The High Court · 2012

GC and other norms. (d) The teachers working under non-sanctioned posts who will be adju sted against vacant sanctioned posts will be required to qualify in NET/SLET wit hin 2 (two) years if they do not possess the same already otherwise their servic es would be discontinued and till then they will be entitled to basic pay only f rom the date of approval by Directorate of Higher Education, Assam. (cid:29)

6.4 A list of about 322 vacant posts in different deficit colleges w as prepared and to this Cabinet Memorandum, the Finance Department gave their co ncurrence as under : (cid:28)Education Department U/O Your endorsement above, In respect of the proposed issues to be placed before the Cabinet, Finan ce Department has no specific comments to make but suggest that the details of p osts within names of the colleges may be incorporated in the Cabinet Memorandum in the form of an annexure. A copy of the order/sanction issued on the basis of the Cabinet decision may be marked to Finance (EC.III) Department. Finance Department further observe that the present problem has cropped up due to engagement of teaching staff by the Managing Committees of the college s without posts. It is happening in all categories of institutions in the Educat ion Department. In such cases very often, legal complication arises affecting St ate Exchequer. To avoid it, Education Department must formulate rules prohibitin g such engagement. Sd/- Deputy Secretary, Finance (EC.III) Department (cid:29)

6.5 on post was recommended by the Finance Department. As can be seen from the above, ban on appointment without sancti

7. In pursuant to the approval of the Cabinet on 9.6.2004, the firs t Memorandum dated 17.7.2004 was issued for adjusting the service of about 300 college lecturers against non-sanctioned posts. This was a one time decision to adjust the services of only serving lecturers against the then available 322 reg ular vacancies. About 4 months later on 12.10.2004, prohibition on engagement of Lecturers without any sanctioned post was imposed by the Government, to give ef fect to the recommendation of the Finance Department. DISCUSSION 8. Taking note of the fact that a special measure for regularizatio n was formulated to take care of about 300 serving Lecturers and imposition of i mmediate prohibition on appointment of Lecturers without any sanctioned posts by the 2nd Memorandum, the Division Bench in Mukunda Kalita (Supra) held that the benefit of regularization through the first Memorandum of 17.7.2004 is availabl e only to those appointed before 17.7.2004. But in the case of Safiqul Islam (Su pra), for a Lecturer, who joined service on 19.7.2004 after being appointed on 3 .2.2004, the Division Bench rejected the contention that such appointee will not be covered by the first Memorandum dated 17.7.2004 by considering that, the pet itioner therein has rendered 5 years of service in a non-sanctioned post.

9. In order to examine the scope of applicability of the regulariza tion benefits under the first Memorandum, it would be appropriate to take into a ccount the purpose for which the memorandum was issued. Accordingly we have exam ined the backdrop of the first Memorandum dated 17.7.2004 and notice that the sa me was intended to take care of the specific grievances of about 300 Lecturers s erving then, against non-sanctioned posts. The intended regularization benefits when examined in the context of the Cabinet Memorandum of 25.3.2004 and the conc urrence of the Finance Department clearly suggest that, the steps taken through the first Memorandum was meant to address the problem of an identified group of Lecturers. Considering the purpose of the first Memorandum, we feel that the sa me wasn’t intended to be a perennial source of regularizing services of Lecturer s. The benefit available under the Memorandum in our view, can’t be claimed by a ll irregularly appointed college teachers, since it was intended to address the grievances of only a identified group of college teachers.

10. In so far as the decision in Safiqul Islam (supra) is concerned, the Court took note of the fact that the petitioner therein was appointed on 3. 2.2004 but coincidentally he joined service on 19.7.2004 - 2 days after the firs t Memorandum was issued on 17.7.2004. This special aspect in the case might have persuaded the Division Bench to give the benefit of the first Memorandum to the petitioner in that case. Furthermore we can’t be unmindful of the fact that power to sanc 11. tion post and appoint/regularize person in regular vacancies vest with the State . The process of adjustment/regularization entail financial implication and subm ission of Mr. M.R. Pathak that because of resource crunch, fresh post of Lecture rs couldn’t be sanctioned since 1952 in the Deficit Colleges, has to be weighed to reach a reasonable conclusion. Considering the fact that the one time measure was intended to address the grievances of a specific group of Lecturers, it sho uldn’t entitle those outside the targeted group appointed after 17.7.2004, to cl aim the benefit of adjustment in vacant sanctioned posts of Lecturers. Such proc ess will be contrary to the regular mode of recruitment provided by the applicab le Rules. Furthermore recourse to the special process intended to deal with a s pecific purpose, can’t be permitted to defeat the rights under Article 14 and 16 of the job aspirants in the open market.

12. We therefore are of the opinion that those Lecturers, whose case s were not under consideration at the time when the Cabinet decision was taken o n 19.6.2004, can’t claim the benefit of the first Memorandum dated 17.7.2004 sin ce the procedure of regularization envisaged by this memorandum, was intended to take care of only about 300 identified college Lecturers and not those, who wer e subsequently appointed after 17.7.2004. We accordingly concur with the view given in Mukunda Kalita (Sup 13. ra), where it has been held that the benefit conferred by the first Memorandum i s available to only those Lecturers appointed before 17.7.2004. The referred iss ue is answer accordingly.