Rofiqul Islam v. The State of Assam

Judgment

:

16.05.2025

14.08.2025 JUDGMENT AND ORDER Heard Mr. M.U. Mondal, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned Junior Government Advocate, Assam, appearing for the respondent No.1, Mr. K. Gogoi, learned standing counsel for the respondents in Higher Education Department and Mr. A. Chaliha, learned standing counsel for the respondent in Finance Department. WP(C) 7163/2023

2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 05.10.2023 (Annexure-52) and to direct the respondent No. 2 and 3 not to give effect to the said order and also to direct the respondent authority to pay minimum scale of pay to the petitioner in the light of the decision of Hon’ble Supreme Court in the case of State of Punjab & Ors. v. Jagjit Singh & Ors., reported in (2017) 1 SCC 148.

The background facts, leading to filing of these writ petitions, are briefly stated as under:- “The petitioner, namely, Md. Rofiqul Islam was appointed as Tutor in English department, at Habraghat Mahavidyalaya, Krishnai on

15.07.2005, as per resolution No.9, dated 18.05.2005, by the Governing Body of the said college and he joined there on

20.07.2005, and since then he had worked there, till 25.03.2006, on lump sum payment. Thereafter, vide order dated 25.03.2006, he was appointed as part-time lecturer in English, in the said college, with the stipulation that his service should be regularized by the Governing Body in due course and he has been working as Lecturer and also as Invigilator w.e.f. 2006, till date and his present salary is Rs.5,200/- per month. His pleaded case is that on 05.07.2011, an advertisement was published by the Principal I/C, Habraghat Mahavidyalaya for filling up the post of Assistant Professor in English. Pursuant to the said advertisement, he had applied for the post and appeared in the interview held on 18.09.2011. As per performance sheet, prepared in the said interview, he secured 3rd position in the select list, dated 18.09.2011. Thereafter, the candidates who had secured WP(C) 7163/2023 1st and 2nd position, namely, Khandakar Shahin Ahmed and Nripen Nath got appointment in some other colleges. But, vide resolution dated 17.11.2011, the interview dated 18.09.2011, was cancelled by the Governing Body of the said college on the ground of fault of the Expert Body and the Governing Body and he has no role to play the same. The said resolution dated 17.11.2011, was communicated to the petitioner, vide letter, dated 17.05.2013. Thereafter, vide letter dated 04.12.2015, issued by the Director of Higher Education, Assam, the Principal of the Habraghat Mahavidyalaya was permitted to publish advertisement for the post of Assistant Professor in English, which is reserved for OBC/MOBC. But the said post was advertised on 05.07.2011, as unreserved and thereafter, on 10.01.2016, fresh advertisement was issued by the Principal of the said college making reservation for OBC/MOBC of the said post without finalizing the earlier selection process held on

18.09.2011. Then, the petitioner has challenged the advertisement dated 10.01.2016, in WP(C) No.437/2016 and vide interim order dated 01.02.2016, the interview process was suspended by this Court. Thereafter, in WP(C) No.5304/2021, this Court vide order dated 06.10.2021, had observed that the petitioner had accrued a legal right in view of the decision of Hon’ble Supreme Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors., reported in (2006) 4 SCC 1 and thereafter, this Court was pleased to direct the Higher Education Department, Assam, to consider the representation dated 16.01.2020, filed by the petitioner and to pass a reasoned order, within a period of 2(two) months. Thereafter, vide order dated 25.02.2022, the WP(C) No.437/2016, was disposed of in view of the order, dated WP(C) 7163/2023

06.10.2021, passed by this Court in WP(C) No.5304/2021, by holding that no separate order was required to be passed in view of the final order dated 06.10.2021, in the said writ petition. Thereafter, on 22.10.2021, the order dated 06.10.2021 passed in WP(C) No.5304/2021 and on 28.02.2022, the order dated 25.02.2022, passed in WP(C) No.437/2016, were communicated to the Director of Higher Education. But, the same failed to evoke any response in respect of regularization of his service. Thereafter, the petitioner had initiated one contempt case, being Cont.Cas(C) No.123/2022, and the same was closed vide order dated 26.07.2022, in view of the order dated 18.07.2022. Thereafter, the petitioner has challenged the speaking order dated

18.07.2022, in WP(C) No.5045/2022, and by interim order dated

05.08.2022, it was directed the respondent authorities not to fill up the post of Assistant Professor in English at Habraghat Mahavidyalaya. The petitioner has also submitted one memorandum to the Chief Minister, Assam, on 01.10.2022, but the same also failed to evoke any response and being aggrieved, the petitioner approached this Court by filing the present WP(C) No.7163/2023 challenging the order dated 05.10.2023, passed by the Secretary to the Govt. of Assam, Higher Education Department, pursuant to the order passed in WP(C) No.1785/2023, with a prayer to direct the respondent authorities particularly the respondent Nos.2 and 3 not to give effect of the impugned speaking order dated 05.10.2023 issued by the respondent No.2 and/or to direct the respondent authorities to pay minimum scale of pay to the petitioner in view of the decision of Hon’ble Supreme Court in the case of State of WP(C) 7163/2023 Punjab & Ors. v. Jagjit Singh & Ors., reported in (2017) 1 SCC 148 and in WP(C) No.5045/2022, the petitioner has challenged the order dated 18.07.2022 passed by the Director of Higher Education, Assam, Kahilipara, Guwahati, in view of the order passed by this Court on 06.10.2021, in WP(C) No.5304/2021. The petitioner has challenged resolution dated

02.08.2022, adopted by the Governing Body, Habraghat Mahavidyalaya, Krishnai not to allow the petitioner to continue in department of English, and also to direct the respondent authorities, particularly the respondent Nos.6 and 7 not to give effect of the same. But, vide order dated 31.03.2023, in WP(C) No.1785/2023, this Court has held that the impugned resolution No.8, dated 02.08.2022 adopted by the Governing Body, Habraghat Mahavidyalaya, shall be subject to the order passed in the writ petition or in appeal filed by the petitioner before the Commissioner & Secretary to the Govt. of Assam, Higher Education Department. It is also to be noted here that the petitioner had filed an appeal before the Secretary, Higher Education Department, Government of Assam for regularization of his service as lecturer in the English department of Habraghat Mahavidayalaya, Krishnai in view of the order dated 06.10.2021, passed in WP(C) No.5304/2021, and the order dated 25.02.2022 in WP(C) No.437/2016, passed by this Court. But, vide impugned order dated 05.10.2023 (Annexure-52) the said appeal was dismissed.

4. The respondent authorities have filed their affidavit-in-opposition. In the affidavit-in-opposition, filed by the respondent No.2, the Secretary WP(C) 7163/2023 to the Govt. of Assam, a stand has been taken that the Principal of Habraghat Mahavidyalaya, Krishnai, vide order dated 15.07.2005, appointed the petitioner as Lecturer in the department of English on contractual basis w.e.f. 20.07.2005, as per resolution of the Governing Body of the college dated 18.05.2005 and he was appointed against a non-existent post/without sanctioned post and as such, the Government has no role to play regarding the internal arrangement of the college authority. The college was a deficit college, receiving Government grant by the respective college authority, against the non-sanctioned post and without having any Government concurrence to the petitioner’s post, he was appointed. In Assam, colleges were provincialized by an Act, namely, the Assam College Employees (Provincialization) Act, 2005 and the Government of Assam has framed the Assam College Employees (Provincialization) Rules, 2010 to regulate the conditions of service of the provincialized colleges and neither the Act nor the Rules provides for any provision for regularization of service of Lecturer appointed by college authority on part-time basis/contractual basis against the non-sanctioned post and that selection and appointment of teaching and non-teaching staff in provincialized colleges are governed by Section 6 of the 2005 Act and Rule 4, 5 and 7 of the 2010 Rules and the concerned authority cannot give a go by to the statutory provisions mentioned above and when a statute requires a thing to be done in a particular manner, it has to be done in that manner only and not in any other way.

4.1. Another stand, taken by the respondent No.2, is that the Government of Assam, Higher Education Department has issued one Office Memorandum, vide No.B(2)H.97/2003/98, dated 17.07.2004, and adopted a policy to accommodate the teachers working against non- sanctioned posts, but the said O.M. was an onetime measure adopted by WP(C) 7163/2023 the Government to address the grievances of a specific group of Lecturers working in non-sanctioned posts in different deficit grants-in-aid colleges by way of adjustment and since the said O.M. dated 17.07.2004, was purpose-specific, therefore, once objective of the said O.M. dated

17.07.2004, was achieved, the Government vide another Office Memorandum No.B(2)H.97/2003/135, dated 12.10.2004, stipulated that no college under the deficit grants-in-aid system should engage any person as Lecturer where no sanctioned post exists and pursuant to O.M. dated 17.07.2004 after final verification, a list of 354 nos. of teachers appointed by different colleges against non-sanctioned posts, was prepared on 22.04.2010 and the name of the petitioner did not find mention in the said list and the said list was prepared and submitted to the Government as per direction issued by this Court vide order dated

14.05.2009 passed in WP(C) No.1103/2009 and WP(C) No.724/2009 and those persons whose names appeared in the said list, are only eligible for adjustment as per O.M. dated 17.07.2004 and the petitioner was not within the same category/specific group of Lecturers who were considered under the O.M. dated 17.07.2004 and as such, the said O.M. dated 17.07.2004 does not offer any scope of regularization/adjustment of service of the petitioner against valid sanctioned post and besides the petitioner does not have required eligibility norms to be appointed/regularized/adjusted as Lecturer (Assistant Professor) since the petitioner does not possess NET/SLET, which is mandatory for a teaching position and there can be no exemption, as claimed by the petitioner, for those with only M.Phil qualification obtained on or before 10.07.2009, and as per resolution adopted by the UGC in their 471st and 472nd meeting held on 12.08.2010 and 27.09.2020, respectively, that all candidates having M. Phil degree on or before 10.07.2009 shall remain WP(C) 7163/2023 exempted from the requirement of NET for being appointed as Lecturer/Assistant Professor has not been accepted by the Government of India in view of the letter dated 03.11.2010 issued by the Ministry of Human Resource Development.

4.2. And that the regularization of service of the petitioner will also not come within the condition laid down by the Hon’ble Supreme Court in the case of Umadevi (3)(supra), which was further clarified in the case of State of Karnataka & Ors. v. M.L. Kesari & Ors., reported in (2010) 9 SCC 247, in view of the fact that the petitioner was not appointed against any sanctioned post and the petitioner had not worked for 10 years as on 10.04.2006, i.e. the date of decision of Umadevi (3)(supra), and that the claim of the petitioner for minimum scale of pay will also not come within the conditions laid down by the Hon’ble Supreme Court in the case of Jagjit Singh (supra), and that the petitioner was not engaged by the Government as temporary employee, but appointed by the college authority, that too against a non- existent/non-sanctioned post, thereby violating the O.M. No.B(2) H.97/2003/135 dated 12.10.2004, which stipulates that no college under the deficit grants-in-aid system should engage any person as Lecturer where no sanctioned post exists and under such circumstances, it is contended to dismiss this petition.

5. The petitioner has filed his reply to the affidavit-in-opposition filed by the respondent No.2, where it has been stated that he was appointed vide order dated 15.07.2005, as per resolution No.9 of the Governing Body of the college and his service was extended on need based, for greater interest of the college, as well as of the department and his service may be regularized through the proper process, with due approval of the Governing Body and accordingly, he has been continuing his WP(C) 7163/2023 service w.e.f. 20.07.2005, till date, and the entire exercise was done by the Governing Body of the college as per Rule 18 and 19(iv) of the Assam Aided College Management Rules, 1976, Rule 18(iv) of the Assam Non- Government College Rules, 2001, Rule 4(3), 5(b)(ii) of the Assam Aided College Employees Rules, 1960 and Rule 3 and 5 of the Assam Aided Colleges (Under Deficit System) Employees Gratuity Rules, 1992 and as such, the petitioner is entitled to be regularized and/or entitled to the minimum scale of pay till regularization of his service as Lecturer in the department of English at Habraghat Mahavidyalaya, Krishnai.

5.1. It is further contended that the provision of Assam College Employees (Provincialization) Act, 2005 and the Assam College Employees (Provincialization) Rules, 2010 are not applicable in the case of the petitioner on the ground that the said Act and Rules were notified in the Assam Gazette on 23.12.2005, and 22.11.2010, respectively. But the petitioner was appointed on 15.07.2005, instead the Assam Aided College Management Rules, 1976, the Assam Non-Government College Management Rules, 2001, the Assam Aided College Employees Rules, 1960 and the Assam Aided Colleges (Under Deficit System) Employees Gratuity Rules, 1992 are applicable and he is entitled to be regularized and till regularization he is entitled to the benefit of minimum scale of pay in view of the decision of Hon’ble Supreme Court in Jagjit Singh (supra), and that equal pay for equal work is mandate under Article 14 and 16 of the Constitution of India as decided by the Hon’ble Supreme Court in catena of decisions and therefore, it is contended to allow these petitions considering the 20 years of continuous service rendered by the petitioner.

6. Mr. Mondal, learned counsel for the petitioner submits that the petitioner was appointed in the year 2005 as per Assam Aided College WP(C) 7163/2023 Management Rules, 1976 under Rule 18 and 19 and also under the Assam Aided College Employees Rules, 1960 under Rule 4(iii) and that the petitioner has rendered 20 years of continuous service and he is entitled to be regularized and till the regularization, he is entitled to receive minimum scale of pay in view of the decision of Hon’ble Supreme Court in the case of Jagjit Singh (supra), and that as contended by respondent authorities, Assam College Employees (Provincialization) Act, 2005 and the Assam College Employees (Provincialization) Rules, 2010 are not applicable in the case of the petitioner as the same were notified in the Assam Gazette on 23.12.2005 and 22.11.2010, whereas the petitioner was appointed on 15.07.2005 and he joined on 20.07.2005 and as such, the aforementioned Act and Rules are not applicable in case of the present petitioner. And under such circumstances, Mr. Mondal submits that the impugned order, dated

05.10.2023, and also the order dated 18.07.2022, are arbitrary and illegal, the same are required to be set aside and quashed.

6.1. In support of his submission, Mr. Mondal has referred the following decisions:- (i) (ii) State of Assam vs. Upen Das & Ors., reported in 2020 (5) GLT 605; Jaggo vs. Union of India & Ors. No.11086/2024]; and [SLP(C) (iii) State of Punjab & Ors. vs. Jagjit Singh & Ors., reported in (2017) 1 SCC 148.

7. Per contra, Mr. Gogoi, learned standing counsel for the Higher Education Department has vehemently opposed the petition. Mr. Gogoi submits that the petitioner was appointed as Tutor and that the Rules WP(C) 7163/2023 referred by Mr. Mondal, is not applicable in the present case and Section 4 of the Assam Aided College Management Rules, 1976 provides for method of recruitment and all temporary appointment of Lecturers and Professors have to be approved by the Director of Public Instruction (DPI) and that the Assam College Employees (Provincialization) Act, 2005 and the Assam College Employees (Provincialization) Rules, 2010 are applicable in the case of the petitioner and that he was appointed against non-sanctioned post and the O.M. dated 17.07.2004 is not applicable in the case of the petitioner, as the same was onetime exercise undertaken by the state respondents, in view of two decisions of this Court and that the decision referred by Mr. Mondal, in the case of Jaggo (supra) is not applicable and under such circumstances, Mr. Gogoi has contended to dismiss this petition.

7.1. In support of his submission, Mr. Gogoi has referred the following decisions:- (i) (ii) Abdul Wahid v. State of Assam & Ors., reported in 2018 (5) GLT 801; Mohan Nath v. State of Assam & Ors. [WP(C) No.7124/2017, decided on 20.06.2022]; (iii) Mizanor Rahman v. State of Assam & Ors., reported in 2012 (1) GLT 520 (Full Bench); (iv) Om Prakash Sah v. State of Assam & Ors. [WP(C) No.8035/2017, decided on 29.01.2024]; and (v) State of Madhya Pradesh v. R.D. Sharma & Anr., reported in (2022) 13 SCC 320. WP(C) 7163/2023

8. Having heard the submission of learned counsel for both the parties, I have carefully gone through this petition and the documents placed on record and also carefully gone through the decisions referred by learned Advocates of both the parties.

9. The basic facts herein this petition are not in dispute. The petitioner was initially appointed as Tutor in English department in Habraghat Mahavidyalaya, Krishnai as per resolution No.9, dated

18.05.2005, of the Governing Body of the said college and having been appointed on 15.07.2005, he joined on 20.07.2005 and he worked in said the capacity till 25.03.2006, on which he was appointed as part-time Lecturer by the Governing Body of the said college and also working till date on payment of lump sum amount Rs.5,200/- per month. He has also been working as invigilator w.e.f. 2006, till date.

10. It also appears that the petitioner had applied for the post of Lecturer in English which was advertised on 05.07.2011 by the Principal, Habraghat Mahavidyalaya and he also appeared in the interview board on

18.09.2011 and he was placed at 3rd position as per selection list, dated

18.09.2011. The two persons who had secured position Nos.1 and 2 in the selection process did not join, and as such he ought to have been considered for being appointed in the said post. But, the Governing Body of the said college, vide resolution dated 17.11.2011 has cancelled the interview held on 18.09.2011 and thereafter, vide letter dated

04.12.2015, the Principal of the said college was permitted to publish advertisement for the post of Assistant Professor (English) reserved for OBC/MOBC.

11. However, the said post was advertised on 05.07.2011, as unreserved and the advertisement dated 10.01.2016 published by the WP(C) 7163/2023 Principal was challenged in the WP(C) No.437/2016 and vide interim order dated 01.02.2016 the interview process was suspended and the said writ petition was disposed of vide order dated 25.02.2022, in view of the order passed on 06.10.2021 in WP(C) No.5304/2021.

12. It also appears that the petitioner has filed one appeal before the Director of Higher Education, Assam, but the same was dismissed vide order dated 18.07.2022, and the same is challenged in the WP(C) No.5045/2022, and vide order dated 05.08.2022, it was directed not to fill up the post of Assistant Professor in English of Habraghat Mahavidyalaya. The petitioner has filed several representations to the Education Minister and also to the Chief Minister, but the same failed to evoke any response.

13. A careful perusal of the speaking order dated 05.10.2023, which is being challenged in the WP(C) No.7163/2023, it appears that the prayer of the petitioner for regularization was rejected primarily on the ground that the Assam College Employees (Provincialization) Act, 2005 and the Assam College Employees (Provincialization) Rules, 2010, there is no provision for adjustment/regularization of the Lecturers, who were working against non-sanctioned posts and the college teachers in the provincialisation college shall be filled up by direct recruitment by following selection process and the Office Memorandum No.B(2)H.97/2003/98, dated 17.07.2004, adopted a policy accommodate the teachers working against non-sanctioned posts, and that the name of the petitioner did not figure in the final seniority list prepared by the respondent authorities and the said O.M. is an onetime measure to address the grievance of a specific group of lecturers.

14. Perusal of the speaking order dated 18.07.2022, same stand has been taken that the petitioner was appointed against non-existent/non- WP(C) 7163/2023 sanctioned post and that the O.M. dated 17.07.2004, is not applicable in case of the petitioner, as it was an onetime measure to address the grievance of a specific group of lecturers and another O.M. was issued, being O.M. No.B(2)H.97/2003/135, dated 12.10.2004, wherein it was stipulated that no college under the deficit grants-in-aid system should engage any person as lecturer where no sanctioned post exists and the Assam College Employees (Provincialisation) Act, 2005 and the Assam College Employees (Provincialisation) Rules, 2010 are governing the field and laying down the procedure to be followed while making appointment to the post of Assistant Professor and there is no scope for application of administrative guidelines and as such, the prayer of the petitioner was rejected.

15. Now, the question is whether the petitioner will be governed by the Assam College Employees (Provincialisation) Act, 2005 and the Assam College Employees (Provincialization) Rules, 2010 or by the Assam Aided College Management Rules, 1976 and the Assam Non-Government College Rules, 2001 and the Assam Aided College Employees Rules, 1960 and the Assam Aided Colleges (Under Deficit System) Employees Gratuity Rules, 1992.

16. Though the respondent authorities have taken a categorical stand that the petitioner is governed by the Assam College Employees (Provincialisation) Act, 2005 (Act of 2005, for short) and the Assam College Employees (Provincialisation) Rules, 2010 (Rules of 2010, for short), yet, it appears that the Act of 2005 was notified in the Assam Gazette on 23.12.2005, and the Rules of 2010 was notified in the official Gazette on 22.11.2010, and indisputably the petitioner was appointed on

15.07.2005, and he joined on 20.07.2005, and that being so, the Act of 2005 and the Rules of 2010 are not applicable in case of the present WP(C) 7163/2023 petitioner as there is no provision for retrospective effect of the aforementioned Act and the Rules. And that being so, the petitioner will be governed by the Assam Aided College Management Rules, 1976 and the Assam Non-Government College Rules, 2001 and the Assam Aided College Employees Rules, 1960 and the Assam Aided Colleges (Under Deficit System) Employees Gratuity Rules, 1992.

17. It is a fact that there is one O.M. issued by the respondent authorities dated 12.10.2004, being O.M. No.B(2)H.97/2003/135, wherein stipulation was made that no college under the deficit grants-in-aid system should engage any person as Lecturer where no sanctioned post exists, but while the Rules mentioned herein above are in force and being statutory Rules, the provision made therein cannot be supplemented by the Office Memorandum. If it is provided in the Rules, then the Office Memorandum, which is an executive order, cannot supplement the same.

18. I have also carefully gone through the decisions referred by learned Advocates of both the parties. In the case of Jagjit Singh (supra), the issue for consideration before the Hon’ble Supreme Court was:- “: whether temporarily engaged employees (daily- wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay scale, along with dearness allowance (as revised from time to time) on account of their performing the same duties which are discharged by those engaged on regular basis, against sanctioned posts? “………

19. Thereafter, considering some of its earlier decisions, Hon’ble Supreme Court has deduced the following principles :- WP(C) 7163/2023

42.1. The “onus of proof” of parity in the duties and responsibilities of the subject post with the reference post under the principle of “equal pay for equal work” lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference (see- Orissa Agriculture & Technology v. Manoj K. Mohanty, Chandigarh, 188, (2003) Admn. v. Manju Mathur, (2011) 2 SCC 452 : (2011) 1 SCC (L&S) 348], SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122 and National Aluminium Co. Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756). University U.T. SCC 5

42.2. The mere fact that the subject post occupied by the claimant is in a “different department” vis-(cid:224)-vis the reference post does not have any bearing on the determination of a claim under the principle of “equal pay for equal work”. Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to Government different (see Randhir Singh v. Union of India, (1982) 1 SCC 618 and D.S. Nakara v. Union of India, (1983) 1 SCC 3050). departments

42.3. The principle of “equal pay for equal work”, applies to cases of unequal scales of pay, based on no classification or irrational classification (see- Randhir Singh v. Union of India, (1982) 1 SCC 618). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - Federation of All India WP(C) 7163/2023 (1988) India,