the lien vacancies of the two regular lecturer s Dr. R N Das and Dr. A Rahman. But this was not the correct position as the lie n tenure of both the regular incumbents expired on 14.6.2003 and 28.7.2003 respe ctively and under such circumstances, the position of respondent Nos.5 and 6 on the date of the impugned resolution was the same as the writ petitioner. Therefo re, even assuming that preference to incumbents serving in lien vacancies is per missible, the private respondent Nos.5 and 6 not have been preferred for regular ization overlooking the claim of the writ petitioner. It is clear that by the impugned resolution dated 10.8.2003 the Authorit 20. ies had wrongfully ignored the claim of the writ petitioner for being considered for regularization against the two regular vacancies. The seniority as well as the educational qualification of the writ petitioner was ignored, whereas two no n-sanctioned lecturers without possession of the required (cid:28)norms (cid:29) (one of whom w as junior to the petitioner), was preferred for regularization. This entire exer cise, in my view was unauthorized by law and the (cid:28)norms (cid:29) in force. Accordingly I declare that the said resolution dated 10.8.2003 is legally unsustainable.

21. In my considered opinion, the writ petitioner Pradip Kr. Sarma should ha ve been considered for regularization to one of the two regular vacancies which occurred in the year 2003 and the subsequent consideration of his regularization as per resolution dated 19.12.2007 in the 3rd vacancy (of Dr. Runu Devi) cannot undo the wrong done to the writ petitioner. It also appears from the Government Circular dated 1.6.2000 and the Notification dated 21.12.2002 issued by the Edu cation Department that NET/SLET or alternatively Ph.D. is essential qualificatio n for being appointed as regular lecturer and under such circumstances, the Auth orities at the time of regularization has to take into account as to whether inc umbents were in possession of the prescribed (cid:28)norms (cid:29).

22. In the above circumstances, these writ petitions are disposed of by dire cting the respondents to take the necessary steps to consider regularization of service of the 3 non-sanctioned lecturers of the Zoology Department of Bajali Co llege to the 3 regular vacancies which occurred on 14.6.2003, 28.7.2003 and 31.8 .2007 respectively, on the basis of seniority of the serving lecturers of the Ba jali College in non-sanctioned posts, keeping in mind the requirement of the pre scribed (cid:28)norms (cid:29). An appropriate decision for regularization as indicated be take n within 4 weeks from today.

23. The writ petitions are disposed of accordingly with no order on costs.