TOMOJIT DHAR v. The State of Assam

contractual service in the said college. It is contended by the petitioner that although, he was engaged on a contractual basis, the college authorities had utilized his services as a regular incumbent in the cadre of Assistant Professor of the college and was also assigned examination duties. The petitioner has further contended that the college authorities for Page No.# 4/15 the purpose of satisfying the Teacher Student Ratio, had projected his name as one of the teachers working in the college and basing on such projection, the college was conferred Grade-A by the authorities of the National Assessment and Accreditation Counsel (NAAC). WP(C) No. 5618 of 2024

4. The petitioner was initially recruited as a contractual faculty in the Department of Commerce vide issuance of a communication dated 10.07.2013. The petitioner’s initial engagement was for the session starting from July, 2013 to December, 2013 and thereafter, from January, 2014 to June, 2014. The petitioner was thereafter, vide a communication dated 10.01.2014, appointed by the college authorities for the Session starting from 16th January, 2014 to 15th December, 2014. The petitioner continued in his contractual engagement thereafter. It is contended by the petitioners that although, he was engaged on contractual basis, the college authorities had utilized services as a regular incumbent in the cadre of Assistant Professor of the college and was also assigned examination duties. The petitioner has further contended that the college authorities for the purpose of satisfying the Teacher Student Ratio, had projected his name as one of the teachers working in the college and basing on such projection, the college was conferred Grade-A by the authorities of the National Assessment and Accreditation Counsel (NAAC).

5. The petitioners, in the above noted writ petitions have further contended that the Director of Higher Education, Assam, vide Office Memorandum (OM) dated 18.02.2019 had prohibited engagement of teaching and non-teaching staff in provincialized colleges of the State without a sanctioned post being available for such engagement. The said OM was followed by further communications. It was contended by the petitioners that pursuant to the OM dated 18.02.2019, the Governing Body of the college in its meeting held on 11.09.2023 adopted a resolution to the effect that in terms of the said OM and also due to paucity of funds, appointment letters were decided to be issued to temporary teachers of Commerce stream for 89 days. It is further contended that in terms of the decision of the Governing Body of the college, the petitioners came to be issued a fresh appointment letter dated 29.09.2023 appointing them as Contractual faculty for a period Page No.# 5/15 of 89 days. The petitioners apprehending that their respective services would be terminated on completion of the period of 89 days, thereby undermining the services rendered by them in the college since 2013, protested against the issuance of the fresh appointment letter and refused to accept the same. The petitioners approached the authorities of the college, as well as the departmental authorities praying for revocation of the fresh appointment letter issued to them. It is further projected that the petitioner were not being released their salaries w.e.f. October, 2023. The representations made by the petitioners having not been respondent to by the college authorities and the order dated 29.09.2023, having not been revoked and the petitioners not permitted to continue in their contractual engagement in terms of the engagement so made in the year 2013, the petitioners have instituted the present proceedings.

6. Mr. R. Sarma, learned counsel appearing for the petitioners in the above noted writ petitions, submits that it is an admitted position that the petitioners, in the above noted writ petitions were initially recruited in the year 2013 as contractual faculties in the Department of Commerce of the Tinsukia Commerce College. It is submitted that after their recruitment in the year 2013, the petitioners had continued to discharge their duties as contractual faculties in the said college. It is submitted that the petitioners although were engaged as a contractual faculty, their services were being utilized as a regular incumbent in the cadre of Assistant Professor in the said college and the petitioners formed the core faculty of the Department of Commerce of the college. It is further projected that the names of the petitioners were included in the data submitted to the National Institution Framework and basing on such projection, the college was successful in receiving Grade-A in the inspection carried out by the National Assessment and Accreditation Counsel (NAAC).

7. Mr. Sarma, learned counsel for the petitioner has submitted that the long engagement of the petitioners in the college would go to reveal that there was a requirement for continuation of their such engagement to teach the students in the college in absence of regular post being sanctioned by the Government for the purpose to Page No.# 6/15 the college. Mr. Sarma has submitted that the Director of Higher Education, Assam, had issued an OM dated 18.02.2019 and therein, had required the provincialized colleges of the State to refrain from engaging any person as teaching/non-teaching staff where no sanctioned post existed for the purpose. Mr. Sarma has submitted that the said OM dated

18.02.2019 would have no application insofar as, the services rendered by the petitioners is concerned, inasmuch as, their continued engagement in the college was necessitated to maintain the Teacher-Student Ratio.

8. The Government, in the Higher Education Department having not sanctioned the adequate numbers of the post of Assistant Professor to the college, the college was forced to resort to the engagement of persons like the petitioners on contractual basis. Accordingly, he submits that the said OM dated 18.02.2019; in addition to not having a retrospective effect, cannot be made applicable to the petitioners. Mr. Sharma has submitted that the college authorities basing on the said OM and projecting a ground of paucity of funds, had proceeded to issue an appointment order dated 29.09.2023, to the petitioners, herein, and therein, had appointed them afresh for a period of 89 days w.e.f. October, 2013.

9. It is submitted that the petitioners apprehended that the said fresh engagement now made in their cases for a period of 89 days, was for the purpose of terminating their services after conclusion of the said period of 89 days. Mr. Sarma has submitted that the said letter of appointment was issued only to 3(three) faculties, i.e. the petitioners herein, and one Joy Choudhury, working in the Commerce Department of the said college. Mr. Sarma has submitted that another teacher namely Mr. Dibakar Seal, who was also working as a faculty in the Department of Commerce on Ad-hoc basis, was not issued with similar order of appointment for 89 days. Accordingly, he submits that the petitioners were discriminated against. Mr. Sarma further submitted that in the college, there are 11 numbers of non-teaching staff; however, only 2 of them held sanctioned/regular posts and the rest of them are working on contractual basis. However, no one out of such non- teaching staff working on contractual basis were issued with appointment orders, like the Page No.# 7/15 one issued to the petitioners vide the communication dated 29.09.2023, engaging them afresh for a period of 89 days.

10. It is also submitted by Mr. Sarma, that the petitioners had not accepted the appointment letter dated 29.09.2023, on the ground that the same could not have been issued to them and that the OM dated 18.02.2019, issued by the Higher Education Department was not applicable to them in the matter. Mr. Sarma, learned counsel also submits that the petitioners were discontinued from their services w.e.f. October, 2023 and they were not being released any wages thereafter. Mr. Sarma has further submitted that the petitioners had approached the office of the Director, Higher Education Assam for redressal of their grievances, the process although initiated for consideration by the authorities; the same was not taken to its logical conclusion.

11. Mr. Sarma has further submitted that the Governing Body of the college, in its meeting held on 11.09.2023, had arrived at a decision for discontinuation of the services of the petitioners herein, however, the copies of the said resolution were not furnished to the petitioners although, they had sought for the copies of the said resolution by invoking the provisions of the Right to Information Act, 2005.In the above premises, Mr. Sharma submits that this Court would be pleased to interfere with the fresh appointment order dated 29.09.2023 with a further direction to the respondents to permit the petitioners to continue in their contractual engagements in terms of the earlier engagement order issued to them in the year 2013 and 2014.

12. Per contra, Mr. G. Choudhury, learned counsel for the respondent nos. 3 & 4 has submitted that the initial appointment of the petitioners were not preceded by any selection and they were engage on contractual basis for a period of 6(six) months. Thereafter, the services of the petitioners were further extended in the year 2014 for another period of 6 months. The Governing Body of the college, basing on a resolution adopted in its meeting dated 21.11.2014, permitted the petitioners herein, to continue in their services w.e.f. 16.07.2013 on contractual basis. Mr. Choudhury has submitted that the Director of Higher Secondary, Assam, having issued an OM dated 18.02.2019, Page No.# 8/15 prohibiting all provincialized college from engaging any person as teaching staff against a non-existent post, the Governing Body of the college had adopted a resolution on

20.04.2019, to appeal to the Director of Higher Education, Assam, to grant extra time to the college for implementation of the provisions of the OM dated 18.02.2019, inasmuch as, there was shortage of sanctioned post in the college.

13. It is submitted by Mr. Choudhury that, even after issuance of the OM dated

18.02.2019, the college authorities were forced to continue with the contractual appointment of the petitioners and others in view of the necessity existing and the remuneration of the contractual teachers were being paid out of the tuition fees collected by the college from the students. He however, submits that the payments so being made to the contractual teachers were not permissible to be continued in view of the notification dated 10.07.2023, issued by the Director, Higher Education Assam, wherein the revised uniform fee structure for the colleges were notified and a restriction was imposed with regard to collection of any tuition fee from the students. Mr. Choudhury, further submits that keeping the interest of the students in the college, the Governing Body of the college, adopted a resolution in its meeting dated 11.09.2023 to continue with the temporary engagement of the teachers of the college, so as to not hamper the learning of the students studying therein. However, the tenure of such contractual engagement was limited for a period of 89 days, in view of the said OM dated 18.02.2019 and the financial constrains being faced by the college authorities, in view of the restriction coming to be imposed vide the said notification dated 10.07.2023.

14. Mr. Choudhury, learned counsel submits that it is under the said circumstances that the college authority had to issue the fresh appointment letters on 29.09.2023 to the petitioners and others, engaging them for a period of 89 days on contractual basis. Mr. Choudhury has submitted that except 3 candidates, i.e. the petitioners in the present proceeding and one Joy Choudhury, all other similarly situated contractual faculty/non- faculty had accepted the appointment so made in their cases for a period of 89 days on contractual basis. Mr. Choudhury has submitted that the petitioners had filed complaints Page No.# 9/15 before the Director of Higher Education Assam, as well as before the Deputy Commissioner, Tinsukia, with regard to the fresh engagement effected in their cases vide the communication dated 29.09.2023 for a period of 89 days. Mr. Choudhury has submitted that reports on being called for in the matter from the college authorities with regard to the complaint made by the petitioners, the same were submitted. Mr. Choudhury further submits that the petitioners having refused to continue in their respective services in terms of the appointment effected in their cases, vide the communication dated

29.09.2023 and, having refused to discharge assigned examination evaluation duties and also having returned the answer script without evaluation, the Governing Body, in its meeting held on 13.01.2014, proceeded to discontinue the services of the petitioners herein and one Joy Choudhury.

15. Mr. Choudhury, learned counsel by referring to the submissions made by the learned counsel for the petitioner, pertaining to the continuation of an Ad-hoc teacher namely, Dibakar Seal as a faculty in the Department of Commerce has submitted that said Dibakar Seal is not similarly situated like the petitioners herein and his appointment in the college was effected after due process of selection against a non-sanctioned post; and the college authorities already have taken up the case of the said Dipankar Seal with the departmental authorities for regularization of his services. In the above premises, Mr. Choudhury submits that the petitioners, who were only contractual appointees, do not have a vested right to seek continuation of their services when such services has been barred by the authorities in the Education Department. He further submits that there being a set procedure mandated for recruitment of a regular faculty in the provincialized colleges, the petitioners, by virtue of their continuance as a contractual faculty, would not be eligible to have their services regularized against a sanctioned post of Assistant Professor in the college. In the above premises, Mr. Choudhury submits that the petitioners have failed to make out a prima-facie case for interference in the matter by this Court and the writ petition would be mandated to be dismissed.

16. I have heard the learned counsels appearing for the parties and also perused the Page No.# 10/15 materials available on record.

17. At the outset, it is to be noted that the petitioner’s initial engagement was as a contractual faculty on a fixed pay basis. It is an admitted position that the petitioners continued in their services on contractual basis after their initial engagement effected in the year 2013, basing on a resolution adopted in this connection by the Governing Body of the college. However, it being not brought on record that the initial engagement of the petitioners as contractual faculty was preceded by a due process of selection as mandated to be so followed in respect of faculties appointed in provincialized colleges of the State, it is to be held that the initial appointment of the petitioners admittedly, was not in compliance with the procedure laid down for recruitment of faculty in provincialized colleges of the State.

18. The continuation of the petitioners in the college as a contractual faculty would not clothe them with the right to claim to have their services regularized against a sanctioned post of Assistant Professor in the college. The Government of Assam, in the Higher Education Department, vide OM dated 18.02.2019, having barred the provincialized colleges from engaging any person as a teaching and/or non-teaching staff, where no sanctioned post existed for the purpose, the Governing Body of the Tinsukia Commerce College was also required to comply with the said direction issued vide the OM dated

18.02.2019.

19. The materials brought on record reveals that the Governing Body of the Tinsukia Commerce College, having noticed the requirement of compliance with the provisions of the OM dated 18.02.2019 and, also the fact that there was a necessity to continue the services of the contractual faculties engaged in the college with a view to provide uninterrupted classes to the students studying in the college, had proceeded to resolve to appoint such contractual faculty afresh for a period of 89 days. Such engagement for 89 days was projected also to be mandated in view of a restriction imposed upon the college authorities in collecting tuition fees from the students and the consequential financial constrain faced by the college on account of the same. Accordingly, in terms of the Page No.# 11/15 resolution adopted by the Governing Body, in this connection, in its meeting held on

11.09.2023; the Principal of the college had vide communication dated 29.09.2023, appointed the petitioners herein as contractual faculty in the Department of Commerce for a period of 89 days w.e.f. October, 2023. The petitioners refused to accept the said appointment and also did not perform any duties thereafter.

20. Poised thus, the Governing Body of the College proceeded to adopt a resolution in its meeting held on 13.01.2024 to discontinue the services of the petitioners herein. The present writ petition was filed on 25.10.2024. On the date, the petitioners had filed the present writ petition; there was no order available which had the effect of continuing the engagement of the petitioners on contractual basis. Further, the order of appointment effected in the case of the petitioners vide the communication dated 29.09.2023; admittedly being for a period of 89 days and such period of contractual appointment not being extended, it can be safely held that on the date the petitioners had instituted the present writ petitions, there was no order subsisting towards engaging them as contractual faculty in the said college.

21. Accordingly, this Court is required to examine as to whether in absence any order renewing the contractual engagement of the petitioners herein, it would be permissible for this Court to grant the reliefs sought for by the petitioners in the present proceedings.

22. As noticed herein above, on the date when the petitioners has instituted the present writ petitions, there was no subsisting order existing in their favor continuing them as contractual faculties in the college, in question. The materials brought on record by the college authorities also reveals that the services of the petitioners, on they not joining in pursuance to the communication dated 29.09.2023, came to be terminated in the year 2023 itself. Such termination is not under challenge in the present proceeding. Accordingly, thereafter, in absence of there being any subsisting contract, on the date when the present writ petition was so filed, this Court would not be in a position to grant the relief sought for by the petitioners in the present proceedings, for their continuance as contractual faculty in the college. Page No.# 12/15

23. In support of the above conclusion drawn, this Court places reliance upon the decision of the Hon’ble Supreme Court in the case of Gridco Limited & Anr. Vs Sri Sadananda Doloi & Ors., reported in (2011) 15 SCC 16.

24. The Hon’ble Supreme Court, with regard to the issue pertaining to legal right of a contractual appointee, in the case of Sri Sadananda Doloi(supra) after noticing its earlier decision on the issue, held as follows: - “38. A conspectus of the pronouncements of this Court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review.

39. A writ court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the armchair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ court would do well to respect the decision under challenge.”

25. The decision of the Hon'ble Supreme Court in the case of U.P. State Textile Corporation Limited v. Suresh Kumar [reported in (2011) 15 SCC 180] being relevant Page No.# 13/15 to the issue arising in the present proceeding, is being noticed. The Hon'ble Supreme Court, in the said case; considering the effect of non-extension of the period of contractual engagement, held that the contractual engagement of the respondent, therein, having come to an end, no relief beyond that period, could have been granted. Accordingly, the directions passed in the matter by the High Court allowing the respondent(before Hon'ble Supreme Court) to continue in his services, came to be modified and the respondent was deemed to be in service till the currency of his contractual engagement. The relevant paragraphs of the decision of the Hon'ble Supreme Court in the case of Suresh Kumar (supra) is reproduced herein below:- “4. The learned counsel for the appellant has raised primarily two arguments before us. He has contended that the reference to the unauthorized absence of the respondent could not in any manner be said to be stigmatic and that the finding to the contrary was unsustainable. Alternatively, he has contended that the respondent had joined the post on 7-9-1987 for a period of three years which would have come to an end on 6-9-1990 and as such the direction for reinstatement could not have been granted to him. It has been pleaded that as a consequence of the order of the Tribunal and of the High Court; the respondent has been put back into service.

5. The learned counsel for the respondent has however supported the judgments of the Tribunal and the High Court.

6.In the facts of the case we need not examine the effect of the order dated 26-4-1989 whereby the services of the respondent had been terminated as being stigmatic or not as we are of the opinion that in the light of the fact that appointment itself was for a fixed period of three years which would have come to an end on 6-9-1990, no relief beyond that period could have been given to the respondent by the Tribunal or the High Court. We accordingly feel that these orders need to be modified to the extent that the appellant shall be deemed to be in service up to 6-9-1990 and not thereafter.”

26. Applying the decisions of the Hon'ble Supreme Court, noticed herein above, to the facts as arising in the present proceeding, it being crystal clear that the contractual Page No.# 14/15 engagement of the appellant, herein, had come to an end in the month in the year 2023 itself, and thereafter, admittedly, there being no order extending such contractual engagement of the appellant; this Court in the guise of exercise of the power of judicial review, would not substitute its decision, for the decision of the authorities of the college, on the ground that the decision of this Court is more reasonable. This Court cannot extend the period of the contractual engagement of the petitioners after the same had come an end.

27. At this stage, it is to be noticed that the petitioners, in the writ petition, have also prayed for their due salaries from the month of October, 2013.

28. The petitioners, admittedly, having not rendered services in the said college after the issuance of the fresh appointment letters on 29.09.2023 as contractual faculty, the petitioners would not be entitled to any pay by applying the principle of “No work No pay”.

29. At this stage, the contention raised by the petitioners pertaining to the continuation in service of one Dibakar Seal as a faculty in the Department of Commerce of the Tinsukia Commerce College, who was also engaged on Ad-hoc basis, is being considered. The said contention is considered only to be rejected, inasmuch as, from the materials brought on record, it is seen that said Dibakar Seal was appointed as an Assistant Professor in the college against a non-sanctioned post in pursuance to a due process of selection, in the year 2000. The case of Dibakar Seal, in the considered view of this Court, is not similar to that of the petitioners in the above noted writ petitions and the same cannot be permitted by the petitioners to be relied upon in support of their claim for continuance in service as a contractual faculty in the college.

30. Having drawn the above conclusions, this Court also notices that the college authorities in their affidavit have projected that other contractual appointees both teaching and non-teaching, who had accepted the fresh contractual appointment effected in their case in terms of the resolution of the Governing Body of the College, adopted in its meeting held on 11.09.2023 i.e. for continuation of the contractual appointees in the Page No.# 15/15 college for a period of 89 days, are continuing in the college. This Court, in view of the said position as obtaining in the college, grants liberty to the petitioners to approach the college authorities by submitting an application and therein, stating that they are willing to continue in the college as a contractual faculty, strictly, in terms of the decision arrived at by the Governing Body of the college in the matter.

31. The college authorities, on receipt of such representations from the petitioners shall consider the same and in the event, it is found that the petitioners can be engaged in the college in terms of the stipulations laid down by the Governing Body in the matter, may engage the petitioners on contractual basis, till the same is so necessary. However, it is provided that in the event, the petitioners are so re-engaged on contractual basis, the same would not clothe them with any right for claiming regular appointment against the post of Assistant Professor in the college in the event, any post of Assistant Teacher becomes vacant. The petitioners herein, however, would be entitled to apply for the same on the post being advertised for recruitment on regular basis, and their recruitment against the same would be subject to their eligibility and performance in the selection process, mandated to be carried out for recruitment against a regular post of Assistant Professor in the college. Further, it the event the petitioners are so engaged in the college as Contractual faculty, the petitioners would not be entitled to any arrears of pay and they would be entitled to receive their pay prospectively, w.e.f. the date of their such engagement.

32. With the above observations and directions, the above noted writ petitions being WP(C) No. 5617/2024 and WP(C) No. 5618/2024 stands disposed of. Comparing Assistant JUDGE